Earp v. Ornoski

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICKY LEE EARP, 

Petitioner-Appellant,

No. 03-99005

v.

JOHN STOKES, Warden, of  D.C. No.

CV-00-06508-R

California State Prison at San

OPINION

Quentin,*

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

July 14, 2005—Pasadena, California

Filed September 8, 2005

Before: Jerome Farris, Dorothy W. Nelson, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

*Pursuant to Fed. R. App. P. 43(c)(2), John Stokes, the current custo-

dian, is substituted for Jeanne S. Woodford as Warden of California State

Prison at San Quentin.

12699

EARP v. STOKES 12703

COUNSEL

Robert S. Gerstein, Santa Monica, California, for the

petitioner-appellant.

James William Bilderback II, Deputy Attorney General, Los

Angeles, California, for the respondent-appellee.

12704 EARP v. STOKES

OPINION

TALLMAN, Circuit Judge:

Ricky Lee Earp is on death row in San Quentin, California,

after being convicted in Los Angeles County of the 1988 rape

and murder of eighteen-month-old Amanda Doshier. The jury

convicted Earp of first-degree murder and found three death-

qualifying special circumstances to be true: rape, sodomy, and

lewd and lascivious conduct on a child under the age of four-

teen. In the separate penalty phase, the jury recommended that

Earp be put to death for his crimes. The California Superior

Court (“trial court”) imposed that sentence on February 21,

1992.

All reviewing courts thus far have upheld Earp’s conviction

and sentence. The California Supreme Court (“state court”)

affirmed Earp’s conviction and death sentence on direct

appeal, and summarily denied his state habeas corpus petition

on the merits without affording him an evidentiary hearing on

any of his claims. People v. Earp, 978 P.2d 15 (Cal. 1999).

The United States Supreme Court denied certiorari. Earp v.

California, 529 U.S. 1005 (2000). Earp then filed a federal

habeas corpus petition in the United States District Court for

the Central District of California, raising nineteen constitu-

tional claims. The district court denied Earp’s habeas petition

on all of them. Earp now brings this appeal.

We affirm the district court on seven of the claims Earp

raises in this appeal, and vacate and remand for an evidentiary

hearing on the two remaining claims.1 This Opinion addresses

1

In a separately filed companion Memorandum Disposition we affirm

the district court on six of Earp’s claims. Earp made four prosecutorial

misconduct claims in addition to the one discussed in this Opinion: (1) that

the prosecutor committed prejudicial error under Doyle v. Ohio, 426 U.S.

610 (1976), by commenting on Earp’s failure to name Dennis Morgan

prior to trial; (2) that the prosecutor’s closing statement shifted the burden

EARP v. STOKES 12705

Earp’s claims of prosecutorial misconduct, ineffective assis-

tance of counsel, and conflict of interest.2 The district court

conducted a limited evidentiary hearing on his conflict claim

and denied his motion for an evidentiary hearing on his pro-

secutorial misconduct and ineffective assistance of counsel

claims. Ultimately, all of these claims were denied on sum-

mary judgment.

Here we decide whether: (1) Earp alleges facts warranting

an evidentiary hearing on his claim that the prosecutor com-

mitted prejudicial misconduct by dissuading Michael Taylor

from testifying; (2) Earp alleges facts warranting an evidenti-

ary hearing on his claim of ineffective assistance of counsel

for failure to sufficiently investigate mitigation evidence; and

(3) Earp’s counsel suffered from a conflict of interest stem-

ming from her intimate relationship with Earp during his trial

and sentencing. We hold that Earp has alleged facts which, if

proven true, may entitle him to relief on his prosecutorial mis-

conduct and ineffective assistance of counsel claims. Because

of proof; (3) that the prosecutor impermissibly stated his own opinion of

Earp’s guilt; and (4) that the cumulative effect of these errors deprived

Earp of his right to due process. We affirm the district court’s summary

judgment order in favor of the Warden because we agree that the state

court’s resolution denying these claims was neither contrary to, nor an

unreasonable application of, controlling federal precedent. Furthermore,

we affirm in the Memorandum Disposition the district court’s decision to

deny Earp an evidentiary hearing on his claims that his counsel provided

ineffective assistance by not presenting his third-party defense in the open-

ing statement and by eliciting testimony from a defense investigator.

Because the record demonstrates that these were strategic choices, we hold

in the Memorandum Disposition that the district court did not abuse its

discretion by denying an evidentiary hearing on these claims.

2

For the remainder of this Opinion, we use the term “prosecutorial mis-

conduct” to refer to Earp’s claim that the prosecutor intimidated and

threatened Michael Taylor to dissuade him from testifying, and the term

“ineffective assistance of counsel” to refer to Earp’s claim that his counsel

provided ineffective assistance by failing to conduct adequate investiga-

tion into mitigating evidence for use in the penalty phase.

12706 EARP v. STOKES

Earp has never been afforded an evidentiary hearing on these

claims, we remand to the district court for an evidentiary

hearing on his prosecutorial misconduct and ineffective assis-

tance of counsel claims. As to Earp’s conflict claim, we hold

that the state court determination that counsel was not labor-

ing under a conflict of interest was neither contrary to, nor an

unreasonable application of, established federal law because

the Supreme Court has expressly limited its conflict jurispru-

dence to cases involving multiple, concurrent representation.

We therefore affirm the summary judgment in part, reverse in

part, and remand for the necessary evidentiary proceedings.

I

We recount the facts and circumstances leading to and sur-

rounding the crime and Earp’s trial as necessary to understand

our opinion.3 In August 1988, Earp was living in Palmdale,

California, with his girlfriend, Virginia MacNair. On August

22, Cindy Doshier left her daughter, Amanda Doshier, with

Earp and MacNair for a few days, as she had done several

times before. On Thursday, August 25, MacNair left for work

around 7:00 a.m., leaving Amanda with Earp. Around 3:00

p.m., a firefighter responded to an emergency call from a man

reporting that a baby had fallen down some stairs. A prelimi-

nary assessment of her injuries led the first responder to con-

clude that Amanda needed more medical attention than he

could give, so the firefighter took her to the hospital.

After the firefighter left with Amanda, Earp disappeared

and spent the next two days with different sets of friends and

family elsewhere in California before ultimately turning him-

self in to the police in Sacramento after learning that he was

being sought in connection with Amanda’s death. During the

intervening time, Earp gave inquiring friends and neighbors a

3

We extract much of the facts and procedural history from the Califor-

nia Supreme Court opinion disposing of Earp’s direct appeal, Earp, 978

P.2d at 27-31, confirmed by our own independent review of the record.

EARP v. STOKES 12707

host of contradictory explanations for Amanda’s injuries and

his absence.

At 10:30 a.m. on Saturday, August 27, 1988, Amanda died.

Medical examinations of Amanda revealed that she had

severe bruising, blood, and tears in the rectal area and blood

and gaping in the vaginal area consistent with sexual assault.

However, no semen, sperm, or seminal fluid was found. The

medical examiner determined that Amanda’s death was

caused either by multiple sharp blows to the top of the head

or severe shaking.

At trial, Earp denied sexually molesting or otherwise harm-

ing Amanda. He blamed Dennis Morgan, Amanda’s grand-

mother’s boyfriend whom Earp had met while the two served

time together in prison. Dennis Morgan testified that he met

Earp while they were both inmates at the Susanville prison

and had helped Earp get a job after his release. He also admit-

ted that he was a heroin addict with nineteen different aliases,

but refuted Earp’s assertion that he was present at MacNair’s

house on August 25, denied knowing where Earp was living

at the time, and claimed that he did not rape or molest

Amanda. He also accused Earp of asking him to testify that

there was a man named Joe at the house with them, and

alleged that Paul Ford, a defense investigator, told him that

Earp “needed someone who could place somebody else at the

house.”

At the penalty phase, Adrienne Dell, Earp’s attorney, pre-

sented the following evidence in mitigation: Earp’s mother

and aunt testified generally about Earp’s family background

and legal troubles as a juvenile; MacNair testified as to her

and her son’s visits to Earp in jail; a cook from the California

Youth Authority (“CYA”) testified about Earp during his

juvenile confinement; and a former associate warden at San

Quentin testified that Earp would pose no danger in a high-

security facility and that Earp could adjust to life in prison.

12708 EARP v. STOKES

II

We review de novo the district court’s denial of a petition

for a writ of habeas corpus, Lambert v. Blodgett, 393 F.3d

943, 964 (9th Cir. 2004), and the district court’s grant of sum-

mary judgment, Davis v. Woodford, 384 F.3d 628, 638 (9th

Cir. 2004). “Factual findings and credibility determinations

made by the district court in the context of granting or deny-

ing the petition are reviewed for clear error.” Lambert, 393

F.3d at 964. The district court’s application of the Antiterro-

rism and Effective Death Penalty Act of 1996 (“AEDPA”), as

well as its conclusion that the standards set forth in AEDPA

are satisfied, is a mixed question of law and fact which we

also review de novo. Id. at 965.

Because Earp’s petition was filed after April 24, 1996, fed-

eral review is circumscribed by AEDPA. Lockyer v. Andrade,

538 U.S. 63, 70 (2003); see also Lambert, 393 F.3d at 965

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

AEDPA mandates a highly deferential standard for reviewing

state court determinations. Under AEDPA, a writ of habeas

corpus:

shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceed-

ings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unrea-

sonable determination of the facts in light of the evi-

dence presented in the State court proceeding.

28 U.S.C. § 2254(d).

EARP v. STOKES 12709

We review de novo the district court’s interpretation of

AEDPA standards governing the grant or denial of an eviden-

tiary hearing, Baja v. Ducharme, 187 F.3d 1075, 1077 (9th

Cir. 1999), and we review for abuse of discretion the district

court’s ultimate denial of an evidentiary hearing based on

these AEDPA standards, Davis, 384 F.3d at 638. In determin-

ing whether a petitioner is entitled to an evidentiary hearing

under AEDPA, the district court:

must determine whether a factual basis exists in the

record to support the petitioner’s claim. If it does

not, and an evidentiary hearing might be appropriate,

the court’s first task in determining whether to grant

an evidentiary hearing is to ascertain whether the

petitioner has ‘failed to develop the factual basis of

a claim in State court.’ . . . . If [ ] the applicant has

not ‘failed to develop’ the facts in state court, the

district court may proceed to consider whether a

hearing is appropriate or required under Townsend v.

Sain, 372 U.S. 293 (1963)[ overruled on other

grounds in Keeney v. Tamayo-Reyes, 504 U.S. 1, 5

(1992)].

Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir.

2005) (quoting Baja, 187 F.3d at 1078). Townsend establishes

that a defendant is entitled to an evidentiary hearing if he can

show that:

(1) the merits of the factual dispute were not

resolved in the state hearing; (2) the state factual

determination is not fairly supported by the record as

a whole; (3) the fact-finding procedure employed by

the state court was not adequate to afford a full and

fair hearing; (4) there is a substantial allegation of

newly discovered evidence; (5) the material facts

were not adequately developed at the state-court

hearing; or (6) for any reason it appears that the state

12710 EARP v. STOKES

trier of fact did not afford the habeas applicant a full

and fair hearing.

Townsend, 372 U.S. at 313.

[1] Accordingly, where the petitioner establishes a color-

able claim4 for relief and has never been afforded a state or

federal hearing on this claim, we must remand to the district

court for an evidentiary hearing. Insyxiengmay, 403 F.3d at

670; Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir.

2004); Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir.

2001). In other words, a hearing is required if: “(1) [the defen-

dant] has alleged facts that, if proven, would entitle him to

habeas relief, and (2) he did not receive a full and fair oppor-

tunity to develop those facts[.]” Williams v. Woodford, 384

F.3d 567, 586 (9th Cir. 2004).

III

In his state habeas petition and again in his federal petition,

Earp argues that the prosecutor committed misconduct by

intimidating a post-trial witness named Michael Taylor to pre-

vent him from testifying in support of a new trial motion. We

hold that the district court’s decision to reject this claim with-

out holding an evidentiary hearing was an abuse of discretion.

See Davis, 384 F.3d at 638.

A

1

The case against Earp was comprised of strong circumstan-

tial evidence — Amanda had been left in his care on the day

of the crime, and after Amanda was taken to the hospital Earp

4

In showing a colorable claim, a petitioner is “required to allege specific

facts which, if true, would entitle him to relief.” Ortiz v. Stewart, 149 F.3d

923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted).

EARP v. STOKES 12711

disappeared and gave false and inconsistent explanations of

what had happened to her before he surrendered to the police.

At trial, the defense case hinged on a credibility battle

between Earp, who claimed that Dennis Morgan had mur-

dered Amanda, and Morgan, who testified that he had never

seen Amanda or been to the house where she was fatally

injured.

Earp testified that on the day Amanda was attacked, he was

at home watching her and working around the house when he

was interrupted by Morgan’s arrival at his door. Earp claimed

that he allowed Morgan into the house, but largely ignored

him, hoping that he would leave. Later in the afternoon, Earp

said he went outside to clean paintbrushes and, because the

backyard was unfinished, Earp left Amanda inside with Mor-

gan and the family dog. Earp testified that after approximately

a half-hour, he noticed the dog was agitated and he went

inside to investigate. He discovered Amanda lying motionless

at the bottom of the stairs, and made a number of attempts to

revive her, including performing CPR, before calling emer-

gency services. Earp further testified that Morgan left as Earp

was calling for help.

Morgan’s testimony contradicted this defense. Morgan tes-

tified that he had never been in the home and did not even

know where it was. He also testified that he had never seen

Amanda, and that he had not molested or raped her. Notably,

no trial witness other than Earp was able to place Morgan at

the house on the day of the crime.

2

After the trial was over, a defense investigator located a

potential jailhouse witness who might have impeached Mor-

gan’s testimony: Michael Taylor. Taylor was also an inmate

at the Los Angeles County Central Jail at the time of Earp’s

trial, where both Earp and Morgan were being held.5 In a

5

Morgan was jailed on unrelated charges.

12712 EARP v. STOKES

series of declarations, Taylor claims that, while Earp’s jury

was deliberating, he overheard Morgan tell another inmate

that Morgan had visited the house where Earp was watching

Amanda on the day in question. Taylor insists that Morgan

referred to Amanda as his “granddaughter,” and expressed

fear that Earp would “come after him” if he got out of jail

because of Morgan’s false testimony at trial.

Taylor declares that he initially told this story in a recorded

statement to the defense in late 1991 or early 1992. He asserts

that, later the same day, the prosecutor and a sheriff’s deputy

took him to a private room at the jail, verbally abused him,

and told him that he would never get out if he stood by his

statement. Taylor insists that although his initial statement

was true, he capitulated in the face of the prosecutor’s threats

and retracted the statement.

B

Earp first raised his claim that these events constituted pro-

secutorial misconduct in his state habeas petition.6 He argued

in his petition that the prosecutor violated Earp’s due process

rights by intimidating Taylor into withdrawing his declara-

tion. He supported his state petition with four signed declara-

6

Michael Taylor’s potential testimony arose in two other ways in the

state habeas litigation, but Earp does not pursue those arguments in this

appeal. First, Earp partially based his Motion for a New Trial on the argu-

ment that Taylor’s potential testimony was newly discovered evidence.

The trial court denied Earp’s motion for a new trial, and the denial was

affirmed on direct appeal. Earp dropped this argument after direct appeal;

he did not protest the new trial decision in his state or federal habeas peti-

tions. Earp’s second use of Taylor’s potential testimony was in his state

habeas petition to support his claim of factual innocence. The state court

summarily denied this claim, but Earp raised it again in his federal peti-

tion. Holding that there is no free-standing constitutional claim of factual

innocence, the district court rejected this claim, and Earp has abandoned

it on appeal. It is only his third use of Taylor’s proffered testimony — to

support his claim that the prosecutor committed misconduct — that Earp

continues to pursue in this appeal.

EARP v. STOKES 12713

tions from Taylor, a signed declaration from defense

investigator Manuel Alvarez, a declaration from Adrienne

Dell, Earp’s trial attorney, and a transcript of part of the pros-

ecutor’s interview with Taylor. Through these submissions to

the state court, Earp proffered the factual foundation for his

alleged prosecutorial misconduct claim. See id. at 669-70.

Without conducting a hearing, the state court denied Earp’s

prosecutorial misconduct claim without opinion. Earp contin-

ued to pursue his prosecutorial misconduct claim in his fed-

eral petition. He was unsuccessful before the district court as

well; the federal court adopted the Warden’s proposed order

granting summary judgment against Earp on his prosecutorial

misconduct claim. Earp appeals the district court’s order.

C

Because the factual basis for Earp’s claim was adequately

proffered to the state court, he is entitled to an evidentiary

hearing if he has not previously received a full and fair oppor-

tunity to develop the facts of his claim and he presents a “col-

orable claim” for relief. Insyxiengmay, 403 F.3d at 669-70;

see also Williams, 384 F.3d at 586.

1

[2] It is evident from the record that Earp has never

received an opportunity to develop his claim of prosecutorial

misconduct. The issue was not presented to the trial court, but

it was raised on habeas, and neither the state court nor the dis-

trict court allowed him an evidentiary hearing. Because we

find that such a hearing was necessary to make the credibility

determination upon which rejection of Earp’s claim depends,

we conclude that he has not had a “full and fair” opportunity

to develop the facts supporting his claim. See Townsend, 372

U.S. at 313.

12714 EARP v. STOKES

[3] The district court resolved Earp’s claim on the basis of

Taylor’s credibility, concluding that Taylor’s declarations

were “inherently untrustworthy and not worthy of belief.”7

The district court reached its credibility determination without

taking the opportunity to listen to Taylor, test his story, and

gauge his demeanor.8 See Blackledge v. Allison, 431 U.S. 63,

82 n.25 (1977) (“When the issue is one of credibility, resolu-

tion on the basis of affidavits can rarely be conclusive . . . .”)

(internal quotation marks and citation omitted).

[4] In rare instances, credibility may be determined without

an evidentiary hearing where it is possible to “conclusively”

decide the credibility question based on “documentary testi-

mony and evidence in the record.” Watts v. United States, 841

F.2d 275, 277 (9th Cir. 1988) (finding an evidentiary hearing

unnecessary in a § 2255 case). However, such a determination

is not possible here because the documentary testimony in the

record is consistent with Taylor’s story and Earp’s claim. Oth-

erwise, there is no evidentiary basis for the district court’s

judgment of Taylor’s incredibility because Taylor’s story is

completely outside the record. See Frazer v. United States, 18

F.3d 778, 784 (9th Cir. 1994) (“Because all of these factual

7

The district court also found that Taylor’s statements would not have

impacted Earp’s conviction and thus “did not concern material evidence”

because the trial court would not have accepted them. This is also a credi-

bility determination, because the district court reasoned that the trial court

would have found the declarations untrustworthy and refused to consider

them.

8

The district court gave no explanation as to how it resolved the credi-

bility contest between Taylor and the law enforcement officers in favor of

the officers. One could speculate that the district court found Taylor

untrustworthy because he was an inmate, but, in the absence of an eviden-

tiary hearing to determine who was telling the truth, it remains unclear

why an inmate testifying for the defense would be inherently incredible.

Alternatively, one could speculate that the district court found Taylor

untrustworthy because he changed his initial story, and then returned to it.

But Earp’s allegation is that Taylor changed his story because the prosecu-

tor essentially threatened him, so this speculation would support Earp’s

allegation if the evidence Earp proffers is found to be credible.

EARP v. STOKES 12715

allegations were outside the record, this claim on its face

should have signalled the need for an evidentiary hearing.”).

[5] Because the veracity of the witnesses who signed the

affidavits on which Earp based his claim was at issue, the

claim could not be adjudicated without an evidentiary hearing

on this disputed issue of material fact. Summary judgment is

an inappropriate vehicle for resolving claims that depend on

credibility determinations. See Williams v. Calderon, 48 F.

Supp. 2d 979, 989 (C.D. Cal. 1998) (noting in the context of

a habeas claim “[t]he Court is not to determine issues of cred-

ibility on a motion for summary judgment; instead, the truth

of each party’s affidavits is assumed”), aff’d Williams, 384

F.3d at 628; see also United States v. Two Tracts of Land in

Cascade County, Mont., 5 F.3d 1360, 1362 (9th Cir. 1993)

(reversing and remanding summary judgment for live testi-

mony where the district court concluded on the basis of affi-

davits that the affiants were not credible); Kreisner v. San

Diego, 988 F.2d 883, 900 n.1)(“Determinations of credibility

are inappropriate for summary judgment.”), amended by 1

F.3d 775 (9th Cir. 1993); SEC v. Koracorp Indus., Inc., 575

F.2d 692, 699 (9th Cir. 1978) (“[S]ummary judgment is sin-

gularly inappropriate when credibility is at issue.”).

Earp has never had an opportunity to present Taylor’s live

testimony so that the trier of fact can judge his credibility, and

the prosecutor and sheriff’s deputy have never been ques-

tioned regarding their side of the story. Thus, we conclude

that Earp has not had a full and fair opportunity to develop the

facts to support his claim.

2

We next consider whether Earp has alleged facts which, if

demonstrated to be true, would present a colorable claim for

relief. See Insyxiengmay, 403 F.3d at 669-70; Williams, 384

F.3d at 586. At this stage, Earp does not need to prove that

the prosecutor committed misconduct or that his due process

12716 EARP v. STOKES

rights were violated; he only needs to allege a colorable claim

for relief. See Phillips, 267 F.3d at 973. This is a low bar, and

Earp has surmounted it.

[6] If the facts that Earp alleges are proven true at an evi-

dentiary hearing, the district court might well determine that

he had established that the prosecutor threatened and verbally

abused Taylor, fed him an untrue story, forced him to recant

the impeaching statement by Morgan on tape, and punished

Taylor for assisting Earp by having Taylor removed from his

job as a trustee and transferred to a significantly less desirable

jail facility. It is well established that “substantial government

interference with a defense witness’s free and unhampered

choice to testify amounts to a violation of due process.”

United States v. Vavages, 151 F.3d 1185, 1188 (9th Cir. 1998)

(quoting United States v. Little, 753 F.2d 1420, 1438 (9th Cir.

1984)). Moreover, coercive or threatening behavior towards a

potential witness may justify reversal of a defendant’s convic-

tion. See Webb v. Texas, 409 U.S. 95, 98 (1972); Williams,

384 F.3d at 601-02 (“Undue prosecutorial interference in a

defense witness’s decision to testify arises when the prosecu-

tion intimidates or harasses the witness to discourage the wit-

ness from testifying . . . .”). If Earp could prove his factual

claims at an evidentiary hearing, he may well establish that

the prosecutor committed misconduct.9 We note that we are

9

We have considered and rejected the possibility that hearsay objections

to Taylor’s testimony would preclude Earp’s claim. Hearsay testimony

should not be necessary in the district court because in order to establish

Earp’s claim, Taylor would need to testify as to how the prosecutor treated

him and how he reacted (by withdrawing his statement); the actual content

of Taylor’s statement would not be particularly relevant to this inquiry. If

Earp is granted relief on this claim and the case against him ultimately

retried, Taylor’s testimony would likely be admissible under California

evidence rules as an inconsistent statement, see Cal. Evid. Code §§ 770,

1235, as impeachment evidence, see Cal. Evid. Code §§ 780(h), 785, or

possibly also as a statement against penal interest, see Cal. Evid. Code

§ 1230. We thus conclude that hearsay concerns do not preclude a finding

that Earp has alleged facts which, if proven, would entitle him to relief.

EARP v. STOKES 12717

not opining on what the resolution of this issue should be; we

are only explaining why Earp is entitled to a hearing on his

claim.

[7] Earp has also made out at least a colorable claim that

he was prejudiced by the prosecutor’s misconduct. If the facts

Earp alleges are true, he may well have demonstrated that the

prosecutor’s misconduct precluded him from presenting his

full defense. See Chambers v. Mississippi, 410 U.S. 284, 302

(1973) (“Few rights are more fundamental than that of an

accused to present witnesses in his own defense.”). Further-

more, because Earp’s defense strategy at trial so clearly pitted

Earp’s credibility against Morgan’s, evidence that Morgan

was lying could have created a reasonable doubt with the jury

that would have made the difference for Earp. See Silva v.

Brown, No. 04-99000, 2005 WL 1732765, *5 (9th Cir. Jul.

26, 2005) (“Impeachment evidence is especially likely to be

material when it impugns the testimony of a witness who is

critical to the prosecution’s case.”). If Earp can demonstrate

that prosecutorial misconduct prevented Taylor from

impeaching Morgan, he may be able to establish that he was

deprived of his right to present Taylor as a witness on his

behalf, that he should have been granted a new trial to prove

his defense, and that this deprivation may well have affected

the outcome.

The district court’s conclusion that Earp has not demon-

strated any potential prejudice hinges on the credibility deter-

mination that we have already concluded cannot be made on

summary judgment. The district court says that it assumed the

credibility of Taylor’s declarations, but concluded that even if

the prosecutor committed misconduct, Earp was not preju-

diced because the trial court would not have accepted Tay-

lor’s testimony had it been offered because the court would

not have found it credible.10 Had the trial court actually heard

10

The district court reached this conclusion by adopting the trial court’s

conclusion that Taylor was untrustworthy. Just as we could not accept the

12718 EARP v. STOKES

Taylor testify and determined that he was not credible, we

would probably defer to the trial court’s credibility judgment

as an established fact and would likely conclude that Earp had

not raised a colorable claim of prejudice. See Torres v.

Prunty, 223 F.3d 1103, 1109 (9th Cir. 2000). However,

because no court has properly considered Taylor’s credibility,

we have no basis upon which we may hold that the facts Earp

alleges do not establish a colorable claim of prejudice by pro-

secutorial misconduct.

Instead, we hold that Earp has established entitlement to an

evidentiary hearing because the facts he alleged may show

that the prosecutor committed a constitutional due process

violation by prejudicially dissuading Michael Taylor from tes-

tifying. We remand for an evidentiary hearing so that Earp

will have an opportunity to prove the facts supporting his

claim.

IV

Earp argues that he was denied effective assistance because

his counsel’s investigation was insufficient, resulting in a

“large body of relevant mitigating material” being kept from

the jury in the penalty phase. Specifically, Earp argues that

defense counsel’s failure to properly investigate and follow up

on leads unearthed by the defense investigator resulted in the

failure to uncover and present the following mitigating evi-

dence: (1) extensive records of Earp’s schooling, document-

ing a history of emotional problems and possible

psychological or neurological problems; (2) further informa-

tion about Earp’s family background, his history of substance

abuse and mental problems, especially in light of his family

history of alcoholism, depression, and suicide; and (3) neuro-

district court’s credibility judgment based only on Taylor’s written state-

ments, we cannot accept its reliance upon a trial court credibility judgment

that suffered from the same deficiency in resolving a credibility dispute

without a hearing.

EARP v. STOKES 12719

logical and psychiatric evaluations evincing organic brain

damage resulting from head trauma that he suffered at age

eight or nine. In this appeal, Earp seeks not the grant of his

petition for relief, but remand for an evidentiary hearing on

this claim.11

The district court denied Earp’s motion for an evidentiary

hearing and granted summary judgment in favor of the War-

den on this claim, concluding that Earp failed to establish that

counsel’s performance was deficient and that he suffered prej-

udice thereby, because the evidence in aggravation was insur-

mountable.12 Because we find that Earp has met the

11

Earp also raised this claim in his state petition for habeas relief. In

support of his claims at the state level Earp included the following items

in his exhibits: the declaration of Lori Thomson, Earp’s sister; Earp’s

CYA records; Earp’s juvenile arrest/detention record; Earp’s Santa Clara

Valley Medical Center records; Earp’s school records including progress

reports, psychological reports, and testing results; Earp’s Probation Offi-

cer’s Social Study Report; birth, school, and medical records of Earp’s

extended and immediate family members; and various reports about the

conditions of CYA confinement.

12

The district court had before it all of the evidence contained in the

state record, along with the following: the declaration of Barbara Nus-

baum, Earp’s aunt; the declaration of Helen Perusse, Earp’s mother; the

declaration of Curtis Earp, Earp’s brother; Background Factors and Social

History (prepared by defense investigator Sheryl Duvall for the trial court

on January 23, 1992); the declaration of Douglas Dorman (re: teenage

drug use, family background, time in detention); the declaration of Donald

Robbins (re: family background, alcoholism, abuse, teenage drug use, time

in detention); the declaration of Kelly Williams (re: teenage drug use, fam-

ily background); the supplemental declaration of Barbara Nusbaum (re:

alcohol abuse, family background, teenage drug use); the supplemental

declaration of Curtis Earp (re: family background, father’s abuse of Earp,

father’s suicide); the declaration of Abbey Drew (re: experience as Earp’s

Juvenile Hall counselor, Earp’s behavior, impressions of Earp as a teen-

ager); the declaration of Dean R. Gits (re: contents of the deposition of

Sue Brown); the Expert Report of Ines Monguio, Ph.D. (re: whether

Earp’s psychosocial history and neuropsychological functioning prior to

and during the crime for which he was convicted may have presented a

viable defense at the time because Earp’s test results and records were

“consistent with organic damage[ ] by traumatic brain injury”); and the

Expert Report of Ezekiel P. Perlo (re: expert opinion as to ineffective

assistance, mostly addressing the conflict claim).

12720 EARP v. STOKES

requirements for an evidentiary hearing by alleging facts that,

if proven, may entitle him to relief, and because these allega-

tions have never been considered in an evidentiary hearing,

we order a remand for that purpose.

A

[8] In order to establish entitlement to an evidentiary hear-

ing, Earp is not required to conclusively establish in this

appeal that counsel was prejudicially deficient. Rather, Earp

must demonstrate by his evidence the potential of a colorable

claim that, if proven true at the hearing, would show that his

former counsel’s failure to investigate amounted to ineffective

assistance of counsel, and that, but for such deficient repre-

sentation, there is a reasonable probability that the outcome of

the proceeding would have been different. See Strickland v.

Washington, 466 U.S. 668, 688, 693-94 (1984).

B

A defendant in a criminal proceeding is entitled to effective

assistance of counsel in order “to protect the fundamental

right to a fair trial.” Id. at 684. Strickland sets forth two

prongs that the defendant must satisfy in order to establish a

Sixth Amendment right to counsel violation: (1) “the defen-

dant must show that counsel’s performance was deficient”;

and (2) “the defendant must show that the deficient perfor-

mance prejudiced the defense . . . . Unless a defendant makes

both showings, it cannot be said that the conviction or death

sentence resulted from a breakdown in the adversary process

that renders the result unreliable.” Id. at 687.

In order to satisfy the first prong, “the defendant must show

that counsel’s representation fell below an objective standard

of reasonableness” under “prevailing professional norms,” id.

at 688, by identifying the acts or omissions “that are alleged

not to have been the result of reasonable professional judg-

ment[,]” id. at 690. Our review of counsel’s performance for

EARP v. STOKES 12721

constitutional deficiency “must be highly deferential” and

should include every effort “to eliminate the distorting effects

of hindsight[.]” Id. at 689.

It is not enough to show that counsel was deficient; rather,

reversal is only proper if the error had a prejudicial effect on

the outcome of the trial. Id. at 692. Thus, in order to establish

prejudice, the “defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reason-

able probability is a probability sufficient to undermine confi-

dence in the outcome.” Id. at 694.7

C

1

Two recent Supreme Court cases inform our analysis of

Earp’s claim. First, in Williams v. Taylor, 529 U.S. 362

(2000), where the defendant faced death because the jury

found a probability of future dangerousness, the Supreme

Court considered whether counsel’s failure to discover, inves-

tigate, and present certain mitigating evidence fell “below the

range expected of reasonable, professional competent assis-

tance of counsel.” Id. at 371 (internal quotation marks and

citation omitted). At sentencing, counsel presented testimony

from Williams’s mother and two neighbors, and a taped

excerpt from a psychiatrist. Id. at 369. The witnesses testified

generally that Williams was a “nice boy,” and a non-violent

person by nature. Id. The psychiatrist’s taped excerpt related

statements made by Williams that, in a prior unrelated rob-

bery, Williams had removed the bullets from his gun in order

to ensure that he did not hurt anyone. Id.

Reversing the Fourth Circuit’s denial of habeas relief, the

Supreme Court held that, notwithstanding the presentation of

some mitigation evidence, “trial counsel did not fulfill their

obligation to conduct a thorough investigation of [Williams’s]

12722 EARP v. STOKES

background.” Id. at 396 (citation omitted). Specifically, the

Court noted that, despite being put on notice of Williams’s

cooperation in a prison sting, counsel requested neither prison

records nor testimony from prison officials regarding Wil-

liams’s non-violent disposition. Id. Counsel also failed to

return a phone call from a witness who offered to testify on

Williams’s behalf. Id.

[9] Wiggins v. Smith, 539 U.S. 510 (2003), is also particu-

larly instructive in the instant appeal. There, the Supreme

Court further refined and emboldened the ineffective assis-

tance inquiry in the context of a claimed failure to investigate

mitigation evidence. The Court held that, in determining

whether counsel exercised “reasonable professional judg-

ment[,]” Strickland, 466 U.S. at 691, the focus is “on whether

the investigation supporting counsel’s decision not to intro-

duce mitigating evidence of Wiggins’ background was itself

reasonable[,]” not “whether counsel should have presented”

mitigation evidence, Wiggins, 539 U.S. at 522-23.

The Court ultimately granted Wiggins’s “claim stem[ming]

from counsel’s decision to limit the scope of their investiga-

tion into potential mitigating evidence.” Id. at 521. Defense

counsel’s mitigation investigation had been limited to two

items: (1) a written presentence investigation (“PSI”) report

containing a one-page account of Wiggins’s personal history

noting “misery as a youth”; and (2) Baltimore Department of

Social Services (“DSS”) records documenting Wiggins’s

placements in the foster care system. Id. at 523-24. The Court

concluded that “[c]ounsel’s decision not to expand their

investigation beyond the PSI and the DSS records fell short

of the professional standards that prevailed in Maryland in

1989” because “counsel abandoned their investigation of peti-

tioner’s background after having acquired only rudimentary

knowledge of his history from a narrow set of sources.” Id. at

524. The Court noted that “[c]ounsel’s conduct [ ] fell short

of the standards for capital defense work articulated by the

American Bar Association (ABA) — standards to which [the

EARP v. STOKES 12723

Court] long [has] referred as guides to determining what is

reasonable.” Id. (internal quotation marks and citations omit-

ted). The relevant ABA guidelines state that counsel in capital

cases should consider the following information about a peti-

tioner: medical history, educational history, employment and

training history, family and social history, prior adult and

juvenile correctional experience, and religious and cultural

influences. Id. (citing ABA Guidelines for the Appointment

and Performance of Counsel in Death Penalty Cases § 11.8.6,

p. 133).

In addition to finding that the investigation should have

been more expansive and probing as a general matter, the

Wiggins Court further found that the investigation was “un-

reasonable in light of what counsel actually discovered” in the

course of their limited investigation. Id. at 525; see also

Stankewitz, 365 F.3d at 722. Specifically, the Court found that

the DSS report should have tipped off counsel and triggered

more robust investigation because it mentioned that Wig-

gins’s mother was an alcoholic, that Wiggins and his siblings

went without food, that Wiggins suffered emotional trouble,

and that Wiggins experienced trouble in school. Wiggins, 539

U.S. at 524. In light of this information, the Court found that

counsel uncovered no evidence in the course of the investiga-

tion that would indicate that “further investigation would have

been fruitless.” Id.

The Supreme Court has conveyed a clear, and repeated,

message about counsel’s sacrosanct duty to conduct a full and

complete mitigation investigation before making tactical deci-

sions, even in cases involving similarly egregious circum-

stances. Based on this mandate, we hold that the district court

abused its discretion in denying Earp’s request for an eviden-

tiary hearing and remand for such a hearing. At the proceed-

ing, the Warden will have the opportunity to challenge Earp’s

allegations and the evidence rallied to support his claim. Earp

will also have the opportunity to further substantiate his alle-

12724 EARP v. STOKES

gations. In other words, Earp must be given a full and fair

hearing on his ineffective assistance of counsel claim.

[10] Although counsel clearly has a duty to conduct a full

and complete mitigation investigation, we find it difficult to

know where a habeas court may draw the line in deciding

how far defense counsel must go in conducting the mitigation

investigation for the penalty phase of a capital case. We think

the jurisprudential principle to be gleaned from Wiggins is

that, although counsel is not required “to investigate every

conceivable line of mitigating evidence no matter how

unlikely the effort would be to assist the defendant at sentenc-

ing[,]” id. at 533, they are in no position to decide, as a tacti-

cal matter, not to present mitigating evidence or not to

investigate further just because they have some information

about their client’s background, id. at 527. Moreover, Wiggins

also establishes that the presence of certain elements in a capi-

tal defendant’s background, such as a family history of alco-

holism, abuse, and emotional problems, triggers a duty to

conduct further inquiry before choosing to cease investigat-

ing. Id. at 525. How far they must go is obviously heavily

fact-dependent and cannot be ascertained here without devel-

oping a more complete evidentiary record on remand.

2

[11] Earp’s claim invokes the essential issue in Wiggins:

whether counsel’s decision, based on a limited amount of

information, to cease further investigation into mitigating evi-

dence deprived Earp of his constitutional right to effective

assistance of counsel. As stated in Wiggins, the issue in Earp’s

case is not whether Dell should have presented certain mitiga-

tion evidence during the penalty phase, but whether she

should have investigated further before deciding to cease

investigating. “[W]e focus on whether the investigation sup-

porting counsel’s decision . . . was itself reasonable.” Id. at

523. We conclude that an evidentiary hearing is required

because Earp’s allegations are sufficient to trigger the need

EARP v. STOKES 12725

for a hearing on whether Dell’s investigation was unreason-

able in light of the evidence she uncovered.

During the penalty phase, attorney Dell’s mitigation pre-

sentation consisted of testimony from five witnesses. Earp’s

aunt and mother testified about his family background and

childhood: his father’s alcoholism, physical abuse of Earp’s

mother, and emotional abuse of Earp and his siblings; his

stepfather’s alcoholism, violence, and abuse of Earp, his

mother, and his siblings; Earp’s father’s suicide and its effect

on Earp; and Earp’s juvenile history, including time spent in

juvenile detention. Earp, 978 P.2d at 30-31. Gloria Hall, a

juvenile facility cook from Earp’s time in CYA detention,

opined that Earp committed crimes as a juvenile because of

his family situation, and stated that Earp “was awarded honor

status” at the facility. Id. at 30. Virginia MacNair testified that

she and Earp’s son visited him in jail, and that Earp sent them

letters and pictures. Id. James Park, the former associate war-

den at San Quentin, testified that he thought Earp “would

pose no danger in a high security prison” and that he would

adjust well to confinement. Id. Although Dell presented this

mitigation evidence, Earp contends that her investigation was

still insufficient in light of the evidence she uncovered.

Earp claims that his penalty phase presentation would have

“materially benefitted” from evidence and testimony about his

violent family and social background, substance abuse, men-

tal illness, history of emotional problems, and brain injury.

See Stankewitz, 365 F.3d at 721-22 (finding that petitioner’s

penalty phase representation would have benefitted from

information about the petitioner’s background, history of

mental illness, and substance abuse problems). In his motion

for an evidentiary hearing on this claim, Earp stated that he

would present: (1) testimony of counsel as to her failure to

obtain and present family and personal background; (2) evi-

dence as to family and personal history obtained by habeas

counsel, including records of emotional problems and possi-

ble psychological and neurological problems stemming from

12726 EARP v. STOKES

early childhood, medical evaluations evincing organic brain

damage which may have exacerbated Earp’s behavioral prob-

lems, as well as testimony from family and friends regarding

Earp’s ongoing substance abuse; and (3) expert testimony

regarding prejudice.

In support of his claim, Earp presented the district court

with: declarations from family members providing additional

details about his background; declarations from family mem-

bers, associates, and a CYA counselor discussing his history

of substance abuse; declarations regarding Earp’s time spent

in CYA custody; an expert report finding that Earp’s psycho-

social history and neuropsychological functioning prior to,

during, and after commission of the crime may have presented

a viable defense because Earp’s test results and records were

“consistent with organic damage[ ] [caused] by traumatic

brain injury”; and an expert report as to counsel’s failure to

render effective representation.

If true, the facts alleged may well paint a materially differ-

ent picture of Earp’s background and culpability, the very

things considered relevant and vital to a competent mitigation

presentation. See, e.g., Douglas v. Woodford, 316 F.3d 1079,

1090 (9th Cir. 2003). First, the declarations set forth a more

detailed view of Earp’s family background. For instance, the

declarations allege details of Earp’s father’s (Don Earp) alco-

holic binges, sometimes leading to police dispatches and often

resulting in serious beatings of Earp’s mother.13 They also

outline Don Earp’s slide from alcoholism into suicide after

being severely beaten himself, discussing how his violence

toward the family and “uncontrollable rages” intensified. The

declarations also set forth an account of Ricky Earp’s life

after his father’s suicide spent in the company of a similarly

abusive and alcoholic stepfather in a house where “finances,

and indeed even food and shelter were inconsistent.” The dec-

13

Some of the declarations state that Earp and his siblings were occa-

sionally beaten during these binges as well.

EARP v. STOKES 12727

larations detail the trauma that his father’s suicide caused

Earp. See id. at 1087-89 (finding deficient counsel due, in

part, to failure to investigate and present additional evidence

of petitioner’s family background and “difficult childhood”);

see also Wiggins, 539 U.S. at 525 (finding ineffective assis-

tance for failure to investigate petitioner’s background involv-

ing abuse, alcoholism, neglect, and emotional trouble).

Second, the declarations from friends and family outline a

history of substance abuse that the state court did not address

and that the district court found to be unimportant. The decla-

rations state that Earp’s drug abuse began with smoking mari-

juana when he was twelve or thirteen years old, and that he

later used other illegal drugs on a regular basis, including

methamphetamine, cannabinol, LSD, and other hallucinogen-

ics. The declarants also note that Earp consumed large quanti-

ties of alcohol during his teen years, sometimes selling

marijuana to adults in exchange for the purchase of alcohol.

See Lambright v. Stewart, 241 F.3d 1201, 1207 (9th Cir.

2001) (determining that counsel’s failure to obtain a psychiat-

ric evaluation of the petitioner where he had a history of “ex-

tensive drug abuse,” among other things, constituted deficient

performance and warranted remand for an evidentiary hear-

ing).

Finally, the declarations, records, and reports regarding

Earp’s emotional and neurological history allege additional

mitigation grounds. Earp’s school records, including progress

reports, psychological evaluations, and testing results, contain

details that should have caused counsel to investigate further.

Specifically, a psychological report conducted after repeated

behavioral problems stated that Earp “should be considered

for at least partial Educationally Handicapped placement” and

that “[s]uch placement would be on an emotional disturbance

basis.” The report goes on to note that “[a]lternate ways to

deal with disturbing behavior and emotionally charged feel-

ings should be explored, as well as the desirability of outside

agency counseling.” The report also discusses Earp’s test

12728 EARP v. STOKES

results and observations, finding that Earp was “very trou-

bled,” suffered from “a great deal of anxiety,” and was “hav-

ing trouble coping emotionally.”

The testing and observations also revealed a “lack of ade-

quate control.” A later report, documenting a psychiatrist-

parent conference regarding Earp’s “obvious emotional dis-

turbance,” also dealt with Earp’s trauma resulting from his

father’s suicide.14 Earp alleges that these problems continued,

as evidenced by a CYA intake report noting that Earp “has

experienced psychosocial turmoil” and “witnessed alcohol-

ism, physical brutality, domination, inconsistent discipline,

and marital discord followed by divorce and a broken home.”

See Ainsworth v. Woodford, 268 F.3d 868, 875-76 (9th Cir.

2001) (finding ineffective assistance where counsel failed to

investigate and present mitigation evidence regarding, inter

alia, petitioner’s history of emotional problems dating back to

childhood).

Earp asserts that the emotional problems that he alleges to

have suffered throughout his youth and into adulthood were

exacerbated and augmented by a head injury that he suffered

in a motorcycle accident at age eight or nine, resulting in

organic brain damage. Expert Dr. Ines Monguio conducted

neuropsychological testing of Earp, finding that his function-

ing is “consistent with the presence of organic damage.”

Monguio also determined that discrepancies in Earp’s verbal

functions were consistent with brain damage. The expert con-

cluded that Earp displayed the “consequences of the brain

trauma” suffered in the motorcycle accident, as well as “gen-

eralized damage probably incurred through consistent and

extreme” substance abuse. Monguio concluded that the testing

results and background data were “consistent with organic

damage[ ] [caused] by traumatic brain injury[,]” and noted

that a “person diagnosed with this type of damage display[s],

14

A follow-up psychiatrist-parent conference report noted that “the situ-

ation has not improved” and had, in fact, possibly worsened.

EARP v. STOKES 12729

among other symptoms, impulsive behavior, problems with

self-monitoring (regulating behavior), and poor judgment.”

See Douglas, 316 F.3d at 1086 (finding ineffective assistance

of counsel for failure to investigate and present mitigation

evidence where petitioner suffered from “possible organic

impairment” and test results revealed “some level of pre-

existing neurological deficit”) (internal quotation marks omit-

ted).

3

[12] We hold that under Williams and Wiggins Earp has

met his burden of showing a colorable claim sufficient to trig-

ger entitlement to an evidentiary hearing. He has adequately

alleged that counsel unreasonably curtailed investigation into

mitigating evidence, even after being presented with informa-

tion warranting and triggering a duty to look further. In her

declaration, attorney Dell stated the following: that she did

not present any evidence that “was not entirely consistent

with [Earp’s] claim of innocence”; that her main penalty

phase theme was “lingering doubt”; that she was solely

responsible for the investigation and preparation of Earp’s

penalty phase presentation; that she obtained the services of,

and relied on completely, defense investigator Sheryl Duvall;

that she did not direct Duvall’s investigation or instruct her to

investigate specific areas; that the defense investigator

obtained Earp’s school and medical records; that Dell did not

collect, or instruct to be collected, evidence concerning the

conditions of confinement in the CYA at the time of Earp’s

detention; and finally, that she knew of Earp’s head injury and

history of substance abuse, but did not seek a neurological or

mental health evaluation.15

The district court determined, and the Warden now argues,

15

Whether her proffered evidence will withstand the crucible of an

adversary proceeding and cross-examination for possible bias remains to

be seen.

12730 EARP v. STOKES

that counsel’s mitigation case represented a tactical decision

entitled to deference. However, deference is only owed to

strategic decisions reached after “thorough investigation of

law and facts relevant to plausible options[.]” Strickland, 466

U.S. at 690. We do not see how such a conclusion may be

made on this record without a factual hearing. Earp alleges

that his counsel failed to obtain a mental health, neurological,

or psychological evaluation of Earp, despite being alerted to

the following evidence about Earp’s background: (1) that he

had both a personal and a family history of substance abuse;

(2) that his family had a history of alcoholism, mental illness,

suicide, and physical and emotional abuse; (3) that Earp’s

father and stepfather were abusive; (4) that Earp’s mother was

physically abused; (5) that Earp had a history of emotional

problems; and (6) that Earp had suffered a head injury.

[13] If proven to be true during future evidentiary hearings,

this alleged history of substance abuse, emotional problems,

and organic brain damage is the very sort of mitigating evi-

dence that “might well have influenced the jury’s appraisal of

[Earp’s] moral culpability.” Williams, 529 U.S. at 398; see

also Douglas, 316 F.3d at 1090 (“Evidence regarding social

background and mental health is significant, as there is a

‘belief, long held by this society, that defendants who commit

criminal acts that are attributable to a disadvantaged back-

ground or to emotional or mental problems, may be less cul-

pable than defendants who have no such excuse.’ ”) (quoting

Boyde v. California, 494 U.S. 370, 382 (1990)); Allen v.

Woodford, 395 F.3d 979, 1000 (9th Cir. 2005) (“Defense

counsel’s use of mitigation evidence to complete, deepen, or

contextualize the picture of the defendant presented by the

prosecution can be crucial to persuading jurors that the life of

a capital defendant is worth saving.”) (citations omitted).

If proven, Earp’s allegations could establish a colorable

claim that counsel’s failure to investigate mitigating evidence,

“despite tantalizing indications in the record, as in Wiggins,

that would lead a reasonable attorney to investigate further,”

EARP v. STOKES 12731

deprived Earp of his constitutionally guaranteed right to effec-

tive representation. Stankewitz, 365 F.3d at 720 (internal quo-

tation marks and citation omitted). We emphasize that the

ultimate determination must be made in the first instance by

the fact-finder at the hearing. We offer no opinion on the mer-

its of Earp’s claim here.

4

But even if Earp has established a colorable claim of inef-

fective assistance for failure to conduct a competent mitiga-

tion investigation, he must also present a colorable claim that

counsel’s deficient performance prejudiced him. Wiggins, 539

U.S. at 521; see also Stankewitz, 365 F.3d at 722-23. “In

assessing prejudice, [the court] reweigh[s] the evidence in

aggravation against the totality of available mitigating evi-

dence.” Stankewitz, 365 F.3d at 723 (emphasis added) (quot-

ing Wiggins, 539 U.S. at 534). The totality of the available

evidence includes “both that adduced at trial, and the evidence

adduced in the habeas proceeding[s].” Wiggins, 539 U.S. at

536 (quoting Williams, 529 U.S. at 397-98).

Earp has alleged that the testimony presented at the penalty

phase did not fully encompass the degree of violence, abuse,

and alcoholism that he claims to have suffered during his

formative years. It appears that the jury in this case was not

presented with the evidence that Earp alleges regarding his

history of substance abuse beginning at age twelve, his

organic brain damage and its attendant effects resulting from

his childhood head injury at age eight or nine, or his history

of emotional problems. While Earp’s life history is not as “ex-

cruciating” as that of defendants in other cases, it may well be

that, after conducting the hearing on remand, the habeas court

could conclude that, “[h]ad the jury been able to place

[Earp’s] life history on the mitigating side of the scale, there

is a reasonable probability that at least one juror would have

struck a different balance.” Wiggins, 539 U.S. at 537 (noting,

further, that Wiggins did “not have a record of violent con-

12732 EARP v. STOKES

duct” that the prosecution could have introduced to offset the

omitted mitigating evidence).

During the prosecution’s penalty phase of the trial, the

aggravation presentation consisted of Earp’s prior felony con-

viction for burglary. Earp, 978 P.2d at 30; see also Mayfield

v. Woodford, 270 F.3d 915, 933 (Gould, J., concurring) (not-

ing that, for purposes of prejudice, it is relevant to consider

that the defendant did not have “an extensive history involv-

ing major crimes or violence”). In finding no prejudice, the

district court determined that any omitted mitigation evidence

would not have made a difference to even a single reasonable

juror because the nature of Earp’s crime was so egregious.

The aggravating circumstances of this case are indeed hei-

nous. However, as we have previously noted, “the Supreme

Court has made clear that counsel’s failure to present mitigat-

ing evidence can be prejudicial even when the defendant’s

actions are egregious.” Stankewitz, 365 F.3d at 723-24 (dis-

cussing Williams, 529 U.S. at 368, 398-99 (noting that, among

his other crimes, Williams confessed to “brutally assault[ing]

an elderly woman leaving her in a vegetative state” in her

home, yet still finding that the mitigating evidence that coun-

sel failed to investigate could have tipped the balance for at

least one juror) (internal quotation marks omitted)); see also

Mak v. Blodgett, 970 F.2d 614, 620-22 (9th Cir. 1992) (find-

ing prejudice despite the presence of exceedingly horrific cir-

cumstances of the crime in which the defendant slaughtered

thirteen people in the course of one night to eliminate all wit-

nesses to an armed robbery).

[14] Given that the circumstances of Earp’s crime consti-

tuted the vast majority of the aggravation case, prejudice is

“especially likely.” Lambright, 241 F.3d at 1208 (noting that

“[p]rejudice is especially likely where, as here, this is not a

case in which a death sentence was inevitable because of the

enormity of the aggravating circumstances”) (internal quota-

tion marks and citation omitted); cf. Allen, 395 F.3d at 1009

EARP v. STOKES 12733

(finding no prejudice, despite ineffective assistance, because

of the overwhelming evidence in aggravation consisting, in

part, of a “long history of orchestrating and committing vio-

lent robberies and burglaries” and plotting the murder of mul-

tiple individuals who testified against the defendant on an

earlier murder charge). Accordingly, we hold that Earp’s alle-

gations are sufficient to require an evidentiary hearing

because, if true, they could establish that he suffered prejudice

from counsel’s deficient mitigation investigation and presen-

tation.

V

Earp’s second Sixth Amendment claim is that he was

deprived of effective assistance of counsel because his inti-

mate relationship with Dell created a conflict of interest

between Dell’s duties as counsel and her personal interests in

the relationship. We affirm the denial of habeas relief on this

claim because the state court finding of no conflict was nei-

ther contrary to, nor an unreasonable application of, clearly

established federal law.

A

On April 23, 1991, Adrienne Dell was appointed as Earp’s

second counsel. Dell met frequently with Earp, giving him her

home phone number and speaking with him regularly in order

to build trust and rapport. During the course of her representa-

tion, Dell developed romantic feelings for Earp.

The conversations between Earp and Dell reflected this

sentiment and started to broach more personal matters,

although only after discussing necessary case-related issues.

Dell sent Earp pictures of herself and dressed provocatively

for her visits to Earp. She also disrobed for him and engaged

in “intimate relations” with Earp during their visits. In addi-

tion, Dell gave him a religious medallion “to signify her feel-

ings for him,” picking this type of item because she knew that

12734 EARP v. STOKES

the rules of confinement would allow for him to keep it, given

its religious nature. During the trial itself, Earp and Dell

passed personal notes and winked to each other.

After the return of the guilty verdict, Dell confessed her

love to Earp in the holding cell and he reciprocated. From

then on, Dell and Earp shared a “strong emotional attach-

ment,” which culminated in their marriage after Earp was

transferred to death row. Dell and Earp were married from

October 7, 1993, until December 27, 2000.

This issue was first raised in Earp’s state petition for writ

of habeas corpus and was summarily denied on the merits.

Earp reiterated this claim in his federal habeas petition. The

defense argued that, because of the relationship between Dell

and Earp, Dell: (1) failed to present any shaken baby syn-

drome evidence; (2) gave Earp too much control over his

defense; and (3) failed to present substantial mitigation evi-

dence of which she was aware. The district court held an evi-

dentiary hearing on the conflict claim and bifurcated the

inquiry, instructing counsel to only present evidence of “ac-

tual conflict,” and barring the defense from presenting any

evidence relating to whether the representation was adversely

affected by the alleged conflict.16

At the close of the evidentiary hearing, the district court

propounded that “[b]eing in love is not a conflict,” and con-

16

Earp also argues that the district court’s bifurcation of the evidentiary

hearing was improper because actual conflict cannot be determined with-

out analyzing whether there was an adverse effect on representation.

While the Supreme Court in Mickens v. Taylor, 535 U.S. 162, 171-73

(2002), makes clear that the question of actual conflict is not properly ana-

lyzed as two separate inquiries, we affirm the district court’s denial of the

claim on summary judgment because, even assuming the facts alleged to

be true, the state court decision did not contravene Supreme Court prece-

dent. See supra, § V.C; see also Lambert, 393 F.3d at 965 (noting that this

court can affirm the district court decision on any ground supported by the

record).

EARP v. STOKES 12735

cluded that Dell felt she was acting in Earp’s best interest. In

its order denying relief on the conflict claim, the district court

compared Dell’s situation to every lawyer’s conflict between

maintaining a personal life and a professional life: “such bal-

ancing is done by every lawyer who works past the time their

spouse goes home or school lets out.” The district court ulti-

mately concluded that, because there was no actual conflict,

it was unnecessary to examine whether there was any adverse

impact due to purported conflict.

On appeal, Earp argues that Dell labored under an actual

conflict, relying primarily on our circuit’s case law addressing

situations where a lawyer’s personal interests conflict with the

defendant’s interest,17 as well as various state supreme court

disciplinary proceedings stemming from unethical lawyer-

client sexual relationships.18 Most of these cases involve pre-

AEDPA petitions, many of which do not involve habeas pro-

ceedings, and all of which were decided before the Supreme

Court issued Mickens v. Taylor, 535 U.S. 162, 166 (2002).

For the reasons explained below, we hold that Earp’s claim

fails, and that the district court properly denied this claim for

relief.

B

Whether counsel and client had conflicting interests is a

mixed question of law and fact which we review de novo.

Williams, 384 F.3d at 586; see also Bragg v. Galaza, 242 F.3d

1082, 1086, amended by 253 F.3d 1150 (9th Cir. 2001). We

also review de novo the district court’s summary judgment

decision. Davis, 384 F.3d at 638. Section 2254(d)(1) of

U.S.C. Title 28 applies to questions of law and mixed ques-

tions of law and fact. Id. at 637. A decision is “contrary to”

17

E.g., United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980); United

States v. Baker, 256 F.3d 855 (9th Cir. 2001).

18

E.g., In re Gore, 752 So.2d 853 (La. 2000); In re Grimm, 674 N.E.2d

551 (Ind. 1996); People v. Boyer, 934 P.2d 1361 (Colo. 1997).

12736 EARP v. STOKES

federal law when the state court applies a rule of law different

from that set forth in the holdings of Supreme Court precedent

or when the state court makes a contrary determination on

“materially indistinguishable” facts. Williams, 529 U.S. at

405-06. An “unreasonable application” of federal law occurs

when a state court’s application of Supreme Court precedent

to the facts of a petitioner’s case is “objectively unreason-

able.” Id. at 409. “[A] federal habeas court may not issue the

writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.” Id. at 411.

Clearly established federal law “as determined by the

Supreme Court,” § 2254(d)(1), “ ‘refers to the holdings, as

opposed to the dicta of [the Supreme Court’s] decisions as of

the time of the relevant state-court decision.’ ” Lambert, 393

F.3d at 974 (quoting Lockyer, 538 U.S. at 71-72). Circuit

court precedent is relevant only to the extent that it clarifies

what constitutes clearly established law. Casey v. Moore, 386

F.3d 896, 907 (9th Cir. 2004); see also Clark v. Murphy, 331

F.3d 1062, 1069 (9th Cir. 2003), cert. denied, 540 U.S. 968

(2003); Duhaime v. Ducharme, 200 F.3d 597, 602-03 (9th

Cir. 2000) (Ninth Circuit precedent derived from an extension

of a Supreme Court decision is not “clearly established fed-

eral law as determined by the Supreme Court”).

C

[15] While ineffective assistance of counsel claims gener-

ally require the petitioner to show deficient representation and

prejudice, we “forgo individual inquiry into whether counsel’s

inadequate performance undermined the reliability of the ver-

dict” in instances “where assistance of counsel has been

denied entirely or during a critical stage of the proceeding.”

Mickens, 535 U.S. at 166. Circumstances of such magnitude

may “arise when the defendant’s attorney actively represented

conflicting interests.” Id. at 166; see also Cuyler v. Sullivan,

446 U.S. 335, 348 (1980). In order to establish a Sixth

EARP v. STOKES 12737

Amendment violation under the Sullivan exception, the defen-

dant must demonstrate that “an actual conflict of interest

adversely affected his lawyer’s performance.” Sullivan, 446

U.S. at 348. As clarified in Mickens, an actual conflict is not

“something separate and apart from adverse effect.” 535 U.S.

at 172 n.5. Rather, “[a]n ‘actual conflict,’ for Sixth Amend-

ment purposes, is a conflict of interest that adversely affects

counsel’s performance.” Id.

The Supreme Court’s recent decision in Mickens proves

determinative in the instant appeal. In Mickens, the Supreme

Court dealt with a habeas claim in a capital case alleging inef-

fective assistance where counsel for the defendant also repre-

sented the victim, who was a defendant in an unrelated

juvenile case. Id. at 164-65. After being informed that the vic-

tim was deceased, the trial judge dismissed the juvenile

charges against him. Id. The same trial judge appointed coun-

sel in the defendant’s case. Id. at 165. The precise issue facing

the Court was “what a defendant must show in order to dem-

onstrate a Sixth Amendment violation where the trial court

fails to inquire into a potential conflict of interest about which

it knew or reasonably should have known.” Id. at 164.

In answering this query, the Mickens Court clarified its

conflict precedent and restated the parameters of its applica-

tion. First, the Court discussed three seminal Supreme Court

conflict cases: Holloway v. Arkansas, 435 U.S. 475 (1978);19

19

In Holloway, defense counsel representing three codefendants with

diverging and potentially conflicting interests moved for the appointment

of separate counsel. 435 U.S. at 478-80. The Supreme Court noted that

counsel in this situation is effectively gagged from properly representing

any one of the defendants, and that it is inherently difficult to measure the

degree of harm caused by such conflicts. Id. at 489-90. The Court found

that this type of conflict undermines the fairness and efficacy of the adver-

sarial process, and that automatic reversal was necessary where defense

counsel’s objection was denied by the trial court, unless the trial court

concludes that there is no conflict. Id. at 488.

12738 EARP v. STOKES

Sullivan, 446 U.S. at 346-49;20 and Wood v. Georgia, 450

U.S. 261 (1981).21

After surveying precedent, the Mickens Court added an

entire section to address the limited scope of its holding, and

to explicitly cabin its conflict jurisprudence despite its expan-

sive application by lower courts. 535 U.S. at 174-76. The

Court noted that circuit courts “have applied Sullivan

‘unblinkingly’ to ‘all kinds of alleged attorney ethical con-

flicts,’ ” invoking it in cases involving interests of former cli-

ents, interests implicating counsel’s personal or financial

interest, interests inherent in romantic relationships with

opposing counsel, and interests implicated by counsel’s future

or present employment with opposing counsel. Id. at 174

(citation omitted).22 While acknowledging this expansion, the

20

In Sullivan, the Supreme Court addressed the issue of multiple repre-

sentation where the trial court does not and reasonably should not know

of the conflict. 446 U.S. at 345-50. The Sullivan Court noted that Hol-

loway recognized that “a lawyer forced to represent codefendants whose

interests conflict cannot provide the adequate legal assistance required by

the Sixth Amendment.” Id. at 345 (citing Holloway, 435 U.S. at 481-82).

The Sullivan Court further developed the joint representation conflict stan-

dard, stating that, “[i]n order to establish a violation of the Sixth Amend-

ment, a defendant who raises no objection at trial must demonstrate that

an actual conflict of interest adversely affected his lawyer’s performance”

and that a defendant who makes such a showing is not required to show

prejudice in order to obtain relief. Id. at 348, 349-50.

21

In Wood, the Court remanded for proceedings to determine whether

there was an actual conflict where the defendants’ lawyer was being paid

by the defendants’ employer. 450 U.S. at 269-72 (employer owned a busi-

ness purveying obscene material, and the defendants had been convicted

in connection with the business). The defendants’ employer had been pay-

ing the defendants’ fines, imposed after their conviction for distributing

obscenity. Id. at 276. The Court determined that remand was necessary

because “petitioners were represented by their employer’s lawyer, who

may not have pursued their interests single-mindedly.” Id. at 271-72.

22

Earp argues that, despite Mickens, circuit courts have long applied the

Sullivan conflict framework to a wide variety of conflicts in addition to the

traditional concurrent representation application. See, e.g., Mannhalt v.

EARP v. STOKES 12739

Court cautioned that its own conflict jurisprudence had not

yet reached beyond joint representation: “the language of Sul-

livan itself does not clearly establish, or indeed even support,

such expansive application . . . . Both Sullivan itself [ ] and

Holloway [ ] stressed the high probability of prejudice arising

from multiple concurrent representation, and the difficulty of

proving that prejudice. Not all attorney conflicts present com-

parable difficulties.” Id. at 175 (internal citations omitted).

The Court propounded that the conflict inquiry does not, and

should not, entail weighing of professional ethical duties, and

that the Sullivan exception is not intended to enforce and

encourage compliance with codes of conduct:

This is not to suggest that one ethical duty is more

or less important than another. The purpose of our

Holloway and Sullivan exceptions from the ordinary

requirements of Strickland, however, is not to

enforce the Canons of Legal Ethics, but to apply

needed prophylaxis in situations where Strickland

itself is evidently inadequate to assure vindication of

the defendant’s Sixth Amendment right to counsel.

Id. at 176.

Reed, 847 F.2d 576, 580-81 (1988) (pre-AEDPA habeas case finding that

Sullivan applies when an attorney is accused of similar crimes for which

his client is being prosecuted); Garcia v. Bunnell, 33 F.3d 1193, 1196-98

(9th Cir. 1994) (pre-AEDPA habeas case finding that, although the “vast

bulk of the caselaw in the attorney conflict area involves alleged conflicts

arising out of representation of multiple defendants by a single attorney

who may not be able simultaneously to serve optimally the interests of

each,” Sullivan also applies “to conflicts between a defendant’s and the

attorney’s own personal interests”); see also Winkler v. Keane, 7 F.3d 304,

307 (2d Cir. 1993) (citing other sister circuit cases expanding application

of the Sullivan standard). This line of argument, however, is futile post-

AEDPA; only Supreme Court holdings are binding on state courts. See

Lambert, 393 F.3d at 974 (“only the Supreme Court’s holdings are binding

on the state courts and only those holdings need be reasonably applied”)

(quoting Clark v. Murphy, 331 F.3d 1062, 1069 (2003)).

12740 EARP v. STOKES

[16] The Mickens Court specifically and explicitly con-

cluded that Sullivan was limited to joint representation, and

that any extension of Sullivan outside of the joint representa-

tion context remained, “as far as the jurisprudence of [the

Supreme Court was] concerned, an open question.” Id.

D.

[17] The Supreme Court has never held that the Sullivan

exception applies to conflicts stemming from intimate rela-

tions with clients. See Lambert, 393 F.3d at 986 (noting that

Supreme Court precedent is limited to conflicts involving

joint representation); see also Smith v. Hofbauer, 312 F.3d

809, 815-17 (6th Cir. 2002) (finding that the Sullivan line of

Supreme Court precedent only apply, for AEDPA purposes,

to cases involving joint representation; noting that “[b]ecause

the question of whether the Sullivan’s lessened standard of

proof for a claim of ineffective assistance of counsel based

upon an attorney’s conflict of interest for anything other than

joint representation remains an ‘open question’ in the juris-

prudence of the Supreme Court, and in fact was an open ques-

tion at the time Petitioner’s case was heard, Petitioner’s claim

fails because it is not based upon clearly established Supreme

Court precedent as mandated by AEDPA”) (internal citation

omitted).

E

[18] While our circuit’s precedent has expanded the scope

of the Sullivan exception to apply in other contexts, and while

we strongly disapprove of Adrienne Dell’s unprofessional

behavior as reflected in her conduct at bar, the advent of

AEDPA forecloses the option of reversing a state court deter-

mination simply because it conflicts with established circuit

law. Although we would perhaps reach a different conclusion

if addressing this claim on direct review, the Supreme Court

has not spoken to this issue and has expressly limited its con-

stitutional conflicts jurisprudence. Accordingly, we hold that

EARP v. STOKES 12741

the state court’s determination that the intimate relationship

between Earp and his counsel during the trial and sentencing

did not constitute a conflict of interest was neither contrary to,

nor an unreasonable application of, established federal law.

VI

Earp is entitled to an evidentiary hearing on his prosecu-

torial misconduct claim involving Michael Taylor because he

has alleged facts which, if proven true, may entitle him to

relief on this claim. Earp is also entitled to an evidentiary

hearing on his ineffective assistance of counsel claim because

he has demonstrated a colorable claim that counsel’s mitiga-

tion investigation was deficient in light of the evidence

uncovered, and that he suffered prejudice thereby. We there-

fore vacate the district court’s summary judgment on these

claims and remand for an evidentiary hearing. The district

court’s decision to deny Earp’s conflict of interest claim was

neither contrary to, nor an unreasonable application of, clearly

established federal law, so we affirm that part of the district

court’s summary judgment.

AFFIRMED in part, REVERSED in part, and

REMANDED for an evidentiary hearing.