Hernandez v. Martel

ORDER GRANTING IN PART PETITION FOR WRIT OF HABEAS CORPUS

RONALD S. W. LEW, District Judge.

This matter is before the Court on petitioner Francis Hernandez’s petition for writ of habeas corpus. The Court has read the parties’ briefs, together with supporting documentation. For the reasons and in the manner set forth below, the Court hereby GRANTS IN PART the petition for writ of habeas corpus based upon the ineffective assistance of counsel, jury misconduct and cumulative error.

I. Factual Background

An L.A. County jury convicted Francis Hernandez of two counts of first-degree murder, two counts of forcible rape and two counts of sodomy. The jury found

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true the special circumstance allegations that each murder occurred during the commission of rape and sodomy and that petitioner was convicted of more than one murder. At penalty, the prosecution presented no evidence in aggravation. The defense presented evidence that petitioner was young and drunk at the time of the crimes, that he came from a dysfunctional home, that he probably had borderline personality disorder, that he once helped a friend and that his life should be spared due to the love of his family and friends and his chance for religious salvation. Petitioner testified at the penalty phase, but only about the circumstances of the crime. The jury recommended death. The trial court condemned petitioner. Petitioner was eighteen at the time of the crimes.

II. Procedural History

On direct appeal, the California Supreme Court vacated the multiple-murder special circumstance but otherwise affirmed petitioner’s conviction and sentence.

People v. Hernandez,

47 Cal.3d 315 , 253 Cal.Rptr. 199 , 763 P.2d 1289 (1988).

Petitioner filed a petition for writ of habeas corpus in this Court on August 28, 1990. Two years later, petitioner filed his second state habeas petition in the California Supreme Court in order to exhaust claims contained in his federal petition. The state court denied the exhaustion petition several months later. Petitioner returned to federal court, filing an amended petition on March 18, 1993. Litigation concerning a motion to dismiss and a motion for summary judgment ensued for many years. The Court ultimately granted partial summary judgment to respondent. The Court then granted an evidentiary hearing on three issues of jury misconduct and two claims of ineffective assistance of counsel (“IAC”). The Court bifurcated the evidentiary hearing on IAC, directing the parties to address deficient performance and prejudice separately. For six years, the parties conducted a paper evidentiary hearing on juror misconduct and IAC.

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III. Discussion

A. Mental Health Evidence

Many of petitioner’s claims involve mental health evidence, including whether he had the requisite mens rea at the time of the crime and whether counsel failed to investigate and present mitigating evidence, among others. The mental health evidence falls into two categories: evidence gathered before petitioner’s capital trial and evidence gathered and presented as part of petitioner’s federal evidentiary hearing. Both are summarized here.

1. Mental health evidence known before trial

Prior to trial, seven experts had contact with petitioner. Trial counsel had access to the opinions of each of these experts.

Petitioner had been incarcerated in the California Youth Authority (“CYA”) following a conviction for second-degree burglary for breaking into a drug store. CYA clinical psychologist Audrey Prentiss evaluated petitioner in August of 1979, about 18 months before the murders took place. Dr. Prentiss found that petitioner functioned “within the high average range of intellectual ability.” (7 CDD

2

at P01214.) Dr. Prentiss concluded:

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[Petitioner] showed confidence in himself and in his abilities and has good social skills. He tends toward ingratiating behavior that is somewhat manipulative in quality. His behavior is characteristic of an antisocial personality in that he is aware of what he is doing, realizes that he is capable of doing it and goes about doing it with impunity. He perceives the environment in selfish terms without regard for the possible consequences that it may have on others. This attitude appeared to have been related to the fact that this ward has had to assume a lot of responsibility for himself at a young age and has learned to manipulate the environment for his own needs. Having had to assume this responsibility, he had difficulties in accepting the pressures that are part of it.... There were no indications of organicity nor of a neurological dysfunction. He is not suicidal or homicidal.

(Id.

at P01215-16.)

Deputy public defender John Torelli initially represented petitioner for his capital prosecution, though Torelli withdrew before trial due to a conflict. Torelli consulted three mental health experts: clinical psychologist Michael P. Maloney and psychiatrists Michael B. Coburn and Alvin E. Davis.

Torelli provided Dr. Maloney with the preliminary hearing transcript; the information, the autopsy, arrest and crime reports; and a five-page account of petitioner’s background, which focused mostly on petitioner’s adoptive parents and contained very little information about petitioner’s biological parents. (JTD

3

at P00814-23 (Exhs. 12-16).) Torelli asked Dr. Maloney to “conduct a full psychological evaluation, including all the standard testing that you would normally give to a prospective patient,” and sought Dr. Maloney’s opinion “as to any major psychological or minor psychological disorder, including, but not limited to, anything involving a defense, such as insanity, diminished capacity or mitigation in the penalty phase.” (JTD at P00814.) Dr. Maloney concluded that while petitioner did not appear psychotic, the “data do suggest some potentially serious psychological problems.”

(Id.

at P00829.) Dr. Maloney found that petitioner had a “highly pathological profile” and that he had significant elevations on scales measuring hypomania, schizophrenia, psychopathic deviate and paranoia.

(Id.)

People with similar profiles “are often described as having episodes during which they are seen a demanding, confused, hostile, hyperactive, panicky and circumstantial. They may additionally be restless, evasive and high strung.”

(Id.)

Petitioner’s profile suggested “a fair amount of hostility.”

(Id.)

Dr. Maloney explained that people with profiles similar to petitioner “show intense overreaction to normal rejection” and may exhibit a “tendency to be susceptible to sexual identity confusions.”

(Id.

(internal quotation marks omitted).) Dr. Maloney stated that “the most likely descriptive diagnosis is schizo-manic episode. This would suggest a state wherein there is some breakdown in the thinking processes combined with an elevated or manic-like state.”

(Id.

at P00830.) While the most technical diagnosis would be schizophrenia, Dr. Maloney stated that petitioner “shows no overt signs of schizophrenia, but he clearly does appear to have a variety of psychological problems.”

(Id.)

Dr. Maloney concluded as follows:

The present data suggest that we have an individual who functions in the normal range of general intelligence with no suggestion of any specific eogni

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tive-intellectual or perceptual deficit. He also does not manifest any of the primary signs of a major condition such as psychosis. Present data do, however, indicate that he has significant psychological problems and comes from a very unstable background with multiple noted difficulties relating to his parents as well as problems between his parents.

I was able to obtain from Mr. Hernandez a fairly specific account of the events occurring at the time of the present alleged offenses. As you know, at both of these times he was drinking heavily, but he is, nevertheless, able to recall a number of his activities and behaviors.

(Id.

at P00830.) Dr. Maloney testified at the penalty phase. He opined that he “had no data to suggest that [petitioner] would not be responsible for his behavior” at the time of the crime and that petitioner “was drinking at the time [of the crimes] but beyond that, he should have had the capacity to understand what he was doing.” (14 RT 3473);

see also

14 RT 2374 (“I have no information to indicate that he shouldn’t have been able to appreciate [what he was doing].... I have no data to indicate that he was psychotic or severely disturbed at [the time of the crime.]”)

Torelli also consulted Dr. Coburn. Torelli sent Dr. Coburn the same materials sent to Dr. Maloney, but also added Dr. Maloney’s report, the transcripts of petitioner’s confession and petitioner’s statement to his girlfriend. Torelli asked Dr. Coburn to evaluate whether petitioner was competent to stand trial, insane, capable of forming the specific intent to commit any crime, particularly rape, and whether petitioner suffered from any mental disease or defect or an emotional or psychological disorder that could provide mitigating evidence at the penalty phase. (JTD at P00831-32.) Dr. Coburn interviewed petitioner for a total of two hours. Dr. Co-burn concluded that petitioner was sane at the time of the offenses, that petitioner “would have been capable of forming all of the requisite intents involved in varying degrees of homicide” and that “there is no indication that he would have lacked the capacity to form any specific intent in regards to the sexual aspects of the case.”

(Id.

at P00841.) Dr. Coburn’s primary diagnosis of petitioner was “[s]imple intoxication due to alcohol at the time of the offenses.”

(Id.

at P00840.) Dr. Coburn also opined that petitioner suffered from “[v]ery severe mixed personality disorder with passive-aggressive and antisocial components” and that he experienced “[minimal environmental stress at the time of the offenses” along with “[m]oderate early childhood psychosocial stressors.”

(Id.

at P00840.) Dr. Coburn suggested that, using the data provided by Dr. Maloney, trial counsel could argue that petitioner “did not in fact intend to kill, but merely intended to ‘quiet’ the victims. Given his passive-aggressive or explosive and antisocial demeanor, one could technically argue that his need to quiet them was paramount, and that it was his intolerance of defiance which led to the acts.”

(Id.

at P00841.) Dr. Coburn added, however, that he “did not harbor an opinion with reasonable certainty that would allow [him] personally to testify in that” manner.

(Id.

at P00841.) Dr. Coburn did not testify at trial.

Finally, Dr. Davis evaluated petitioner. Torelli sent Dr. Davis the same materials sent to Dr. Coburn. Torelli asked Dr. Davis to evaluate whether petitioner was competent to stand trial, insane, whether the defense of diminished capacity could succeed and whether petitioner suffered from any mental disease or difficulty that could provide mitigating evidence at the penalty phase.

(Id.

at P00844-46.) Dr. Davis diagnosed petitioner with passive-aggressive personality disorder, which involves “anti-social and aggressive acting out,” including drug and alcohol abuse.

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(Id.

at P00547.) Dr. Davis concluded that petitioner was sane at the time of the offenses and “had the mental capacity to form specific intent, premeditate, and harbor malice,” though “his capacity to deliberate or to maturely reflect was impaired by intoxication.”

(Id.

at P00547.) Dr. Davis noted that it was plausible that petitioner did not intend to kill the victims, but that his confession showed a lack of overt emotion, consistent with antisocial personality disorder.

(Id.

at P00548.) Dr. Davis did not testify at trial.

At some point after obtaining these expert opinions, Torelli withdrew. Charles Downing took over petitioner’s representation. Downing

4

represented petitioner for many months preceding trial through sentencing. Downing’s representation is the subject of petitioner’s IAC claims. Torelli transmitted his file, which included correspondence with Drs. Maloney, Coburn and Davis, as well as each expert’s report, to Downing. Downing consulted three additional experts: clinical and forensic psychologist Faye Girsh, gastroenterologist Amer Rayyes and forensic pathologist S.M. Rabson.

Downing provided Dr. Girsh with the reports of Drs. Maloney, Coburn and Davis, as well as Torelli’s correspondence with each expert. Downing informed Dr. Girsh that he was going to pursue an insanity defense because “Hernandez is either insane or he will be gassed.” (5 CDD P00521.) Trial counsel explained his theory of the case to Dr. Girsh:

I have what I am sure is a hopelessly simplistic view. I think that Francis was one way or another killing his mother. I also am convinced that he is an individual who is crazy that somehow or another keeps his insanity in check so long as he is sober but, with the ingestion of alcohol, whatever it is that permits him to appear sane vanishes and his personality reverts to that which is normal for him, namely nuts. I guess in my simplistic view this is sort of the converse of diminished capacity. In that condition one who is normally sane ingests alcohol or whatever and does something crazy with the loss of inhibitions or whatever. I should note that these offenses were committed at a time when diminished capacity was available as a defense.

(Id.

at P00524.)

Dr. Girsh did not provide trial counsel with a written report, but the record contains trial counsel’s notes from a conversation he had with Dr. Girsh before trial. The notes include Dr. Girsh’s assessment of petitioner:

Personality [illegible] a real puzzle: Francis is an apparent anti-social personality disorder type = sociopath. Of 15 criteria, he meets 12. Can’t diagnosis as such due to age. Why age makes a difference? Because, until age 24 or so, personality malleable, can change. Maturation is best therapy for sociopathic personality. He is, presently, classified as a juvenile with such tendencies. Characteristics of syndrome is that he doesn’t care about anything: kills just for hell of it, tortures to cause pain, etc. Also, explosive, intermittent violent conduct; that’s him. [Illegible] drives through plate glass window in van for burglary. That is sociopathic stuff, not what I want. Get Book: “Clockwork

Orange” — a profile of a true sociopath.

(Id.

at P00518.) While counsel worried that the jury’s rejection of a diminished capacity defense at the guilt phase would harm the penalty phase, Dr. Girsh disagreed.

(Id.

at P00517.) Counsel questioned whether he could use Dr. Girsh to suggest that petitioner killed the victims

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by accident but without putting on a full-blown diminished capacity defense. That strategy would force the prosecution to ask questions about specific intent on cross examination, ultimately supporting a diminished capacity jury instruction.

Dr. Girsh testified at the penalty phase. She opined that petitioner was “essentially out of control” when he committed both crimes. (14 RT 3583.) “[Apparently at the time that [petitioner] suffocated or strangled the women, he had lost control. He was in some kind of a fit of rage or panic or something that was different from his usual state.”

(Id.

at 3584.) Petitioner’s behavior was associated with substance abuse disorders and borderline personality disorder.

(Id.)

A person with borderline personality has periods of self-destructive behavior because the individual is not sure of his identity.

(Id.

at 3585.) Dr. Girsh hesitated to diagnose petitioner with borderline personality disorder, as the diagnosis can only be made once a person is 18.

(Id.)

Because petitioner was “just 18” at the time of the murders, “the diagnosis really would not have applied.”

(Id.)

On cross-examination, Dr. Girsh testified that self-destructive behavior also was a symptom of antisocial personality disorder. (Id. at 3599.)

Dr. Rayyes, a gastroenterologist specializing in alcoholism and drug addiction, testified at the penalty phase. Counsel and his wife both had suffered from alcoholism. Before trial, Dr. Rayyes had conducted an intervention with counsel’s wife, and, later, with counsel. Dr. Rayyes diagnosed petitioner with alcoholism. Dr. Rayyes testified that petitioner would have been “severely impaired” at the time of the crimes and, accordingly, that petitioner would have been unable to form the specific intent to kill. (12 RT 3069-70.) On cross examination, Dr. Rayyes initially repeated his belief that an alcoholic who has been drinking cannot form a specific intent to kill. (13 RT 3082.) When pressed, however, Dr. Rayyes testified that it is “possible” for an inebriated alcoholic to form the specific intent to steal or to kill, and that an intoxicated alcoholic can form the specific intent to commit rape or sodomy. (12 RT 3083, 3084, 3085.)

Downing also consulted Dr. Rabson, a forensic pathologist. Trial counsel sent Dr. Rabson the autopsy photographs and reports, a transcript of the coroner’s testimony from the preliminary hearing and petitioner’s statement to the police. Trial counsel asked Dr. Rabson to look for any evidence that either of the victims was moved after death, if sexual intercourse could have been consensual, if the bite marks on the breasts of the victims could have occurred during intercourse or if they were post-mortem, if the vaginal and anal injuries could have occurred postmortem and if Dr. Rabson would come to any different conclusions from the coroner. (5 CDD at P00530.) A document in trial counsel’s file memorializes counsel’s discussion with Dr. Rabson. Trial counsel noted that “Dr. Rabson tends to

be

somewhat judgmental, probably due to his [J]ewish upbringing, and has formed the opinion that Hernandez is an obvious, clear sociopath and ought to spend the rest of his life behind bars.

(Id.

at P00532.) Dr. Rabson concluded that the condition of the victims’ bodies was consistent with asphyxiation or strangulation, that Bristol may have been moved after she died, that the intercourse in both cases likely was not consensual and that the bite marks and the various vaginal and anal injuries were inflicted pre-mortem.

(Id.)

Dr. Rabson opined that the coroner conducted the autopsies in a professional and competent manner, other than her failure to investigate Ryan’s abnormally large heart, which did not contribute to the victim’s death.

(Id.)

Dr. Rabson did not testify at trial.

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2. Mental health evidence presented in evidentiary hearing

As part of the evidentiary hearing, petitioner presented the testimony of psychologist June Madsen Clausen, psychiatrist Dorothy Otnow Lewis, criminologist Sheila Balkan, clinical psychologist Charles Sanislow and neuropsychologist Ruben Gur. Respondent presented the testimony of just one expert: clinical psychologist Daniel Martell.

a. Psychologist June Madsen Clausen

Dr. Clausen is a psychology professor at the University of San Francisco, where she teaches advanced courses in clinical child psychology, counseling psychology, abnormal psychology and child maltreatment. She conducts research on children, adolescents and young adults who have been placed in the child welfare system due to abuse or neglect and provides outpatient psychotherapy to trauma survivors. (Clausen Decl. at 1, ¶2.) Petitioner asked Dr. Clausen to take his social history and to evaluate the effect his background had on both his psychological development and his functioning as an adult, including at the time of the crimes.

(Id.

at 2, ¶ 4.) Dr. Clausen reviewed witness declarations, educational reports, probation and Youth Authority reports, court records, psychological reports and other materials. She interviewed petitioner five times for a total often hours. She also interviewed petitioner’s adoptive mother.

(Id.)

Dr. Clausen provided a detailed social history of petitioner:

Francis Hernandez is an adopted child.... Francis was a child born into unfavorable circumstances. He is the product of a brief, tumultuous union between a depressed, troubled fourteen-year-old girl and a disturbed, drug-addicted eighteen-year-old boy. Both of Francis’s [biological] parents reportedly have family histories of mental illness. During Francis’s in útero development, his mother consumed marijuana and alcohol, and his father was episodically violent toward his mother. These circumstances often contribute to neurological and psychological vulnerabilities of the kinds that later complicated Francis’s development. He was a child born with special needs.

Francis’s mother gave him up for adoption at birth, and soon after he was placed in the home of an adoptive mother and father[,] both of whom were struggling with severe psychiatric and psychological problems. Both Francis’s parents were raised and formed their ideas of family life in violent homes bereft of warmth, caring, nurturing, and attention to the developmental needs of others. In addition, Francis’s [adoptive] mother also suffered from schizophrenia and was episodically psychotic throughout Francis’s childhood. She attempted suicide more than once, spent months-long periods in psychiatric hospitals, and returned home so heavily medicated that she was unable to attend to her own daily living requirements, let alone Francis’s. She also failed to adhere to the prescribed regimen of psychotropic medication and she became psychotic, at times violently.

Francis’s father was a paranoid man prone to sudden, violent, and angry outbursts, who never learned to recognize the emotional needs or the distress of others. He was by all accounts, either unable or unwilling to recognize the gravity of living with a psychiatrically ill spouse and a troubled young child. During Francis’s childhood, his father regularly left [Francis] home alone with his mother, often for week-long periods.

(Id.

at 2-3, ¶¶ 6-8.) Petitioner’s birth mother, Patricia (“Pat”) Ramos (formerly Urbano, originally Myers), has a family

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history of depression, bipolar disorder and chemical dependency, all heritable conditions.

(Id.

at 4, ¶ 12.) Pat takes Paxil, an antidepressant, and has taken Elavil, another antidepressant. She suffers from anxiety and panic attacks, as well insomnia, for which she takes tranquilizers nightly.

(Id.

at 7 ¶ 20.)

In addition, petitioner’s biological father and his family also exhibited signs and symptoms of mental illness. Dr. Clausen provided the following information:

Francis’[s] biological father Anthony (Tony) Marquez, was the last of eleven children born to Paulino and Loretta Marquez, immigrants from Mexico. Anecdotal evidence gathered from surviving family members suggests that, of Francis’s paternal grandparents, both exhibited behaviors consistent with those of individuals with affective disorders.

Family members report that at least twenty-three of [petitioner’s biological paternal] cousins have had drug problems. Two have been diagnosed with schizophrenia, one with depression, and one was so extremely hyperactive as a child that he chewed on his hand, nearly capsized a refrigerator onto himself, and had to run circles around a building before he could enter and visit family members inside — behavior, not incidentally, that bears striking clinical resemblance to that of Francis Hernandez as a child.

Like many members of his family, Francis’s biological father, Tony Marquez, has struggled with drugs and mental illness throughout his life. Tony is a sixty-year-old man whose limited intellectual functioning and obvious psychiatric impairments keep even a minimal level of self-sufficiency beyond his reach. He has spent most of his life incarcerated. According to Social Security!,] his only reported income was $74.20 in 1963 and $74.93 in 1967. Tony Marquez is a man whose impairments have made it impossible for him to function independently within the law and without the use of drugs.

(Id.

at 9, ¶ 24; 13-14, ¶40; 14-15, ¶41.) Tony’s prison records describe psychological symptoms that are consistent with clinical depression, mania, substance dependence, and florid psychosis.

(Id.

at 18, 51.) Prison staff described his condition as “acute psychosis” and as a “disassociation from reality.”

(Id.

at 19, 55 (internal quotation marks omitted).) Tony’s condition was sufficiently alarming to prison staff that he was transferred to the prison psychiatric ward after tearing up his sheets.

(Id.

at 19, ¶¶ 55 (internal quotation marks omitted).) Tony’s psychosis continued:

[H]aving apparently failed to respond to the treatment offered by San Quentin, Tony was transferred to the California Medical Facility (CMF) in Vacaville, California, a hospital for acutely ill inmates of the California prison system. Within a few days of his arrival at CMF, he was written up for tearing up his bedding. The disciplinary report for the incident notes that he did so “to decorate his house.”

While he was being treated at CMF, Tony was administered Prolixin and Thorazine — two powerful antipsychotic medications. The doctors at CMF discussed the use of electro-convulsive therapy on Tony. This consideration suggests that his psychosis was severe and that it failed to remit under his prescribed medication.

(Id.

at 20-21, ¶¶ 58-59.)

Dr. Clausen also provided information about petitioner’s adopted mother:

Naomi Schilling (now Kuhl)[,] Francis Hernandez’s adoptive mother, also inherited a predisposition to mental illness. Naomi’s parents, a prodromally schizophrenic mother and a depressed,

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alcoholic father, created a household characterized by extreme isolation, frequent violence and delusional religious fanaticism — the same poisonous atmosphere in which Francis would later be immersed.

One of Naomi’s lifelong challenges manifested itself as a cognitive deficit. Even when she was a very young girl, Naomi’s family considered her “different.” During her childhood, she was uncommunicative, shy and visibly “unhappy all the time.” Naomi recalls being socially isolated and exceptionally shy, attempting to pass the days in school with as few words as possible.... Naomi suffered from extreme social impairments and members of her family apparently worried that she might be retarded, and her mother openly stated that she thought Naomi was slow....

Naomi’s longstanding severe mental illness went undiagnosed until she was thirty years old when the doctors overseeing her months-long inpatient hospitalization in an Orange County psychiatric institution verified that she was suffering from schizophrenia. Since that time[,] she has been psychiatrically hospitalized no fewer than ten times. Over the course of these hospitalizations, medical and mental health professionals have documented many details of Naomi’s life. These documents show that Naomi internalized and replicated the psychopathologies with which she grew up, in particular her family’s violence, its obsession with sex, and its unwavering religious fanaticism.

{Id.

at 21, ¶ 61; 28-29, ¶¶ 77-78 (citations omitted).) Additionally, Dr. Clausen gathered information about petitioner’s adoptive father.

Frank Hernandez, Francis Hernandez’s adoptive father, also came from a severely troubled family governed by the complicated interaction of a number of developmentally harmful psychopathologies. Among these were: the unwavering refusal to acknowledge and address grave familial problems; a complete failure to discuss and contextualize the issue of racism while residing in a community known for its remarkable racial prejudice; a mutually destructive and hostile relationship between the family’s parents; the noteworthy anger that underlay much of the family’s disproportionate reactions to one another and to the outside world; verbal and physical abuse; and the father’s emotional abandonment of his children.

{Id.

at 31, ¶ 81.)

Naomi and Frank married on January 4, 1958.

(Id.

at 42, ¶ 108.) Petitioner was born on March 10, 1962.

(Id.

at 44, ¶ 113.) He was placed with Naomi and Frank on May 17, 1962.

(Id.)

Petitioner was a hyperactive baby and small child.

(Id.

at 44, ¶ 113-14.) He had incredible energy.

(Id.

at 46, ¶ 117.)

More than thirty years after petitioner left his preschool, petitioner’s former teacher described petitioner’s family as “troubled to an unforgettable degree.”

(Id.

at 50, ¶ 130 (internal quotation marks omitted).) Petitioner’s preschool teacher stated that petitioner was “overwhelmed by stimuli and by interactions with other children; extremely labile; unable to sit still, finish projects or move from one activity to another; unable to interpret the social cues of other children; socially isolated; unable to read and respond to other children in a way that allowed friendship to happen; prone to seeing the most benign gesture as a threat; and subject to extreme tantrums that were beyond those of a normal child and in which he entered his own world.”

(Id.

at 51, ¶ 131 (internal quotation marks omitted).) When petitioner was four and a half, his preschool teacher suggested that petitioner’s parents seek the help of a psychologist or psychia

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trist.

(Id.

at 51, ¶ 131.) Petitioner’s father refused.

(Id.)

Naomi and Frank attempted to adopt another child in April 1966.

(Id.

at 53, ¶ 137.) The adoption agency notes reflect the problems petitioner’s family faced:

The interviews revealed that Naomi had been candidly uncomfortable about the fact that Francis was an adopted child, that she was incapable of giving directions to her home, barely able to convey simple thoughts, and dependent on Frank to the extent that the adoption worker wondered what this young woman would do, or how she would respond in an emergency situation when her husband was not around.... The case worker wondered if there might be some neurological basis for Francis’s uncontrolled activity.... After an initial round of interviews, the adoption agency felt obliged to explore Naomi’s mental health. Later, during a home visit, Naomi was unable to control Francis and ended up crying and needing the consolation of the case worker.

(Id.

at 54, ¶ 139 (internal quotation marks omitted).) The case worker also described the family as living in social isolation.

(Id.

at 54, ¶ 140.) Naomi and Frank named petitioner's preschool teacher as a reference despite her earlier criticism of their parenting; she did not recommend them as suitable for adopting another child.

(Id.

at 54-55, ¶ 141.) The adoption agency referred the family for counseling.

(Id.

at 55, ¶ 142.)

The counselor found petitioner to have a short attention span, excessive energy, a mind that was too active and an inability to differentiate between fantasy and reality. The psychologist recommended that petitioner undergo neurological testing, that Frank and Naomi receive marital counseling and that Naomi receive psychological help.

(Id.

at 56, ¶ 143.) Naomi, Frank and petitioner attended monthly counseling sessions for a while but did not complete the recommended six months.

(Id.

at 57, ¶ 145.) Ultimately, the adoption agency denied Naomi and Frank’s application to adopt another child and closed the case.

(Id.

at 58, ¶ 149.)

One month after the denial of the application to adopt a second child, Naomi attempted suicide for the first time. She was hospitalized for several months and diagnosed with schizophrenia during that time. She was treated with Mellaril, which prevented her from functioning normally.

(Id.

at 54, ¶¶ 150-52.) Her family described her as a zombie who was flat in affect, moved in slow motion, dragged her feet and was like a walking dead person.

(Id.

at 60, ¶ 154.) She was suicidal upon her release from the hospital and fantasized about hanging herself. She attempted to overdose on sleeping pills.

(Id.

at 58, ¶ 155.)

Naomi disciplined petitioner in unconventional ways. When petitioner acted up, Naomi sat on him until he calmed down. Naomi also forcibly administered enemas to petitioner as punishment. The purpose of the enemas was to keep petitioner clean and to calm him down when he was hyper.

(Id.

at 57, ¶ 146.) Frank disciplined petitioner by hitting him with a belt; Frank also gave petitioner boxing lessons when he was a school-aged child.

(Id.

at 58, ¶ 147.)

Naomi continued to struggle with her mental health, especially when she stopped taking her medication. In one incident, Frank dropped Naomi off at her sister Barbara’s house. Barbara and her husband described Naomi’s behavior that night as “bizarre, terrifying, shocking, crazy as a person could be, psychotic, a nightmare, something from a scary movie, sad, frightening, [] horrible, a horror, gruesome and the kind of thing that any normal parent would protect his son from

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seeing.”

(Id.

at 65, ¶ 166.) After that night, Barbara would not allow her children to be alone with Naomi and they worried about what impact Naomi’s behavior would have on petitioner.

(Id.

at 66, ¶¶ 167-70.) Frank did not appear to protect petitioner from Naomi during these episodes.

(Id.

at 67, ¶¶ 171-72.)

In another incident, Naomi threatened Frank’s mother with a knife. Naomi demanded that her mother-in-law kneel and pray. When her mother-in-law fled, Naomi chased her mother-in-law outside with the knife.

(Id.

at 67, ¶ 173.)

By age ten, petitioner withdrew from home life and came home after dark.

(Id.

at 71, ¶ 185; 74 ¶ 190.) Petitioner’s friends describe his home as depressing, unhappy, awful, messy, dark and full of junk.

(Id.

at 71-73, ¶¶ 185-88.)

Petitioner did not fit in with other children. He was isolated, frequently depressed and socially awkward.

(Id.

at 74-78, ¶¶ 191-2.) By thirteen, he was drinking beer daily and smoking marijuana many times a day.

(Id.

at 78, ¶ 202.)

When petitioner was eleven, he broke into his school.

(Id.

at 79, ¶203.) At thirteen, he was caught with a marijuana pipe. He was declared a ward of the court at fourteen.

(Id.

at 79, ¶ 204.) Later that same year, Naomi suffered another psychotic episode.

(Id.

at 80, ¶ 206.) She was hospitalized for several months, during which she had sexual encounters with two male patients and said mass in the patient lounge.

(Id.

at 81, ¶ 206.) She started smoking and believed the devil was entering her body through cigarette smoke.

(Id.

at 79, ¶ 204.)

Close in time to Naomi’s psychotic break, petitioner was suspended from school for fighting. Weeks later, petitioner arrived at school under the influence of marijuana and was suspended again. A month later, petitioner crashed his motorcycle that he had been driving daily, with his father’s permission, even though he was only fifteen and without a license.

(Id.

at 81, ¶ 207.) Naomi came home for several weeks after her hospitalization but ultimately left to live with her schizophrenic mother in Atascadero. Petitioner was fifteen. Naomi divorced Frank and never lived with him or Francis again.

(Id.

at 82, ¶ 208.)

With Naomi gone and Frank largely absent or uninvolved, petitioner’s home became a hangout for drug dealers and users.

(Id.

at 82, ¶209.) People bought and sold drugs, including cocaine and marijuana. Petitioner had access to and was using PCP, cocaine, amphetamine, LSD, marijuana, hash, mushrooms, heroin and an array of pharmaceutical drugs. The house became even filthier and had broken windows that went unfixed. Frank did nothing to stop the things going on in his home; he blamed the neighbors’ complaints on racism.

(Id.

at 82-83, ¶ 209-11.)

At age fifteen, petitioner began attending high school. Two months later, he crashed his motorcycle, resulting in x-rays of his ankle, tibia and fibula. He was sent to an alternative learning center.

(Id.

at 84, ¶ 212.)

At sixteen, petitioner was arrested with two friends for malicious mischief. His friends were bailed out quickly, but it took several days for Frank to learn that petitioner was in jail.

(Id.

at 84, ¶ 213.)

At seventeen, petitioner crashed his motorcycle again. He lost consciousness, suffered involuntary convulsions and was taken to the hospital by ambulance. He had x-rays of his skull, face, chest and arm.

(Id.

at 85, ¶ 215.)

A month later, petitioner was arrested for breaking into a drug store. He was held in custody and sent to the California Youth Authority (“CYA”). While petitioner was incarcerated, Frank moved in with

*1048

his girlfriend and sold his house. He bought petitioner a van to live in after his release.

(Id.

at 85, ¶¶ 215-16.) Petitioner was released in April 1980.

(Id.

at 86, ¶ 217.) He received his driver’s license the same day.

(Id.

at 87, ¶ 218.) In May 1980, he was cited for possession of marijuana and driving with an open container of alcohol.

(Id.

at 87, ¶ 218.) In July 1980, he received another traffic citation.

(Id.

at 87, ¶ 218.)

Between April 1980 and February 1981, petitioner dated Heidi Williams. Heidi told petitioner she was pregnant with petitioner’s baby. Petitioner proposed to Heidi, and she accepted. Heidi told petitioner she miscarried.

(Id.

at 87, ¶ 219.) In December 1980, the police told petitioner that he could no longer keep his dog, Prince, in his van.

(Id.

at 87, ¶ 221.) Later that month, petitioner was pulled over for a traffic citation. There was a warrant for petitioner in connection with change stolen out of a parked car. The police impounded petitioner’s car, which was his home. It contained his clothing and possessions, as well as a large amount of marijuana that belonged to a drug dealer.

(Id.

at 88, ¶ 223.)

In mid-January 1981, Heidi broke up with petitioner. On January 20, 1981, the DMV revoked petitioner’s license. In late January or early February 1981, petitioner ran his van into an apartment building. Around the same time, Edna Bristol and Kathy Ryan were murdered.

(Id.

at 89, ¶¶ 225-26.)

From April 1980 until his arrest for the underlying crimes in 1981,

[Petitioner] was an eighteen-year-old, unemployed, parolee who was homeless, isolated from his family, drug addicted and living in a van. Other than an uncertain relationship with a girlfriend and the continued association with a homeless, drug abusing friend, Francis had little social support or contact. He no longer shared a home with either of his parents. He was not in school. He was not incarcerated. He was not in any of the various forms of treatment that teachers, social workers, and mental health professionals had been urging for him since he was a toddler.... Francis was a young man with insufficient social and psychological resources attempting to grapple with unmanageable stressors.

(Id.

at 86, ¶ 217.)

In addition to creating petitioner’s social history, Dr. Clausen also provided a psychological analysis. Dr. Clausen pointed to literature demonstrating that children raised by a schizophrenic parent tend to suffer from cognitive, behavioral, emotional and social difficulties.

(Id.

at 93-94, ¶ 235.) In addition, the key task during the first eighteen months of life is to form an attachment to the primary caretaker, but that process cannot take place with a psychotic primary caretaker.

(Id.

at 94, ¶ 236.) The failure to form a healthy primary attachment results in a consequent failure to develop basic trust.

(Id.)

Naomi failed to form an attachment bond to petitioner.

(Id.

at 95-96, ¶¶ 237-40.)

From ages two to six, children should develop a sense of autonomy and initiative. Again, Naomi’s psychosis prevented petitioner from developing appropriately, leaving petitioner anxious, depressed, exposed to physical danger, prone to uncontrolled behavior and resorting to self-reliance and pseudo-maturity.

(Id.

at 96-100, ¶¶ 241-46.) Naomi and Frank’s inability to cope with petitioner’s normal attempts to develop independence and initiative-taking resulted in rage, beatings with a belt, yelling and the forcible administration of enemas.

(Id.

at 100-01, ¶¶ 247-48.) Naomi engaged in inappropriate play with petitioner, such as by tying him up with rope. She allowed petitioner to take dangerous

*1049

items to school for play, including screwdrivers, other tools, wood, rope and toy guys.

(Id.

at 101, ¶¶249.) Dr. Clausen described petitioner as “a young child without a healthy self-concept who was not equipped with basic skills in social comprehension and interpersonal communication, and who did not understand the expectations and consequences in his environment.”

(Id.

at 103, ¶¶ 251.)

From ages six to twelve, a child’s primary task is to develop a sense of industry.

(Id.

at 103, ¶252.) For petitioner, these years were filled with tension, chaos, violence, the deterioration of a psychotic mother and an often-absent father.

(Id.

at 104-07, ¶¶ 254-61.) To make up for his parents’ shortcomings, petitioner was charged with great responsibility, including learning how to turn off the power in case of an emergency at age five and learning how to drive a car at age 10.

(Id.

at 107, ¶ 262.) Petitioner developed symptoms of anxiety and depression.

(Id.

at 109, ¶ 264.) Petitioner started staying away from home as much as possible.

(Id.

at 109, ¶ 265.) During his elementary and pre-teen years, he had a great deal of freedom, no supervision, no chores and no family dinners or obligations.

(Id.

at 109, ¶ 266.) Petitioner began to self-medicate by using marijuana and alcohol on a regular basis in the summer after fifth grade and by getting drunk and high every day by seventh grade.

(Id.)

From ages twelve to eighteen, a child’s primary task is to develop a sense of personal identity.

(Id.

at 110, ¶267.) Petitioner used drugs regularly as an adolescent, with his parents’ knowledge; they did nothing about it and Naomi recalls that she may have smoked marijuana with her son.

(Id.

at 110, ¶ 268.) Naomi continued to suffer from schizophrenia and engaged in sexually inappropriate behavior, such as by having a man she met while hospitalized come to her home to have sex.

(Id.

at 112, ¶ 273.) Petitioner started acting out. He fought and used drugs at school and was arrested for burglary.

(Id.

at 113, ¶ 274.) Petitioner’s mother left the family without saying goodbye.

(Id.

at 113, ¶ 275.) With petitioner’s mother gone and his father rarely home, petitioner started using drugs and alcohol more regularly.

(Id.

at 113, ¶ 276.) The house petitioner and Frank lived in was filthy and in shambles.

(Id.

at 113-14, ¶ 277.) Petitioner was arrested for breaking into a drug store and then spent ten months in the CYA.

(Id.

at 114, ¶ 278.) Less than a year after his release, petitioner was arrested for the underlying crimes.

(Id.)

Petitioner also struggled to distinguish reality from fantasy:

The evidence suggests that Francis’s genetic predisposition for impaired reality testing together with his chronic exposure to his adoptive mother’s psychotic thoughts and chaotic, disorganized behavior, and with his father’s paranoid thinking and minimization of his wife’s symptoms, resulted in a marked inability to accurately perceive his social environment. Francis grew up to be an adolescent who was confused by the signals he received from people around him and, when confused, experienced distortions of reality and, at times, became paranoid.

(Id.

at 117-18, ¶ 283.) In addition, petitioner dissociated as a way of coping with the world around him. Francis had a genetic predisposition to dissociative disorder, dissociated at various times during his childhood and experienced incredible stress in the weeks leading up to the crimes.

(Id.

at 118-19, ¶¶ 284-86; 121, ¶291.) Petitioner knows about many of the circumstances of the crime, but he cannot actually remember many of them.

(Id.

at. 119-21, ¶¶ 287-89.) Petitioner’s confession, despite the level of detail, con

*1050

tains evidence that petitioner dissociated during the crimes.

(Id.

at 122, ¶ 292; 123 ¶ 295.) The taped statement also suggests that petitioner’s thought processes were psychotic during the crimes.

(Id.

at 122, ¶ 294) Petitioner’s testimony at the penalty phase provides further evidence of dissociation.

(Id.

at 123-24, ¶ 296.)

b. Psychiatrist Dorothy Otnow Lewis

Dr. Lewis is a professor of psychiatry at New York University School of Medicine and a clinical professor at the Yale University Child Study Center. (Lewis 8/15/03 Decl. at 1, ¶ 2.) Dr. Lewis evaluated petitioner’s neuropsychiatric, medical and family background. She also considered how those factors may have affected petitioner’s conduct on the night of the crimes, including his capacity to form the specific intent to commit rape and murder.

(Id.

at 1, ¶ 1.)

Dr. Lewis interviewed petitioner for three days in 1990 and two days in 2003. She interviewed petitioner’s adoptive mother, Naomi; adoptive father, Frank; biological mother and father; adoptive paternal aunt; and adoptive paternal uncle. She also reviewed the declarations of petitioner’s adoptive and biological relatives, as well as others.

(Id.

at 2, ¶ 3.)

Dr. Lewis provided a detailed social history of petitioner, emphasizing the “biopsychosocial factors” that affected petitioner’s mental state at the time of the crimes. She explained her approach as follows:

It is impossible to understand Francis Hernandez’s psychiatric condition throughout childhood and during adolescence, the development period at which time the offenses were committed, without a clear understanding of the interactions among his genetic vulnerabilities to severe mental illness which he inherited from his biological mother and father the effects of in útero exposure to alcohol and drugs, repeated head injuries beginning in early childhood, and an upbringing in a psychotic, physically ana sexually abusive, and severely neglectful adoptive family.

(Id.

at 4, ¶ 8.) Dr. Lewis considered the mental health of petitioner’s biological relatives, which included major depression and bipolar mood disorders.

(Id.

at 6-12, ¶¶ 11-30.) “[0]ne can trace psychiatric illness of psychotic proportions through three generations of Francis Hernandez’s paternal biological relatives as well as three generations of his maternal biological relatives.”

(Id.

at 12, ¶ 30.)

Dr. Lewis also reviewed the psychiatric history of petitioner’s adoptive family. Naomi was raised by a “psychotic,” “violent, [ ] strict disciplinarian” who “harbored religious delusions (e.g. being raped and having her vagina probed by the Devil).”

(Id.

at 13, ¶ 33.) Ultimately, Naomi’s mother was diagnosed with chronic schizophrenia, paranoid type.

(Id.

at 14, ¶ 34.) Dr. Lewis concluded that “Naomi’s childhood experience of being raised by a violent, delusional mother undoubtedly influenced the psychotic manner in which she treated” petitioner.

(Id.

at 13, ¶ 33.) Naomi’s father was both “a depressed, unfeeling, verbally abusive man — a ‘hermit’ who isolated his wife and children from the rest of society” and simultaneously “a hard drinking man about town who infuriated his wife with his overspending and affairs with women.”

(Id.

at 13, ¶ 32.)

Naomi was always considered different as a child: shy, withdrawn, unable to express herself, slow and possibly retarded, paranoid, confused, disoriented and unable to relate to others. While she was diagnosed with thyroid dysfunction as a teen, Dr. Lewis opines that these symptoms relate to Naomi’s developing psychosis.

(Id.

at 14, ¶ 36.) Naomi had difficulty coping as an adult. Her family and her in-laws described her as immature, incompetent and unable to cope with the demands of

*1051

her life.

(Id.

at 14, ¶ 37.) Naomi attempted suicide when petitioner was 5; she was admitted to a psychiatric hospital for three months and diagnosed with schizophrenia. She was hospitalized in a psychiatric facility for four months when petitioner was seven and involuntarily committed again when petitioner was eight. Hospital records describe her as “agitated, confused, homicidal and delusional.”

(Id.

at 15, ¶ 39 (internal quotation marks omitted).) After Naomi’s first hospitalization, Frank removed all of the kitchen knives from the house.

(Id.

at 15-16, ¶ 39.) When medicated, Naomi could barely function. The house was dark and very disordered, and people described Naomi as weird or zombie-like.

(Id.

at 17, ¶ 42.)

Naomi acted so bizarrely at times that her sister and brother-in-law never left their children alone with Naomi and feared for petitioner’s safety in his mother’s care.

(Id.

at 17, ¶ 41.) Naomi believed that petitioner was possessed by the devil; she gave him enemas to make him clean and to improve his behavior.

(Id.

at 18, ¶45.) Frank would help get control of petitioner and have him bend over the tub with his bottom in the air so that Naomi could insert the enema nozzle up petitioner’s rectum. Naomi would make petitioner hold the liquid as long as he could, up to fifteen minutes, before she would allow him to relieve himself. “This particular manifestation of Naomi’s psychosis is important because of its relevance to aspects of the offense in question (i.e. inserting objects into his victims’ bodily orifices).”

(Id.)

“Children who have had objects shoved into their rectums repeatedly against their will are at a high risk of perpetrating similar acts on others.”

(Id.)

Naomi also behaved in sexually inappropriate ways around petitioner, such as wanting to do a striptease in front of petitioner, dressing seductively and bringing home a former fellow patient, with whom she had sexual intercourse while hospitalized, at a time when petitioner may have been there.

(Id.

at 18, ¶ 46.) Frank believed that Naomi may have molested petitioner, noting that petitioner and his mother shared a bed when petitioner was nine and ten.

(Id.

at 18-19, ¶ 46.) Dr. Lewis described petitioner’s relationship with his adoptive mother as follows:

The influence of [petitioner’s] mother’s sexually provocative, inappropriate behaviors, anally assaultive acts, and the emotional reaction they engendered in Francis, clearly contributed to the nature of ... the offenses. Children who have been repeatedly stimulated sexually and/or teased sexually by an adult, especially by a mother, are at a very high risk of acting out sexually and aggressively toward women other than their abusers ... [0]ne cannot overemphasize the effects on Francis, a psychiatrieally vulnerable child to begin with, of being raised by a chronically psychotic, sexually abusive mother.

(Id.

at 19, ¶ 46.)

Since leaving petitioner and his father, Naomi has been hospitalized many times, often following suicide attempts. She has spent years in group homes and residential treatment homes, as well as some time homeless on the streets of San Francisco.

(Id.

at 17, ¶ 43.)

Frank, petitioner’s adoptive father, was raised in a violent home in which the father drank to excess.

(Id.

at 19, ¶47.) Relatives and others describe Frank as quiet, withdrawn, socially isolated and oblivious to his surroundings, including Naomi and petitioner’s mental health problems.

(Id.

at 20, ¶ 49.) Frank also suffered from paranoia.

(Id.

at 20-22, ¶¶ 50-54.) He had grandiose opinions about petitioner’s capabilities, including buying petitioner a motorbike powerful enough for an adult at age five, allowing petitioner to

*1052

back a van out of the driveway at age eight, to drive a car at age ten and to drive a motorcycle without a license as a teenager.

(Id.

at 22, ¶ 55.) Frank also abandoned petitioner. Frank expected petitioner to take care of his mother when he was just five years old.

(Id.

at 22, ¶ 56.) When Naomi left, Frank left fifteen-year-old petitioner to fend for himself, leaving food in the refrigerator or money on the table.

(Id.

at 23, ¶ 57.)

Dr. Lewis also reviewed petitioner’s medical and psychiatric history. Petitioner experienced multiple events that are known to increase vulnerability to psychiatric illnesses, social and academic maladaption and violence, including his biological mother’s ingestion of alcohol and marijuana.

(Id.

at 23, ¶ 59.) Petitioner’s hyperactivity, his adoptive mother’s incompetence and his father’s poor judgment combined to put petitioner at great risk for injuring himself.

(Id.

at 23, ¶ 60.) Petitioner’s injuries included the following: riding a tricycle into an in-ground pool at age two; ingesting a bottle of baby aspirin around the same age; crashing a mini-bike into a wall at age five, requiring stitches to his chin; numerous bike and skateboard accidents during his elementary and middle school years that resulted in head injuries; eleven motorcycle accidents in his teens, including one on which his helmet was dented.

(Id.

at 24, ¶ 60.) These sorts of head injuries likely exacerbated the psychiatric symptoms of bipolar disorder.

(Id.

at 24, ¶ 61.)

Dr. Lewis attributed petitioner’s early hyperactivity to any of the following: the drugs and alcohol to which petitioner was exposed in útero, early manifestations of mania that petitioner inherited from his episodically psychotic biological parents, the effects of inadequate mothering or a combination of all three.

(Id.

at 25, ¶ 63.) As a preschooler, petitioner engaged in psychotic behavior, including misperceiving reality, misreading social cues, attacking other children without provocation, bringing dangerous items to school, engaging in dangerous acts, being unable to switch from one activity to another without extreme distress and experiencing episodes of uncontrollable yelling and crying.

(Id.

at 26-27, ¶¶ 67-68.) Dr. Lewis described these behaviors as “characteristic of a traumatized child who is out of touch with reality” and “characteristic of severely psychiatrically ill young children who have witnessed and/or been victims of extreme, bizarre violence.”

(Id.

at 27, ¶¶ 67-68.) Moreover, these behaviors are also characteristic of dissociative children.

(Id.

at 27, ¶ 69.) Dr. Lewis explained that “Recurrently traumatized, dissociative children exhibit trancelike states, impaired memory for behaviors and events, and dramatic and instantaneous fluctuations in behavior.”

(Id.

at 28, ¶ 70.) “They often have aggressive overreactions in response to neutral stimuli because they are misperceived as threats.”

(Id.)

Due to petitioner’s bizarre behavior, the adoption agency referred five-year-old petitioner for a psychological evaluation. Joseph Sawaya observed that petitioner had endless energy; was restless and demanding; acted out, suffered from a short attention span; performed poorly on a test of central nervous system functioning, indicating possible brain impairment; was destructive and fantasized profusely.

(Id.

at 28-29, ¶ 72.) These observations and test results show that petitioner was psychotic and that “he was a danger to himself and others and desperately needed removal from his home and psychiatric hospitalization. Instead of hospitalizing and treating this frantic, very disturbed, five year old, however, Francis was allowed to remain in his psychotic adoptive home.”

(Id.

at 29, ¶ 73.) The physical condition of petitioner’s home added to

*1053

petitioner’s problems. Dr. Lewis testified that “[n]o child raised in such an environment could be expected to develop normally. He or she would have no models for normal social interaction and no experiences of the kind of ongoing nurturing and cognitive stimulation that every human being requires for normal adaptation.”

(Id.

at 30, ¶ 76.)

Petitioner’s struggles continued into adolescence.

(Id.

at 31, ¶ 78.) Petitioner was paranoid and experienced rapid, wild mood swings.

(Id.

at 32, ¶¶ 70, 78-79.) He also experienced trance-like states, unrelated to the use of drugs or alcohol.

(Id.

at 32-33, ¶ 80.) Petitioner’s rapid mood swings, trance-like states and strikingly different use of penmanship and spelling depending on mood suggest pathological dissociation, “characteristic of people who, as children, experienced severef,] ongoing, intolerable abuse, usually of sexual as well as physical and emotional in nature.”

(Id.

at 33, ¶ 81.) Dr. Lewis concluded that petitioner’s history with sudden self-injury, property damage, impaired memory and trance-like episodes related to the murder of Kathy Ryan. Petitioner intended to see her later in the week, and nothing indicated he intended to kill her on the night of the crime. The murder does not seem premeditated, but, rather, suggests that petitioner was in a dissociative state.

(Id.

at 33-34, ¶ 82.)

Dr. Lewis also diagnoses petitioner with bipolar mood disorder.

(Id.

at 34-36, ¶ 84;

see also

2 Lewis Depo. at 278 (“[W]hether you wish to call it the manic phase of bipolar mood disorder or the manic phase of Schizoaffective, schizophrenic disorder ... he was severely psychiatrically ill at the time ... and the psychotic nature of the illness was manifested in childhood, which tells you about the severity of the disorder.”).)

No single factor accounts for petitioner’s behavior at the time of the crimes. (Lewis 8/15/03 Decl. at 36, ¶ 85.) A combination of several factors worked together, including that petitioner suffers from bipolar mood disorder and appeared to be in a manic or hypomanic state at the time of the offenses; petitioner’s struggle with dissociative symptoms, which include violent responses to misperceptions and impaired or distorted memory; multiple head injuries; and being raised by a psychotic mother and a paranoid father prone to physical aggression in an abusive home.

(Id.

at 36-37, ¶ 85.) Moreover,

Francis Hernandez had [a] constellation ... of intrinsic neuropsyehiatrie vulnerabilities (i.e.[J bipolar mood disorder, pathological dissociation, history of numerous head injuries) and extreme intra-family stressors (i.e.[J an upbringing in a psychotic, physically and sexually abusive and severely neglectful household) which engendered his extreme[,] uncontrollable[,] violent acts. The knowledge of these biopsychosocial vulnerabilities and the appreciation of their role in Francis Hernandez’s offenses are vital to understanding his compromised mental functioning on the nights of the murder in question.

(Id.

at 37, ¶ 86.) In sum, petitioner’s “capacity to premeditate and deliberate[ and] his capacity to form the specific intent to rape and kill, was substantially impaired.”

(Id.

at 37, ¶ 87.)

Moreover, Dr. Lewis opined that testimony about petitioner’s mental health could have provided helpful evidence at the penalty phase. The difference between the psychotic household in which petitioner was raised and the “minimally nurturing, stimulating and protective environment required for normal development and adaptation would have been powerful information to present during the mitigation phase of Francis’s trial.”

(Id.

at 30, ¶ 11.) Moreover, “[i]t is hard to imagine how a more

*1054

genetically resilient child could have weathered the family environment and adapted appropriately to society, much less a child with Francis’s inherent vulnerabilities to mental illness.”

(Id.

at 31, ¶ 77;

see also

2 Lewis Depo. at 283 (“[W]hen you get a vulnerable child who is then adopted into or raised in a psychotic environment in which you don’t know what your mother or your father will be like and in which there are such stressors ... then you are creating an aberrant human being, a person who cannot function the way other people do.”).)

c. Criminologist Sheila Balkan

Criminologist Sheila Balkan obtained her doctorate in sociology, with a specialization in criminology, deviant behavior and mental health. (Balkan 8/15/03 Decl. at 1, ¶ 2.) The stated purpose of her declaration is to provide a social history of petitioner and identify the issues in his life and background that help explain the crime.

(Id.

at 1-2, ¶4.) Dr. Balkan reviewed the trial testimony of Drs. Rayyes, Girsh and Maloney.

(Id.

at 2, ¶ 6.) She also reviewed the findings of Dr. Lewis, including Dr. Lewis’s 1990 assessment of petitioner and her 2003 declaration.

(Id.

at 2, ¶ 4.) Dr. Balkan conducted interviews of petitioner, his former girlfriend, his childhood friend Morris Silverstein and the mother of childhood friend Douglas “Eddie” Duffey.

(Id.

at 4, ¶ 9.) Dr. Balkan also reviewed declarations, notes of interviews or both for many individuals, including petitioner’s biological parents and other biological relatives, his adoptive parents, other members of his adoptive family, petitioner’s preschool teacher and the parents of petitioner’s former girlfriend, among others.

(Id.)

Dr. Balkan reviewed extensive records, including petitioner’s adoption, school, CYA, prison, juvenile criminal and probation records, as well as earlier psychological assessments of petitioner.

(Id.

at 4, ¶ 10.)

Dr. Balkan’s declaration provided a social history of petitioner’s life, very similar to that provided by Drs. Clausen and Lewis.

(See id.

at 5-77.) She added that the those who knew petitioner found it hard to believe that he committed the crimes because they were so out of character.

(Id.

at 78-79, ¶¶ 262-63.)

Dr. Balkan criticized the trial testimony of Drs. Rayyes, Girsh and Maloney, stating that “none of these experts were given adequate information to form opinions that would have be[en] helpful to the jury’s understanding.”

(Id.

at 2-3, ¶¶ 6-8.) Ultimately, she concurred in Dr. Lewis’s diagnosis

of

petitioner with psychosis, bipolar disorder and dissociation.

(Id.

at 2, ¶ 5; 77-78, ¶¶ 260-261.) Dr. Balkan concluded:

While the role of each of the factors that Dr. Lewis identifies is difficult to quantify, it seems safe to say that if Francis’ genetic susceptibility to mental illness or the high degree of dysfunction and neglect in the home in which he was raised were removed, the offenses would never have occurred. Evidence of this can be seen in the 22 years that Francis has conformed himself to prison life. He is a model prisoner and, although he states that he has become mad on occasion he has always controlled his temper. One of the sad facts of Francis’ life is that he has been on his own since as early as he could walk and talk. Lacking any supervision or structure, Francis’ yearning for security can be seen in the reports of the many adults that Francis reached out to. With Francis’ impaired understanding of the social interactions and the lack of any involvement from either parent, it is only with having been incarcerated that Francis has been given the benefit of a set of comprehensible social rules within which

*1055

he can form expectations and conform his conduct.

(Id.

at 80, ¶ 265.)

d. Psychologist Daniel Martell

Dr. Martell is a clinical psychologist, retained by respondent as a “forensic neuropsychological expert.” (Martell Decl. at 1, ¶ 4.) He reviewed the California Supreme Court opinion, trial counsel’s file, various lay declarations, the penalty phase transcript, the declarations of Drs. Clausen, Balkan and Lewis, and the examination notes of Drs. Lewis and Clausen.

(Id.

at 1-2, ¶ 5.) Dr. Martell examined petitioner for a full day in 2003.

{Id.

at 2, ¶ 6.)

Dr. Martell administered various tests to petitioner.

{Id.

at 2, ¶ 7.) Petitioner provided a personal history, which included “reports of significant mental illness in his biological and adoptive families; lack of parental supervision; extensive drug and alcohol abuse beginning at an early age (5th grade); early onset of conduct disorder; and recurrent criminal and antisocial behavior.”

{Id.

at 2, ¶ 8.) Dr. Martell offered the following summary of his evaluation of petitioner:

[Petitioner’s] thoughts were expressed in a logical, coherent and goal directed fashion, with no evidence of formal thought disorder. He was in good contact with reality, and reported no history of psychotic symptoms (e.g., hallucinations or delusions) except during periods w[h]ere he has been intoxicated with drugs/alcohol. Emotionally, his observable affect was stable and mildly blunted. There was no evidence of symptoms of any major affective disorder (e.g., depression or mania) and he denied any affective symptomatology with the exception of periods when he has been intoxicated with drugs and/or alcohol. His underlying mood was euthymic. He denied any history of dissociative symptoms, except during periods when he was intoxicated with drugs and/or alcohol.

{Id.

at 2-3, ¶ 8.)

Based on his evaluation of petitioner, Dr. Martell described the “claim that Mr. Hernandez suffers from psychosis, bipolar disorder, brain impairment, and/or dissociation” as “unsupported and misleading.”

{Id.

at 4, ¶ 13.) Dr. Martell explained that “examining doctors have not found [petitioner] to be so impaired,” citing to the evaluations by Joseph Sawaya and Drs. Prentiss, Minton, Davis and Maloney. On cross-examination, however, Dr. Martell admitted that none of those individuals had access to records concerning petitioner’s biological parents or to declarations from petitioner’s biological and adopted families, preschool teacher, lifelong friends or ex-girlfriend’s parents. (Martell Depo. at 131-134.) Dr. Martell concluded that his examination of petitioner, “which failed to indicate any major mental disorder or significant brain impairment other than Antisocial Personality Disorder” was consistent with the historical evaluations of petitioner. (Martell Decl. at 5, ¶ 17.) Moreover, Dr. Martell opined that petitioner’s “extensive history of alcohol and substance intoxication appears to completely account for and underlie the symptoms described by Dr. Lewis and attributed to Bipolar disorder, psychosis, or dissociation.”

{Id.)

Dr. Mar-tell testified that petitioner’s troublesome childhood behaviors “are well captured by the diagnosis of Conduct Disorder, Childhood-Onset Type.”

{Id.)

Moreover, petitioner’s genetic predisposition to mental illness “does not mean that he actually manifests any mental disorder,” as “it is still most likely that the offspring will not manifest the disorder.”

{Id.

at 6, ¶ 18.) Dr. Martell added that petitioner may meet the diagnostic criteria for Sexual Sadism.

{Id.

at 6, ¶ 19.) Finally, Dr. Martell concluded that “other than being

*1056

in a state of intoxication, there was no major mental disorder operating to ‘substantially impair’ Mr. Hernandez’s thinking or behavior at the time of the crime.”

(Id.

at 7, ¶ 120.)

There are serious reasons to doubt the credibility of Dr. Martell’s testimony. Petitioner’s experts have questioned Dr. Martell’s methodology. For instance, Dr. Lewis criticized Dr. Martell for “tak[ing] issue with the fact that Francis has close relatives who suffer from severe mood disorders, because they have not been diagnosed at a hospital,” but notes that “any experienced clinician would recognize the kinds of signs, symptoms and behaviors ... [as] characteristic of bipolar (manic-depressive) or schizoaffective disorders.” (Lewis 5/8/04 Decl. at 4-5, ¶ 7.) Dr. Lewis also commented on Dr. Martell’s testimony that petitioner had a thirty percent risk of having bipolar disorder, when a prominent study by the National Child Institute concluded that children with two bipolar parents and extended families with mood disorders had nearly a one hundred percent risk of developing a similar disorder.

(Id.

at 5-6, ¶¶ 8-11.) Dr. Lewis also scrutinized Dr. Martell’s failure to note the increased risk of mental illness petitioner suffered due to in útero exposure to alcohol and drugs, as well as head injuries throughout childhood and adolescence.

(Id.

at 7, ¶ 14.)

Although he offered opinions about petitioner’s childhood and possible diagnosis with child-onset conduct disorder, Dr. Martell admitted that child and adolescent psychology were not his major interest, that he had not treated any child or adolescent for at least ten years, that he had not studied or written in the area for ten to fifteen years and that he had never sought board certification in that area.

(Id.

at 281;

see also

Lewis 5/8/04 Deck 8-9, ¶¶ 20-21.) Dr. Martell did not note the clinical significance of petitioner’s absence of childhood memories, which, according to Dr. Lewis, is “characteristic of severely abused, dissociative children, adolescents and adults.” (Lewis 5/8/04 Deck at 9, ¶ 23.) Dr. Lewis rejected Dr. Martell’s diagnosis of petitioner with conduct disorder, noting that he dismissed the indicators of petitioner’s early severe psychopathology observed by petitioner’s preschool teacher and others.

(Id.

at 10, ¶ 26.) Dr. Martell failed to rule out organic, bipolar, schizophrenic, dissociative and other psychiatric disorders before diagnosing petitioner with conduct disorder.

(Id.

at 11, ¶ 28.)

Dr. Martell testified that the administration of enemas to petitioner was not sexual abuse. (Martell Depo. at 432-33.) Dr. Lewis strongly disapproved of this conclusion:

Another sign of Dr. Martell’s lack of clinical experience with children and adolescents is his assertion that being given ritual enemas twice a week throughout childhood by a psychotic mother is not indicative of sexual abuse. Repeatedly holding a child down and inserting objects into that child’s rectum is a form of sodomy.. Whether or not the perpetrator intends to sexually abuse the child or not is irrelevant. The acts are experienced by the child as repeated anal sexual assaults. Any minimally trained child psychiatrist, child-psychologist or pediatrician would recognize the sexually abusive nature of the enemas to which Francis was subjected for years.

(Lewis 5/8/04 Deck at 11, ¶ 30.) In addition, Dr. Lewis criticized Dr. Martell’s evaluation of petitioner with respect to physical abuse. Dr. Lewis observed that when petitioner began to report instances of physical abuse that would lead to dissociation, Dr. Martell cut the answer short or ignored petitioner’s answer.

(Id.

at 11-12, ¶ 31.) For instance, petitioner report

*1057

ed to Dr. Martell that once his father beat him so badly that he broke his thumbs, but Dr. Martell did not ask for elaboration. Instead, he asked if petitioner’s parents got along. Later, Dr. Martell asked petitioner if he was ever abused, but petitioner had already reported being beaten frequently with a strap on his bare buttocks and that he once broke his thumbs at his father’s hands.

(Id.

at 12, ¶¶ 31-32.) According to Dr. Lewis, a clinician trained in child psychiatry, psychology or pediatrics “would know that dissociation occurs to enable a child to forget abuse and its sequela[ ]. Hence, one must rely on scars, records and the accounts of observers to obtain an accurate picture of the abused individual’s past.”

(Id.

at 12, ¶ 33.)

Dr. Lewis noted that in evaluating petitioner, Dr. Martell elicited important indicators of dissociation, but he either ignored or failed to recognize them.

(Id.

at 13, ¶ 35.) Dr. Lewis listed many such examples in her declaration.

(Id.

at 13-15, ¶¶ 36-41.) Similarly, Dr. Lewis catalogued the many instances in which petitioner provided Dr. Martell with information suggestive of bipolar disorder, which Dr. Mar-tell either did not explore or address.

(Id.

at 16-17, 18, ¶¶ 43-46, 48.) Dr. Lewis concluded:

Francis Hernandez provides Dr. Mar-tell with ample evidence of severe physical and sexual abuse, of severe dissociative psychopathology, and manic or hypomanic states. That Dr. Martell fails to appreciate the significance of the signs and symptoms and behaviors he elicited on interview is puzzling. In all likelihood, his lack of clinical experience with children and adolescents explains his inability to recognize the significance of what he is told. Similarly, probably for the same reasons, he misinterprets the copious evidence of severe psychopathology in school records, the early psychological testing and the declarations of family and friends. Dr. Martell elicited valuable information. One would be reluctant to believe that he deliberately ignored or distorted what he saw.

(Id.

at 18, ¶ 49.)

In addition, Dr. Lewis explained that to make a valid diagnosis, the examiner must consider evidence of the patient’s early behavioral, psychological, educational and medical history. The examiner must take the observations of family and friends seriously and must be able to recognize the early signs and symptoms of childhood and adolescent mental illness. She faulted Dr. Martell for his failure to do these things.

(Id.

at 19, ¶ 50.) Dr. Lewis also observed that the “neuropsychological and personality testing on which Dr. Martell relies are not adequate diagnostic tools for recognizing the existence of severe psychopathology” in a capital defendant.

(Id.

at 19, ¶ 51.)

Dr. Lewis also rejected Dr. Martell’s diagnosis of petitioner with antisocial personality disorder, given the evidence of bipolar disorder and significant dissociative psychopathology.

(Id.

at 19, ¶ 52;

see also

Gur 2/8/05 Decl. at 39 (noting that during the developmental and formative years, the behavior of individuals who have a genetic vulnerability to a psychiatric disorder and who acquire a head injury is often confused with and misinterpreted as conduct disorder).) In fact, Dr. Lewis concluded her 2004 declaration with the following statements:

Finally, a word should be said about Francis Hernandez’s genuine sense of guilt. In my relatively long career studying violence, I have never heard any other condemned offender articulate, not only the magnitude of his offense, but also the depth of his remorse as does Francis Hernandez. Francis says it far better than I could paraphrase it. Francis asks himself, “Am I

*1058

sorry it happened? Hell yes.” Dr. Martell then asks simply, “Why?” Francis replies: “Because I actually — because apparently, without knowing what I was doing or not knowing why, apparently killed a friend. I also killed another girl, Edna — I’m sorry for myself because it fucked up the rest of my life. But it cut short her life, cut short their lives. Fucked up their families, fucked up my family. Had all kinds of repercussions. Besides being wrong, besides being something ... that I never thought I would do, yeah, all kinds of things. Why do I feel sorry? There’s nothing I can do about it.

He continues, “What can I do? Even to say I’m sorry to the family? I feel sorry for the family. I am sorry. I’m not adverse to saying it, but I don t think I should, because I don’t think it would do any good.” The following words bespeak a kind of compassion that is rarely observed in the violent offender population. Francis has, clearly, thought as much about the bereaved families of his victims as he has about himself and what the effect of an apology might be. He goes on: “I think it would probably be worse for them than for me — to hear from me, ‘I’m Sorry’— You remind them, it’s like a slap in the face. He’s still alive, I’m sitting here [while] their child’s dead. You can never replace a child.” These are not the words of a sociopath.

(Lewis 5/8/04 Decl. at 21-22, ¶¶ 57-58.)

Additionally, Dr. Lewis took issue with Dr. Martell’s testimony about recessive genes; about his opinion that there is one “gene” for bipolar disorder, when it is thought to result from the interactions of multiple genes coupled with environmental factors; his failure to appreciate the effects of an adverse environment on the manifestation of mental illness in petitioner; his testimony that abused children have a four percent chance of developing aggressive tendencies when numerous studies show that neuropsychiatrically vulnerable children are at a high risk of developing abusive behaviors if they have been abused or raised in violent homes; and his unsupported suggestion that petitioner may suffer from sexual sadism.

{Id.

at 7, ¶ 15; 8, ¶¶ 16-17; 8, IT 19; 19-20, ¶¶ 53-54.)

Dr. Ruben Gur, a psychologist retained by petitioner, also questioned Dr. Martell’s methodology. Dr. Gur summed up his criticism this way: Dr. Martell “reaches his conclusions without properly pursuing several conspicuous leads to the contrary disclosed by the results of the tests he gave, and without integrating many of the details of Mr. Hernandez’s history contained in the lay witness declarations with the results of his testing.” (Gur 6/8/04 Decl. at 7-8, ¶ 13.) Moreover, “[t]here is a discrepancy between data obtained in the interview and testing and contained in the social history documents on the one hand, and the direction of the interview and interpretation relating to the issue of memory and executive functions on the other.”

{Id.

at 8, ¶ 14.)

Dr. Gur reviewed Dr. Martell’s tape-recorded examination of petitioner. Dr. Gur testified:

I was, frankly, quite perturbed by the whole interview and the tone of it starting from the get go. It was not a clinical interview. It did not follow any of the standards that I learned about how to conduct a clinical interview. It was almost designed to hide any sign of psychopathology, which is the opposite of the purpose of a clinical interview.... He goes on to present it as almost a legal interrogation rather than a clinical interview, including this strange statement that has a veiled — thinly veiled threat, where he says something to the effect that, if you are straight with me, I’ll be straight with you.

*1059

It’s just, I have never heard anybody, any clinician, in training or after training or in teaching, who would make any statement like that when trying to interview someone in a clinical — in an effort to arrive at a clinical diagnosis. Granted that he is not there to treat him, he still wants to probe into areas that are very difficult for most people to talk about and are especially difficult to talk about for people who have deficits or dysfunction in that area. Because if you suffer from a mental illness one thing that is very clear to you in your own mind is that there are lots of things that go on in your mind that are strange, that if other people knew about them, they will freak out. They will consider them scary or appalling. And so it takes a lot of sensitivity and support to allow someone to talk about those things.

Anybody who has clinical experience interviewing folks with brain damage, or any major psychiatric disorder, knows that one major feature of brain damage and psychiatric disorder is denial of symptoms ... And if you ask them, is there anything the matter with you? They’ll say no, I’m fine. Everything is cool. Everything is great. Then, it takes a while and probing and encouragement, and then they’ll start revealing some strange things about themselves.

So I was impressed with Martel[l]’s interviewing style that was almost designed to make Mr. Hernandez look healthy and go with the natural tendency of people with severe mental illness to deny that there is anything wrong with them or at least to have difficulties exposing things about them that are scary and socially unacceptable.

(Gur Depo. at 430-32.) Dr. Gur also noted many instances where petitioner indicated a problem that Dr. Martell ignored or failed to appreciate as significant.

(Id.

at 432-33.) Dr. Gur explained that “[w]hen-ever Mr. Hernandez came up with a statement that could imply some emotional pain or some insult to him, instead of encouraging] ... him to go in that direction, [Dr. Martell] would then either skip to the next question or ask a question that implied he is not really interested in that stuff or that it’s not important. So it almost looked as if [Dr. Martell] reached his conclusion before he started the interview and discouraged any information that will counter his conclusion from emerging.”

(Id.

at 434.)

Specifically, Dr. Gur testified that the record includes many indicators that petitioner is neuropsychiatrically impaired, despite Dr. Martell’s conclusion that petitioner had a mild to moderate impairment in verbal learning. (Gur 6/8/04 Decl. at 4, ¶ 9.) Dr. Gur noted that the petitioner’s “environment was replete with child abuse and neglect, psychological and physical, of the kind that can lead to brain damage, PTSD or dissociative disorders.”

(Id.

at 5, ¶ 9.) Also, the “existence of such disorders is substantiated by poor impulse control and rather rock-bottom scholastic performance starting at first grade, despite IQ scores falling ‘within the normal to superi- or range,’ as noted by Dr. Martell.”

(Id.)

Dr. Gur explained that petitioner’s head injuries, along with extensive substance abuse starting at an early age, could have disrupted brain development and function.

(Id.

at 5-6, ¶ 10.)

Dr. Gur noted that although petitioner reported amnesia about the crime and his early childhood and adolescent years, Dr. Martell failed to conduct further testing related to petitioner’s memory.

(Id.

at 8, 1114.) The administration of the California Verbal Learning Test (“CVLT”) suggested impairment to petitioner’s frontal lobe, relevant to impulse control, but Dr. Martell failed to conduct further testing to determine the effects of head injuries and substance abuse on the same area of the brain.

(Id.

at 8, ¶ 15.) Dr. Martell also

*1060

relied on petitioner’s denial of any learning disabilities, when his academic performance starting in first grade, belied that assertion, particularly in light of normal IQ scores.

(Id.

at 9, ¶ 16.) Dr. Martell depended on various tests performed by Dr. Prentiss in 1979 to support his conclusion that petitioner did not have brain damage, but the tests on which Dr. Prentiss relied have been outmoded since 1974. Dr. Gur testified that Dr. Martell’s conclusions about brain damage are, therefore, unreliable.

(Id.

at 9, ¶ 17.) Dr. Gur also faulted Dr. Martell for failing to consider evidence that brain maturation is incomplete at age eighteen, and in petitioner’s case, that substance abuse may have delayed this process further.

(Id.

at 9-10, ¶ 17.) Dr. Gur concluded:

Neuropsychological testing, by itself, cannot show whether a person has bipolar disorder. Neither can neuropsychological testing show the presence or absence of brain trauma. Like a thermometer in general medicine, it is a useful tool but does not provide a diagnosis. Neuropsychological testing needs to be done in the context of medical, neuropsychiatric and neuroradiologic assessment and a complete history of the patient. Dr. Martell refers only in passing to a history of “significant mental illness in his biological and adoptive families, lack of parental supervision extensive drug and alcohol abuse beginning at an early age,” and head trauma, but his findings do not take into account the extensive medical and social history information regarding Mr. Hernandez and his biological and adoptive families contained in the declaration of Drs. Balkan, Lewis and Clausen.

To summarize, although neuropsychological evaluation is a major part of diagnostic workup for any major psychiatric disorder, indeed for any disorder of complex behavior where brain dysfunction needs to be considered, it is not intended to be used as the sole procedure for arriving at a neuropsychiatric diagnosis, or ruling it out. The results of history and tests already available to Dr. Martell simply indicate the likelihood of brain dysfunction, and the interview and tests ... conducted by him further support this diagnosis. Followup testing is indicated and a more focused evaluation, targeting frontal lobe functioning. There is also enough evidence implicating brain dysfunction to suggest the utility of further studies with structural and functional imaging.

(Id.

at 10-11, ¶¶ 18-19 (citations omitted).)

Dr. Gur also noted that Dr. Martell’s regular work as a testifying expert, rather than a clinician, made him an ineffective expert:

I would be concerned about someone who spends all of their time testifying, especially if they just testify for one side, without having clinical experience with people who come for help. It would distort their ability to understand the effects of brain dysfunction, since they always see through a prism of the medical-legal context. I would have a problem with someone like that. I don’t think it gives them an advantage. I think, in some ways, it makes them less able to understand how the brain impacts behavior in general and when it comes to specific patients.

(Gur Depo. at 482-88.)

Dr. Martell holds himself out as an expert in forensic neuropsychology. (Martell Depo. at 259.) Although eligible for at least a decade prior to the deposition, he had not sought board certification

5

in neuropsychology.

(Id.

at 277.) Dr. Martell testified that he “might” apply for board

*1061

certification in neuropsychology, depending on “[t]ime and energy,” as certification in neuropsychology “would be nice.”

(Id.

at 279, 281.) Dr. Martell did obtain board certification in forensic psychology in 2002.

(Id.

at 260.) When asked about how many failed attempts he had made to become board certified in forensic psychology, Dr. Martell refused to answer, citing the “peer review privilege” and noting that he threw out all documentation related to his prior failed attempts to obtain board certification.

(Id.

at 256, 259, 260, 263, 264, 265-68, 269-70, 271, 278-79; 281.) The peer review privilege does not apply to these proceedings.

See, e.g., Agster v. Maricopa County,

422 F.3d 836, 839 (9th Cir.2005) (declining to recognize the peer review privilege in federal court); Fed. R. Evid 1101(3). Dr. Martell testified that he threw out the documents in 2000 or 2001 because they were “old” and “irrelevant,” despite being asked to produce them in 1999 when he was working on another death penalty case. (Martell Depo. at 267-268, 271.) Accordingly, the Court gives little weight to Dr. Martell’s testimony.

6

*1062

e. Psychologist Charles Sanislow

In rebuttal, petitioner offered two additional experts: clinical psychologist Charles Sanislow and neuropsychologist Ruben Gur.

Dr. Sanislow is an assistant psychiatry professor at Yale Medical School and a clinical psychologist. (Sanislow Decl. at 1, ¶ 1.) Dr. Sanislow reviewed Dr. Martell’s declaration, as well as raw test data and other materials relating to the MMPI-2 administered to petitioner by Dr. Martell. Dr. Sanislow also reviewed Dr. Maloney’s 1982 report and the results of the 1981 MMPI given to petitioner. Finally, Dr. Sanislow reviewed Dr. Lewis’s 2003 declaration.

(Id.

at 4-5, ¶ 7.)

Dr. Sanislow testified that a profile derived from the MMPI or MMPI-2 is a starting point for making a psychiatric diagnosis.

(Id.

at 10, ¶ 19.) The “gold standard” in psychiatric diagnosis is called LEAD, which stands for “information that is collected over a Longitudinal period by Lxperts who come to a consensus based on All Data available to them.”

(Id.

at 10-11, 120.) A clinician must gather as much information as possible from multiple sources in order to assess the reliability of the information. The more sources from whom a clinician gathers information, the more confident that clinician can be in the final diagnosis.

(Id.

at 11, 120.) Therefore, a clinician should not only interview the patient thoroughly and conduct appropriate psychological testing, but the clinician also should review all available documentation about the individual’s background.

(Id.

at 11, ¶ 21.)

With respect to the 1981 MMPI results and Dr. Maloney’s related report, Dr. Sanislow concluded: “The elevations noted by Dr. Maloney are indicative of confusion, disorientation, extreme stress and distortions of reality, and are consistent with the psychotic or dissociative thinking that can occur in a bipolar person and noted by Dr. Lewis.”

(Id.

at 15, ¶ 27.)

Dr. Sanislow noted that the 2003 MMPI-2 administered by Dr. Martell revealed an elevation on Scale 4 but was otherwise within normal limits. The results were insufficient alone to rule out bipolar disorder, as the MMPI is less likely to reflect the relevant symptoms if the person is not experiencing a manic or depressed episode at the time of testing or if the subject has been stabilized for a long time prior to testing. Also, when an individual has been institutionalized for an extended period, the structured environment may help contain symptoms so well that the individual would appear asymptomatic.

(Id.

at 15-16, ¶ 28.) Moreover, Dr. Sanislow testified that the different results on the 2003 MMPI-2 as compared with the 1981 MMPI do not rule out the existence of a psychological disorder at the time of the murders.

(Id.

at 16, ¶ 30.) The results from petitioner’s 1981 MMPI undermine Dr. Martell’s conclusion that petitioner was not bipolar or in a dissociative state at the time of the crimes, particularly because Dr. Martell based his conclusion on the results of the MMPI-2 that he administered in 2003.

(Id.

at 17, ¶ 31.) “[T]he presence of elevated Scales 6, 8 and 9 on Mr. Hernandez’s 1981 MMPI, at a time much closer to the date of the offenses and

*1063

the stress which preceded the crimes, cannot be ignored or dismissed without comment.”

(Id.)

Dr. Sanislow concluded that the 2003 MMPI-2 “is not a reliable instrument for determining whether Mr. Hernandez was bipolar or dissociative at the relevant times some 22 years prior in 1981.”

(Id.

at 16, ¶ 30.)

Dr. Sanislow also testified that petitioner could have an elevated score on Scale 4 without suffering from antisocial personality disorder.

(Id.

at 17, ¶ 32.) The score could reflect petitioner’s incarceration with others convicted of murder or the abuse he suffered as a child.

(Id.

at 17, ¶ 31.) Moreover, “an elevation on [Scale 4] alone provides no reliable information about the subject’s overall clinical status or functioning (e.g., whether he or she will act impulsively). Only when the scale is considered as part of the overall profile, and in the context of convergent clinical information, can a clinician reliably draw conclusions regarding the subject’s actual psychological condition.”

(Id.

at 18, ¶ 32.)

f. Neuropsychologist Ruben Gur

Dr. Gur is a clinical and research psychologist with a specialty in neuropsychological assessment, and the neurobiological basis and neurobehavioral aspects of schizophrenia. He is a tenured professor at the University of Pennsylvania and serves as director of the neuropsychology department as well as the director of the Brain Behavior Laboratory. (Gur 6/8/04 Decl. at 1, ¶ 1.) Dr. Gur reviewed Dr. Martell’s testing data and testimony, the raw data from tests administered by Dr. Maloney and Joseph Sawaya, the testimony of Drs. Lewis and Sanislow, the report of Dr. Prentiss, petitioner’s school transcripts, petitioner’s statement to the police, petitioner’s penalty phase and deposition testimony, the declarations of various lay witnesses, the trial testimony of Drs. Girsh, Maloney and Rayyes, the pretrial reports of Drs. Coburn and Davis, the California Supreme Court opinion on direct appeal, the autopsy records, the pathologist’s trial testimony and petitioner’s adoption records. (Gur 2/8/05 Decl. at 3, ¶ 8; Gur 6/8/04 Decl. at 3, ¶ 7.) Dr. Gur conducted a neuropsychological assessment of petitioner in 2004. (Gur 2/8/05 Decl. at 3, ¶ 8.)

Dr. Gur testified that petitioner’s test results were “highly abnormal.” In fact, Dr. Gur hadn’t “seen profiles like that in a long time. When [he] see[s] them, they’ve always been associated with severe brain damage.” (Gur Depo. at 462.) Dr. Gur concluded that petitioner suffers from brain damage that includes the left temporal lobe, the right superior temporal and the dorsal parietal sensorimotor cortex. (Gur 2/8/05 Decl. at 10, ¶ 18.) Petitioner’s brain damage is “of unclear but most likely congenital etiology, probably reflecting a neurodevelopmental disorder such as schizophrenia or affective illness, complicated by adverse perinatal and postnatal stressors.” (Gur 2/8/05 Decl. at 10, ¶ 18);

see also

Gur Depo. at 268 (“I did think that either schizophrenia or bipolar illness is probably applicable in his case, although there may be other neural-developmental disorders as well that could have been applicable in his case such as attention deficit, hyperactivity disorder, impulse control.”)

Dr. Gur explained that damage to the left temporal lobe causes verbal memory impairment, impeding one’s ability to organize and recall information. (Gur 2/8/05 Decl. at 10-11 ¶ 19.) Damage to the temporal limbic and right parietal regions would cause difficulty interpreting emotional information, controlling and modulating one’s emotional response and could lead to misperceptions or distortions of reality by impairing the ability to distinguish emotions.

(Id.

at 10-11, ¶¶ 19-20.) Extreme emotion and stress can exacer

*1064

bate these impairments.

(Id.

at 11, ¶ 20.) Neuropsychological tests available in 1982 and 1983 would have shown these impairments, but counsel did not request a neuropsychological evaluation of petitioner.

(Id.

at 11-12, ¶¶ 21, 22.) The limited neuropsychological testing that Dr. Maloney gave to petitioner was “not intended to be, and was not an adequate substitute for, a comprehensive neuropsychological evaluation under the then-prevailing professional standards.”

(Id.

at 12, ¶ 22);

see also

Gur Depo. at 454 (“I believe any competent clinical neuropsychologist who would go over the test results, even without the use of the behavioral image, would come to very similar conclusions, namely, that there is evidence” of brain damage.)

According to Dr. Gur, petitioner’s brain damage has affected his perception of the world and the way he has functioned in relationships. He has an impaired ability to perceive reality accurately. Specifically, petitioner suffers from a profound impairment in his ability to perceive happiness and sadness, instead misperceiving these emotions as anger and fear. This long-held impairment, experienced by petitioner as early as preschool, is more severe when petitioner is experiencing extreme emotion or stress. (Gur 2/8/05 Decl. at 12, If 23.)

Dr. Gur testified that petitioner has attempted to cope with his inability to perceive emotions accurately by relying on other cues to interpret feelings. However, petitioner’s efforts were unsuccessful due to the mental illness exhibited by petitioner’s adoptive parents. His mother suffered from schizophrenia, and his father met the criteria for paranoid delusional disorder. Dr. Gur opined that the “significant cognitive impairments and thought disorder associated with such illnesses necessarily made it all the more difficult for Francis to learn to rely on other cues.”

(Id.

at 12-13, ¶ 24.) Petitioner’s childhood behavior and the psychological testing conducted by Joseph Sawaya on petitioner at age five support the conclusion that he suffers from damage to the right parietal and left temporal areas of his brain.

(Id.

at 13-14, ¶ 25.)

Dr. Gur concluded that petitioner’s brain damage is likely organic, meaning that it was caused by a head injury, sustained either in útero, later or both. Evidence exists that petitioner’s mother was beaten during her pregnancy, petitioner was delivered with the help of forceps and petitioner was involved in many accidents as a child and adolescent.

(Id.

at 14, ¶ 27.)

Dr. Gur opined that petitioner’s deficits existed at the time of the crimes, and his brain damage impacted petitioner’s conduct during the crimes. Due to his impairments, petitioner could not understand or respond appropriately to his victims’ expressions of resistance and fear. Petitioner’s “misperception of reality significantly interferes with his ability to make the right judgment, particularly in an emotionally charged situation.”

(Id.

at 15, ¶29.) Moreover, petitioner’s brain damage also may explain his inability to recall the details of the crime when first question by the police. Petitioner testified at his deposition that the police spent several hours going over the details of the crime and showing him pictures before they recorded his statement. When petitioner testified at the penalty phase, he repeatedly answered that he could not recall what happened.

(Id.

at 15-16, ¶¶ 30-32.) The clinical data supports the conclusion that petitioner actually cannot recall significant parts of the crime, and not that he is being evasive or feigning forgetfulness.

(Id.

at 16, ¶ 31.)

Dr. Gur also testified that petitioner’s brain damage indicates that he was in a dissociative state when he committed part or all of the crimes. The combination of left temporal and right parietal lesions can

*1065

produce dissociation, or a state in which a person can engage in a complex set of behaviors without intent or premeditation. Petitioner’s statement to police, his inability to recall the details of the crimes and his persistent inability to explain why he committed the crimes, despite his acknowledgment that he is responsible for the crimes, are all consistent with him having been in a dissociative state.

(Id.

at 17, ¶ 35.)

Dr. Gur also created behavioral imaging, or a computerized algorithm designed to identify brain dysfunction by region based on standard neuropsychological batteries, for petitioner. Dr. Gur and several colleagues from various universities have developed a series of neuropsychological tests, as well as an objective method for interpreting the results. Dr. Gur and his colleagues use the test scores, together with a computer program, to create a three-dimensional visual depiction of brain dysfunction and damage. (Gur 6/8/04 Deck at 6, ¶ 11.) The images that Dr. Gur created for petitioner show dysfunction in various parts of petitioner’s brain, including areas associated with verbal learning deficits, difficulties in abstraction, learning disabilities, attention deficit and hyperactivity, affects on memory consolidation and poor impulse control.

(Id.

at 7, ¶ 12.)

On cross examination, Dr. Gur testified that, while in existence for fifteen years at the time of his deposition, the behavioral imaging he has created has not been accepted generally by neuropsychologists in everyday clinical practice across the country. (Gur Depo. at 217.) However, it was subjected to the peer review process in “highly respectable refereed journals,” and it was “accepted by the leadership.”

(Id.)

The standardized neuropsychological tests Dr. Gur uses are in the public domain, not proprietary, are used all over the world and have been administered to thousands of people.

(Id.

at 228.) Dr. Gur has testified about these objective tests in many states, including Arizona, California, Delaware, Maryland, Pennsylvania, South Carolina, Tennessee and Virginia. Dr. Gur’s tests are used by Cornell Medical School, Dartmouth, Duke University, the Mayo Clinic, Washington University in St. Louis, as well as the Universities of Alabama, California (San Diego), Indiana, Pennsylvania, Pittsburgh, South Carolina and the University of Washington in Seattle. (Gur Depo. at 480-81.) The tests have been translated and are used in various countries, including Germany, Austria, Japan, Korea, Holland, Israel, Portugal and Brazil.

(Id.

at 481.)

B. Mental Health Claims

1. Counsel’s failure to investigate and present the defense of diminished capacity (Claims 5(B)(1), 5(B)(2), 5(B)(3)(a), 5(B)(3)(b) & 5(B)(5))

Petitioner claims that trial counsel performed deficiently by failing to realize that the defense of diminished capacity was available to petitioner and by failing to investigate and present evidence in support of a diminished capacity defense. Petitioner also alleges that counsel failed to provide petitioner’s experts with information about mental culpability, diminished capacity and related facts. To successfully bring an IAC claim, petitioner must show that counsel performed deficiently and that this deficient performance prejudiced petitioner.

Strickland v. Washington,

466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). To establish deficient performance, petitioner must show that trial counsel’s representation fell below an objective standard of reasonableness as measured by prevailing professional norms.

Wiggins v. Smith,

539 U.S. 510, 521 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003). A showing of prejudice requires petitioner to demonstrate a reasonable probability that “but for counsel’s unpro

*1066

fessional errors, the result of the proceeding would have been different.”

Strickland,

466 U.S. at 694 , 104 S.Ct. 2052 . “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Id.

At the time of petitioner’s trial, the doctrine of diminished capacity existed in California.

7

People v. Saille,

54 Cal.3d 1103 , 2 Cal.Rptr.2d 364, 368 , 820 P.2d 588 (1991) (“[S]omeone who is unable, because of intoxication or mental illness, to comprehend his duty to govern his actions in accord with the duty imposed by law, cannot act with malice aforethought.”) A defendant’s diminished capacity could result from a physical or mental condition.

Saille,

2 Cal.Rptr.2d at 367 , 820 P.2d 588 (discussing

People v. Wells,

33 Cal.2d 330, 351 , 202 P.2d 53 (1949)). Nevertheless, trial counsel apparently believed that the defense was unavailable at trial, other than for voluntary intoxication. (1 CDD at 19-20, 68; 11 CDD at 136.)

Counsel was deficient for failing to realize that a diminished capacity defense was available to petitioner at trial.

See, e.g., Morris v. California,

966 F.2d 448, 454-55 (9th Cir.1992) (holding that failure to investigate and discover a defense to the crime fell far below any objective standard of reasonableness). In order to obtain relief, however, petitioner must show that counsel’s failure to investigate and present a diminished capacity defense also was deficient and that this deficiency prejudiced petitioner.

Petitioner has established deficiency. It is true that Dr. Prentiss, along with Drs. Coburn and Davis, concluded that petitioner had the capacity to commit the crimes charged and that he suffered from antisocial personality disorder. Dr. Rayyes provided testimony that supported a diminished capacity defense due to voluntary intoxication, but he also testified that even an impaired alcoholic could form the specific intent to commit all of the charged crimes. Dr. Rabson concluded that the condition of both victims’ bodies was inconsistent with consensual sex. In addition, Dr. Girsh diagnosed petitioner with borderline personality disorder and testified at the penalty phase that petitioner could suffer from antisocial personality disorder.

However, Dr. Maloney told trial counsel that petitioner was “OK now but had been psychotic.” (9 CDD at P00738 (Exh. L-5).) Dr. Maloney concluded that “the data ... suggest [that petitioner suffered from] some potentially serious psychological problems.” (JTD P00829.) Petitioner’s profile was highly pathological and indicated a fair amount of hostility. (JTD at P00829.) Counsel did not put Dr. Maloney on the stand during the guilt phase.

*1067

At penalty, Dr. Maloney testified that he “had no data to suggest that [petitioner] would not be responsible for his behavior” and that petitioner “should have had the capacity to understand what he was doing.” (14 RT 3473.) In coming to these conclusions, however, Dr. Maloney did not review various materials gathered since trial but that were reasonably available to counsel before trial. These documents include records and background information regarding petitioner’s birth family as well as social history information from petitioner’s adopted family, preschool teacher and others.

Moreover, Dr. Girsh told trial counsel before trial that there was some indication of an organic, neurological basis for petitioner’s behavior. (9 CDD at P00427 (Exh. L-7)). In addition, various records from petitioner’s childhood showed that petitioner displayed behavior at preschool that might indicate neurological or psychiatric problems, that petitioner was described as troubled and hyperactive as a child, that he was referred for a neurological examination and that he performed poorly on psychological tests.

Despite the many clues that petitioner may have been suffering from a neurological problem since childhood, counsel did not request a neurological examination of petitioner, nor did he pursue a diminished capacity defense based on petitioner’s psychological problems. Counsel repeatedly testified that his failure to realize that the defense was available or to pursue it based on petitioner’s psychological impairments was not tactical or strategic. (1 CDD 22, 33-34,37-39; 9 CDD 49-50.) Moreover, trial counsel failed to follow-up with Drs. Coburn and Davis. Neither Dr. Coburn nor Dr. Davis reviewed records related to the Hernandez family’s failed attempt to adopt a second child, which included an evaluation of petitioner by a family counselor at age five.

Trial counsel performed deficiently. Trial counsel failed to realize that the defense of diminished capacity due to mental defect or condition was available to petitioner. Trial counsel failed to investigate evidence that would have supported a diminished capacity defense. He failed to arrange for a neurological examination of petitioner, despite many red flags suggesting that petitioner suffered from a psychological deficit or condition from early childhood. Trial counsel also failed to follow-up with various psychological experts, both with respect to pursuing a potential guilt phase defense based on petitioner’s mental condition and also in terms of providing them with pertinent social history information and records. “The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.”

Roe v. Flores-Ortega,

528 U.S. 470, 481 , 120 S.Ct. 1029 , 145 L.Ed.2d 985 (2000). Counsel’s failure to realize the defense existed and to investigate it was unreasonable.

Although petitioner has established deficiency, he has failed to show prejudice. Petitioner must show that had counsel investigated and presented a diminished capacity defense, the jury likely would have found that petitioner lacked the intent to commit capital murder or rape. This probability must be sufficient to undermine confidence in the jury’s guilty verdict. Even if trial counsel had presented expert and documentary evidence suggesting that petitioner did not have the capacity to act with malice aforethought or the specific intent to rape, other circumstances would have undermined a diminished capacity defense. Petitioner’s confession recounted many details of the crime. Confronted with the level of detail in petitioner’s confession, the jury reasonably could have rejected a defense that petitioner lacked the capacity to form the requisite intent due to intoxication or men

*1068

tal defect. In addition, the victims suffered very similar injuries, and their deaths took place just days apart. These facts could have convinced the jury that some amount of preparation or deliberation was involved in the crimes, undercutting an argument that diminished capacity prevented petitioner from planning, deliberating or harboring malice aforethought. Finally, the majority of California voters elected to abolish the defense of diminished capacity due to mental disease, defect or mental disorder about eighteen months prior to petitioner’s trial.

See

CaLPenal Code § 28. While the change in the law did not affect petitioner’s trial because he committed the crimes before the referendum passed, the existence of the initiative may lend some context to petitioner’s trial. It could be that a jury would be less likely to accept a defense of diminished capacity due to mental disease, defect or disorder, given the change in the law. While petitioner has raised some doubt about whether the jury would have come to a different verdict at the guilt phase, that doubt is not sufficient to undermine confidence in the jury’s guilty verdict. It is not reasonably probable that the jury would have voted differently upon hearing mental health evidence in support of a diminished capacity defense at the guilt phase.

Accordingly, the Court DENIES Claims 5(B)(1), 5(B)(2), 5(B)(8)(a), 5(B)(3)(b) and 5(B)(5), but will consider counsel’s deficiency in the cumulative error analysis.

2. Counsel’s failure to gather and present appropriate evidence of petitioner’s problems with alcohol and drugs (Claims 5(B)(3)(d), 5(B)(4), 5(C)(5), 5(C)(6), 5(C)(8))

In Claims 5(B)(4) and 5(C)(6), petitioner contends that trial counsel failed at both the guilt and penalty phases to arrange for an appropriate test of petitioner’s reaction to the combined effect of alcohol and drugs. In Claims 5(B)(3)(d) and 5(C)(5), petitioner alleges that trial counsel failed at both the guilt and penalty phases to properly use significant evidence of petitioner’s drug and alcohol abuse problems. Finally, in Claim 5(C)(8), petitioner asserts that trial counsel failed to call medical expert Dr. Amer Rayyes to testify during the penalty phase. Dr. Rayyes could have offered testimony about the combined effect of drugs and alcohol on petitioner’s neurological and mental functioning. Petitioner further contends that trial counsel failed to consult a toxicologist to develop additional evidence regarding the impact of drugs and alcohol on petitioner’s mental and physical condition on the night of the crimes.

Again, to prevail on a claim of IAC, petitioner must show deficiency and prejudice. Str

ickland,

466 U.S. at 687 , 104 S.Ct. 2052 .

Torelli arranged for an electroencephalogram, or EEG, which examines the electrical activity of the brain. The EEG given to petitioner was intended to measure his response to alcohol, and the result was normal. Petitioner contends that the EEG arranged by Torelli was improperly performed because the examination concluded before the alcohol took effect and because it did not measure petitioner’s response to drugs. Petitioner argues that trial counsel should have arranged for a second EEG to be administered but that counsel failed to do so because he became ill with cancer. In petitioner’s view, a properly administered EEG would have shown evidence of neurological impairment, which would have been useful at both the guilt and penalty phases.

Petitioner cannot show deficiency. Petitioner alleges that the EEG was improperly administered to him, but he has not pointed to facts in support of this claim. Moreover, petitioner has failed to cite record facts that should have put counsel on

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notice that the EEG was administered incorrectly. The record, together with the evidentiary hearing evidence, fail to support petitioner’s conclusory and speculative claim of deficiency.

Jones v. Gomez,

66 F.3d 199, 204-05 (9th Cir.1995) (holding that “conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief’) (internal quotation marks and citation omitted);

cf. Blackledge v. Allison,

431 U.S. 63 , 75 n. 7, 97 S.Ct. 1621 , 52 L.Ed.2d 136 (1977) (“[T]he petition is expected to state facts that point to a real possibility of constitutional error.”) (internal quotation marks and citation omitted).

Petitioner also cannot show prejudice. Petitioner’s allegation that a second EEG — with a longer gap in time between the administration of alcohol and the examination — would have revealed neurological or other brain damage is pure conjecture. Petitioner’s “claim of prejudice amounts to mere speculation.”

Cooks v. Spalding,

660 F.2d 738, 740 (9th Cir.1981).

Relatedly, petitioner asserts that trial counsel failed at both the guilt and penalty phases to present significant evidence of petitioner’s drug and alcohol abuse. In particular, petitioner contends that trial counsel failed to present evidence that alcohol and drugs exacerbated petitioner’s neurological abnormalities, including at the time of the crimes, either through the testimony of Dr. Rayyes or another expert. Petitioner also argues that counsel failed to consult a toxicologist to develop additional evidence about the impact of drugs and alcohol on petitioner’s mental and physical condition. (Pet. at 36, 40.)

Counsel presented the theory petitioner suggests. In his opening statement at guilt, trial counsel stated that “Francis Hernandez is essentially a Dr. Jekyl[l] and Mr. Hyde when it comes to the use and abuse of alcohol and drugs” and that “when he utilizes [drugs or alcohol], the fact of the matter is he would essentially go crazy, particularly with reference to the use of alcohol.” (12 RT 2999.) Counsel outlined that the defense would rely in large part on petitioner’s inebriation at the time of the crimes and Dr. Rayyes’s opinion that petitioner suffered from alcoholism. (12 RT 3000, 3002.) Dr. Rayyes did in fact testify that petitioner suffered from alcoholism and that he was impaired to such a degree on the night of the crimes that he could not form the specific intent to commit murder. (12 RT 3061-70.) Counsel argued at the close of the guilt phase that petitioner lacked the specific intent to commit the murders. (12 RT 3167-74.) Counsel also argued at the penalty phase that alcoholism prevented petitioner from remembering the details of the crime. (14 RT 3659.)

Petitioner argues that counsel did not tie petitioner’s problems with substance abuse to petitioner’s mental condition, particularly by showing that alcohol and drugs exacerbated petitioner’s neurological deficiencies. Petitioner also faults counsel for not consulting a toxicologist to explain the physiological impact of alcohol and drugs on petitioner. Petitioner fails to demonstrate deficient performance. Trial counsel relied on an EEG ordered by prior counsel and administered by a professional, without any objective indication that the test was administered improperly. Trial counsel also consulted with an expert on alcoholism, and that expert testified that petitioner suffered from alcoholism and explained the effects that alcohol would have had on petitioner’s conduct. Counsel’s performance was not deficient.

“Strickland

does not guarantee perfect representation, only a ‘reasonably competent attorney.’ ”

Harrington v. Richter,

— U.S. -, 131 S.Ct. 770, 791 , 178 L.Ed.2d 624 (2011) (quoting

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 );

see also U.S. v. Bur

*1070

roughs,

613 F.3d 233, 246-47 (D.C.Cir.2010) (“The Sixth Amendment ... does not pledge perfection.”) (quoting

United States v. Hurt,

527 F.3d 1347, 1357 (D.C.Cir.2008).) Petitioner suggests, without demonstrating, that counsel could have used an additional expert or put Dr. Rayyes on at the penalty phase to connect petitioner’s substance abuse problems to his neurological deficits. While more specific or nuanced expert testimony about alcohol and drugs could have been desirable, it is not constitutionally required. “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”

Yarborough v. Gentry,

540 U.S. 1, 8 , 124 S.Ct. 1 , 157 L.Ed.2d 1 (2003);

cf. Richter,

131 S.Ct. at 791 (“Just as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight for failing to prepare for what appear to be remote possibilities.”) Petitioner’s claims of deficiency and prejudice fail.

Accordingly, the Court DENIES Claims 5(B)(3)(d), 5(B)(4), 5(C)(5), 5(C)(6) and 5(C)(8).

3. Counsel’s failure to investigate petitioner’s biological family (Claims 5(B)(6) & 5(0(10))

In Claims 5(B)(6) & 5(C)(10), petitioner argues that trial counsel failed to investigate the identity and psychological background of petitioner’s biological parents, even though counsel knew petitioner was adopted. Petitioner alleges that if trial counsel had conducted an investigation, he would have discovered: (1) that petitioner’s biological parents had a long history of serious psychiatric impairments, (2) that the psychiatric problems petitioner’s biological parents suffered from had a genetic component and, therefore, resulted in petitioner having a predisposition to severe adaptation and psychological problems, (3) that petitioner’s biological father has been psychiatrically institutionalized and evaluated as a schizophrenic; (4) that petitioner’s biological mother also had been institutionalized; (5) that some of petitioner’s biological maternal siblings suffered from serious psychiatric and emotional difficulties requiring at least one of them to be hospitalized for mental health disorders; and (6) that petitioner’s biological mother abused alcohol while pregnant with petitioner, was a victim of abuse during her pregnancy with petitioner and that forceps were used in petitioner’s delivery. Petitioner contends that the presentation of this evidence would have supported a theory that his severe psychological disorders prevented him from forming the specific intent necessary to support a first degree murder conviction or would have provided significant mitigating evidence.

Petitioner must demonstrate deficiency and prejudice to obtain relief on a claim of IAC.

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 .

Counsel performed deficiently by failing to investigate petitioner’s birth family. Trial counsel knew that petitioner was adopted and, believing that mental illness had a genetic component, counsel intended to investigate petitioner’s birth family. (10 CDD 52.) Torelli’s file, which he handed over to trial counsel, included the name of petitioner’s birth mother. (9 CDD 52, 10 CDD 50-51, 11 CDD 86.) Trial counsel sought a court order authorizing him to access all records regarding the Hernandez family’s attempt to adopt a second child. (1 CT 279-84.) The trial court granted petitioner’s request. In fact, the trial court authorized petitioner to access the adoption records regarding the failed adoption, including all adoption records related to the Hernandez family for an eight-year period. (1 CT 285-86) (authorizing access to adoption records for the Hernán

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dez family from 1962, the year of petitioner’s birth and adoption, through and including 1970). Moreover, the judge who granted petitioner access to adoption records concerning the Hernandez family testified in these proceedings that petitioner’s capital prosecution would have been good cause to open the adoption records and that she would have authorized access to information identifying petitioner’s birth parents. (Pokras Decl. at 1, ¶2.) Trial counsel never attempted to obtain petitioner’s adoption records. He testified that he had no tactical reason for this decision. (9 CDD 52, 10 CDD 50-51, 11 CDD 86.) No reasonable basis supports counsel’s failure to acquire petitioner’s adoption records. Trial counsel performed deficiently.

Silva v. Woodford,

279 F.3d 825, 842 (9th Cir.2002) (“[A]n attorney’s failure to investigate, during either the guilt phase or the sentencing phase of a capital trial, can amount to constitutionally deficient performance.”)

Moreover, trial counsel failed to conduct any investigation into petitioner’s birth family, despite all experts agreeing that such evidence would have been germane to petitioner’s defense at trial. A letter from the Los Angeles Department of Children’s Services to counsel on direct appeal shows the following: petitioner’s birth mother was an unmarried 14-year-old; the birth father was an 18-year-old unemployed man who was incarcerated for robbery after being sentenced to a five-year term in 1961; the relationship continued in defiance of the wishes expressed by the birth mother’s family; the birth mother deliberately disobeyed her parents; the birth parents frequented “drinking parties” and had a violent relationship, “as the birth father beat [the birth mother] on numerous occasions and appeared to enjoy the brutal treatment”; and the birth father told the birth mother to take quinine tablets to terminate the pregnancy. (4/27/05 Joint Stipulation Exh. C.) The records also show that forceps were used in petitioner’s birth.

(Id.)

In investigating petitioner’s birth family, appellate counsel learned that petitioner’s birth mother and members of her family suffer from depression and other mental disorders and that petitioner’s birth father suffers from substance abuse and schizophrenia. Trial counsel’s failure to investigate petitioner’s birth family was deficient.

See Caro v. Calderon,

165 F.3d 1223, 1226 (9th Cir.1999) (noting that a complete mental evaluation must contain information about a petitioner’s personal background);

see also

Lewis 8/15/03 Decl. at 4, ¶ 8 (“It is impossible to understand Francis Hernandez’s psychiatric condition ... without a clear understanding of the interactions among his genetic vulnerabilities to severe mental illness which he inherited from his biological mother and father, the effects of in útero exposure to alcohol and drugs, repeated head injuries beginning in early childhood, and an upbringing in a psychotic, physically and sexually abusive, and severely neglectful adoptive family.”) “Thus, [the Ninth Circuit has] found counsel ineffective where he neither conducted a reasonable investigation nor made a showing of strategic reasons for failing to do so.”

Sanders v. Ratelle,

21 F.3d 1446, 1456 (9th Cir.1994).

a. Guilt phase prejudice

Petitioner has not shown that the failure to investigate his birth family caused him unconstitutional prejudice at the guilt phase.

Petitioner argues that the evidence related to his birth family would have enabled him to assert a successful diminished capacity defense. Specifically, petitioner contends that with information about his birth family, he could have shown that he was in a dissociative state during the crimes. (Ptr’s Corrected Brief on Prejudice at 106.) Evidence that petitioner inherited a vulnerability

*1072

to mental illness also would have supported the argument that petitioner did not and could not premeditate or deliberate the killings with the requisite specific intents.

(Id.

at 107.) As discussed with respect to guilt phase claims concerning counsel’s failure to pursue a diminished capacity defense, this defense likely would have failed. Even bolstered in part by evidence of mental illness in petitioner’s birth family, as well as the poor circumstances of petitioner’s in útero development and birth, a diminished capacity defense due to petitioner’s mental condition likely would have gained little traction at trial. Petitioner’s detailed confession would have undercut evidence that petitioner dissociated during both crimes. Moreover, the crimes were incredibly similar and took place close in time. A reasonable jury could have concluded that petitioner did in fact deliberate and premeditate the crimes. Also as discussed

supra,

California voters had passed a referendum that eliminated the defense of diminished capacity due to mental disease, defect or mental disorder a year and a half before petitioner’s trial.

See

CaLPenal Code § 28. Though the defense technically applied to petitioner’s case, the general culture at the time may have been hostile to accepting this sort of defense at the guilt phase. The additional evidence about petitioner’s biological family does not support a conclusion that the jury would have voted differently at the guilt phase.

Accordingly, the Court DENIES Claim 5(B)(6) but will consider counsel’s deficient performance in the cumulative error analysis.

b. Penalty phase prejudice

The prejudice analysis requires the Court to “evaluate the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced at the habeas proceeding — in reweighing it against the evidence in aggravation.”

Williams (Terry) v. Taylor,

529 U.S. 362, 398 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

The prosecution’s penalty phase case in aggravation relied solely on the circumstances of the crime. Petitioner presented the brief testimony of several family members, a friend, petitioner’s ex-girlfriend and two clinical psychologists in mitigation. Petitioner also took the stand. The penalty phase lacked a coherent narrative, but some themes included that petitioner abused alcohol; that his mother had suffered several mental breakdowns during his childhood; that petitioner had some emotional problems; that petitioner would probably not be dangerous in prison and that petitioner’s life should be saved due to familial love, his potential for religious salvation or both.

Dr. Girsh testified that petitioner likely suffered from borderline personality disorder and, on cross-examination, that petitioner may have suffered from antisocial personality disorder. (14 RT 3584, 3599.) Dr. Maloney testified that petitioner suffered from “emotional disturbances” from an early age, but that Dr. Maloney had no data to suggest that petitioner was psychotic, disturbed or unable to understand what he was doing at the time of the crimes. (14 RT 3473-74, 3475.) Neither Dr. Girsh nor Dr. Maloney knew the circumstances of petitioner’s in útero development or his inherited predisposition to mental illness.

The brief testimony from petitioner’s family members did not evoke much mercy. Petitioner’s adoptive mother provided largely scattered testimony about her mental illness, with no testimony about how her incapacitation affected petitioner. Petitioner’s adoptive father testified that petitioner was upset about his mother’s

*1073

breakdowns but that he tried to be helpful, that petitioner was harassed a lot by the police due to his race, that petitioner was able to take care of himself starting around age seven or eight and that petitioner got angry when he did not get his way. Petitioner’s uncle testified that petitioner had too much responsibility heaped on him, that he did not have a backyard with grass growing up and that had a bad experience at Montessori preschool. Petitioner’s paternal aunt testified that she saw petitioner only two or three times a year since his adoption, but that she would commit to writing petitioner every month and visiting him every other month if he were sentenced to life without parole. A friend testified that petitioner convinced her to give up drinking and smoking because she had Diabetes. Petitioner’s ex-girlfriend testified that they had normal sex and only one violent episode, when petitioner slapped her after she hit him with a pipe.

“It is imperative that all relevant mitigating information be unearthed for consideration at the capital sentencing phase.”

Caro v. Calderon,

165 F.3d 1223, 1227 . Moreover, “[t]he Constitution prohibits imposition of the death penalty without adequate consideration of factors which might evoke mercy.”

Hendricks v. Calderon,

70 F.3d 1032, 1044 (9th Cir.1995) (internal quotation marks and citation omitted). Petitioner’s adoption and birth records would have shown that petitioner was born to a fourteen-year-old girl in a physically abusive relationship with an incarcerated eighteen-year-old. Petitioner was exposed to violence, drugs and alcohol in útero. Petitioner was delivered with forceps, which are known to cause neurological damage.

(See

Gur 2/8/05 Deel. at 14, ¶ 27.) Limited additional investigation into petitioner’s birth family would have shown that petitioner’s birth mother suffered from depression and that his father suffered from serious mental illness. Petitioner’s mental health experts did not know about the circumstances of petitioner’s birth family or in útero development, and the jury did not hear any such evidence. Had petitioner’s experts considered and testified about petitioner’s inherited vulnerability to mental illness, his exposure to toxins in útero and his forceps delivery, a substantially different case in mitigation would have been presented. The question is whether it is reasonably probable that the jury would have reached a verdict of life without parole.

The Ninth Circuit has held “that overwhelming evidence of guilt does not ameliorate the failure to present mitigating evidence at the penalty phase.”

Caro,

165 F.3d at 1227 . In fact, “the determination of whether to impose a death sentence is not an ordinary legal determination which turns on the establishment of hard facts. The statutory factors [in California] give the jury broad latitude to consider amorphous human factors, to weigh the worth of one’s life against his culpability.”

Id.

(quotation marks and citations omitted). Petitioner’s brain damage was rooted in part in his biological background: being born to fourteen-year-old girl who abuses alcohol during pregnancy and a forceps delivery. (Gur Depo. at 461.) Counsel’s failure to investigate and present evidence concerning petitioner’s biological roots certainly caused him prejudice. Evidence about petitioner’s biological background, prenatal circumstances and birth certainly would have made a marked improvement to the weak mitigation case presented. Weighed against the aggravating circumstances of the crime, and considering the damaging effect of petitioner’s penalty phase testimony, however, petitioner has not shown prejudice sufficient to undermine confidence in the jury’s verdict.

Accordingly, the Court DENIES Claim 5(C)(10) but will consider this claim in the cumulative error analysis.

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4. Counsel’s failure to investigate and present evidence of petitioner’s dysfunctional adoptive family (Claims 5(B)(3)(c) & 5(C)(3))

In Claim 5(C)(3), petitioner claims that trial counsel failed at the guilt and penalty phases to properly use evidence regarding the unstable and dysfunctional nature of petitioner’s family background.

To prevail on a claim of IAC, petitioner must show deficiency and prejudice.

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 .

Trial counsel knew that petitioner had been abused. (1 ODD 13.) Counsel did not attempt to obtain petitioner’s childhood medical records, to interview the family’s doctor or to investigate allegations of abuse. Moreover, counsel did not attempt to obtain the medical or psychiatric records for petitioner’s adoptive mother, Naomi, who was diagnosed with schizophrenia when petitioner was six. Counsel did not contact Naomi’s treating psychiatrists. Counsel did not interview family members about Naomi’s behavior before, during and after her breakdowns. Counsel did not attempt to locate or interview the person hired to help in the Hernandez home after Naomi’s first breakdown. Trial counsel testified that he did not have a tactical reason for failing to conduct this investigation. (1 CDD 13, 31-32, 55-56.) Counsel never learned that petitioner’s mother used to sit on him to calm him down, that she and petitioner would tie each other up or to a chair as a form of play and that she forcibly administered enemas to petitioner as discipline, making him hold the fluid inside for ten to fifteen minutes. (7/16/03 Kuhl Decl. at 6-7, ¶ 24; 7, ¶¶ 26, 29.)

At trial, Naomi testified that she had several breakdowns, that she was in and out of mental hospitals and that she was depressed. No one testified about Naomi’s behavior at the time or about how it affected petitioner. As part of the evidentiary hearing, Naomi testified. She suffered hallucinations and was hospitalized for several times for many months. (7/16/03 Decl. at 9, ¶ 36.) During her time in the hospital, she “didn’t know who was taking care of Francis” and “just wasn’t able to think about that.”

(Id.

at 9, ¶ 37.) She remembers Francis coming to visit and that he “didn’t look like he was being taken care of very well. He looked disheveled.”

(Id.)

When she was released, she took Mellaril, a fact the jury did hear. However, no one explained the medication’s effects at trial. Naomi felt “so lethargic” that it was like she “was in slow motion all the time.” Her “breakdowns also affected Francis badly. I did so many odd things that it must have confused Francis when he was a little boy. My medication also made me unable to be a mother to Francis. I was just too slow and depressed to do the things a mother should do for her son. I feel very sad about that. My mental illness made me so depressed and miserable that I think our home was a bad place for a little boy.”

(Id.

at 17-18, ¶ 73.)

Counsel also did not investigate and present evidence that when Naomi suffered her second breakdown and was hospitalized, petitioner’s adoptive father got a job working in Palmdale. Because his father commuted from Long Beach, petitioner was often on his own starting at age eight.

(Id.

at 11-12, ¶ 47.)

“Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”

Strickland,

466 U.S. at 691 , 104 S.Ct. 2052 . The scope of counsel’s investigation was inadequate and unreasonable, given the various leads evident in the information counsel did know.

Wiggins,

539 U.S. at 525 , 123 S.Ct. 2527 (“[A]ny reasonably competent attorney would have realized that pursuing these leads was necessary to making an in

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formed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner’s background.”) “[T]he investigation should include inquiries into social background and evidence of family abuse.”

Summerlin v. Schriro,

427 F.3d 623, 630 (9th Cir.2005) (en banc). Moreover, the record reflects that “counsel uncovered no evidence in [his] investigation to suggest that a mitigation case, in its own right, would have been counterproductive, or that further investigation would have been fruitless .... ”

Wiggins,

539 U.S. at 525 , 123 S.Ct. 2527 .

“[T]he duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation will be a waste.”

Rompilla v. Beard,

545 U.S. 374, 383 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005) (quoting

Wiggins,

539 U.S. at 525 , 123 S.Ct. 2527 ). In this instance, however, effective representation would not have required counsel to do anything as dramatic as scour the globe in the hope that he would find something helpful. Instead, the record shows that counsel’s failure to investigate and present evidence about petitioner’s unstable and dysfunctional upbringing was objectively unreasonable, given what counsel knew at the time.

In addition, “[c]ounsel have an obligation to conduct an investigation which will allow a determination of what sort of experts to consult. Once that determination has been made, counsel must present those experts with information relevant to the conclusion of the expert.”

Caro v. Calderon,

165 F.3d 1223, 1226-27 (9th Cir.1999). Counsel did not realize the importance of having an expert explain how petitioner would have been impacted by his adoptive mother’s schizophrenia. Moreover, counsel failed to provide the clinical experts who testified at the penalty phase with a full picture of the family’s difficulties, as counsel inadequately investigated petitioner’s home life. Counsel’s failure to conduct an adequate investigation was deficient.

a. Guilt phase prejudice

As with the other guilt phase claims discussed, petitioner has not shown that counsel’s failure to investigate and present the dysfunctional nature of his adopted family caused him unconstitutional prejudice at the guilt phase.

Again, petitioner argues that his adoptive mother’s psychotic behavior and the physical abuse that both parents inflicted on him interfered with petitioner’s ability to premeditate, deliberate and harbor the specific intent to kill. (Ptr’s Brief on Deficiency at -20-21.) As discussed, a diminished capacity defense due to petitioner’s mental condition — whether bolstered by his adoptive mother’s psychosis, the abuse petitioner suffered at his adoptive parents’ hands or both — was not likely to succeed at the guilt phase. The detail contained in petitioner’s confession and the nearly identical nature of the crimes could cause a reasonable jury to reject a claim that petitioner could not deliberate or premeditate or that he dissociated during the crimes. Also as discussed, about eighteen months before trial, an initiative had passed in California that abolished the defense of diminished capacity due to mental disease, defect or mental disorder.

See

CaLPenal Code § 28. This context may have undercut the potential efficacy of a diminished capacity defense at the guilt phase.

Accordingly, the Court DENIES Claim 5(B)(3)(c) but will consider counsel’s deficiencies in the cumulative error analysis,

b. Penalty phase prejudice

Again, the Court must weigh the evidence in mitigation, including the evidence adduced at trial together with the evidence

*1076

presented at the evidentiary hearing, against the evidence in aggravation.

Williams (Terry),

529 U.S. at 398 , 120 S.Ct. 1495 . As discussed, the aggravating evidence in this case is limited to the circumstances of the crime.

The jury heard petitioner’s adoptive parents, Naomi and Frank, testify about Naomi’s nervous breakdowns. Their trial testimony makes clear that Naomi was severely depressed and in and out of mental hospitals from when petitioner was age six until he was about fifteen, when Naomi left Frank. However, some of Frank’s testimony downplayed the seriousness of Naomi’s illness.

(See, e.g.,

13 RT 3371 (testifying that when Naomi had her second breakdown when petitioner was eight that “Francis was older and he seemed to be able to take care of himself a little better in that situation, and I think that my wife showed some improvement” despite subsequent nervous breakdowns requiring lengthy hospitalizations). No one testified about the effect that Naomi’s very serious mental illness had on petitioner. Even the clinical psychologists who testified had little to offer. Dr. Girsh testified only that petitioner’s upbringing was “amorphous,” “haphazard and unstructured.” (14 RT 3589.) When asked how petitioner’s home life affected petitioner, Dr. Maloney responded: “Well, the mother left the scene not — somewhere during Francis’[s] childhood. So she was not there at all for guidance, and previous to that, was fairly incapable of handling him. The father tended to excuse any problem Francis had. The net effect of all this was [petitioner] never got treated for anything.” (14 RT 3478-79.) Counsel did not investigate or present any evidence about how being raised by a psychotic, schizophrenic mother and a paranoid father affected petitioner.

Trial counsel’s failure to investigate and present the dysfunctional nature of petitioner’s adoptive family had dire consequences at the penalty phase. Counsel presented some testimony that petitioner was raised by a mentally ill mother, but “[t]he jury did not ... have the benefit of expert testimony to explain the ramifications of these experiences on [petitioner’s] behavior. Expert evidence is necessary on such issues when lay people are unable to make a reasoned judgment alone.”

Caro v. Calderon,

165 F.3d at 1227 . The evidence presented about petitioner’s unfortunate home life was limited and without context.

Dr. Clausen, who specializes in children and adolescents, offered evidentiary hearing testimony about the impact that petitioner’s schizophrenic mother would have had on him. Children raised by a schizophrenic parent tend to suffer from various difficulties, including cognitive, behavioral, emotional and social. (Clausen Decl. at 93-94, ¶ 235.) Naomi’s schizophrenia prevented petitioner from forming a healthy attachment to his primary caretaker as an infant, resulting in a failure to develop basic trust.

(Id.

at 94-96, ¶¶ 236^40.) Naomi and Frank’s poor parenting also prevented petitioner from developing a sense of autonomy and initiative, the appropriate developmental task for a child ages two to six. Consequently, petitioner lacked a healthy self-concept, as well as basic skills in social comprehension and interpersonal communication. Petitioner had no grasp of the expectations of him or the consequences for failing to meet those expectations.

(Id.

at 96-103, ¶¶ 241-49, 251.) In his early school years, petitioner developed anxiety and depression, and he avoided going home.

(Id.

at 109, ¶ 264.) In fifth grade, petitioner began coping by using drugs and alcohol regularly, and his substance abuse habits grew worse with time.

(Id.

at 109, ¶ 266.) Petitioner had no boundaries or structure and began acting out during his teen years.

(Id.

at 110,

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¶ 268; 112, ¶ 273; 113 ¶ 274.) Petitioner’s mother abandoned the family without saying goodbye when petitioner was fifteen.

(Id.

at 113, ¶ 275.) Petitioner turned more often to drugs, and the physical condition of his home deteriorated further.

(Id.

at 113-14, ¶¶ 276, 277.)

Dr. Lewis opined that Naomi’s inadequate mothering affected petitioner in significant ways. As early as preschool, petitioner manifested psychotic behavior, such as attacking his peers without provocation, misperceiving reality, misreading social cues, bringing dangerous items to school, engaging in dangerous behavior and being unable to transition from one activity to another. (Lewis 8/15/03 Decl. at 25-27, ¶¶ 63, 67-68.) A psychological evaluation of petitioner at age five showed that he was “frantic” and “very disturbed.”

(Id.

at 29, ¶ 73.) The horrid physical condition of petitioner’s home added to the problem. Dr. Lewis concluded that “[n]o child raised in such an environment could be expected to develop normally. He or she would have no models for normal social interaction and no experiences of the kind of ongoing nurturing and cognitive stimulation that every human being requires for normal adaptation.”

(Id.

at 30, ¶ 76.)

Dr. Lewis also testified that a connection existed between the administration of enemas to petitioner as a child and the sodomy aspect of the crimes.

(Id.

at 19, ¶ 46.) Specifically, Dr. Lewis testified that “[cjhildren who have been repeatedly stimulated sexually and/or teased sexually by an adult, especially a mother, are at a very high risk of acting out sexually and aggressively toward women other than their abusers.”

(Id.)

In fact, “[r]epeatedly holding a child down and inserting objects into that child’s rectum is a form of sodomy .... The acts are experienced by the child as repeated anal sexual assaults. (Lewis 5/8/04 Deck at 11, ¶ 30.) Although the Supreme Court has held that a nexus between a petitioner’s crime and his or her mental condition is not required, an expert’s opinion that petitioner sodomized his victims because of the abuse he suffered as a child would have been powerful mitigating evidence.

See, e.g., Tennard v. Dretke,

542 U.S. 274, 287 , 124 S.Ct. 2562 , 159 L.Ed.2d 384 (2004).

Finally, Dr. Gur testified that petitioner’s biological background, coupled with his adoptive parents’ problems, was “a prescription for disaster. It’s a prescription for someone who will really never develop normally and will not have much of a chance to develop the mental and intellectual and personal capacity to cope with life’s stresses.” (Gur Depo. at 447.)

“[DJefense counsel’s penalty phase performance was constitutionally deficient where counsel ‘failed to adequately investigate, develop, and present mitigating evidence to the jury even though the issue before the jury was whether [the defendant] would live or die.’ ”

Ainsworth v. Woodford,

268 F.3d 868, 874 (9th Cir.2001);

see also Caro,

165 F.3d at 1226-27 (remanding for an evidentiary hearing where counsel failed to investigate and present “precisely the type” of mitigating evidence “most likely to affect a jury’s evaluation of the punishment” petitioner should have received). Dr. Lewis testified that “one cannot overemphasize the effects on Francis, as a psychiatrically vulnerable child to begin with, of being raised by a chronically psychotic, sexually abusive mother.” (Lewis 8/15/03 Deck at 19, ¶ 46.) Mitigation evidence about how petitioner’s dysfunctional family circumstances affected him would have provided compelling evidence at the penalty phase. “[E]vidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background ...

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may be less culpable than defendants who have no such excuse.”

Penry v. Lynaugh,

492 U.S. 302, 319 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989).

The excluded evidence about petitioner’s home life, including testimony about the abuse petitioner suffered and the relationship between that abuse and the crime, would have provided powerful and compelling mitigating evidence. When weighed against petitioner’s damaging penalty phase testimony, however, petitioner has not demonstrated a reasonable probability of a different penalty phase verdict.

(See

Discussion of Claim 5(D)(27)

infra.)

Accordingly, the Court DENIES Claim 5(C)(3) but will consider counsel’s deficiencies in the cumulative error analysis.

5. Counsel’s failure to present evidence of petitioner’s mental condition (Claims 5(C)(1), 5(C)(2), 5(C)(4) & 5(C)(9))

In Claims 5(C)(1), petitioner argues that counsel failed to present evidence of petitioner’s mental condition that would have been compelling mitigating evidence, including that petitioner suffered from clinically significant manifestations of schizophrenia, hypomania, manic depression, hyperactivity, psychotic deviations and impulse disorders. In Claim 5(C)(2), petitioner contends that trial counsel failed to introduce psychiatric reports describing petitioner’s clinical profile as “highly pathological” and “schizo-manic.” In Claim 5(C)(4), petitioner asserts that trial counsel faded to introduce documentary evidence that would have corroborated these diagnoses. In Claim 5(C)(9), petitioner argues that trial counsel limited the testimony of petitioner’s clinical and forensic psychologist Dr. Faye Girsh at the penalty phase. Counsel also failed to call witnesses who could have offered firsthand accounts of petitioner’s lack of dangerousness in custody.

A successful claim of IAC requires a showing of both deficiency and prejudice.

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 .

a. Deficiency

In advance of trial, Dr. Maloney examined petitioner. Dr. Maloney reported that the “data do suggest some potentially serious psychological problems” and that petitioner had a “highly pathological profile.” (JTD at P00829.) Dr. Maloney found that petitioner had significant elevations on scales measuring hypomania, schizophrenia, psychopathic deviate and paranoia.

(Id.)

He explained that people with similar profiles have episodes in which they come across as demanding, confused, hostile, hyperactive, panicky and circumstantial, and that they may also be restless, evasive and high strung.

(Id.)

Moreover, people with similar profiles exhibit intense overreaction to normal rejection.

(Id.)

Dr. Maloney opined that the most likely diagnosis is schizo-manic episode, which involves some breakdown in the thinking processes coupled with a manic-like state.

(Id.

at P00830.) The most technical diagnosis would be schizophrenia, but petitioner did not show any overt signs of schizophrenia. Petitioner did seem to have a variety of psychological problems, however.

(Id.)

Dr. Maloney concluded:

The present data suggest that we have an individual who functions in the normal range of general intelligence with no suggestion of any specific cognitive-intellectual or perceptual deficit. He also does not manifest any of the primary signs of a major condition such as psychosis. Present data do, however, indicate that he has significant psychological problems and comes from a very unstable background with multiple noted difficulties relating to his parents as well as problems between his parents.

(Id.

at P00830.) Dr. Maloney testified at penalty that petitioner’s “emotional distur

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bances” were evident starting in childhood and went untreated, that petitioner had the mental capacity to commit the crimes and that he would do well if he had “extreme limits” placed on him. Counsel did not ask Dr. Maloney to explain the many psychological problems discussed in his report or to testify about petitioner’s familial problems. Dr. Maloney’s testimony, including cross-examination, comprised just eighteen pages of transcripts. (14 RT 3458-84.)

As part of the evidentiary hearing, counsel offered the following testimony:

Dr. Maloney determined that Francis suffered from potentially serious psychological problems, that he exhibited symptoms of hypomania, schizophrenia and paranoia, suggestive of a state in which there is some breakdown in the thinking processes combined with an elevated or manic-like state. Data also indicated that Francis suffered from feelings of being closed in or trapped and a tendency to become mad or irritated by fairly mild provocation. Dr. Maloney also concluded that Francis came from a very unstable background with multiple difficulties relating to his parents as well as between his parents. In my examination of Dr. Maloney, I brought out his opinion that Francis knew what he was doing at the time of the crimes, was not psychotic and was legally responsible when he committed the crimes, but failed to elicit his additional opinions regarding the symptoms of mental problems he noted in his report, and the degree of problems within the family. I had no tactical reason for failing to elicit this testimony from Dr. Maloney or for not giving him an opportunity to explain the reasons for his opinion.

(1CDD 25-26.)

Dr. Girsh testified that petitioner was intoxicated at the time of the crimes and that his behavior was out of control and atypical. She diagnosed petitioner with borderline personality disorder but admitted on cross-examination that antisocial personality disorder could apply. Petitioner’s history of substance abuse and his many accidents fit with the kind of self-destructive behavior typical of borderline personality. She briefly touched on petitioner’s home life, describing it as haphazard, unstructured and amorphous. She testified that nothing indicated that petitioner would be difficult in prison. (14 RT 3577-3603.)

As to the testimony of Dr. Girsh, counsel testified as follows:

I recall that Dr. Girs[ ]h was upset with me after her testimony. I had prepared her to testify extensively about Francises] adoptive mother’s inability to bond with him and the significance of that fact, which I thought was important for the jury to understand. Faye complained that I cut her off and did not give her an opportunity to present the information she was prepared to give. I did not have a tactical reason for curtailing my examination of Dr. Girs[ ]h or for failing to give her an opportunity to explain the bases for her opinions.

(1 CDD 25.)

In advance of trial, counsel gathered various documents and had Dr. Maloney and Dr. Girsh review them. These records included files from the Montessori school petitioner attended, documents concerning the Hernandez family’s attempt to adopt a second child and records from the St. Thomas More Clinic where petitioner and his family received counseling while the application to adopt a second child was pending. Trial counsel had his paralegal prepare these documents as exhibits for trial. (1 CDD 24.) In his opening statement, counsel referenced these records twice and said that “[t]he records are

*1080

somewhat extensive in that the — there are a number of records from a number of different sources that indicate how the defendant got to where the defendant is.” (13 RT 3326.) He also told the jury that the experts had examined the records. During his examination of both experts, counsel established that both Dr. Maloney and Dr. Girsh reviewed all of the records. (14 RT 347, 3581.) Counsel did not introduce these documents into evidence, and he failed to ask both Dr. Maloney and Dr. Girsh to discuss the contents of the records or to explain their significance. Counsel explained:

I know that I did not have a tactical reason for not introducing the records or their substance into evidence. I thought they were more helpful to the defense than harmful and for that reason gave them to the experts to review. Once the records were reviewed by the experts, the prosecutor was entitled to a copy and to cross-examine about their contents if he chose to do so. That prospect did not bother me.

(1 CDD 24-25.)

The Court “ ‘must indulge [the] strong presumption’ that counsel ‘made all significant decisions in the exercise of reasonable professional judgment.’ ”

Cullen v. Pinholster,

— U.S. -, 131 S.Ct. 1388, 1407 , 179 L.Ed.2d 557 (2011) (quoting

Strickland,

466 U.S. at 689-90 , 104 S.Ct. 2052 ). However, “[i]t is imperative that all relevant mitigating information be unearthed for consideration at the capital sentencing phase.”

Caro,

165 F.3d at 1227 . Moreover, counsel had a “duty to investigate and present mitigating evidence of mental impairment.”

Bean v. Calderon,

163 F.3d 1073, 1080 (9th Cir.1998). The Cornet must consider whether “ ‘under the circumstances, the challenged action[s] might be considered sound trial strategy.’”

Pinholster,

131 S.Ct. at 1407 (2011) (quoting

Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 ).

This is not a case where “a defense attorney ... reasonably decide[d] that another strategy [was] in order.”

Pinholster,

131 S.Ct. at 1407 (quoting

Strickland,

466 U.S. at 691 , 104 S.Ct. 2052 ). Nor is it a case where counsel chose a different strategy “that any reasonably competent counsel would be compelled to select ... over the one actually used.”

Crittenden v. Ayers,

624 F.3d 943, 969-70 (9th Cir.2010). Counsel knew that Dr. Maloney could offer testimony about petitioner’s many psychological problems, which Dr. Maloney outlined in his report. Dr. Girsh could offer testimony about Naomi’s inability to bond with petitioner. Both experts could have testified about petitioner’s dysfunctional and unstable home life and how that environment affected petitioner. Moreover, the preschool, adoption and counseling records would have offered various contemporaneous sources of information about petitioner’s early emotional problems and the very unfortunate environment in which petitioner was raised. The documents would have buttressed and augmented the expert testimony. Counsel’s failure to elicit appropriate mitigating testimony from his experts and to present the documents he had obtained and prepared for trial was deficient.

The record belies respondent’s assertion that counsel made a strategic decision to avoid putting this evidence, particularly the documents, before the jury for fear that it would open the door to evidence that petitioner had always been a troubled child. Part of counsel’s approach was to show that petitioner’s emotional problems began in childhood and that he came from a troubled home. The information contained in the preschool, adoption and counseling records would have shown just that. Moreover, counsel elicited testimony from Dr. Maloney that petitioner suffered from emotional difficulties from an early age. Testimony from Dr. Girsh and Dr. Malo

*1081

ney would have explained the source and effect of those problems, as well as how those problems evolved for petitioner. The records would have provided additional, corroborating information. Trial counsel intended to explore these issues with Dr. Girsh, particularly the effect of Naomi’s inability to bond with and care for petitioner. Counsel prepared Dr. Girsh extensively for the penalty phase. In the end, Dr. Girsh’s testimony consumed just twenty-six pages of transcripts, and counsel asked her no questions about Naomi’s illness. “In this case, it is undisputed that [petitioner] had a right — indeed, a constitutionally protected right — to provide the jury with the mitigating evidence that his trial counsel ... failed to offer.”

Williams

(Terry), 529 U.S. at 393 , 120 S.Ct. 1495 .

Moreover, counsel had both experts testify that petitioner had the capacity to commit the crimes at the penalty phase when that issue was not the primary one before the jury. The jury had already found petitioner guilty of murder, rape and sodomy. Counsel focused the experts’ testimony on petitioner’s mental state at the time of the crimes but failed to ask the experts about how petitioner’s home life, familial stresses or psychological problems would have mitigated his culpability. This approach made little, if any, sense. Counsel’s performance was deficient.

b. Prejudice

Petitioner must demonstrate prejudice flowing from counsel’s errors. “[T]he question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.”

Pinholster,

131 S.Ct. at 1408 (quoting

Strickland,

466 U.S. at 695 , 104 S.Ct. 2052 ). The Court must “reweigh the evidence in aggravation against the totality of available mitigating evidence.”

Pinholster,

131 S.Ct. at 1408 (quoting

Wiggins,

539 U.S. at 534 , 123 S.Ct. 2527 ).

Trial counsel’s deficiencies certainly impacted the penalty phase.. Trial counsel’s failure to question Dr. Maloney about petitioner’s highly pathological clinical profile, his “schizo-manic” condition and his many other psychological problems was certainly prejudicial. The jury heard only that petitioner had emotional problems and that he suffered from either borderline personality disorder or antisocial personality disorder. Counsel failed to present other evidence, in his possession, that would have explained other potential diagnoses, the source of petitioner’s psychological problems and how petitioner’s difficulties affected petitioner’s development and explained his conduct. Trial counsel elicited just enough testimony from Drs. Girsh and Maloney so that the jurors knew petitioner had some problems, but he did nothing to explain the extent or meaning of those problems or to give them context. Counsel failed to put before the jury testimony that petitioner suffered from psychological problems that would have made him less culpable for the crimes.

See, e.g., Mickey v. Ayers,

606 F.3d 1223, 1239 (9th Cir.2010) (“In the penalty phase, mental health evidence would explain why, though he had capacity, he was less culpable.”)

Moreover, Dr. Girsh could have testified about how Naomi’s schizophrenia affected petitioner. Dr.. Clausen testified at the evidentiary hearing that Naomi’s schizophrenia would have made it impossible for petitioner to form a healthy attachment to his mother, resulting in his inability to develop basic trust. (Clausen Decl. at 93-96,¶¶ 235-40.) Naomi’s severe mental illness also would have prevented petitioner from developing a sense of autonomy, initiative and self-identity.

(Id.

at 96-103, ¶¶ 241-49, 251.) While the jury heard testimony that Naomi was schizophrenic, that

*1082

label did not explain to them the realities of how her illness would have impacted petitioner’s childhood. The jury was deprived of readily available expert testimony that would have allowed the jurors to make sense of the evidence presented.

Caro v. Calderon,

165 F.3d at 1227 .

Petitioner’s emotional struggles were well documented, starting with preschool and continuing during the Hernandez family’s attempt to adopt a second child. Counsel sought records that captured petitioner’s emotional tumult as a preschooler and young child, gave them to his experts for review and prepared them as exhibits for trial. Nevertheless, counsel failed to question the experts about these issues and failed to seek to admit the documents into evidence. The records would have allowed the experts to explain the impact of Naomi’s schizophrenia on petitioner. Counsel also could have used the records to give contemporaneous, illustrative examples of Naomi’s deficient mothering and the consequent behavioral and emotional difficulties petitioner displayed. Expert testimony using the documents would have given context to petitioner’s life.

Nevertheless, while counsel’s failures to present evidence he had in his possession certainly prejudiced petitioner, it is not reasonably probable that appropriate expert testimony, admitted together with the omitted records, would have caused the jury to come to a different verdict. While significant, the prejudicial effect of counsel’s deficiencies does not rise to the level of prejudice found in the many cases granting relief.

See, e.g., Rompilla,

545 U.S. at 390-93 , 125 S.Ct. 2456 (granting relief where counsel failed to investigate and present evidence of petitioner’s abusive and neglectful childhood and petitione

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