Lang v. Cullen

DEATH PENALTY CASE

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS WITH RESPECT TO GUILT PHASE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AND

BRADY

AND

NAPUE

CLAIMS; FINDING COUNSEL’S PERFORMANCE WAS DEFICIENT AT THE PENALTY PHASE

MARGARET M. MORROW, District Judge.

Petitioner Kenneth Burton Lang, Jr., was convicted of robbery-murder in Santa Barbara, California in 1984, and after a short penalty phase, was sentenced to death. Petitioner’s convictions and sentence were affirmed on direct appeal. His collateral claims for relief were rejected by the California Supreme Court without an evidentiary hearing or the issuance of an order to show cause. Petitioner presented his claims to the federal district court in a petition for a writ of habeas corpus that alleged ineffective assistance of counsel, prosecutorial misconduct, and instructional error. On September 11, 1998, Judge James Ideman denied the petition on all grounds. On September 5, 2000, the Ninth Circuit affirmed in part and reversed in part. The Ninth Circuit affirmed Judge Ideman’s ruling on petitioner’s claims of instructional error and his claim that statements made by the prosecutor misled the jury as to its role in the penalty phase.

Lang v. Woodford,

230 F.3d 1367 (Table), 2000 WL 1256886 , *1 (9th Cir. Sept. 5, 2000) (Unpub.Disp.), cert. denied, 532 U.S. 977 , 121 S.Ct. 1614 , 149 L.Ed.2d 478 (2001). The Ninth Circuit also affirmed Judge Ideman’s denial of petitioner’s request for discovery and an evidentiary hearing on the claim of abuse of prosecutorial discretion in electing to pursue the death penalty.

Id.

at *2. The Ninth Circuit held that Judge Ideman abused his discretion in denying petitioner an evidentiary hearing on his claim that counsel provided ineffective assistance during the penalty phase because he failed to investigate or present mitigation evidence, and during the guilt phase because he failed to investigate and present mental health evidence that could have corroborated petitioner’s belief that he was in imminent danger at the time of the killing.

Id.

at *1. Finally, the Ninth Circuit concluded that Judge Ideman abused his discretion in failing to hold an evidentiary hearing to determine whether the prosecutor knowingly used coerced and false testimony or in the alternative failed, despite a lack of personal knowledge, to disclose the use of such testimony.

Id.

at *2.

On remand, the action was assigned to this court. The court set a schedule that provided time for discovery and a date for an evidentiary hearing. Approximately one month before the evidentiary hearing, the parties advised the court that they had agreed to present all evidence via declarations, depositions, and exhibits, and that neither wished to call live witnesses. Based on this representation, the court vacated the evidentiary hearing, and permitted the parties to proffer evidence

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through direct testimony declarations, deposition excerpts that served as cross- and redirect examination of the witnesses, and documentary exhibits. The court heard oral argument on all issues except the issue of prejudice in the penalty phase on June 26, 2003.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Events of August 1983 and the Killing of Thurman Anderson

Thurman Anderson was shot and killed on August 18, 1983, approximately one mile from the Barrel Springs campground in the Los Padres National Forest.

People v. Lang,

49 Cal.3d 991, 1002 , 264 Cal.Rptr. 386 , 782 P.2d 627 (1989). Anderson had left his home in Camarillo at 12:15 p.m. to go deer hunting. He told his wife he would return by August 21, 1983. The couple had visited the area the previous June and Anderson’s wife had helped him prepare a map showing the route from the highway to the campground. According to his wife, Anderson was not in the habit of picking up hitchhikers.

Id.

at 1003 , 264 Cal.Rptr. 386 , 782 P.2d 627 .

At approximately 8:45 p.m. on August 18, Anderson’s motor home was stopped by a California Highway Patrol officer in Atascadero because the tail lights were not working. Petitioner, the driver and sole occupant of the vehicle, told the officer his name was Kenneth Burton Stevens. Petitioner said that he had no identification and that the motor home belonged to his stepfather.

Id.

Still driving the motor home, petitioner arrived at the Atascadero home of his friend Steve Schroff. Petitioner told Schroff that the motor home belonged to a hunter who had hired petitioner as a chauffeur. Petitioner said he wanted to “go out and party; just have a good time.” Accompanied by Schroffs girlfriend, Terry Davis, petitioner and Schroff drove to a truck stop where Schroff arranged for petitioner to get $13 worth of gas and $87 cash with Anderson’s credit card. Petitioner signed Anderson’s name on the receipt.

Id.

While in the motor home, Davis observed petitioner remove a rifle from its case and show it to Schroff. She also saw petitioner remove a handgun from under the seat. Pointing the gun at Schroff and Davis, petitioner said, “bang, bang,” and laughed. After leaving Schroff and Davis at a motel, petitioner arrived at a restaurant at 10 a.m. and met an acquaintance named Mitchell Bass. With a woman Bass knew, Ines Tinker, petitioner and Bass purchased beer and drank and talked. Bass did not think that petitioner seemed despondent or depressed.

Id.

at 1003-04 , 264 Cal.Rptr. 386 , 782 P.2d 627 . When Bass asked how petitioner had acquired the motor home, petitioner said that his boss allowed him to use it on weekends. Petitioner showed Bass a rifle and a handgun and pointed the handgun at Bass.

Id.

at 1004 , 264 Cal.Rptr. 386 , 782 P.2d 627 .

Petitioner fell asleep and was awakened at approximately 6 a.m. by Bass. After driving Tinker and Bass home, petitioner drove back to the motel where he had left Schroff and Davis, and fell asleep in the motor home. He was awakened by Schroff at approximately 8 a.m. and drove Schroff and Davis to their respective places of employment. Later that day, petitioner told Schroff that he was going to fly to San Francisco and would leave the motor home at the airport. Petitioner gave to Schroff the rifle that had been in the motor home. Scroff thought petitioner was “a little jumpy” and that he'frequently looked in the rearview mirror while driving. Petitioner used Anderson’s credit card once again to purchase gasoline.

Id.

Petitioner was arrested at the San Francisco airport at approximately 9 p.m. on August 19 after attempting to carry a bag

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containing a loaded .32-caliber revolver through a security station equipped with an X-ray screening device. Petitioner said the bag belonged to his brother and he had not known its contents. Petitioner told agents his name was Thurman Anderson. Although he initially denied having identification, he eventually produced a wallet containing Anderson’s credit card and driver’s license extension.

2

Id.

After being transported to a nearby police substation, petitioner gave a 1960 birth date and said he lived in Sonoma County. When a computer check of Anderson’s birth date revealed a twenty-year disparity in birth dates, petitioner said he was Anderson’s son. The bag in which the revolver was found also held an airplane ticket to Seattle, purchased by petitioner, and certain personal effects belonging to Anderson.

Id.

On August 24, 1983, Santa Barbara police found Anderson’s motor home in the parking lot of the San Luis Obispo airport. On August 26, 1983, police found Anderson’s body. The body was face down, with Anderson’s hands under his chest, in a grove of trees in a remote area; there was no human trail nearby.

3

The immediate area was searched, but no shell casings, weapons, wallet, or other personal effects were found.

Id.

at 1004-05 , 264 Cal.Rptr. 386 , 782 P.2d 627 .

Anderson had been shot five times. One bullet entered the chest, traveled horizontally at a 45-degree angle to the body’s left side, and penetrated the heart. Three bullets entered behind the left ear and another in the back. Although the precise sequence of the shots could not be determined, forensic experts deemed it likely that the shot to the chest occurred while Anderson was standing, causing a loss of consciousness within five to fifteen seconds. The experts concluded that the remaining shots were fired while Anderson was lying on the ground unconscious.

Id.

at 1005 , 264 Cal.Rptr. 386 , 782 P.2d 627 . Bullets recovered from the body were consistent with bullets test-fired from the weapon in petitioner’s possession, although the bullets were too deformed to permit positive identification.

Id.

Petitioner testified at his criminal trial, and stated that after leaving Atascadero on Wednesday, August 17, 1983, he hitchhiked to Santa Monica looking for work. That same evening, he decided to return to Atascadero. Petitioner stated that, by noon the following day, he had hitchhiked to Santa Barbara in the rain. Petitioner accepted a ride from Anderson, who was driving the motor home. Anderson said he was going hunting for a few days and suggested that petitioner join him.

Id.

The men stopped at a store on Highway 154 where Anderson gave petitioner $100 to buy food and beer. Petitioner drank beer as Anderson drove to the Barrel Springs campground.

Id.

at 1006 , 264 Cal.Rptr. 386 , 782 P.2d 627 .

By the time petitioner and Anderson arrived at the campground and set up camp, petitioner had consumed seven or eight beers. At Anderson’s suggestion, they walked about a quarter of a mile to a water hole, intending to swim and bathe. On seeing how deep the water was, however, they returned to the campground and decided to go hunting. Anderson took his

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30.06 hunting rifle and strapped a knife on his belt. At Anderson’s request, petitioner carried Anderson’s binoculars and another hunting knife. Petitioner also carried his own loaded revolver. At petitioner’s request, Anderson did not load his rifle, but carried ammunition in a cartridge case on his belt.

Id.

After they had been hiking for approximately 45 minutes, Anderson said something about being afraid that he would catch a venereal disease; he also revealed that he had previously had sex with two men. As petitioner was looking through the binoculars, Anderson approached petitioner from behind and attempted to grab his leg and kiss him. Petitioner pushed Anderson away and yelled angrily at him. Anderson turned his back to petitioner and swung his rifle down from his shoulder. Petitioner could not see Anderson’s hands and thought Anderson was loading the rifle. As Anderson slowly turned toward petitioner, petitioner pulled the revolver from his belt and fired. Although he emptied the gun, petitioner could not recall firing any but the first shot.

Id.

Anderson was lying on the ground and appeared to be seriously injured. Petitioner testified that for his own safety, he took the rifle, knife, and cartridge case. He also took the motor home keys. Petitioner ran from the scene and returned to the campground. He left in the motor home. Driving recklessly, he hit a tree, damaging the rear part of the motor home, and breaking a tail light. Petitioner later discovered Anderson’s wallet and watch in the motor home.

Id.

Five days after being arrested in San Francisco on the weapons charge, petitioner spoke to officers investigating Anderson’s disappearance. Initially, he told a series of lies, including that he had taken the motor home after he saw it outside a store with the motor running, and that he found the handgun in the motor home. Petitioner eventually confessed to shooting Anderson, describing the circumstances in a manner consistent with his trial testimony. He then led officers to the body.

Id.

at 1006-07 , 264 Cal.Rptr. 386 , 782 P.2d 627 .

During cross-examination, petitioner was asked about his attitude toward gay men. He said that while he did not dislike gay men, he did not like it if a gay man tried to “play on” him. He denied frequenting an area in downtown Portland, Oregon called “The Camp,” which was known as a pickup area for gay men, and seeing a man named Donnie Marshall there. Petitioner admitted prior felony convictions in Oregon for burglary, robbery, forgery, escape, and unauthorized use of a motor vehicle.

Id.

at 1007 , 264 Cal.Rptr. 386 , 782 P.2d 627 .

Petitioner’s trial counsel called mental health expert Dr. Rex Beaber, a clinical and forensic psychologist, who had interviewed petitioner and received a transcript of petitioner’s statements to law enforcement officers shortly after his arrest. Dr. Beaber testified that Anderson’s stated fear of venereal disease suggested he might belong to a subgroup of male homosexuals who had very few sexual contacts with men and an almost morbid preoccupation with venereal disease. According to Dr. Beaber, this subgroup’s existence was not generally known. Dr. Beaber also testified that defendant’s account of his actions following Anderson’s death was consistent with a panic reaction that alternated with a fatalistic outlook causing petitioner to believe that he would inevitably be caught and that these were his last days as a free man.

Id.

The prosecution called Donnie Marshall, a homosexual with a preference for younger men, who testified that he saw petitioner seven or eight times during the summer of 1983 in areas of downtown

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Portland known as pickup spots for male homosexuals. Marshall said that petitioner was carrying a handgun when Marshall first met him. At a later meeting, Marshall agreed to let petitioner become his roommate. Marshall testified that he offered to orally copulate petitioner, and that petitioner did not seem in any way disturbed by the proposition.

Id.

The prosecution also called Dr. Lee Coleman, a psychiatrist. Coleman testified that that opinions offered by psychiatrists and psychologists concerning disputed questions of facts, including an individual’s state of mind, are unreliable. He found nothing significant or unusual in Anderson’s statement regarding venereal disease.

Id.

During the penalty phase, a stipulation concerning petitioner’s prior convictions was read to the jury. It was also stipulated that petitioner’s escape conviction was based on the fact that he walked away from a work detail outside the Oregon State Correctional Institution and that he had surrendered without resistance when confronted by a police officer near his hometown. A Santa Barbara County correctional officer testified as a defense witness that petitioner had not been involved in any disciplinary problems during the fourteen months he had been housed at the Santa Barbara County jail.

Id.

at 1007-08 , 264 Cal.Rptr. 386 , 782 P.2d 627 .

B. Procedural Background

Petitioner was found guilty of first degree murder, and the jury found as a special circumstance that the murder had been committed during the perpetration of a robbery. CalPenal Code ' §§ 187, 190.2(a)(17)(i), 211. The jury further found that petitioner used a firearm in the commission of the offense. CalPenal Code §§ 1203.06, 12022.5. Petitioner was also convicted of possession of a concealable firearm by a convicted felon. CalPenal Code § 12021. He was sentenced to death on December 5,1984.

On direct appeal, the California Supreme Court set aside petitioner’s conviction for possession of a concealable firearm, but otherwise affirmed the judgment.

Lang,

49 Cal.3d at 1002 , 264 Cal.Rptr. 386 , 782 P.2d 627 . Lang filed a petition for writ of habeas corpus on June 17, 1987, in the California Supreme Court. On October 12, 1989 the court denied both that petition and another that had been filed while the first petition was under submission.

Petitioner filed a federal habeas petition on April 26, 1993. On September 15,1993, Judge Ideman found that a majority of petitioner’s claims were unexhausted. As a result, on November 15, 1993, petitioner filed a third state habeas petition to exhaust the claims that Judge Ideman had deemed unexhausted, and to exhaust new claims he had discovered after filing his initial federal petition. On February 23, 1994, the California Supreme Court denied the petition.

On April 27, 1994 petitioner filed an amended federal petition. On May 26, 1994, respondent moved to dismiss the claims that the California Supreme Court found untimely because they should have been raised on direct appeal. Judge Ideman denied the motion to dismiss on July 11, 1994. On September 28, 1995, however, he vacated the July 11, 1994 order and granted respondent’s motion. On August 26, 1996, Judge Ideman reconsidered his September 28, 1995 order, and concluded that the California’s timeliness rule was not an adequate and independent state procedural rule that barred consideration of claims on federal habeas.

On July 28, 1994, petitioned filed a motion for an evidentiary hearing. Petitioner sought an evidentiary hearing on claims that were and were not the subject of the

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California Supreme Court’s timeliness decision. On December 13, 1995, Judge Ideman denied the motion in its entirety. A week prior to the issuance of that order, however, petitioner had filed an amended motion for an evidentiary hearing. Judge Ideman permitted the parties to submit additional briefing, and on September 11, 1996, denied the amended motion for evidentiary hearing in its entirety. Judge Ideman recognized, however, that the motion had been briefed at a time when the only viable claims remaining in the action were those that he had not dismissed in his September 28, 1995 order. Since Judge Ideman later reinstated the dismissed claims, he permitted petitioner to file a motion for evidentiary hearing on the reinstated claims. On March 11, 1998, Judge Ideman denied this further motion for evidentiary hearing. On September 1, 1998, Judge Ideman issued an order denying all claims in the petition for writ of habeas corpus. Ten days later, Judge Ideman retired from the bench.

On October 21, 1998, petitioner filed a motion for reconsideration of Judge Ideman’s final judgment. The case was assigned to this court, which denied the motion on April 5, 1999, finding that petitioner had failed to present newly discovered evidence, to demonstrate that Judge Ideman committed clear error, to show that manifest injustice had resulted, or to show that there had been an intervening change in controlling law. On April 29, 1999, petitioner filed a notice of appeal as well as an application for a certificate of probable cause. On May 12, 1999, the court issued a certificate of probable cause.

On appeal, petitioner raised only certain issues: (1) whether he was entitled to an evidentiary hearing on his claim that trial counsel provided ineffective assistance by failing to undertake an investigation to develop mitigation evidence and failing to introduce any meaningful mitigation evidence at the penalty phase; (2) whether he was entitled to an evidentiary hearing on his claim that trial counsel provided ineffective assistance at the guilt phase by failing to investigate and present readily available mental state evidence; (3) whether he was entitled to an evidentiary hearing on his claim that the prosecutor coerced a key witness to provide false testimony and/or failed to disclose the witness’s prior inconsistent statements and the leniency the witness received in exchange for his testimony; (4) whether petitioner was entitled to discovery and an evidentiary hearing on his claim that the prosecutor’s decision to charge petitioner with capital murder was influenced by the prosecutor’s addiction to drugs and alcohol; (5) whether the giving of an instruction that the jury could find petitioner guilt of robbery based on a finding that he was in conscious possession of recently stolen property and had made false statements about how he obtained the property was an unconstitutional permissive-inference instruction; and (6) whether the giving of a instruction, which stated that the jury “shall impose” a death sentence if aggravating factors outweighed mitigating factors, combined with misleading prosecutorial argument, created an impermissibly conclusive presumption that a death sentence should be imposed, failed properly to instruct the jury that it was to use discretion in the weighing process, and did not advise the jury that sympathy could play a role in its determination.

On September 5, 2000, the Ninth Circuit affirmed in part and reversed in part Judge Ideman’s ruling. The Ninth Circuit affirmed Judge Ideman’s conclusion regarding the exercise of prosecutorial discretion and the jury instruction claims. It held, however, that Judge Ideman had abused his discretion in denying an evidentiary hearing on the two ineffective assis

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tance of counsel claims and the claim of witness coercion. The Ninth Circuit remanded for further proceedings.

On August 20, 2001, the court held a case management conference. After hearing from counsel, the court ordered that direct testimony be submitted in declaration form at least thirty days prior to the evidentiary hearing; the court’s order also anticipated that cross-examination depositions would take place at least thirty days before the evidentiary hearing.

4

The court subsequently issued a minute order memorializing this schedule,

5

and setting an evidentiary hearing for February 26, 2002.

6

On October 5, 2001, petitioner filed a motion to continue the evidentiary hearing. The court granted this motion and rescheduled the evidentiary hearing for October 29, 2002.

7

On October 17, 2009, the court granted a stipulated request to continue the hearing to January 14, 2003.

8

The parties subsequently advised the court that they had agreed to present all evidence via declarations, depositions, and exhibits. They stated that neither party would call live witnesses, and that depositions would suffice as cross-examination and redirect examination. Based on this representation, the court vacated the evidentiary hearing, and permitted the parties to adduce evidence through direct testimony declarations, deposition excerpts that constituted cross-examination and redirect examination of the witnesses, and documentary exhibits.

9

The court heard oral argument on June 26, 2003.

II. DISCUSSION

A. Evidentiary Objections

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similar evidentiary concerns. To the extent the court relies on evidence to which a party has objected, it resolves the objection in this order. The court need not rule on the remainder of the evidentiary objections, however, because it need not consider the evidence in deciding the issues presented by the petition.

See Gonzales v. City of Martinez,

638 F.Supp.2d 1147 , 1149 n. 1 (N.D.Cal.2009) (“The Court addresses some of Defendants’ evidentiary objections throughout this Order. However, the Court need not rule on the remainder of Defendants’ evidentiary objections because the Court did not need to consider such evidence in order to resolve the motion for summary judgment”).

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1. Objections Based on Failure to Exhaust

Respondent contends that petitioner’s failure to present the contents of his declaration and the declarations of Dr. Rex Beaber,

10

Dr. Barbara Cort Counter,

11

Dr. Jay M. Jackman,

12

Dr. David Lisak,

13

and Rickard Santwier,

14

to the state court violates

Keeney v. Tamayo-Reyes,

504 U.S. 1 , 112 S.Ct. 1715 , 118 L.Ed.2d 318 (1992). He also asserts that the declarations cast petitioner’s claims in a significantly different light than they were presented in state court, and thus compel the conclusion that his claims are unexhausted.

15

Petitioner counters that he was diligent in presenting, and attempting to present, evidence supporting his claims in state court, and in requesting funds to do so. He notes that the state court denied his habeas petition summarily, that he is indigent and that he was given no funds to conduct any investigation in state court. Petitioner also notes that, in ordering an evidentiary hearing, the Ninth Circuit implicitly directed the development of facts that were not in the record at the time it ruled.

This federal habeas petition that was filed prior to the enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), so the provisions of the Act do not apply to the claims pleaded therein.

Lindh v. Murphy,

521 U.S. 320, 332-33 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997);

Duncan v. Ornoski

528 F.3d 1222, 1232-33 (9th Cir.2008). In

Tamayo-Reyes ,

a pre-AEDPA case, the Supreme Court held that a petitioner is entitled to develop facts in a federal habeas proceeding “if he can show cause for his failure to develop the facts in state-court proceedings and actual prejudice resulting from that failure.”

Tamayo-Reyes,

504 U.S. at 12 , 112 S.Ct. 1715 . As the Ninth Circuit has recognized, however, “[t]he issue before the

Ta-mayo-Reyes

Court ... was not whether the district court was authorized to hold an evidentiary hearing, but whether the district court was

required

to order an evidentiary hearing under the circumstances at bar.”

Seidel v. Merkle,

146 F.3d 750, 754 (9th Cir.1998) (emphasis supplied).

Tamayo-Reyes

thus did not alter “the district court’s broad authority to consider any evidence relevant to a federal habeas petitioner’s claim.”

Seidel,

146 F.3d at 754

*940

(citing

Tamayo-Reyes,

504 U.S. at 23 , 112 S.Ct. 1715 (O’Connor, J., dissenting)).

16

In the Ninth Circuit, “it is well-established that a federal district judge has ‘the power, constrained only by [her] sound discretion, to receive evidence bearing upon the [habeas] applicant’s constitutional claim.’ ”

Seidel,

146 F.3d at 753 (quoting

Townsend,

372 U.S. at 318, 83 S.Ct. 745 ).

17

“Contrary to what the State argues here,

Tamayo-Reyes

did not affect

Townsend’s

holding with respect to the district court’s broad authority to consider all evidence relevant to a federal habeas petitioner’s claim.”

Seidel,

146 F.3d at 754 . See also

Chacon v. Wood,

36 F.3d 1459, 1465-66 (9th Cir.1994) (“In

Tamayo-Reyes ,

the Supreme Court overruled

Townsend

in part. Specifically, it held that a hearing is not mandatory under

Townsend’s fifth

circumstance ... unless the petitioner can show cause for failing to develop the material facts in state court and prejudice resulting therefrom” (emphasis original)). Consequently, in preAJEDPA cases, notwithstanding the failure of a petitioner to offer a particular piece of evidence in the state courts, a district court has discretion to receive the evidence if it has granted an evidentiary hearing.

18

As noted, respondent also argues that admission of the declarations would render petitioner’s claims unexhausted. Citing First Circuit law, He contends that the introduction of new factual allegations “render[s] a claim unexhausted if the [facts] cast a familiar claim ‘in a significantly different light.’ ”

19

In the Ninth Circuit, however, “new factual allegations do

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not render a claim unexhausted unless they ‘fundamentally alter the legal claim already considered by the state courts.’ ”

Chacon,

36 F.3d at 1468 (quoting

Vasquez v. Hillery,

474 U.S. 254, 260 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986)); see

Weaver v. Thompson,

197 F.3d 359, 364 (9th Cir.1999) (“We acknowledge that the precise factual predicate for Weaver’s claim changed after the district court conducted its evidentiary hearing. However, new factual allegations do not render a claim unexhausted unless they fundamentally alter the legal claim already considered by the state courts. The facts adduced at the evidentiary hearing did not fundamentally alter Weaver’s claim. The factual basis for the claim remained rooted in the same incident: the bailiffs contact with the jury after it sent out its note” (internal quotation marks and citations omitted)).

Petitioner has alleged that his trial counsel provided ineffective assistance during the penalty phase because he presented almost no mitigation evidence. He has also asserted that trial court was ineffective during the guilt phase because he failed properly to investigate and present evidence of petitioner’s mental state when he shot and killed Thurman Anderson.

Petitioner’s declaration details his difficult family and personal history, his recollection of the events of August 1983, and his recollection of interactions with trial counsel. Respondent cites no particular facts that had to be, but were not, presented to the state court to exhaust petitioner’s ineffective assistance claims. Rather, respondent contends broadly that “[t]o the extent the [declaration presents facts that

do not

transform the claim, but are nevertheless material to Petitioner’s claim, presentation of those facts is forbidden under

Tamayo-Reyes

” because the declaration itself was not presented to the California Supreme Court.

20

Respondent does not contend that the introduction of the new facts detailed in petitioner’s October 2, 2002 declaration “fundamentally alters” the claims petitioner presented to the state court. To the contrary, the facts set forth in the declaration remain rooted in the same claims petitioner raised in state court — that trial counsel failed properly to investigate and present a mental state defense in the guilt phase and that trial counsel failed properly to investigate and present a mitigation case in the penalty phase. Consequently, the court cannot accept respondent’s assertion that the claims are unexhausted. Nor, as noted earlier, can it accept his suggestion that

TamayoReyes

mandates that the district court not consider a fact unless that fact was presented to the state court, or unless he shows cause and prejudice. So long as petitioner was not granted an evidentiary hearing in state court, and so long as the fundamental nature of the claims presented to the state court has not changed, the court has discretion to consider new facts adduced in the context of the federal habeas proceeding.

As respects four of the expert declarations, respondent’s evidentiary objections conclude with the following paragraph:

“Finally, Petitioner failed to present the contents of [the expert’s] declaration in state court under 28 U.S.C. § 2254 and [it] therefore violates

Keeney v. Tamayo-Reyes[].

If Petitioner presents facts that render his claim unexhausted, this Court would necessarily be precluded from providing Petitioner the relief he seeks; such facts are thus irrelevant to Petitioner’s claim and inadmissible.”

21

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As with his objections to petitioner’s declaration, respondent makes no claim that the expert declarations fundamentally alter petitioner’s claims. Nor does he identify any facts that cast petitioner’s claims in a significantly different light. Rather, respondent relies on the fact that the contents of the declarations were not presented to the California Supreme Court and does not address whether they alter the nature of petitioner’s claims.

In

Weaver,

197 F.3d at 364 , the Ninth Circuit noted that “[petitioner’s] inability to fully explore what transpired during th[e] incident [underlying his claim] stemmed from the state courts’ refusal to grant him an evidentiary hearing on the matter, rather than from any failure of diligence on his part.”

Weaver,

197 F.3d at 364 . Judge Ideman previously ruled that petitioner’s claims had been properly presented to the California Supreme Court. The basis for respondent’s contrary argument now is that petitioner was required to present the precise factual contents of the expert declarations to the state court in order to exhaust his claims. Because petitioner did not receive an evidentiary hearing in state court, and a review of the expert declarations he has'filed in this action confirms that they do not fundamentally alter the nature of petitioner’s claims, respondent’s objections to the declarations are overruled, and his request that they be stricken in their entirety is denied.

2. Objection to Family and Personal History as Irrelevant

a. Petitioner’s Declaration

Respondent next objects that, “to the extent [petitioner’s] [declaration alleges the existence of foregone background evidence that trial counsel, David Stanley, could have presented, it is irrelevant.”

22

He contends the declaration is irrelevant because it does not address whether trial counsel “adequately investigated and was adequately prepared to present a case in mitigation,” and does not discuss petitioner’s communications with trial counsel.

23

Respondent also asserts that the background information in Lang’s declaration is not relevant in assessing whether trial counsel was on notice of Lang’s mental and emotional problems.

24

Petitioner concedes that the background evidence in the declaration is presented, in part, for the purpose of proving the prejudice prong of his claim that trial counsel rendered ineffective assistance during the penalty phase. He argues that

“[t]he point of petitioner’s [declaration] (and of the similar family member declarations) is to establish what David Stanley, trial eounsel[,] could have learned in preparation for the 1984 trial had he but asked. This information could then have been provided to the mental health experts and/or be[en] presented at the penalty phase in mitigation. The declarations are submitted [to] show that Mr. Stanley’s failure was real and had [an] enormous and wholly negative impact on petitioner’s defense.”

25

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In its order remanding the case for an evidentiary hearing, the Ninth Circuit stated that “[t]here [were] ... questions of fact about what [evidence] Lang demanded trial counsel not present, whether trial counsel adequately investigated and was adequately prepared to present a case in mitigation, and whether trial counsel fully informed Lang of the importance of putting on mitigation evidence and the various types of mitigation evidence available.”

Lang,

2000 WL 1256886 at *1 (footnote omitted). The circuit court also noted that “there [were] questions of fact as to whether trial counsel was on notice of Lang’s mental and emotional problems and, if so, whether trial counsel’s failure to pursue and present mental health evidence [during the guilt phase] was unreasonable.”

Id.

Following remand, the court bifurcated the evidentiary hearing, so that trial counsel’s allegedly deficient performance during the penalty phase could be addressed first, and the question of prejudice could be addressed, if necessary, thereafter.

26

Although Lang’s testimony concerning his family background is relevant to determine whether prejudice arose from trial counsel’s failure to present mitigation evidence during the penalty phase, see

Douglas v. Woodford,

316 F.3d 1079, 1090 (9th Cir.2003) (“Evidence regarding social background and mental health is significant,” because there is a “ ‘belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background or to emotional and mental problems, may be less culpable than defendants who have no such excuse,’” quoting

Boyde v. California,

494 U.S. 370, 382 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990) (internal quotation marks and emphasis omitted)), its relevance in assessing deficient performance during that phase depends on whether petitioner shared the information with trial counsel.

The Supreme Court has recognized that a capital defense attorney has an “obligation to conduct a thorough investigation of the defendant’s background.”

Williams v. Taylor (Terry Williams),

529 U.S. 362, 396 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000) (citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed.1980)). “However, counsel may also choose not to pursue a particular investigation if such a choice is reasonable.”

Beardslee v. Woodford,

358 F.3d 560, 570 (9th Cir.2004) (citing

Strickland v. Washington,

466 U.S. 668, 691 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (“[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments”)). Deference to trial counsel’s decision to forego further investigation turns on whether, given the investigation that was actually completed, counsel could “reasonably have chosen to eschew further mitigation research.”

Beardslee,

358 F.3d at 570 ; see also

Strickland,

466 U.S. at 691 , 104 S.Ct. 2052 (“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary”);

Mayfield v. Woodford,

270 F.3d 915, 927 (9th Cir.2001) (“Judicial deference to counsel is predicated on counsel’s performance of sufficient investigation and preparation to make reasonably informed, reasonably sound judgments”).

*944

As noted, at the first stage of the bifurcated hearing on effective assistance during the penalty phase, petitioner’s testimony concerning his background and life history is relevant in evaluating deficient performance

only if

the information was shared with trial counsel. Petitioner does not state in his declaration whether any of the background or life history information he presents was shared with trial counsel. Indeed, he suggests that the facts were not known to trial counsel since he describes them as information counsel “could have learned in preparation for the 1984 trial had he but asked.”

27

What counsel “could have learned” is relevant only in assessing whether any ineffective assistance prejudiced petitioner during the penalty phase. At this stage of the bifurcated proceedings, the court need only determine whether counsel’s investigation was adequate given the facts and circumstances known to him. See

Wiggins v. Smith,

539 U.S. 510, 523-26 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003) (concluding that counsel’s failure adequately to investigate prior to deciding not to introduce mitigation evidence constituted ineffective assistance, since the evidence in counsel’s possession was suggestive of an abusive background and “counsel uncovered no evidence in their investigation to suggest that a mitigation case, in its own right, would have been counterproductive, or that further investigation would have been fruitless”). Consequently the court declines to consider the information in the penalty phase portion of this order.

The court, however, did not bifurcate the issue of ineffective assistance of counsel during the guilt phase. The Ninth Circuit identified three questions to be examined at the evidentiary hearing with respect to the guilt phase of petitioner’s trial: (1) “whether trial counsel was on notice of Lang’s mental and emotional problems”; (2) “if so, whether trial counsel’s failure to pursue and present mental health evidence was unreasonable”; and (3) “whether the mental health evidence may have sufficiently corroborated Dr. B[ea]ber’s and Lang’s testimony to raise reasonable doubt as to whether the killing was actually motivated by a desire to rob or whether, instead, the killing was motivated by Lang’s honest belief that his life was in imminent danger.”

Lang,

2000 WL 1256886 at *1. To the extent petitioner’s testimony concerning his background and life history might be relevant to the first and second of these inquiries, the court reaches the same conclusion it did with respect to the issue of deficient performance during the penalty phase. In petitioner’s declaration, he fails to state which portions, if any, of his life story and background he shared with trial counsel. Consequently, the declaration cannot be considered in evaluating whether trial counsel was on notice of petitioner’s mental and emotional problems or whether trial counsel’s failure to investigate and present mental health evidence, in light of what he knew, was unreasonable.

Information trial counsel failed to obtain from petitioner concerning his mental and emotional state is relevant to the question of prejudice during the guilt phase, however. The mental health evidence that trial counsel failed to uncover might have corroborated Dr. Beaber’s and petitioner’s trial testimony sufficiently to raise reasonable doubt as to whether the killing was motivated by petitioner’s honest belief that his life was in imminent danger. As petitioner notes in his response to respondent’s objection, the information in his declaration could “have been provided to the mental health experts to develop a mental state defense.” The court, therefore, overrules respondent’s

*945

general relevance objection to the admission of petitioner’s life history and background information at the first stage of the bifurcated proceedings, finding that the information may be relevant to petitioner’s guilt phase ineffective assistance claim. Additionally, petitioner’s life history and background testimony will be admissible in the second phase of bifurcated proceedings concerning penalty phase ineffective assistance, since the testimony is unquestionably relevant in assessing whether trial counsel’s failure to investigate and present mitigation evidence prejudiced petitioner.

28

b. Family Declarations

Respondent similarly contends that the declarations of petitioner’s family members — “representing what trial counsel David Stanley theoretically could have presented regarding Petitioner’s background [ — ] are irrelevant at this stage of the bifurcated proceeding”

29

because they do not address whether trial counsel “adequately investigated and was adequately prepared to present a case in mitigation.”

30

Respondent asserts that during the first phase of the evidentiary hearing, the family declarations are relevant, at most, only in assessing the credibility of counsel’s statement that he urged petitioner to allow him to present evidence of petitioner’s background, and explained the importance of presenting such evidence to petitioner.

31

Respondent also contends that the declarations of petitioner’s family members are not relevant in evaluating whether trial counsel was on notice of petitioner’s mental and emotional problems.

32

He maintains that whether counsel’s penalty phase performance was deficient must be assessed based on the information trial counsel had in hand at the time of the trial in 1984 from petitioner, investigators’ reports, and evaluations of petitioner by retained mental health experts, not on information that was unknown to trial counsel at that time.

33

For the reasons stated with respect to petitioner’s declaration concerning his personal and family history, the testimony of petitioner’s family members, including those family members who were never contacted by trial counsel, will be relevant in determining whether petitioner was prejudiced by trial counsel’s failure to present mitigation evidence. See

Douglas,

316 F.3d at 1090 . Much of the family background information contained in the family member declarations appears to be irrelevant at this stage of the bifurcated proceedings, however.

In evaluating trial counsel’s performance during the penalty phase, the content of the mitigation evidence he could have presented through family members is relevant

*946

only to the extent that the defense team was aware of it. To the extent a family member was available to testify as a mitigation witness, but was not contacted by trial counsel or was not asked about his or her willingness to testify, the fact that the witness was not contacted or was not asked to testify, and any information actually communicated to the defense team are relevant in assessing whether trial counsel adequately prepared for the penalty phase of the trial.

34

The substance of the testimony that could have been presented had trial counsel interviewed the family members, or interviewed them in greater depth than he did, and that was not known to counsel in 1984, however, is relevant only to the prejudice prong of petitioner’s penalty phase ineffective assistance claim. Indeed, petitioner concedes that he seeks to admit the family history declarations for the purpose of showing prejudice at penalty phase. He explains that

“[t]he point of the family member declarations is to establish what David Stanley, trial defense counsel could have learned had he asked. If, in fact, there was no useful information to be learned, then Mr. Stanley’s failure to conduct an investigation could well be said to have been without consequence. However, here the declarations amply illustrate that Mr. Stanley’s failure was real and had an enormous impact on petitioner’s defense.”

35

Because the family history set forth in the family member declarations is offered to show that trial counsel’s deficient performance at the penalty phase prejudiced petitioner, to the extent the declarations contain information that was unknown to trial counsel or defense investigators at the time, they are not relevant during the first phase of the bifurcated proceedings, which concerns deficient performance only.

36

In sum, for purposes of the first phase of the proceedings, the court will admit the family member declarations only to the extent they (1) describe the declarants’ contact or lack of contact with Lang’s trial

*947

defense team, or (2) describe matters conveyed to the defense team before or during trial. If any portion of a witness’ proposed testimony is relevant and admissible because it addresses these subjects, the court will also admit background information showing the declarant’s relationship to petitioner to place the balance of the admissible evidence in context. Applying this standard, the court finds that the family member direct testimony declarations are irrelevant during this phase of the proceedings, with the following exceptions:

• Petitioner’s Direct Testimony Declaration of Phyllis C. Atwell (4/21/02), ¶ 67.

37

• Petitioner’s Direct Testimony Declaration of Phyllis Atwell (10/21/93), p. 1 (the first sentence to the extent that it indicates the declarant is the biological mother of petitioner), p. 10 (the sentence reading “I was never asked to testify at Ken’s trial, but I would have if they had asked me”).

• Respondent’s Direct Testimony of Phyllis Atwell, in its entirety.

• Petitioner’s Direct Testimony of Tamara Jean Dykes, ¶¶ 1, 58.

• Respondent’s Direct Testimony of Tamara Dykes, final paragraph.

38

• Petitioner’s Direct Testimony of Kenneth Burton Lang, Sr., ¶ 1, 3, 5 (through the sentence, “The defense lawyer did not ask me for names of other people that could have been interviewed about Kenny and his life”)

• Respondent’s Direct Testimony of Kenneth Burton Lang, Sr., in its entirety.

• Petitioner’s Direct Testimony of Tracy Christopher Lang, ¶¶ 1, 2, 23.

• Petitioner’s Direct Testimony of Doris Rawson, ¶¶ 1,16.

• Petitioner’s Direct Testimony of Susan Mary Rosenthal, ¶¶ 1, 4.

• Respondent’s Direct Testimony of Susie Rosenthal, in its entirety.

• Petitioner’s Direct Testimony of Dyanne Van Zandt, ¶¶ 1, 4 (the sentence which reads, “I was never contacted by anyone that I can recall about Kenny’s case until after he was on death row”), 5.

The declaration of petitioner’s cousin, James Michael Lord, relates limited information concerning the family’s history in paragraphs 3 and 4. Because there is no evidence that this information was communicated to trial counsel, it is relevant only to the prejudice prong of petitioner’s penalty phase ineffective assistance claim, and is therefore admissible only in the second phase of the bifurcated proceedings. Respondent does not object to the remaining paragraphs of Lord’s declaration, which concern information Lord gave law enforcement officers immediately following petitioner’s arrest for murder. These portions of the declaration are submitted in support of petitioner’s prosecutorial mis

*948

conduct claim and are relevant to that issue.

3. General Objections to the Testimony of Drs. Beaber, Schulte, and Ratner

Respondent asserts that Dr. Beaber’s declaration is irrelevant in the first phase of the bifurcated proceeding. Dr. Beaber’s testimony concerns petitioner’s guilt phase ineffective assistance of counsel claim; as noted, the hearing on this claim was not bifurcated. Therefore, Dr. Beaber’s testimony is admissible in this phase so long as it is relevant to either the deficient performance or prejudice prong of petitioner’s guilt phase ineffective assistance claim and so long as it is otherwise admissible. Although respondent asserts that Dr. Beaber’s testimony is relevant only to prejudice during the guilt phase,

39

Dr. Beaber’s testimony concerning his qualifications to testify for the defense and his purported pro-prosecution bias is relevant in assessing whether trial counsel’s performance was deficient during that phase as well. See

Skaggs v. Parker,

235 F.3d 261, 270 (6th Cir.2000) (holding that defense counsel’s decision to present, during the penalty phase, the testimony of an unqualified psychologist who had already provided damaging testimony at the guilt phase was

deficient

in that it “fell below an objective standard of reasonableness”); see also

Stevens v. McBride,

489 F.3d 883, 896 (7th Cir.2007) (presenting expert testimony about which lawyers were “utterly in the dark” was a “complete failure of the duty to investigate with no professional justification”);

Combs v. Coyle,

205 F.3d 269, 288 (6th Cir.2000) (holding, in a case in which an expert testified during the guilt phase regarding defendant’s drug and alcohol abuse and his intoxication on the day of a murder, and opined on cross-examination that, although intoxicated, defendant acted purposefully and intentionally, and in which trial counsel conceded at a habeas evidentiary hearing that the expert had been retained to establish that defendant could not act purposely and intentionally because of intoxication and that he was “surprised” by the contrary testimony, that “counsel’s failure to have questioned [expert] ... prior trial in this regard is inexcusable. Defense counsel should have known [expert’s] opinion on this ultimate issue and should have prepared accordingly”).

Additionally, respondent’s objection rests on an implicit assumption that because Dr. Beaber testified at the guilt phase, his testimony is not relevant in assessing petitioner’s penalty phase claim. The Ninth Circuit recently considered the nature of ineffective assistance of counsel during the penalty phase:

“[A] common shorthand for [this] claim is ‘ineffective assistance during the penalty phase.’ If taken literally, this shorthand is misleading. The question is whether a defendant’s counsel was ineffective with respect to the penalty imposed, irrespective of when during the proceedings the counsel was ineffective. It is often the ease that a counsel’s ineffectiveness is manifested during the penalty phase, as the common shorthand suggests. For example, defense counsel may have failed to discover a witness who would have testified favorably during the penalty phase. But ineffectiveness is often manifested earlier. For example, defense counsel may have failed to discover impeaching evidence that could have been used against an unfavorable witness who testified during the guilt phase, and which would have portrayed the defendant in a light that

*949

would have assisted him at the penalty phase.”

Libberton v. Ryan,

583 F.3d 1147, 1166 (9th Cir.2009).

See also

Daniels v. Woodford,

428 F.3d 1181, 1210 (9th Cir.2005) (“The combination of counsel’s guilt and penalty phase deficiencies ... denfied] Daniels effective representation and prejudiced the outcome of his penalty phase trial”);

Moore v. Johnson,

194 F.3d 586, 619 (5th Cir.1999) (“[CJounsel’s deficient performance, including counsel’s performance during the guilt phase of Moore’s trial, prejudiced the outcome of the punishment phase of Moore’s trial”). Under Ninth Circuit precedent, therefore, the court must consider whether trial counsel provided deficient performance during the guilt phase of the trial to determine whether petitioner received adequate representation as to the penalty received.

Respondent also objects to Dr. Beaber’s testimony on the ground that it is not based on personal knowledge because Dr. Beaber testifies that “[he had] some memory of the case but [had] not reviewed any document to refresh [his] recollection and [did] not have specific memory of any conversation” with trial counsel.

40

A witness’s “belief ..., without evidence supporting that belief, is no more than speculation or unfounded accusation.... To be cognizable ..., evidence must be competent.” A witness must “show personal knowledge. It is not enough for a witness to tell all she knows; she must know all she tells.”

Carmen v. San Francisco Unified School District,

237 F.3d 1026, 1028 (9th Cir.2001). Dr. Beaber does not purport to testify to matters about which he lacks personal knowledge. For instance, Beaber does not testify to the substance of particular conversations with trial counsel. It appears that respondent’s general objection is focused largely on Beaber’s statement that

“[i]f a defense attorney proposing to hire me was not aware of my pro-prosecution opinions and reputation, I would certainly advise that person of the above, and would have done so in 1984. I was always quite forthright in explaining to criminal defense counsel that I regarded it as below the standard of care for a defense counsel to primarily rely on my professional opinions in establishing a potential defense based on mental state.”

41

Beaber clearly has personal knowledge of his own habits and practices. Moreover, Beaber’s habit or custom makes it at least somewhat more likely that trial counsel was on notice of facts that should have caused him to investigate whether Beaber was an appropriate witness further.

42

*950

Similarly, respondent objects to Dr. Schulte’s testimony on the ground that he lacks personal knowledge. Schulte, a forensic psychologist who was briefly retained by trial counsel in 1984, states that he does not have a “specific recollection” as to whether he requested “all available background information” on petitioner, but believes he would have done so since it was his “invariable custom and practice to request all available background information on a client.”

43

Based on the fact that Schulte cannot specifically recall this only aspect of his involvement in petitioner’s case, respondent presumes that Schulte has no personal knowledge of the case at all, and so cannot testify: (1) that he was retained in August 1984; (2) that trial counsel did not tell him that some testing had already been conducted but did not share the results of that testing; (3) whether he was retained as an expert for the penalty phase; and (4) whether he was asked to provide opinions on mitigating factors. Although Schulte has admitted that he has no recollection regarding one matter, he does not state that he lacks recollection of the other subjects addressed in his declaration. The manner in which he testifies, moreover, indicates that he has first-hand knowledge of the facts. Respondent’s lack of personal knowledge objections to Drs. Beaber’s and Schulte’s declarations are therefore overruled.

Respondent also objects to Schulte’s testimony that had he received test results indicative of post traumatic stress disorder, gender confusion, depression or identity disorder, he would have recommended appropriate follow-up as speculative. Schulte states that he did not receive any information beyond that gleaned from his initial consultation with petitioner, that he could have offered testimony in support of imperfect self-defense and voluntary intoxication defenses had he been asked to do so, and that had he been asked to evaluate the issue of imperfect self-defense, he would have conducted, or recommended that another expert conduct, an additional evaluation of petitioner. Finally, Schulte testifies that had he been asked to evaluate factors in mitigation, he would have testified that the “offense was committed while Mr. Lang was under the influence of extreme mental or emotional disturbance; and that at the time of the offense Mr. Lang’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of the law was impaired as a result of mental disease or defect and the effects of intoxication.”

44

Respondent similarly objects to two paragraphs in the declaration of Dr. Laurence Ratner as speculative.

45

Dr. Ratner examined petitioner in 1984 and states that had he had the information contained in Dr. Counter’s report available, he would have found it significant and been able to provide Stanley with a more detailed diagnosis.

46

As members of the defense team who evaluated petitioner in 1984, Ratner and Schulte can offer testimony rationally based on their perceptions. Fed.R.Evid. 701. They can testify accurately, based on their recollection and review of documents, concerning what testimony they would have offered had trial counsel provided certain information to them and called them as a witness. Such testimony is routinely admitted and considered in habe

*951

as cases. See, e.g.,

Stanley v. Schriro,

598 F.3d 612, 619-21, 624-25 (9th Cir.2010) (considering multiple declarations of experts who examined the petitioner prior to his original trial in which the experts recounted what they “would have testified” to had they been provided additional information, and concluding, based on such testimony, that an evidentiary hearing regarding ineffective assistance of counsel during the sentencing phase was warranted);

Wallace v. Stewart,

184 F.3d 1112, 1116 (9th Cir.1999) (relying on evidence that doctors who examined petitioner before his trial, had they received additional evidence, would have testified differently during at the sentencing hearing);

Caro v. Calderon,

165 F.3d 1223, 1226-27 (9th Cir.1999) (relying on evidence concerning the fact to which an examining doctor would have testified had he known of defendant’s exposure to neurotoxic chemicals);

Clabourne v. Lewis,

64 F.3d 1373, 1385-86 (9th Cir.1995) (relying on evidence that a doctor who examined petitioner prior to trial, had he been given background materials, would have testified that petitioner had schizophrenia);

Hendricks v. Calderon,

70 F.3d 1032, 1037-39, 1043 (9th Cir.1995) (relying on testimony by examining experts concerning the testimony they would have given had they had petitioner’s social history in their possession, and concluding that, although the failure to provide the information to the experts did not rise to guilt phase ineffective assistance, it resulted in penalty phase ineffective assistance). Accordingly, respondent’s speculation objections to Drs. Schulte’s and Ratner’s direct testimony declarations are overruled.

Accordingly, respondent’s objections to the admission of the testimony of Drs. Beaber, Ratner, and Schulte regarding deficient performance are denied.

47

4. General Objections to Expert Testimony

The direct testimony of psychologist Dr. Barbara Court Counter consists of a 249-page “psychosocial history,” which she represents is based on her review of ten volumes of mental health documents related to petitioner, portions of the reporter’s transcript of petitioner’s 1984 trial, petitioner’s amended petition for writ of habeas corpus prepared in 1994, and two interviews of petitioner conducted in 2002, which took a total of nine hours and 55 minutes.

Dr. Jay Jackman testifies, based in part on his review of other mental health professionals’ reports, including the psychosocial history prepared by Counter, that it is his opinion petitioner suffers from various mental health disorders. Dr. Richard Lisak testifies regarding the effect of the trauma and abuse petitioner suffered. In preparing his declaration, Lisak reviewed trial transcripts, telephone interviews, and the declarations of other experts retained in this case. Rickard Santwier is petitioner’s

Strickland

expert; he reviewed almost 2,500 pages of documents, including the 1984 trial transcripts, the California Supreme Court opinion, the petitions for writ of habeas corpus, the Ninth Circuit order, the declarations of petitioner’s family members, trial counsel, witnesses, and the prosecutor in the 1984 trial, contemporaneous notes, correspondence, and other materials.

a. Respondent’s Objection That Counter’s Declaration is not Admissible Under the California Evidence Code is Overruled

Respondent asserts that Counter’s testimony would be inadmissible in state court

*952

under California Evidence Code 352, because its probative value is substantially outweighed by the danger of undue prejudice, and California Evidence Code § 1200, which concerns hearsay. To the extent respondent suggests that the court is required to apply state evidentiary rules, respondent has not provided a proper basis for the exclusion of evidence in this proceeding. “Federal Rule of Evidence 1101(e) provides that the Federal Rules of Evidence apply to habeas corpus petitions filed in federal court under 28 U.S.C. § 2254 .”

McDowell v. Calderon,

107 F.3d 1351, 1367 (9th Cir.1997), rev’d on other grounds, 130 F.3d 833 (9th Cir.1997) (en banc); see also

Spencer v. Georgia,

500 U.S. 960, 961 , 111 S.Ct. 2276 , 114 L.Ed.2d 727 (1991) (mem.) (Kennedy, J., concurring in the denial of certiorari) (“State rules of evidence have no direct application in federal habeas courts”);

Amadeo v. Zant,

486 U.S. 214 , 227 n. 5, 108 S.Ct. 1771 , 100 L.Ed.2d 249 (1988) (applying the Federal Rules of Evidence to determine the admissibility of evidence in a habeas proceeding).

Respondent may intend to suggest, however, that Counter’s declaration is irrelevant because the opinions she offers would have been inadmissible at the 1984 trial under the California evidentiary rules. An expert witness testifying in a California proceeding, however, may rely on hearsay statements and may testify about a capital defendant’s psychosocial history. See

In re Scott,

29 Cal.4th 783, 823 , 129 Cal.Rptr.2d 605 , 61 P.3d 402 (2003) (noting that an expert witness “may base an opinion on reliable hearsay, including out-of-court declarations of other persons” (citation omitted));

People v. Hughes,

27 Cal.4th 287, 396 , 116 Cal.Rptr.2d 401 , 39 P.3d 432 (2002) (“Dr. White testified that she had been asked by the defense to prepare a psychological history and background report concerning defendant. She described how defendant’s chaotic and unstable family life affected his ability to cope, his sense of individuality, and his sense of self-esteem.... The witness reported that both parents had alcohol problems and all of the children had drug problems, but that as a general matter there was no ongoing violence in the family”);

In re Gay,

19 Cal.4th 771, 816 , 80 Cal.Rptr.2d 765 , 968 P.2d 476 (1998) (noting that petitioner’s 1983 trial included testimony from a psychologist who offered “evidence regarding the effect of family and childhood and social influences on petitioner’s development, personality, and psychosocial history”).

Respondent relies heavily on

People v. Rowland,

4 Cal.4th 238 , 14 Cal.Rptr.2d 377 , 841 P.2d 897 (1992), for the proposition that a capital defendant’s family history is material only to the extent it concerns the defendant himself. The

Rowland

court acknowledged, however, that the background of a defendant’s family

may

impact or relate to the defendant himself.

Id.

at 278-79 , 14 Cal.Rptr.2d 377 , 841 P.2d 897 (“To be sure, the background of the defendant’s family is material if, and to the extent that, it relates to the background of defendant himself’). Whether family background relates to the defendant himself is properly decided by the trier of fact. See

id.

at 279-80 , 14 Cal.Rptr.2d 377 , 841 P.2d 897 (holding that a prosecutor’s argument that the jury should consider whether the family background related to the capital defendant was proper). Thus,

Rowland

does not provide a basis for excluding family background evidence that may relate in some way to petitioner. Counter’s declaration, therefore, need not be excluded under

Rowland

because it relies on family background evidence.

48

*953

b. Respondent’s Objection that the Experts’ Testimony is Inadmissible on Hearsay and Personal Knowledge Grounds

Respondent asserts that psychosocial history is not a proper subject of expert testimony under California law, but has not argued that Counter is not qualified as an expert in the field.

49

Similarly, respondent does not dispute that Jackman and Lisak are qualified mental health experts or that Santwier is a qualified

Strickland

expert.

50

Finally, respondent does not object that the materials that form the basis for the experts’ opinions are not of a type reasonably relied on by experts in their respective fields. Counter may properly rely on mental health records, court records and interviews with petitioner in forming her opinions. See

Southland Sod Farms v. Stover Seed Co.,

108 F.3d 1134, 1142 (9th Cir.1997) (fact that an expert’s opinions were based on data collected by others was immaterial in determining the admissibility of the opinions);

Scott v. Ross,

140 F.3d 1275, 1286 (9th Cir.1998) (expert could rely on certain pretrial testimony). She need not have personal knowledge of the events. For the same reason, the fact that Jackman, Lisak, and Santwier lack personal knowledge of the events described in the materials on which each relies does not provide a basis for exclusion. See Fed. R.Evid. 602, 703, 803;

Southland Sod Farms,

108 F.3d at 1142

Rogers v. Raymark Indus., Inc.,

922 F.2d 1426 ,1430 (9th Cir.1991) (it is not required that the expert “be personally familiar with the facts or data of the particular case about which he is testifying; an expert opinion may be based on any type of evidence commonly used by experts in the field”).

Counter does not attest to the truth of the facts referenced in the psychosocial history. Rather, she admits that her opinions are based on a review of ten volumes of mental health documents, the reporter’s transcripts of petitioner’s trial, the amended petition filed in this case and two interviews of petitioner. Her opinions are admissible, as the court does not consider her declaration for the truth of the matters asserted in the underlying documents and interviews on which she relied. Similarly, Jackman’s, Lisak’s, and Santwier’s testimony is not hearsay because they do not attest to the truth of the materials on which they rely, but rather interpret those materials. It is settled that an expert can rely on extra-judicial statements in forming an opinion. See

Scott,

140 F.3d at 1286 (stating that an expert could rely on newspaper articles, pretrial testimony, and conversations with colleagues).

51

*954

c. Respondent’s Objection that the Experts’ Testimony is Inadmissible Under the Best Evidence Rule

For similar reasons, the court overrules respondent’s objection to Counter’s and Jackman’s quotation of testimony given by witnesses at petitioner’s trial, offered in declarations, or provided at depositions they did not attend; and to their description or quotation of out-of-court statements made in interviews, letters, reports, or other contexts under the best evidence rule. The best evidence rule requires that the original of a writing be used to prove the contents thereof. Fed. R.Evid. 1002. Here, the underlying writings are quoted to show the basis for Jackman’s and Counter’s opinions; they are not offered to prove the contents of the writings. The best evidence rule has no application where evidence “submitted [is] not offered to prove ‘the content of a writing.’ ”

Fireman’s Fund Ins. Co. v. Stites,

258 F.3d 1016, 1023 (9th Cir.2001). Counter may properly rely on the materials she consulted to lay a foundation for her opinion. To the extent respondent contends that Jackman or Counter has mischaracterized the underlying evidence summarized in their testimony, this is an issue that should have been addressed during cross-examination. Respondent’s best evidence objection is therefore overruled.

Although not totally clear, it also appears that respondent objects to Counter’s testimony on the basis that it is “partisan” and favors petitioner. An expert witness need not be impartial in order to testify.

United States v. Williams,

81 F.3d 1434, 1441 (7th Cir.1996) (dicta). See also 4 J. Weinstein & M. Berger, Weinstein’s Federal Evidence, § 702.06[8] (2d ed.2000) (“[t]here is no requirement under Rule 702 than an expert witness be unbiased. New people are”). For this reason, “ ‘[a]n expert witness’s bias goes to the weight, not the admissibility of the testimony, and should be brought out on cross-examination.’ ”

United States v. Kelley,

6 F.Supp.2d 1168, 1183 (D.Kan.1998). See also

DiCarlo v. Keller Ladders, Inc.,

211 F.3d 465, 468 (8th Cir.2000) (admitting an expert’s testimony and allowing the opposing party to present evidence of bias on cross-examination). Consequently, this objection is overruled.

d. Respondent’s Objection that Santwier’s Testimony is Based on Expert Declarations Created in 2002

Citing no authority, respondent contends that Santwier improperly relies on declarations created in 2002 to establish that trial counsel should have relied on such information at petitioner’s 1984 trial. Respondent asserts that such “post hoc reasoning is entirely speculative.”

52

While certain of the declarations Santwier has considered were created in 2002, his opinion is based on the fact that the information contained in the declarations was available at the time of the 1984 trial and could have been presented to the jury. The particular declarations on which respondent contends Santwier should not have relied are those executed by Counter, Jackman, Lisak, and Clardy. Respondent has not objected to the methodologies or qualifications of these witnesses and the court has found that their declarations are properly admitted. To the extent respondent contends that Counter, Jackman, Lisak and Clardy used 2002 standards and methodologies to reach their conclusions, he should have cross-examined them, presented contrary testimony from his experts, or objected that the witnesses’ methodology was not reliable under

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

*955

509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993).

Respondent also contends that Santwier attempts to “offer expert mental health evidence regarding Petitioner’s actual state of mind at the time of the murder.”

53

Santwier nowhere expresses an opinion on petitioner’s mental state. Rather, he opines that the evidence offered by mental health experts “would have provided substantial evidence in support of Mr. Lang’s testimony that he believed his life was in imminent danger.”

54

Santwier’s testimony fits easily within the traditional scope of testimony offered by a

Strickland

expert. Respondent has not objected to Santwier’s qualifications as a

Strickland

expert. Consequently, his objections are overruled,

e. Respondent’s Objection that the Experts Have Testified to an Ultimate Issue in the Case

Respondent contends that Clardy’s testimony as to how petitioner’s reported alcohol consumption would have affected his mental state violates California Penal Code § 29, and therefore would not have been admissible at petitioner’s trial.

55

Under California law, an expert may not testify “as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.” CalPenal Code § 29.

56

Although California law prohibits an expert from testifying that petitioner lacked the intent to commit the charged offense, that is not the nature of Clardy’s testimony. Rather, Clardy offers an expert opinion concerning the effects of alcohol when it is consumed in the amounts described by petitioner. This sort of evidence is admissible in California. See

People v. Rangel,

11 Cal.App.4th 291, 300 , 14 Cal.Rptr.2d 529 (1992) (noting that an expert’s testimony would have been admissible under Penal Code § 28 to the extent that it concerned “the effects of alcohol intake on appellant’s actual mental state without reference to his capacity to form said mental state”); see also

People v. Welch,

20 Cal.4th 701, 755 , 85 Cal.Rptr.2d 203 , 976 P.2d 754 (1999) (“Trial counsel competently argued to the jury that defendant’s consumption of alcohol and drugs impaired his mental state and led to an impulsive killing that did not rise to the

*956

level of premeditation and deliberation necessary for first degree murder. He called the jury’s attention to the evidence of defendant’s intoxication, and to the expert testimony regarding the effects such intoxication would likely have on judgment and impulse control”).

Here the ultimate issues were whether petitioner possessed the intent to rob and whether petitioner held an honest if unreasonable belief that his life was in imminent danger. Clardy’s testimony is that petitioner’s reported alcohol intake would have caused,

inter alia,

confusion and disorientation. Although an expert may not testify whether a defendant lacked the requisite mental state to commit a crime, he may testify to matters related to the mental state that bear on the issue of a defendant’s intent. See

People v. Samayoa,

15 Cal.4th 795, 837 , 64 Cal.Rptr.2d 400 , 938 P.2d 2 (1997) (“Neither the trial court, nor sections 28 and 29, barred defendant from presenting expert testimony relating to defendant’s mental disorders at the time of the commission of the crimes, or a correlation of the evidence of the crimes to the experts’ test results (short of an opinion that as a result of defendant’s mental disorders he lacked the capacity to form the intent to kill, or did not in fact have the intent to kill, when committing the crimes)”). Because the California courts would admit testimony such as Clardy’s, respondent’s objection must be overruled.

57

Respondent next contends that, in paragraphs 7 and 58 of his declaration, Lisak opines regarding petitioner’s mental state at the time of the offense.

58

Specifically, respondent asserts that Lisak’s opinion that petitioner’s account of the offense “is consistent with Mr. Lang’s background of extensive trauma and our scientific understanding of its neurological impact” is inadmissible under California Penal Code § 29.

59

Just as it permits an expert to testify regarding the effects of alcohol intoxication, California Penal Code § 29 permits an expert to opine that defendant’s mental condition was consistent with the defense’s interpretation of events surrounding the offense so long as he does not offer an opinion as to whether defendant lacked the requisite

mens rea.

See

Samayoa,

15 Cal.4th at 837 , 64 Cal.Rptr.2d 400 , 938 P.2d 2 ;

People v. Nunn,

50 Cal.App.4th 1357, 1365 , 58 Cal.Rptr.2d 294 (1996) (holding that § 29 permits “the presentation of

*957

detailed expert testimony relevant to whether a defendant harbored a required mental state or intent at the time he acted”). In

Nunn ,

the court held that

“it was permissible for [a defense expert] to opine that appellant, because of his history of psychological trauma, tended to overreact to stress and apprehension. It was permissible for him to testify [that] such condition could result in appellant acting impulsively under certain particular circumstances. [The expert] could have evaluated the psychological setting of appellant’s claimed encounter [at the time of the offense] and could have offered an opinion concerning whether that encounter was the type that could result in an impulsive reaction from one with appellant’s mental condition. What the doctor could not do ... was to conclude that appellant had acted impulsively, that is, without the intent to kill, that is, without express malice aforethought.”

Id.

The testimony offered by Lisak in this proceeding is precisely the type of testimony deemed admissible in

Nunn .

Lisak does not discuss petitioner’s intent at the time of the crime. Rather, he opines that petitioner’s account of the shooting and of his beliefs preceding it “is consistent with Mr. Lang’s background of extensive trauma and our scientific understanding of its neurodevelopmental impact.”

60

Lisak does not state whether petitioner could have formed the requisite mental state for any of the crimes of which he was accused, but opines that someone with petitioner’s extensive childhood exposure to repeated trauma perceives and reacts to threats differently, and is less able to control his reactions, than one without such background.

61

Because Lisak neither states that petitioner lacked the requisite intent nor offers testimony compelling a conclusion that he lacked the requisite intent, Lisak’s testimony is not prohibited by California Penal Code § 29. Respondent’s objection is therefore overruled.

f. Respondent’s Objection to Dr. Jack-man’s Opinions Concerning the Quality of Trial Counsel’s Work

Respondent objects that various paragraphs of Jackman’s declaration “purport to express expert opinions about the quality of trial counsel’s work, about the reasonableness of trial counsel’s actions, about what trial counsel should have done, or about what reasonable trial counsel would have done under certain circumstances.”

62

Respondent asserts that Jackman is not qualified as an expert on the standard of care for criminal defense attorneys. Petitioner counters that Jackman “is qualified to opine ... whether the actions or omissions of petitioner’s trial counsel, as to the mental state aspects of the case in the 1984 trial, were customary and appropriate within the attorney/mental health expert relationship.”

63

Jackman was retained to opine on five issues: (1) whether, at the guilt phase, mental health evidence was available that would have corroborated petitioner’s defense that he had an honest belief his life was in imminent danger; (2) whether, at the guilt phase, trial counsel was on notice and/or should have been on notice of petitioner’s mental and emotional problems; (3) whether, at the guilt phase, trial counsel’s failure to present mental health evidence was unreasonable; (4) whether counsel adequately investigated mental health issues and was adequately prepared

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to present a case, involving mental health experts, in mitigation; and (5) whether there was mental health evidence available that could have been presented and offered in mitigation.

64

Respondent does not dispute that Jackman, who has worked as a consultant in more than fifty homicide trials, is qualified as an expert to opine on the standard of care for mental health experts. Jackman has not established, however, that he is qualified to offer an opinion as to whether trial counsel’s actions constituted ineffective assistance under

Strickland v. Washington,

466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Consequently, the third and fourth questions described above do not appear to be within Jackman’s expertise. Similarly, Jackman is not qualified to offer an opinion concerning the information about which trial counsel should have been on notice.

65

See

Klaczak v. Consolidated Medical Transport Inc.,

No. 96 C 6502, 2005 WL 1564981 , *2 (N.D.Ill. May 26, 2005) (“The Court also ... excludes various purported expert testimony from Sparks and Nagorka as to what the Defendants purportedly knew or whether the Defendants intended to commit fraud. Such testimony is not helpful to the jury, as the jury is well positioned to make this type of assessment in the absence of a battle of expert testimony about what parties knew or did not know, or did or did not subjectively intend to do”). On the other hand, respondent has not objected to testimony that is based on Jackman’s psychological expertise.

66

Although the court admits Jackman’s testimony to the extent that it expresses medical, psychological, or psychiatric opinions, it excludes Jackman’s opinion that Stanley failed to perform reasonably as trial counsel or that his actions prejudiced the outcome at trial.

67

While Jackman is qualified as an expert on certain scientific issues, and those issues are relevant in assessing what conditions and symptoms

could

have been investigated, diagnosed, and presented, Jackman is not an expert on whether trial counsel

should

have investigated or presented such evidence.

5. Objections to the Admission of Presentence Reports

Deborah Bartley was a parole and probation officer for Clackamas County Community Corrections. Respondent has proffered Bartley’s testimony regarding a 1980 presentence report she prepared concerning petitioner. He has also proffered a presentence hearing report prepared by Marith Levers, a deputy probation officer for the Santa Barbara County Probation Department who interviewed petitioner after the guilty verdict. Petitioner objects that both reports are hearsay.

The reports are inadmissible, in their entirety, because they are hearsay.

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See generally Fed.R.Evid. 801. Although statements petitioner made to the probation officer constitute party admissions that might be admitted under Rule 801(d)(2)(A), there is a second layer of hearsay because petitioner’s statements are offered through Bartley’s and Levers’ presentence reports, which are themselves out-of-court statements. Respondent apparently seeks to have Bartley’s report admitted as past recollection recorded, since Bartley states that she has no present recollection of preparing the report.

68

The hearsay exception for recorded recollection provides that “the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.” See Fed. R.Evid. 803(5).

Respondent did not seek to “read the PSRs into the record,” which, in the context of a hearing where evidence was presented via declarations and depositions, could have been accomplished by copying the relevant paragraphs of the report in Bartley’s declaration or having them read by her at a deposition. Alternatively, perhaps it would have been sufficient for Bartley and Levers to incorporate the portions of the reports about which they had no present recollection by reference into their declarations. Respondent employed none of these approaches; instead, he submitted the presentence reports as exhibits. This is plainly not permitted by Rule 803(5).

Although Rule 803(8) authorizes the admission of certain public records for the truth of the matters asserted therein, it precludes admission where “the sources of information or other circumstances indicate lack of trustworthiness.” The Ninth Circuit has noted that “presentence reports are generally inadmissible at trial to prove any of the hearsay reports they contain,” that they “are not subject to evidentiary standards” and that they “may also contain factual errors.”

United States v. Kovac,

367 F.3d 1116, 1120 (9th Cir.2004). Respondent adduces no evidence that the presentence reports he offers are sufficiently trustworthy to be admitted under Rule 803(8). Nor does he identify any other evidentiary basis for admitting the documents, respond to petitioner’s objection, or suggest any non-hearsay purpose for admitting the reports. The court therefore sustains petitioner’s objection.

6. Objection to Admission of Crothers’s Pretrial Testimony

Petitioner objects to respondent’s submission of an excerpt from Daniel Crothers’s testimony at a pretrial hearing in the underlying state court action as Crothers’s direct testimony in this case. Petitioner contends that Crothers’s testimony at the § 402 hearing, some of which was excluded at trial as unduly prejudicial, should be excluded in this proceeding in deference to the state court’s decision.

At the 1984 trial, the trial judge permitted Crothers to testify regarding petitioner’s prior statement that he would “waste any mother fucker that screws with me.” The trial court excluded other statements petitioner purportedly made to Crothers— i.e., that homosexuals were easy marks for robbery and that petitioner would put a gun to the victim’s head if the victim resisted — because it concluded the statements were not sufficiently probative of intent or plan. Although noting that the statements did “make a person suspicious” that there might have been an intent or plan, the court ultimately held that they were more prejudicial than probative.

A different analysis of prejudice applies in this proceeding. “While it is still possible for a Rule 403 type of error to unduly

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influence a judge, ‘[njonjury trials present a much smaller danger of unfair prejudice than jury trials.’ ”

United States v. Nguyen,

D.C. No. CR F 06-0075 AWI, 2008 WL 540230 , *9 (E.D.Cal. Feb. 25, 2008) (quoting

Carter v. Hewitt,

617 F.2d 961 , 972 n. 13 (3d Cir.1980)). See also

United States v. Caudle,

48 F.3d 433, 435 (9th Cir.1995) (“[I]t would be most surprising if such potential prejudice had any significance in a bench trial”). Petitioner does not assert that the testimony is irrelevant, although respondent does not explain its relevance and has not cited the evidence in his brief. The testimony may be nominally probative in that it corroborates the 1984 testimony of Donnie Marshall. Thus, the court will admit the evidence in connection with its consideration of the prosecutorial misconduct claim.

7. Objection to Admission of Police Reports Under Public Record Exception

Petitioner next objects to the admission of a police report created by David Kell, a retired member of the Portland, Oregon police department. The report was written in January 1984, and records information regarding an interview that Kell and fellow officer James Bellah conducted of Donnie Marshall. Petitioner similarly objects to the admission of a police report created by Charles Watkins, an investigator with the Santa Barbara District Attorney’s office. Watkins wrote the report in February 1984 concerning an interview he and Kell conducted of Marshall. Finally, petitioner objects to the admission of a police report created by Bruce Correll, who together with Scott, interviewed Marshall in July 1984.

“[District courts should admit such law-enforcement reports, if at all, only under the public-records exception contained in Federal Rule of Evidence 803(8).”

United States v. Penar-Gutierrez,

222 F.3d 1080, 1086-87 (9th Cir.2000). Rule 803(8)(B) permits the admission of “[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.” Fed.R.Evid. 803(8)(B). If the declarant was not under a “duty to report,” the recorded statement must satisfy a separate hearsay exception.

Bemis v. Edwards,

45 F.3d 1369, 1372 (9th Cir.1995). “It is well established that entries in a police report which result from the officer’s own observations and knowledge may be admitted but that statements made by third persons under no business duty to report may not.”

United States v. Pazsint,

703 F.2d 420, 424 (9th Cir.1983). Applying these rules, to the extent the police reports record the out-of-court statements of Kell, Watkins, and Correll, they are admissible.

The reports contain hearsay statements by Marshall, however, which are inadmissible unless an exception to the hearsay rule applies or they are being offered for a non-hearsay purpose. Although they may be inconsistent with the testimony Marshall has given in this action, the prior statements were not made under oath and thus are not non-hearsay under Rule 801(d)(1)(A). See Fed.R.Evid. 801(d)(1)(A) (prior statements of a witness that are “inconsistent with the declarant’s testimony, and [that were] given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition” are not hearsay). Accordingly, Marshall’s prior statements to Correll, Watkins, and Kell cannot be admitted to prove the truth of the matter asserted.

As will be seen, however, the truth of Marshall’s statements is not relevant. The

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only question that is relevant under the Ninth Circuit’s remand order is whether any law enforcement officer coerced Marshall’s testimony or otherwise knew it to be false. The reports are admissible, therefore, to the extent they are probative of what Marshall told law enforcement officials before he testified and whether any law enforcement officer was on notice that Marshall’s testimony was false and/or coerced. The statements are admitted, therefore, for the limited purpose of showing what information Marshall gave law enforcement prior to trial. Subject to this restriction, petitioner’s objection to the reports is overruled.

B. Ineffective Assistance of Counsel During the Guilt Phase 1. Standard Governing Ineffective Assistance of Counsel During the Guilt Phase

In general, to prevail on an ineffective assistance of counsel claim, a petitioner must show (1) that his trial counsel’s performance “fell below an objective standard of reasonableness” and (2) that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, v. Washington,

466 U.S. 668, 688, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). See also

Cox v. Ayers,

588 F.3d 1038 , 1045—46 (9th Cir.2009) (“To prevail on a habeas claim of ineffective assistance of counsel, Petitioner must establish both (1) that counsel’s performance was so deficient that it fell below an ‘objective standard of reasonableness’ and (2) that the deficient performance rendered the results of his trial unreliable or fundamentally unfair,” quoting

Strickland,

466 U.S. at 688 , 104 S.Ct. 2052 ).

69

To satisfy the first prong and prove that counsel’s performance was deficient, petitioner must show that “counsel made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Ainsworth v. Woodford,

268 F.3d 868, 873 (9th Cir.2001) (quoting

Strickland,

466 U.S. at 687 , 104 S.Ct. 2052 ). In other words, “[t]o establish deficient performance, a petitioner must demonstrate that counsel’s representation ‘fell below an objective standard of reasonableness.’ ”

Wiggins,

539 U.S. at 521 , 123 S.Ct. 2527 (quoting

Strickland,

466 U.S. at 688 , 104 S.Ct. 2052 ).

A district court’s “scrutiny of counsel’s performance is highly deferential, and [the court] ‘must make every effort “to eliminate the distorting effects of hindsight.” ’ ”

Jones v. Ryan,

583 F.3d 626, 636 (9th Cir.2009) (quoting

Ainsworth,

268 F.3d at 873 , in turn quoting

Strickland,

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

Strickland,

466 U.S. at 690 , 104 S.Ct. 2052 (“Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct”);

Cox,

588 F.3d at 1046 (“In analyzing the performance of counsel, judicial scrutiny is deferential”);

Hendricks v. Calderon,

70 F.3d 1032, 1040 (9th Cir.1995) (“What decision [counsel] may have made if he had more information at the time is exactly the sort of Monday-morning quarterbacking the contemporary assessment rule forbids. It

*962

is meaningless, after more than a decade, for [counsel] now to claim that he would have done things differently if only he had more information. With more information, Benjamin Franklin might have invented television”). Thus, the reasonableness of counsel’s performance is judged against “prevailing professional norms.”

Pinholster,

590 F.3d at 664 (“To be ‘deficient,’ counsel’s trial performance must be objectively unreasonable ‘under prevailing professional norms’ and under ‘all the circumstances’ of the particular case,” quoting

Strickland,

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

To avoid judging in hindsight, courts “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance[ ... and] defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ”

Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 (quoting

Michel v. Louisiana,

350 U.S. 91, 101 , 76 S.Ct. 158 , 100 L.Ed. 83 (1955));

id.

at 690 , 104 S.Ct. 2052 (“[T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment”). See also

Murtishaw v. Woodford,

255 F.3d 926, 939 (9th Cir.2001) (“In determining whether the defendant received effective assistance of counsel, hve will neither second-guess counsel’s decisions, nor apply the fabled twenty-twenty vision of hindsight,’ but rather, will defer to counsel’s sound trial strategy,” quoting

Strickland,

466 U.S. at 689 , 104 S.Ct. 2052 ). “Because advocacy is an art and not a science, and because the adversary system requires deference to counsel’s informed decisions, strategic choices must be respected in these circumstances if they are based on professional judgment.”

Strickland,

466 U.S. at 681 , 104 S.Ct. 2052 . See also

Murtishaw,

255 F.3d at 939 (“[Petitioner] bears the heavy burden of proving that counsel’s assistance was neither reasonable nor the result of sound trial strategy”)-

“ ‘Even if [a] decision could be considered one of strategy, that [alone] does not render it immune from attack[, however] — it must be a

reasonable

strategy.’ ”

Cox,

588 F.3d at 1046 (quoting

Jones v. Wood,

114 F.3d 1002, 1010 (9th Cir.1997) (emphasis original)). “[T]o be considered a constitutionally adequate strategic choice, the decision must have been made after counsel has conducted ‘reasonable investigations or [made] a reasonable decision that makes particular investigations unnecessary.’ ”

Cornell v. Ryan,

539 F.3d 938, 947 (9th Cir.2008) (en banc) (quoting

Strickland,

466 U.S. at 691 , 104 S.Ct. 2052 ). See

Cox,

588 F.3d at 1046 (“A defense lawyer must make reasonable investigations in the course of representation. ... Counsel’s investigation must, at a minimum, permit informed decisions about how best to represent the client,” citing

Sanders v. Ratelle,

21 F.3d 1446, 1457 (9th Cir.1994)). See also

Mickey v. Ayers,

606 F.3d 1223, 1233 (9th Cir.2010) (“As an initial matter, we distinguish between two duties the parties conflate. On the one hand, counsel must investigate relevant defenses. One the other hand, counsel must reasonably select and present a defense. These are different duties. It is true that evaluation of the two duties overlaps: counsel will be hard pressed to satisfy the duty to select a defense when counsel fails to investigate the best defense. But counsel may fail to investigate a particular defense and still, luckily, present the best one. He may also properly investigate various defense but unreasonably select among the alternatives” (citations omitted)).

Consequently, it is incumbent upon the reviewing court to consider the reasonable

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ness of the investigation conducted by the attorney. “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.”

Strickland,

466 U.S. at 691 , 104 S.Ct. 2052 . “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”

Strickland,

466 U.S. at 690 , 104 S.Ct. 2052 .

The Ninth Circuit remanded this action with directions that the court review counsel’s investigation and presentation of mental-state evidence to determine whether the mental-state evidence would have corroborated petitioner’s assertion that he shot Thurman Anderson because he had an honest but unreasonable belief that his life was in imminent danger, and would have tended to negate a finding that he had a specific intent to rob Anderson prior to or during the shooting. To the extent the mental-state evidence would have had this effect, the failure to develop and present such evidence may be probative of deficient performance.

Mental-state evidence is frequently scientific in nature and may be presented by experts. In

Richter v. Hickman,

578 F.3d 944 (9th Cir.2009) (en banc), a decision the court finds instructive, the Ninth Circuit recently considered counsel’s failure in a murder trial to retain a forensic serology expert.

70

It stated:

“Counsel’s failure to consult any forensic expert constituted a threefold abrogation of his duty under

Strickland .

Counsel’s first failing lay in his inadequate investigation

prior

to settling on a trial strategy; his second, in failing to conduct the necessary investigation before trial to determine what forensic evidence might be available for him to introduce or how expert testimony might support the theory he had chosen; and his third, in failing to consult experts who could assist

during

trial when the State, foreseeably, introduced damaging expert testimony regarding the blood evidence in the case.”

Id.

at 954 (emphasis original).

The en banc panel “fault[ed] counsel for failing to conduct the requisite investigation about a critical issue in the case at the

first

stage — before settling on his defense strategy — and then for failing to rectify his deficient performance at any of the subsequent times he had the opportunity to do so.” It noted that counsel “had three separate opportunities to consult with forensic experts” and that, had he done so at the first stage, “it would have been unnecessary to repeat his investigation at each subsequent stage.”

Id.

at 954 n. 8 (emphasis original).

Employing the framework laid out in

Richter ,

the court notes first that

“Strickland

obligates defense attorneys to make reasonable investigations before settling on a trial strategy or, at the least, to conduct sufficient inquiries to make an in

*964

formed decision about whether further investigation is needed.”

Id.

at 955 . See also

Wiggins,

539 U.S. at 525 , 123 S.Ct. 2527 (holding that counsel must make an “informed choice” among possible defenses);

Strickland

466 U.S. at 690-91 , 104 S.Ct. 2052 (“[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary”);

Correll,

539 F.3d at 948-49 (“An uninformed strategy is not a reasoned strategy,” and “the traditional deference owed to the strategic judgments of counsel is not justified where there was not an adequate investigation ‘supporting those judgments,’ ” quoting

Wiggins,

539 U.S. at 521 , 123 S.Ct. 2527 );.

Jennings v. Woodford,

290 F.3d 1006, 1014 (9th Cir. 2002) (“[Ajttorneys have considerable latitude to make strategic decisions about what investigations to conduct

once they have gathered sufficient evidence upon which to base their tactical choices

” (emphasis original));.

71

Investigations involving or necessitating the retention of experts do not differ materially from other investigations under

Strickland

in that, “[ujntil a reasonable investigation is conducted, counsel is not in a position to make critical strategic decisions or settle on a trial strategy.”

Richter,

578 F.3d at 955 .

“Counsel must conduct a pretrial investigation into the availability of independent, objective sources to support the part of his client’s testimony that he knows or can reasonably expect will be challenged, and subsequently to present to the jury any evidence he finds that tends to show his client’s innocence, tends to undermine the prosecution’s case, or raises a reasonable doubt as to his client’s guilt, unless he makes an informed, strategic decision that the risks of introducing such evidence outweigh its benefit to the defense.”

Id.

at 956-57 . See also

Duncan v. Ornoski,

528 F.3d 1222, 1234 (9th Cir.2008) (stating that the Ninth Circuit “has repeatedly held that ‘[a] lawyer who fails adequately to investigate and introduce ... [evidence] that demonstrate^] his client’s factual innocence, or that raise[s] sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance,’ ” quoting

Hart v.

*965

Gomez,

174 F.3d 1067, 1070 (9th Cir.1999) (alterations original));

Hendricks,

70 F.3d at 1040 (“An attorney ‘must ... provide factual support for [the] defense where such corroboration is available.’ ... Failure to pursue such corroborating evidence with an adequate pretrial investigation may establish constitutionally deficient performance,” quoting

United, States v. Tucker,

716 F.2d 576, 594 (9th Cir.1983)); cf.

Jones v. Wood,

114 F.3d at 1013 (granting “an evidentiary hearing on the issues of [an] attorney’s failure to investigate ... before trial and ... failure to test the evidence”).

The obligation to conduct this type of investigation can, and frequently does, require consulting an expert to determine if he or she can provide corroborating testimony or testimony that tends to refute the prosecution’s evidence. Consulting an expert is particularly important where his or her testimony is the “only forensic evidence” that can reasonably support the defense theory.

Richter,

578 F.3d at 957 (“The obligation to investigate only grows more imperative where the evidence at issue is the “only forensic evidence” that could reasonably support the defense theory”). See

Duncan,

528 F.3d at 1236 (“[T]he central role that the potentially exculpatory blood evidence could have played in [the defendant’s] defense increased [counsel’s] duty to seek the assistance of an expert.”). See also

Smith v. Mahoney,

611 F.3d 978, 983-84 (9th Cir.2010) (discussing the role of a “forensic psychiatrist” in evaluating defendant’s capacity to appreciate the criminality of his conduct at the moment a crime was being committed);

Boyd v. City and County of San Francisco,

576 F.3d 938, 942-43 (9th Cir.2009) (discussing the role of a “forensic psychiatrist” who concluded that a § 1983 plaintiff was attempting to commit “suicide by cop” when he fired on police officers);

Edwards v. Ayers,

542 F.3d 759, 773 (9th Cir.2008) (discussing the role of a “forensic psychiatrist” who gathered extensive historical information about a habeas petitioner and evaluated whether he suffered a mental illness to a definable level that might provide a defense to a shooting).

The Ninth Circuit has often deemed “defense counsel in a murder trial ... ineffective where there was some evidence of the defendant’s mental illness in the record, but counsel failed to investigate it as a basis for a mental defense to first degree murder.”

Daniels,

428 F.3d at 1206 (applying the standard of care for trial counsel in a 1984 California trial). See also

Jennings,

290 F.3d at 1014-16 (reviewing a 1984 California trial and holding that defendant was denied effective assistance of counsel because “trial counsel failed adequately to investigate and present considerable evidence regarding petitioner’s psychological and family history that might have ... defeated the jury’s finding of the requisite intent for first degree murder in the guilt phase,”);

Bloom v. Calderon,

132 F.3d 1267, 1277 (9th Cir.1997) (reviewing a 1983 California trial and holding that “[t]he complete lack of effort by Bloom’s trial counsel to obtain a psychiatric expert until days before trial, combined with counsel’s failure to adequately prepare his expert and then present him as a trial witness, was constitutionally deficient performance”).

Where counsel has retained qualified mental health experts, however, “ ‘an attorney is entitled to rely on the opinions of [those] experts in deciding whether to pursue an insanity or diminished capacity defense.’ ”

Williams,

384 F.3d at 610 (quoting

Hendricks,

70 F.3d at 1038 ). See also

Harris v. Vasquez,

949 F.2d 1497, 1525 (9th Cir.1990) (“It is certainly within the ‘wide range of professionally competent assistance’ for an attorney to rely on properly selected experts”). Consequently, the Ninth Circuit has held that a “defense counsel reasonably declined to

*966

pursue a mental-state defense when two experts opined that the defendant was neither insane nor diminished in mental capacity, and a third expert could not reach a conclusion.”

Morgan v. Bunnell,

24 F.3d 49, 52 (9th Cir.1994) (“In light of these expert opinions, defense counsel reasonably declined to try these defenses”). See also

Hendricks,

70 F.3d at 1038 (defense counsel was not deficient at the guilt phase for deciding not to present a mental-state defense when two mental health experts found no evidence that defendant was insane or diminished in mental capacity).

72

Similarly, “it is ‘acceptable trial strategy to choose not to call psychiatrists to testify when they can be subjected to cross-examination based on equally persuasive psychiatric opinions that reach a different conclusion.’ ”

Williams,

384 F.3d at 610 (quoting

Harris,

949 F.2d at 1525 ).

Evaluating the adequacy of an attorney’s scientific or other expert investigation is a forensic exercise. The “reasonableness of counsel’s performance must be evaluated from his perspective at the time of the trial, not in hindsight.”

Caro v. Woodford,

280 F.3d 1247, 1255 (9th Cir.2002). Consequently, if a particular scientific method was not known or a mental condition had not been identified at the time trial counsel was conducting his investigation, “this fact would preclude a finding of deficient performance.”

Id.

(determining whether the dangers of pesticides were known in 1980 and 1981 when counsel investigated and tried the case, and holding that sufficient literature and data were available at that time to conclude that defendant had brain damage resulting from exposure).

This is consistent with

Strickland’s

directive that attorney performance be judged against professional norms prevailing at the time of trial.

Pinholster,

590 F.3d at 669. As one “guide[ ] to determining what is reasonable,” the

Strickland

Court referenced “[prevailing norms of practice as reflected in American Bar Association standards.”

Strickland,

466 U.S. at 688 , 104 S.Ct. 2052 . See also

Rompilla v. Beard,

545 U.S. 374, 387 , 125 S.Ct. 2456 , 162 L.Ed.2d 360 (2005) (“[W]e long have referred [to the ABA Standards] as ‘guides to determining what is reasonable,’ ” quoting

Wiggins,

539 U.S. at 524 , 123 S.Ct. 2527 ). In

Pinholster,

the Ninth Circuit, sitting en banc, considered whether certain language in

Bobby v. Van Hook,

— U.S. -, 130 S.Ct. 13 , 175 L.Ed.2d 255 (2009) (per curiam), had called into question reliance on the ABA standards. In

Van Hook ,

the Supreme Court noted that “Restatements of professional standards, we have recognized, can be useful as ‘guides’ to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place.”

Id.

at 16 (citing

Strickland,

466 U.S. at 688-89 , 104 S.Ct. 2052 (“No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant”)). The Sixth Circuit had relied on the 2003 edition of the ABA Guidelines in determining the standard of care applicable to a defense counsel’ performance in a 1985 trial. The Court found this to be in error.

Id.

at 17 (“Judging counsel’s conduct in the 1980’s on the basis of these 2003 Guidelines—

*967

without even pausing to consider whether they reflected the prevailing professional practice at the time of the trial — was error”).

The Court also noted that the Sixth Circuit had “treated the ABA’s 2003 Guidelines not merely as evidence of what reasonably diligent attorneys would do, but as inexorable commands with which all capital defense counsel ‘must fully comply.’ ”

Id.

It cautioned, as

Strickland

had stressed, “that ‘American Bar Association standards and the like’ are ‘only guides’ to what reasonableness means, not its definition.”

Id.

(quoting

Strickland,

466 U.S. at 688 , 104 S.Ct. 2052 ). The Court then noted in a footnote:

“The narrow grounds for our opinion should not be regarded as accepting the legitimacy of a less categorical use of the Guidelines to evaluate posb-2003 representation. For that to be proper, the Guidelines must reflect ‘[prevailing norms of practice,’

Strickland,

466 U.S. at 688 [, 104 S.Ct. 2052 ], and ‘standard practice,’

Wiggins[],

539 U.S. [at] 524[, 123 S.Ct. 2527 ], and must not be so detailed that they would ‘interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions,’

Strickland,

[466 U.S.] at 689[, 104 S.Ct. 2052 ]. We express no views on whether the 2003 Guidelines meet these criteria.”

Id.

at 17 n. 1.

The Court thus reserved judgment as to whether a “less categorical use” of the then-extant ABA Guidelines was proper.

Subsequently, an en banc panel of the Ninth Circuit addressed this precise question in

Pinholster:

“[T]he Court held that it is permissible to use a restatement of professional standards to help determine an attorney’s obligation towards a client only when those standards ‘describe the professional norms prevailing when the representation took place.’

Van Hook ,

[130 S.Ct.] at 16. That is precisely what we do here. We refer to the 1982 edition of the ABA standards that were in effect at the time of Pinholster’s 1984 trial. Moreover, in

Van Hook ,

the Sixth Circuit erroneously stated that attorneys ‘must fully comply’ with the ABA guidelines.

Id.

(citing

Van Hook v. Anderson,

560 F.3d 523, 526 (6th Cir.2009)). Here we make clear, as the Supreme Court has, that such standards do not define reasonable representation, but rather are ‘guides to determining what is reasonable.’

Strickland,

466 U.S. at 688 , 104 S.Ct. 2052 .”

Id.

at 670 .

The Ninth Circuit then held that defense counsel had provided deficient performance “under ... the prevailing norms of practice, as reflected in the ABA Standards in place at the time of his trial.”

Id.

at 674 .

73

*968

Ths ABA Guidelines applicable at the time of petitioner’s trial stated: “It is

*969

the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.... The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead guilty.” 1 Aba Standards for Criminal Justice 4-4.1 (2d ed.1982 Supp.).

The Ninth Circuit has repeatedly relied on the ABA Guidelines in determining the standard of care governing investigation and presentation of a mental-state defense. See, e.g.,

Smith,

611 F.3d at 986-87 (“By 1982, the ABA had released criminal justice standards requiring a defense attorney to thoroughly investigate the circumstances of a case, even in the face of guilt statements by the defendant”);

74

Daniels v. Woodford,

428 F.3d 1181, 1202-03 (9th Cir.2005) (citing the 1982 ABA Guidelines as the standard of care during a 1983 California trial). In addition, as early as 1983, the Ninth Circuit held that “[p]retrial investigation and preparation are the keys to effective representation of counsel,” noting that “[cjourts have repeatedly stressed the importance of adequate consultation between attorney and client, the interviewing of important witnesses, and adequate investigation of potential defenses.”

Tucker,

716 F.2d at 581 (internal citation omitted).

Petitioner proffers Santwier’s testimony to establish the standard of care for the defense of capital cases in 1983 in California. Santwier is a 1969 graduate of the University of San Diego Law School. In 1970, he went to work in the Los Angeles County Public Defenders’ Office, and remained a Deputy Public Defender until March 1984. Between 1970 and 1976, Santwier tried approximately forty jury trials, including murder and manslaughter eases. He also briefed and argued one case in the California Supreme Court. Between 1976 and 1978, Santwier was a senior trial deputy, handling serious felonies, including death penalty cases. From 1978 to 1980, he served as the supervising deputy at the traffic court, following which he returned to handling serious felony cases, including the defense of numerous capital cases. Santwier also served as an instructor in the Public Defender’s office-wide capital litigation training program. Between 1980 and 1983, Santwier represented more than six capital clients and numerous murder/manslaughter clients. From 1980 to 1984, he was second in the chain of command supervising 20-30 deputies handling felonies and misdemeanors. From 1984 to 1989, Santwier was in private practice, during which time he handled four capital cases. From 1989 to 2002, he was a sole practitioner, and tried at least four capital cases. In 1986, he coauthored a chapter in the C.E.B. Criminal Law Practice and Procedure treatise.

75

*970

Santwier testifies that as early as 1978, there were seminars and publications available to defense attorneys and their investigators regarding the investigation, preparation, and presentation of a defense in capital cases, both at the guilt and penalty phases. Beginning in 1980, the “California Appellate Project” published a capital defense manual, made available exclusively to the criminal defense bar and updated annually. Santwier notes that in addition to these publications, the authors of the materials and members of various organizations were available to provide advice and support at the time of petitioner’s trial.

76

Santwier describes the standard of care regarding the presentation of a mental state defense in 1984 as follows:

“The standard! ] of care in 1984 required counsel, aware of the existence of a mental state defense, to conduct a reasonable mental health investigation prior to trial. To do so, at a minimum, counsel was obligated to (a) obtain information about petitioner by conducting a reasonable and thorough background investigation through competent investigators, under his direction; (b) to consult with and engage appropriate experts; (c) to reasonably inform the experts regarding the purpose of their engagement in the context of the defenses being offered; (d) to inform the experts of relevant available information and to provide the experts with such information as would be sufficient to permit the experts to evaluate the case and form their opinions; (e) to discuss with the experts the information the expert would need; (f) to reasonably pursue leads developed by the experts; and (g) to present such findings and evidence to the jury supportive and corroborative of the defenses. Thereafter, when presenting mental health experts at trial, the standard of care in 1984 required counsel to reasonably ensure (a) that the expert called had the relevant reference question in mind and was adequately prepared to testify to such at trial; (b) that the expert was qualified to testify on the subject matter for which the expert was called; (c) that the evidence being offered actually assisted the defense’s theories and (d) if, the prosecution called an expert, that defense counsel would be prepared to cross-examine the prosecution’s expert. This is basic defense behavior that should be done in any case when an expert is considered and can help or hurt your case.”

77

On at least one occasion, the Ninth Circuit has held that a district court erred in rejecting the testimony of a

Strickland

expert who was properly qualified to testify regarding “the minimal steps that counsel was required to take in” the relevant year, and whose testimony was “consistent with [the Ninth Circuit’s] established case law and that of the Supreme Court.”

Hamilton v. Ayers,

588 F.3d 1100, 1129 (9th Cir.2009). See also

Ainsworth v. Calderon,

138 F.3d 787, 791 (9th Cir.1998) (concluding that the district court did not abuse its discretion in admitting the testimony of a

Strickland

expert);

Thompson v. Calderon,

109 F.3d 1358, 1364 (9th Cir.1997) (noting, without criticism, the district court’s decision to allow petitioner and the State to call “attorney expert witnesses to support their arguments regarding ineffective assistance of counsel”).

The Ninth Circuit has held that a district court “must analyze each of [petitioner’s] claims separately to determine whether his counsel was deficient, but ‘prejudice may result from the cumulative impact of multiple deficiencies.’ ”

Boyde v. Brown,

404 F.3d 1159, 1175 (9th Cir.2005)

*971

(quoting

Cooper v. Fitzharris,

586 F.2d 1325, 1333 (9th Cir.1978) (en banc)). Consequently, the proper course with respect to both the guilt and penalty phases is to consider each of petitioner’s claims of ineffective assistance of counsel separately for purposes of determining whether trial counsel’s conduct fell below the appropriate standard of care, and then consider the areas of deficient performance cumulatively to determine whether they prejudiced petitioner.

2. Trial Counsel’s Investigation and Presentation of Guilt Phase Mental-State Evidence

a. David Stanley’s and Peggy Torralva’s Interviews with Petitioner

Petitioner was arrested at the San Francisco International Airport on August 20, 1983. On August 23,1983, he was arraigned in San Mateo Municipal Court for possession of a firearm without a permit, carrying a loaded weapon in public, carrying a deadly weapon (nunchakus), and possession of marijuana. At his arraignment, petitioner requested counsel; later that day, an attorney from the San Mateo Public Defender’s Office was appointed. On August 25, 1983, petitioner was interrogated outside the presence of counsel, and confessed to stealing Thurman Anderson’s motor home, which had been discovered at the San Luis Obispo Airport. After a short break in the interrogation, petitioner confessed to shooting Thurman Anderson. On August 26, 1983, petitioner was released to the custody of Detective Bruce Correll of the Santa Barbara Sheriffs Department. Correll accompanied petitioner via plane to Santa Barbara County. The San Mateo Public Defender’s Office informed the Santa Barbara Public Defender’s Office that petitioner was en route. Deputy Public Defender David Stanley was assigned to represent petitioner.

78

When Correll and petitioner arrived at the Santa Maria station house, Correll continued to question petitioner. Petitioner agreed to help authorities locate Anderson’s body, and led District Attorney Michael Scott and detectives to the body near the Barrel Springs Campground.

79

Petitioner returned to the station jail that night at 9:00 p.m. Stanley, who had been waiting at a nearby restaurant, was able to have a brief conversation with petitioner. Stanley’s handwritten notes reflect that the meeting took place between 9:30 and 10:05 p.m. Peggy Torralva, an investigator in the Santa Barbara Public Defender’s Office, was also present.

80

Petitioner gave Stanley and Torralva an overview of the incident, and reported that he had given the same account to detectives.

81

Petition

*972

er also provided the names, addresses, and telephone numbers of his father and mother, as well as the name and address of his cousin, Jim Lord.

82

On August 27, 1983, Stanley and Torralva interviewed petitioner again, and tape-recorded the exchange.

83

At this meeting, Stanley emphasized to petitioner the importance of relating to him and Torralva all the details of the case; Stanley noted that “some little trivial thing that might not seem like much now” could be very important.

84

Stanley asked petitioner to relate the events that had occurred between Thursday, August 18, 1983, when petitioner left Atascadero and hitchhiked to Santa Monica, and the date Anderson picked petitioner up.

85

Stanley and Torralva asked petitioner detailed questions in an attempt to identify the exact location of the store at which Anderson allegedly gave petitioner $100 so that petitioner could buy beer and food.

86

Stanley asked petitioner how much he had “had to drink” by “the time ... the shooting happened”; petitioner responded that by that time, he had drunk “seven or eight beers.”

87

When Stanley asked for further details, i.e., whether petitioner had been drinking steadily from the time Anderson picked him up, petitioner reported feeling sick and asked if he could return to his cell for a few minutes. Stanley decided to end the interview for the day.

88

After the interview, Stanley asked a jailhouse employee to take petitioner to the clinic where petitioner was treated.

89

On August 28, 1983, Torralva interviewed petitioner without Stanley present, and recorded the interview. Petitioner described the drive from the store to the campground and the process of setting up the campground with Anderson.

90

He noted that the walk from the campground to the site of the shooting had taken about an hour because he and Anderson had “stopped and looked around.” He stated, however, that the district attorney whom he had led to the body had timed their brisk walk from the campground to the body at twenty-seven minutes.

91

Petitioner told Torralva that the district attorney

*973

had asked him about his past record and had been “trying to get [petitioner] to say that the only reason [he] brought this guy [Anderson] up [t]here was to rob him and kill him and all this kind of stuff, you know. He was trying to tell me that was my reason behind it.”

92

Torralva ended the interview after approximately a half hour, because she did not want to tire petitioner.

93

Stanley and Torralva met with petitioner again on August 30, 1983. Stanley described in depth the nature of the murder, robbery, and weapon-possession charges that petitioner faced, the lesser included offenses to first degree murder, and the nature of the special circumstance of committing murder in the course of a robbery. Among the possible defense strategies discussed was the availability of voluntary manslaughter in “situations like where somebody is really drunk, you know, really under the influence of alcohol....” Stanley noted, however, that “this is something that is not very popular with juries. You know, they don’t really buy it. But the law says that if somebody is under the influence [] that they don’t really form these mental states of premeditation. .. ,”

94

Stanley also described the defense of an “actual or honest but unreasonable belief in the need to defend oneself.” He told petitioner that a “jury [could] decide[ ] that they believe[d] [petitioner] when [he] [said] that [he was] afraid and [he] really thought that [he] had to shoot in order to defend [him]self,” but could conclude that his actions were not reasonable in that he “should have first said, throw the gun down.”

95

Petitioner also detailed the entirety of his prior criminal record for Stanley.

During the August 30 interview, Stanley noted an earlier conversation in which petitioner had said that he “definitely” wanted to get in touch with his father. Stanley said he had attempted to contact petitioner’s father. Because he believed petitioner’s comment that he had a poor relationship with one of his stepmothers concerned petitioner’s relationship with his mother, Stanley had not yet contacted petitioner’s mother. When petitioner assured him that he and his mother had a good relationship, Stanley said: “Oh, you get along with your mother, okay. Good.”

96

Petitioner also told Stanley that he had a good relationship with his grandmother, who had helped raise him following his parents’ divorce. Stanley noted that personal information could be important:

“Okay. Good. That kind of stuff becomes real important to us later in the case, most of the time. If we can walk you, it doesn’t matter, but we don’t get that lucky very often to walk somebody completely, and if we don’t, then the background information is going to be important to us.”

97

*974

Stanley asked petitioner if there were any coaches from school who could “put in a good word” for him; petitioner said that a “Mr. Hood” from Rex Putnam High School in Oregon might do so. Petitioner told Stanley that he believed Hood was still at Rex Putnam and that he had since become the principal.

98

Stanley’s handwritten notes reflect that he telephoned petitioner’s mother that evening. She was not home, but that he talked with petitioner’s grandmother.

99

It does not appear that trial counsel recorded any further interviews with petitioner. On October 5, 1983, petitioner wrote Stanley a twelve-page single-spaced letter.

100

The letter gave Stanley a detailed account of the events that had transpired between August 12, 1983, when petitioner hitchhiked from Portland, Oregon, to Atascadero, California, and August 16, 1983, when he left Atascadero to hitchhike to Santa Monica.

101

Petitioner said that while he was hitchhiking from Santa Monica on the evening of August 16, 1983, a driver sexually assaulted him, causing petitioner to flee the vehicle and hide in bushes on an off-ramp overnight. Petitioner said he got only a couple of hours’ sleep.

102

The letter stated that the next afternoon, Anderson picked petitioner up and invited him to have a beer in the vehicle. He told petitioner he had a wife and kids, which put petitioner at ease after his experience the night before. Anderson eventually invited petitioner to go camping with him.

103

The letter detailed petitioner’s alcohol consumption, the fact that he was “walking a little heavy [because of the] alcohol,” and felt that his “senses might have been a little screwed up.”

104

Petitioner said that Anderson mentioned his fear of catching V.D. from petitioner, that he referenced prior same-sex sexual encounters, and that he touched and kissed petitioner. Petitioner said that Anderson looked “mad as hell” after petitioner pushed him away, and that “about a hundred things were going through [his] mind at this time.” Petitioner related that he

“didn’t [k]no[w] what to think[.] I was scared and mad and thinking a hundred things at the same time. I was thinking about turning and running but was thinking this guy could shoot me right in the back pretty easy. I just wasn’t to[o]

*975

sure if he would do it or not[.] [H]e wasn’t saying a word the [w]hole time and I knew he was mad. I heard him slam down the bolt on his gun. My gun was in my front packet and the handle was under my belt[.] [WJithout even thinking when I heard that bolt slam down I grabbed my gun out of my pocket. To tell you the truth I don’t even remember grabbing for it and firing. I sure didn’t stop and count how many times I was firing shots 1 thr[ough] 5. It really happened to fast[.]”

105

The letter also described what transpired after petitioner left the scene of the crime; it recounted that petitioner felt sick from the alcohol he had consumed, and that he took the R.V. and left.

106

b. Defense Investigator Brian Conry

Torralva did not remain assigned to the case. On September 21, 1983, Stanley telephoned the Multnomah County, Oregon public defender’s office seeking a recommendation for an Oregon-based investigator who could undertake a preliminary investigation.

107

An investigator in that office recommended Brian Conry, who had previously been an investigator for a public defender’s office for approximately two years, before becoming an attorney and starting a private practice. Although Conry had begun practicing law, he continued to do investigative work.

108

Stanley outlined the case for Conry and Conry expressed interest. An attorney in private practice in Oregon also recommended Conry to Stanley. On September 29, 1983, Stanley offered Conry the job; he accepted and said he would need a letter confirming employment, a summary of the crime, and copies of all Oregon-based information in Stanley’s position.

109

On September 30, 1983, Stanley sent Conry a letter stating:

“The results of your work likely will be most useful at the penalty phase, if this case reaches that stage. In California, the defense presentation at the penalty phase of a possible death penalty ease involves the creative presentation of any available evidence to show that the client has redeeming qualities and should not be put to death.

With that purpose in mind, I would expect your work to be in two general areas. First, I would appreciate your contacting family members and following up on information they might provide in order to present a biographical sketch of Ken as a family member, as he interacted in his peer group of friends and associates, and as a student through the public school system. The other general area would be to explore his criminal history, including the relative level of severity of his Oregon crimes, any residual feelings toward him by crime partners, victims, or law enforcement personnel, and any reaction toward him from other inmates or the administration at O.S.C. I [Oregon State Correctional Institution].

*976

I will next give you a general overview of the evidence in the current case. I would ask that you would exercise caution as to how much of this information you reveal to Ken’s family members, until we have a better feel for their attitudes toward Ken and also as to how they might react emotionally to the information. Also, as I mentioned on the telephone, I am hoping to travel to the Portland area within the next few weeks so that I can personally get acquainted [with] his closer family members.”

110

On October 19, 1983, Conry advised Stanley that he had contacted Carol Gruber, petitioner’s grandmother; Phyllis Gruber, his birth mother; Ken Lang, Sr., his father; Tracy and Tony Lang, his half-brothers; Carol Dewey, his first stepmother; and Hilda Lang, his second stepmother. Conry provided the following summary in his letter:

“The Lang family feels inner conflict in their discussions about the defendant. The two witnesses I feel best about are the mother and the grandmother. They have the least amount of bad things to say about the defendant and are the warmest people to talk with.

If you want to use character evidence in the trial; that the defendant is a peaceable person and would not have been the first aggressor, this type of evidence is available. But, what would be the scope of cross-examination on this?

Let me know if you have any other ideas on how to proceed; the way I see it, is I could proceed any number[] of ways, but it would be helpful to know where the most fruitful path lies via the guidance of the -defendant. [Handwritten note:] This has now been resolved through conversations.”

111

Conry also sent Stanley memoranda of the interviews he had conducted. In his memorandum of the interview with Ken Lang, Sr., Conry reported that petitioner’s father had said: “ ‘Ken is a thief; he has a disease this way; [but] I really believe that he is [not] capable of killing someone, he has never been a violent person.’ ... [Petitioner’s father] said that his son ‘didn’t fight his way through school’ and that his son was more of a ‘stand-offish’ person who wanted ‘to be by himself.’ [He] said that he never had a problem with his son as far as the use of violence.”

112

Petitioner’s father said that he and “his son ... [had] had ‘good and bad times’ and that he wished that they had been closer. He said ... he felt that if he [had been] closer to his son ... he might have been able to help his son through some of his problems.”

113

Conry continued:

“In regard to the charges against the defendant, [his father] said that he ‘don’t think he done it to start with.’ He said that his son wouldn’t kill anyone unless it was a matter of self defense and he said anyone would do that. I asked ... why he felt that way and he said ‘because he is not a violent person; he is an easy going person’ and he is ‘not a destructive killer of any type of animal.’ [Petitioner’s father] said that [petitioner] is not the type of person who would take a [B.B.] gun and shoot some birds if

*977

they were around the front[]yard or wher[]ever. [He] also, recalled that when the defendant was about fourteen T knocked the crap out of him but he just stood there.’ The [father] said that he had gra[bb]ed the defendant by the shoulders and ‘bounced him off the wall.’ [He] said that this was the only time that he showed any anger toward[ ] the defendant although he was angry at him at other times. [He] said that he didn’t hit the defendant with his fists.”

114

Conry also reported that Lang, Sr. advised “that the defendant’s real mother wanted to have ‘nothing to do with him’ i.e., with the defendant.”

115

Conry asked petitioner’s father whether “he felt his son had any emotional or mental problems”; petitioner’s father replied: “ T believe he does.’ The [father] said that he was ‘always blaming myself and he cited ‘the broken marriages’ and he said that he felt these broken marriages ‘has something to do with it’.... [He] said that his son ‘never had [a] real [ ] chance’ ... [and] that the defendant’s real mother never had any time for him.”

116

Hilda Lang, petitioner’s second stepmother and Lang, Sr.’s wife in 1984, was present during the Lang, Sr. interview. Conry reported that when Lang, Sr. said “he blamed himself for the way the defendant was to an extent because of the broken marriages,” he “also said that his wife would get on him about how he shouldn’t feel sorry for the defendant.” Conry reported that “to an extent I think he is under his wife’s thumb.”

117

He stated that Hilda Lang had “interjected some things [during his interview of Lang, Sr.] and [that he] asked her some sep[a]rate questions at those moments when [he] was not directing the questions to her husband----[Hilda Lang] said [that] the defendant was a ‘dreamer.’ She said that he did good at [high school] his freshman year ... and then ‘all of a sudden [went] bananas[.]’ [S]he said ‘he wouldn’t go to school — he would stay in the halls.’ She said that he thought of himself as a ‘hippie’ and that he would hang out in the bus depot. She felt that his job hunting was non-existent. [Conry] asked her how she felt when she heard of the charges against the defendant and she said T couldn’t believe it[.]’ ... [S]he said that they read all the newspaper stories about it and the stories change[d] a[ ] little bit each time----[Conry] asked [Hilda] if she felt that the- defendant had any mental problems and she said that she felt that he did. She said that she felt ... he [was] ‘depressed’ and that he ‘feels insecure.’ She said that she [felt] he could use some psychiatric help.”

118

Lang, Sr. recalled that after petitioner had been released following time in custody on an earlier sentence, “they [had given] him a room upstairs. [He reported] that his son [had] turned that room into ‘a Halloween movie’ ... [with] ‘everything in black’ and ... black curtains in the room. [He] said that his son wanted to paint the walls black but they wouldn’t let him do it.... [H]e talked to his son about the situation and that the talk depressed him.”

{Id.)

Ballew later complained about unprofessional comments Conry included in his interview, notes regarding Hilda Lang. She cited the following observation specifically:

“Mrs. Lang has a polished look to her— her hair is real neat and trim and she is short and she is cute enough. My impression of her is that she’s at least using her cuteness to be a little queen.

*978

I asked her the ultimate question as to whether she could say anything at the sentencing, you know, as far as the son being a killer or not and she just couldn’t say anything, she says she would not know. A few times she had kind of an evil laugh and she would kind of start this nervous laugh that both she and her husband would share about the son being a liar and never really knowing what he was doing. I disliked her. This is the type of woman who I think would dominate men because of the way they look or whatever, and the woman is not a stunning beauty or anything but I do feel that she dominates her husband or at least he is very careful not get her upset or whatever. Sometimes I would ask questions and they would look at each other and they would kind of answer together and I’m sure the last thing he wanted to do was insult her and I’m sure that they talked about the interview in length after I left.”

119

Petitioner contends that Conry’s interview of Hilda Lang and the way in which he memorialized it demonstrate the unprofessional nature of the investigation he conducted and suggests that he was inexperienced and did not provide adequate reports.

Conry also interviewed petitioner’s first stepmother, Carol Dewey (nee Rosenthal). Dewey reported that petitioner was “not a ‘violent person,’ ” that “ ‘He ha[d] never, ever been violent.’ ” Dewey told Conry that petitioner “ ‘soft spoken[,]’ [and] ... that he never even acted like he was going to hit her. She said that she raised Lang from the time he was three to the time he was thirteen and he was ‘spoiled rotten.’ She said that he came back to her home one time and said [that that] ‘was where he belonged.’ This was approximately four to five years ago at Christmas time and he stayed two or three months. [Dewey] said that [petitioner’s] grandmother [had] kicked him out. She said that she guessed ‘he stole some things from her.’ ”

120

As respects “the way ... defendant was raised,” Dewey said that she “‘was very strict with him ... terrible.’... She said that she would pick him up and spank him on the bottom.”

121

She also related that Lang, Sr. frequently drank heavily, “and then c[a]me back and [took] [petitioner] out of his bed in the middle of the night” and threatened to leave her.

122

Petitioner’s half-brother — Carol Dewey’s son Tracy Lang — was present for at least part of this interview. “Tracy mentioned something about the defendant never getting anything his whole life and [Dewey] was down her son’s throat in about a quarter of a second.... ” Conry summed up his impressions as follows: “It was just a real w[ei]rd interview, people were real tense and again I wasn’t real thrilled. The basic line is that they don’t know that much about Kenny’s recent life and they seem more interested in jumping on each other th[a]n really communicating with me. I got out of there pretty quickly.”

123

Tracy Lang offered “his personal opinion ... that [petitioner] was not violent.” When Conry asked how well Tracy Lang knew petitioner, he responded: “ ‘[L]ike a

*979

brother,’” and reported that when petitioner was not in prison, he saw him about once a week. Tracy Lang opined that petitioner “ ‘wouldn’t keep on beating’ some one until they were dead[,]’ [ — ] he’s not that kind of personf ].... He said that he also knew of the defendant living in a ‘Freight Liner’ trailer at one time.”

124

Conry reported that Tracy Lang said that if the defendant had committed a homicide, he “should be executed.” He also said: “ ‘If he did it he deserves to die.’ ”

125

Tracy Lang later denied vociferously that he ever made this statement.

126

Petitioner’s other half-brother, Tony Lang, reported that petitioner “was peaceful and never hurt anybody.... [H]e is not violent, but he is ‘sneaky.’ [Tony Lang] said that [petitioner] wouldn’t hurt anybody if he wanted something; he would just steal it.... He [noted] that the defendant was real into himself and that he didn’t think that his own shit stank. The witness said that the defendant was smart[,] ... [and that he] ‘likes freedom— likes to get away with things.’ ” Tony Lang had “never talked with the defendant about getting into any fights or anything, [but noted that he] like[d] to fantasize about being ‘super macho.’ ”

127

Petitioner’s mother gave Conry an account of Carol Dewey’s mistreatment of her son. She “said that she had heard that Carol [Dewey] was ‘terribly mean to Ken Lang, Jr.’ She said that Carol ... used to knock Kenny around,’ and ‘be really [cruel].’ ... She said that Carol ... told her that this was true.”

128

Petitioner’s mother blamed Dewey for keeping her and her son apart.

129

She said that

*980

“when she first heard about the shooting, ... she didn’t know what to do. She said that when the defense attorney from California told her about the situation, [she] ‘couldn’t say anything.’ [Petitioner’s mother] said that Kenny [had] ‘never, ever been that way around [her][,]’ ... that the defendant had never been cruel around her, and that he ‘dfidn’t] cuss in front of [her].’ [She] said that he [was] ‘always a gentlem[a]n, very nice.’ ”

130

Conry asked petitioner’s mother whether

“the defendant was a peaceful or a violent person, and [she] said that ... the defendant was a peaceful personf,] ... ‘very much’ so. [Petitioner’s mother] said that she care[d] about Kenny Jr. and that she ... [felt] ... he care[d] about her. [She] said that Kenny Jr. would hug and kiss her, and treat her well. She said that he was courteous, and that he wouldn’t even cuss when he became angry. She [reported] that when he becomes angry ‘[h]e kind of clams up — won’t say a word — like sits and pouts.’ [Petitioner’s mother] said that she [had] never heard about Kenny Jr. being in any fights and that she never saw anyone get physical with Kenny Jr. [ ][She] spoke of a time when her younger son ‘tore into’ Kenny Jr. and Kenny ‘just held him.’ [She] said that Kenny would not hit the younger son, but just kept the younger son from hitting him. The witness said that she asked Kenny Jr. why [he] hadn’t hit her younger son back[,] and that Kenny [had] said ‘what for mom, he’s littler than me.’ [She reported] that her younger son had come after the defendant with both of his fists ‘just churning’ and that the defendant had held the younger son there, and didn’t even get mad at the younger son.”

131

Petitioner’s mother reported that “she doesn’t like violence and that she [had] talk[ed] to the defendant about violence a little bit, although she never had to scold him about it, because he was always so nice. [She] said that Kenny Jr. responded to [her] talks about violence by saying “No mom, Pm not going to do it.” [Petitioner’s mother] said T love my sons[]’ and again she said that she had no problems with Kenny. Of Kenny she said that ‘He’s a good person; not a violent person; kind to other people; he gives us things.’ She said that he ha[d] given things to her son Bobby, i.e., clothing because he wants to. She said that he ha[d] done this with other people, too.... [A]sked ... if she would allow her son to live with her, ... [petitioner’s mother] said ‘absolutely, because him and I have gotten along great.’ ”

132

Conry also interviewed petitioner’s grandmother, Carol Gruber. Asked about the charges against petitioner, she said:

“ T didn’t believe it, I know the boy, he would never do anything like that, he’s a gentle boy, a good boy, a happy boy.’ [Petitioner’s grandmother] said that when the defendant was in Salem, at the Oregon State Penitentiary, ... he ‘wrote [her] often[ ]’ ... ‘beautiful letters about himself and what he planned doing when he got out.’ She said that he looked to the future and that he wanted to get a job and get his life straightened out. [Petitioner’s grandmother] said T don’t

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understand how they think he could even think that he did this.”

133

Gruber recounted that

“she [had] had the defendant when he was youngerf,] ... [and] that ‘when he got mad, [he] would usually go off in a corner, or go to [her] room and cry, and then he would come back and tell [her] he was sorry, no matter what he did.’

“[Conry] asked [petitioner’s grandmother] when and if the defendant was released from prison, if she would allow him to live with her, and she said that she would. [She] said that the defendant ‘never causes trouble[]’ and that she couldn’t see how he could ever be charged with killing somebody. She said that this [was] the way everybody [felt] about him. [Petitioner’s grandmother commented:] ‘You can’t make me believe this either.’ She said that the defendant [had] ‘never hurt anybody[,]’ and ... that she had no recollection of ever discussing the topic of violence or fighting with [him].... She said that her opinion was that he was not mentally disturbed---- [When Conry] asked ... if she felt that the defendant care[d] about human life[,] [petitioner’s grandmother] said that she [felt] he [did] care[ ] about human life.”

134

Testifying

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in 2002 Stanley explained that he had asked Conry “mainly [to] talk with family members and I — my recollection is I outlined for my areas of interest, which included potential penalty phase issues. My mind-set at the time was that I wanted to get at least a preliminary snapshot of what was going on with family and associates in Oregon while we were waiting to get our own full-time investigator on the case, and so he was — in my mind he was kind of a stopgap. You know, a temporary, go out and do this preliminary work for us — a concern about both guilt issues, mental state guilt issues, and potential penalty phase issues.”

135

Petitioner knew that an investigator was contacting his family members and did not object.

136

At his deposition, Stanley said that he thought Conry’s investigation was “adequate,” but he had “hoped for better.” He noted that standing alone, Conry’s investigation would not have been sufficient for the penalty phase investigation.

137

Dorothy Ballew, who took over from Conry as the defense investigator, was more blunt: in her opinion, Conry’s “reports were unprofessional and unhelpful.”

138

c. Defense Investigator Dorothy Ballew

In October 1983, Stanley met with Dorothy Ballew, who was assigned to conduct the remainder of the investigation. When asked to describe her assignment, Stanley stated that “it was kind of a fluid situation in terms of specific things that she under

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took to do.”

139

Ballew traveled to Oregon and re-interviewed most of the people with whom Conry had spoken, as well as others.

140

Stanley could not recall if he ever told Ballew that her interview memoranda might be used by mental health experts, nor could he recall if he advised either Conry or Ballew that the purpose of their investigation was to gather evidence for the penalty phase.

141

As respects all phases of the trial, Ballew asserts that although she and Stanley “communicate[d] by telephone, [she] did not receive any direction from ... Stanley [regarding] issues to investigate or examine.” Ballew did “not recall any specific formal meetings with ... Stanley prior to the trial nor did [she] receive any memorandum from [him] ... regarding] [the] investigation.”

142

Ballew described Stanley’s representation of petitioner as “[unprofessional in terms of no structure and focus for the case and what we should do and what we should present and where we were going with any of the witnesses. Unprofessional in that sense. To tell you the truth, I don’t know that he had a whole lot of experience with trial at that time himself.”

143

Ballew maintains that a more experienced litigator would have had

“a game plan, more direction and maybe developing witnesses to present — I mean, first having an idea of — ... I’m not so sure that enough time was spent with Ken Lang to really get an idea of what he needed for the case on Mr. Stanley’s part or on my part. We didn’t have the savvy at the time to know what to ask for or information to get that would send us in any direction. That’s what I mean when I say he didn’t have a whole of experience with trials. There was no plan, you know, one, two, three, ABC. This is what we want to bring to a jury. This is what we want to understand about Ken Lang, that sort of thing. There was just nothing like that.”

144

Ballew stated, however, that she never told Stanley she was not “getting enough direction” because she felt that she lacked the experience to know the level of di

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rection was needed.

145

Petitioner’s case was the first death penalty action on which Ballew worked. Ballew stated:

“I was not searching for the dynamics of Mr. Lang’s home life or other contributing factors to his behavior, as is my practice now. I believe the investigation was superficial and inadequate.”

146

Ballew met frequently with petitioner. In his 2002 deposition, Stanley noted that Ballew was frequently present during his meeting with petitioner, that when Ballew was not present, he never took a position that was inconsistent with the positions he had taken when Ballew was present, and that he always briefed Ballew on the substance of his meetings with petitioner.

147

Ballew interviewed a number of petitioner’s family members and produced memoranda regarding the interviews for Stanley.

148

Ballew’s report of her interview with petitioner’s father offered a picture of a father who was distant from his son and who deliberately ignored the apparent abuse of petitioner by his stepmother. Lang, Sr. related an instance in which petitioner begged his father to stay so the two could live together. “Ken Sr. said it was difficult for Ken, but he (Ken Sr.) felt they needed to live their own lives. Ken was 12 years old at the time.”

149

He also related the sudden abandonment of petitioner by his birth mother.

150

Lang, Sr. acknowledged indirectly some responsibility for the way petitioner’s life had developed. Ballew reported that petitioner’s father

“said he used to blame himself for what happened to Ken. He rationalize[d] away his guilt by saying ‘I had to live my life, and he had to live his’. He admitted] that he had marital problems with his first two wives, and that they argued in front of the kids. He feels that this consumed the time he could have given to Ken.”

151

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Petitioner’s mother contradicted the picture provided by Conry and petitioner’s father of her departure from the family. She said she left the family when petitioner was four or five years old, but that thereafter, petitioner occasionally ran away from the home he shared with his father and Carol Dewey and came to her house.

152

She also related that petitioner lived with her occasionally during his childhood, but that her husband kicked him out of the house for stealing empty Coca Cola bottles.

153

At one point, when Carol Dewey and Lang, Sr. were fighting, petitioner’s mother “went to an attorney to try to get custody of Kenny. The attorney told her she would have to pay him $400[] down before he would work on the case.... [S]he did not have the money to do this so she did not go through with her plan to retain custody of Ken.”

154

Petitioner’s mother reported that Carol Dewey and Hilda Lang directed “only bitterness” toward petitioner.

155

Ballew also interviewed Susie Rosenthal, petitioner’s step-aunt and the sister of Carol Dewey. Susie Rosenthal told Ballew that petitioner’s father “had molested her when she was about 10 years old. She also said that he [had] attempted to rape one of her sisters. She said that Ken Sr. [was] ‘sick and a liar.’ ”

156

Susie Rosenthal also provided some insight regarding petitioner’s attitude toward gay men. Ballew stated:

“Ken lived with Susie and her lesbian lover Tammy when he was released from the army. It was Ken who suggested I see Susie in regards to his attitude toward homosexuality. I asked Susie how Ken reacted to homosexual males that visited her home when Ken lived with her. At first she did not remember any male homosexuals coming to her house but after giving it a few days[’] thought she said that there was one homosexual male named Brad that would come over every once in a while. She told me that whenever Brad came into their apartment Ken would get up and leave.”

157

Another relative of petitioner’s, Cathy Helms, told Ballew that “all the kids” in the family “were into stealing” and that “no one [in the family] talks about that.”

158

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The court notes that Carol Dewey’s and Ken Lang, Sr.’s third child, Tamara Jean Dykes (nee Lang), offered inconsistent testimony in her 1988 and 2002 declarations as to whether she was interviewed prior to petitioner’s trial. In her 1988 declaration, Dykes stated that an investigator spoke with her before the 1984 trial.

159

In her 2002 declaration, she asserted that no defense investigator spoke with her.

160

Neither Conry’s nor Ballew’s notes reflect a conversation with Dykes. In a 1989 declaration, however, Stanley identified her as one of the witnesses he considered calling during the penalty phase.

161

Given that Stanley and Dykes recalled, in 1989 and 1988 respectively, that a defense investigator contacted Dykes, the court concludes that one of Conry or Ballew spoke with her, most probably while she was residing with Carol Dewey and Tony and Tracy Lang. The court has no evidence, however, regarding the content of the interview.

Ballew testified that, based on the interviews she conducted, she knew in 1984 that the marriage of petitioner’s biological parents was tumultuous and marked by arguments and separations, and that she communicated this fact to Stanley.

162

Ballew also knew that petitioner was unhappy in Carol Dewey’s home and felt like an outsider; she also imparted this fact to Stanley.

163

d. Mental Health Experts Retained by Stanley

Stanley recalled that, after reviewing Conry’s and Ballew’s reports, he concluded that family members’ “comments ... indicated] various kinds of possible mental health issues.”

164

He also testified that after reviewing the information, he knew petitioner “had suffered emotional abuse.”

165

Stanley expressed concern

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about conducting a psychiatric or psychological evaluation too early in the case, however, because petitioner was opposed to “having his head shrunk.”

166

He explained:

“[U]ntil we had established a better rapport and I was able to explain to him how such an evaluation might relate to corroborating or buttressing his version of what happened, until we got to that point I don’t think he saw that there was any need for such an evaluation and just because of his personal predilections he would have preferred not to have done it.”

167

Ultimately, Stanley prevailed on petitioner to meet with mental health experts for the purpose of establishing a defense at the guilt phase; Stanley could not recall, however, if he informed petitioner that the experts would be used for the penalty phase as well.

168

In mid-1984, Stanley retained Lawrence Ratner, Ph.D., a licensed clinical psychologist.

169

In 1984, Dr. Ratner “was regularly consulted as an expert by the Santa Barbara Public Defender’s Office” and had “evaluated numerous defendants charged with murder in cases involving mental state issues.”

170

Ratner could not recall being asked specifically to evaluate whether petitioner’s shooting of Anderson was a panic response, the result of posttraumatic stress disorder (“PTSD”), or based on an actual but unreasonable belief that his life was in danger.

171

This is confirmed by the introduction to his July 9, 1984 report memorializing his findings, in which Dr. Ratner wrote that “Mr. Stanley wanted to know Ken’s emotional makeup, his intellectual level, and if there were any gender confusion problems present.” He identified this as the “referral question.”

172

At his 2002 deposition, Stanley stated that he had a “moderately clear [recollection] that at th[e] point [Ratner was retained] we were focusing on guilt phase, and I don’t remember asking anything about — you know, give us some — some input in terms of potential penalty phase.”

173

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Although Dr. Ratner could not recall “exactly” what he said to Stanley, he noted it was his “usual custom and practice to request from the defense attorney all available materials relative to the client’s mental health, including background information about the client’s family history, his relationship with his family, investigative reports, [and] social and biographical information.”

174

Dr. Ratner stated that he was not given any information regarding petitioner’s alcohol intoxication, abandonment and physical abuse by his parents and stepparents, or his experiences in the days leading up to the murder.

175

Dr. Ratner interviewed petitioner for one-half hour on July 2, 1984 and two hours on July 3, 1984.

176

He “took a mental status, a psychosocial history, and performed a psychological test battery consisting of the WAIS-R, Rorschach, MMPI, Carlson Psychological Survey, Draw A Person, and Bender Gestalt.”

177

On July

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9, 1984, Dr. Ratner sent Stanley a letter stating:

“After interviewing and testing Ken, I feel that the victim at the time of the crime mistook Ken’s passive, polite ways as an indication that he had homosexual tendencies. I further feel that the victim did not realize that he was dealing with someone who has both gender confusion and insecurity about being masculine.

In addition, all his life Ken has attempted to mark these sensitive areas and taken steps to protect himself from homosexual attack.

This, no doubt, was particularly true in the prison setting, in which he was able to survive.

Another factor that is important to remember in Ken’s case is that [he] does have a borderline level of intellectual functioning, particularly in word power, mathematical computation, and commonsense reasoning.

In other words, hypothetically, in a situation where someone was trying to seduce him, he would be a little slow in understanding what was going on because of his borderline level of intellectual functioning. Obviously, when he realized what was happening in his intoxicated state, he overreacted.”

178

Dr. Ratner attached a report that provided some social background. It “emphasized that [petitioner] got along well with his father until he was about 13. At that time he began having problems with his second stepmother [Hilda Lang], and the relationship between him and his father broke down.”

179

The report also stated that at some point in his childhood petitioner became homeless and began living in a makeshift cabin or treehouse he built in the woods, supporting himself by shoplifting. Ratner stated that petitioner first had sexual intercourse when he was eight or nine years old because he was forced or pressured to do so by three female teenage cousins.

180

Dr. Ratner also provided the results of the battery of psychological tests he conducted. He noted that an elevated score for

“Psychopathic Deviancy [on the MMPI] indicates that an individual has asocial and anti-social tendencies. This can include lying, stealing, promiscuity, and a general disregard for social rules and conventions. Individuals with this particular profile have assaultive thoughts, acting out behavior, and are described as being hostile and irritable. They are moreover seen as being unable to conform to society’s standard, and are further described as egocentric, narcissistic and impulsive.

The moderate elevation of the scale score for Paranoia suggests that he is

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guarded, self-centered, highly sensitive and underachieving.

When seen in combination, an individual with elevated scale scores for Psychopathic Deviancy and Paranoia would be diagnosed as having a passive-dependent personality.”

181

Based on these findings, Dr. Ratner diagnosed petitioner as “having a personality disorder of a sociopathic type, [with] ... a disregard for social rules and conventions. He is also seen as being hostile, irritable, rebellious and underachieving. He has definite problems with impulse control, and is possibly somewhat narcissistic,”

182

as well as “having a passive-aggressive personality.”

183

Dr. Ratner “did not request any additional background information from ... Stanley, no

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