Sims v. Brown

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MITCHELL CARLTON SIMS,  No. 03-99007

Petitioner-Appellant,

v.  D.C. No.

CV-95-05267-GHK

JILL BROWN, Warden,*

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

George H. King, District Judge, Presiding

Argued and Submitted

June 9, 2005—Pasadena, California

Filed September 21, 2005

Before: Betty B. Fletcher, Pamela Ann Rymer, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Rymer;

Partial Concurrence and Partial Dissent by Judge B. Fletcher

*Jill Brown is substituted for her predecessor, Jeanne Woodford, pursu-

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

13473

SIMS v. BROWN 13477

COUNSEL

Trevor W. Morrison and John H. Blume, Cornell Law School,

Ithaca, New York, for the petitioner-appellant.

David F. Glassman, Deputy Attorney General, Los Angeles,

California, for the respondent-appellee.

13478 SIMS v. BROWN

OPINION

RYMER, Circuit Judge:

In 1987, Mitchell Carlton Sims was convicted of the first

degree murder of John Harrigan, a Domino’s Pizza employee

who delivered a pizza to Sims and his girlfriend, Ruby Pad-

gett, at their motel room in Glendale, and the attempted mur-

ders of two other Domino’s employees, Kory Spiroff and

Edward Sicam. He was sentenced to death. The California

Supreme Court affirmed. People v. Sims, 5 Cal.4th 405

(1993), cert. denied, Sims v. California, 512 U.S. 1253

(1994). After the supreme court denied Sims’s petition for a

writ of habeas corpus, Sims filed a 28 U.S.C. § 2254 petition

in the United States District Court for the Central District of

California on April 22, 1996. Following an evidentiary hear-

ing, the district court denied all of Sims’s claims on May 2,

2003.

The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) does not apply to the merits of Sims’s appeal

because his federal petition was filed before AEDPA’s effec-

tive date, Lindh v. Murphy, 521 U.S. 320, 327 (1997), but it

does apply to the procedures for seeking review. Accordingly,

Sims obtained a Certificate of Appealability (COA) on seven

issues: (1) whether his rights under Miranda v. Arizona, 384

U.S. 436 (1966), were violated by the admission of confes-

sions obtained in a custodial setting after he invoked his rights

to counsel and silence; (2) whether the prosecutor’s peremp-

tory challenges to two Hispanic prospective jurors violated

Batson v. Kentucky, 476 U.S. 79 (1986); (3) whether his right

to an impartial jury was violated when a member of his jury

met with a member of Padgett’s jury and discussed writing a

book about their experiences; (4) whether his Eighth and

Fourteenth Amendment rights were violated by the prosecu-

tor’s closing argument in the penalty phase about factor (k),

the last factor in mitigation under California law that covers

“any other circumstance which extenuates the gravity of the

SIMS v. BROWN 13479

crime”; (5) whether trial counsel rendered ineffective assis-

tance during the penalty phase by failing to investigate,

develop, and present mitigating evidence about Sims’s mental

condition; (6) whether counsel was ineffective in failing to

object to comments that Sims argues violated Griffin v. Cali-

fornia, 380 U.S. 609 (1965); and (7) whether reversal is

required on account of cumulative error.

We affirm.

I

A

Sims had managed a Domino’s Pizza parlor in West

Columbia, South Carolina before resigning when he got angry

at his boss for withholding part of a bonus.1 Sims sought

revenge, and told his then-girlfriend that he wanted to use

explosives to kill the boss. He bought a gun. On November

15, 1985, Sims was hired as a delivery driver by another

Domino’s, in Hanahan, South Carolina.

On December 8, 1985, Sims and Padgett ended up in Glen-

dale, California. They went to a Domino’s and asked Kory

Spiroff, the assistant manager, for directions to a drugstore.

On the afternoon of the next day, a man and woman went to

a Sears store in Glendale and bought a package of socks,

underwear, a clothesline, and a knife. The sales clerk over-

heard the woman tell the man to relax because they would be

leaving the store shortly.

On the evening of December 9, Spiroff was on duty with

delivery drivers Edward Sicam and John Harrigan. Each had

on a Domino’s uniform, consisting of short-sleeved shirts

1

Our recitation of the facts is primarily based on the California Supreme

Court’s summary, Sims, 5 Cal. 4th at 418-27, which is presumed to be cor-

rect. Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001).

13480 SIMS v. BROWN

with a Domino’s badge and name tag. At 11:03 p.m., Brian

Scarlett, an off-duty Domino’s employee who was visiting

Spiroff, took a telephone order from a man with a southern

accent. The caller asked for the pizza to be delivered to Room

205 of the Regalodge Motel. The motel was a three-minute

drive from the parlor. Harrigan, who was twenty-one years

old, left the parlor at 11:26 p.m. in his Toyota truck to make

the delivery.

Around 11:45 p.m., Sims and Padgett went into the Domi-

no’s. Spiroff recognized the couple from the day before. This

time, Sims pointed a gun at Sicam and ordered Spiroff and

Sicam into a back office. When Spiroff warned Sims that a

delivery driver was due back at any moment, Sims took off

his sweater to reveal a Domino’s shirt with Harrigan’s name

tag and chuckled, “No, I don’t think so.”

Sims found a bank deposit bag which he gave to Padgett,

who then emptied the parlor’s cash drawers. Sims told her to

watch for fingerprints, and she began wiping the tables and

cash drawers at his direction. Sims ordered Spiroff and Sicam

to stand in the corner of the office and aimed his gun directly

at them.

At this point, Richard Wagner, an off-duty Domino’s

employee, arrived at the parlor with his wife. Sims told Spir-

off to go to the front counter, threatening to shoot Sicam

unless Spiroff cooperated. Instead of acknowledging Wagner

as a friend, Spiroff asked him for his order. Meanwhile, Sims

took an order over the phone, identifying himself as “Mitch”

to the customer. While Spiroff prepared the pizzas, Sims told

the Wagners to wait in the car for their pizza to be brought to

them. After Sims gave the Wagners their pizza, they drove off

and, suspecting a burglary, called the police.

Sims decided to take Spiroff and Sicam, one at a time, into

the walk-in cooler. The cooler was 8 feet by 12 feet, with a

3-tier rack against the left wall. The temperature was kept at

SIMS v. BROWN 13481

32 to 40 degrees. Sims tied Spiroff’s hands tightly behind his

back with one end of a rope, looped the other end over the

rack, and lifted Spiroff’s arms painfully high by pulling down

on the rope. This forced Spiroff to stand on his tiptoes to ease

the tension in the rope and alleviate the pain. When Spiroff

complained, Sims replied, “Shut up. At least you live.” Next,

Sims wrapped the end of the rope around Spiroff’s neck and

tied it so tightly with a knot in back of the neck that Spiroff

would strangle if he stopped standing on his tiptoes. Sims

asked Spiroff when the cooler would be opened the following

day. Spiroff said at 11 a.m. Sims replied that, by then, he and

Padgett would be in San Francisco. When Spiroff asked Sims

about Harrigan, Sims said that Harrigan had been tied up at

the motel and would be found after Spiroff was found.

Sims then brought Sicam into the cooler and bound him in

the same manner as Spiroff. When Sicam said he was chok-

ing, Sims responded, “You are alive.” Sims closed the cooler

and left at 12:15 a.m. with Padgett.

While standing on the toes of one foot, Spiroff tried to

knock over cartons so they could stand on them and relieve

some of the pressure around the neck, but the rope tightened

as he moved. Eventually he succeeded in knocking a box

over. Nevertheless, at some point Spiroff blacked out.

Responding to Wagner’s call, Glendale police officers

arrived at 12:30 a.m. They found Spiroff and Sicam in the

cooler. One of them told the officers that their assailant was

wearing Harrigan’s shirt and that Harrigan had not returned

from delivering a pizza to the Regalodge.

The officers went to the Regalodge, got the key and regis-

tration card to room 205, which was registered to Sims, and

found Harrigan’s dead body in the bathtub. The bathtub was

full of water, and Harrigan’s body was submerged under the

water on his right side with his back parallel to the side of the

tub. Cold water was running at full blast onto the back of Har-

13482 SIMS v. BROWN

rigan’s neck. His head was immediately under the spout,

about one inch below the water line. The drain plug was bro-

ken, but the tub was filled with water up to the overflow

valve. Harrigan’s wrists were bound behind his back; his

ankles were bound; and his feet and hands were “hogtied”

together behind his back. His head was covered with a pillow

case, which was secured with a rope ligature around the neck.

A washcloth had been placed inside his mouth, held in place

by a sock tied around his head.

Dr. Joseph Cogan, the state’s forensic pathologist, who per-

formed the autopsy on Harrigan’s body, determined that the

cause of death was ligature strangulation based on the depth

of the furrow around the decedent’s neck, indicating the

extreme pressure of the ligature around the neck, and hemor-

rhages on the inner eyelids, indicating that Harrigan was alive

when the neck ligature was applied because it obstructed

blood flow to the head and brain. Cogan opined that Harrigan

lived for no more than ten minutes after the neck ligature was

applied and that the ligature in itself was enough to kill Harri-

gan. However, Cogan could not rule out the possibility that

drowning contributed to Harrigan’s death, based upon Harri-

gan’s having been found fully submerged in a bathtub of

water with a gag in his mouth, and the presence of frothy pul-

monary edema in his trachea and bronchi.

No money, wallet, or car keys belonging to Harrigan were

found in the room. The phone lines had been cut. Although

the room had been wiped clean with a wet towel, Sims’s fin-

gerprints were found inside a toilet paper roll and in a tele-

phone book on the page listing “pizza.” The knots used to tie

up the ligatures on Harrigan’s neck were identical to those

used to tie up Spiroff and Sicam. The rope used to bind Harri-

gan, Spiroff, and Sicam was similar to the clothes line sold to

the young couple at the Glendale Sears the day before Harri-

gan’s murder.

Sims and Padgett were apprehended in a Las Vegas motel

on December 25 by the Las Vegas police acting on an anony-

SIMS v. BROWN 13483

mous tip. A fully loaded .25 caliber pistol was found under

the mattress. The police also recovered a Los Angeles Times

article entitled, “Delivery Man Slain While Making Run,” and

a yellow page torn from a Las Vegas telephone book listing

Domino’s Pizza establishments. Harrigan’s pickup truck, with

a Domino’s shirt bearing Harrigan’s name tag inside, was also

found in Las Vegas about twenty miles from the motel.

Sims was taken to the Clark County jail. Officers Jonathan

Perkins and Gary Montecuollo of the Glendale Police Depart-

ment met with him in an interview room. Informed of his

rights pursuant to Miranda, Sims acknowledged his under-

standing and signed a written form indicating that he did not

waive his rights. As Perkins gathered his papers and stood up

to leave, Sims asked what was going to happen to him from

that point on, and indicated that he would like to go to South

Carolina rather than California. During the conversation that

followed, Sims told Perkins, “I had to kill that boy” and “He

would have identified me.” At the end of the interview, Per-

kins told Sims that Sims would have to initiate any further

conversation about the investigation, which Sims did the next

day. Perkins tape recorded this interview, which included

Sims’s statement “I just got drunk, and I didn’t know what the

fuck I was . . . I knew I was doing it, but I shouldn’t have

done it.” After Perkins readvised Sims of his Miranda rights,

Sims said that he had worked for Domino’s Pizza in South

Carolina and that he and Padgett had traveled by bus from

that state to Glendale where they rented room 205 at the

Regalodge. He told Perkins they had gone to Domino’s for

directions to a drugstore, and to Sears to buy a knife. He said

that the next day they returned to Domino’s for a pizza. At

that point Sims ended the interview.

Sims’s December 25 statements and an edited version of

the tape of the December 26 interview were admitted in the

guilt phase.

Sims did not testify. His forensic pathologist, Dr. Robert

Bucklin, testified that the white, frothy material in Harrigan’s

13484 SIMS v. BROWN

larynx and trachea indicated that he had drowned, and that the

furrow and hemorrhages could have resulted from the posture

of Harrigan’s head rather than asphyxia. Bucklin also testified

that strangulation might have contributed to Harrigan’s death.

Stephen Schliebe, a private criminalist, testified that a piece

of rope tied as the ligature was to Harrigan’s neck would not

cause loss of consciousness. Sims’s theory of defense was that

Harrigan was alive when Sims put him in the bathtub and left

with Padgett, and that he lacked the intent to kill Harrigan,

Spiroff, or Sicam.

The jury found Sims guilty of one count of first degree

murder, with two special circumstances findings (that Sims

committed the murder while lying in wait and during the com-

mission of a robbery), two counts of attempted murder, and

three counts of robbery. The jury also found that Sims used

a firearm during the commission of each offense.

B

At the penalty phase the prosecution introduced evidence

that Sims robbed and shot to death two Domino’s Pizza

employees in Hanahan, South Carolina less than one week

before the Glendale crimes. Just after 2 a.m. on December 4,

approximately two weeks after Sims was hired as a delivery

driver at the Hanahan Domino’s, Gary Melkie, the assistant

manager, appeared in the lobby of the Police Department

about three blocks away, dressed in his uniform with a tele-

phone cord dangling from one of his wrists and bleeding pro-

fusely from gunshot wounds to his head and neck. A

paramedic responded and Melkie was placed in an ambu-

lance. En route to the hospital, the ambulance detoured to the

parlor where another shooting had been reported. There, the

police had found Chris Zerr, a delivery driver, lying on the

floor covered with blood, his hands tied behind his back with

a telephone cord. He died shortly thereafter from a gunshot

wound to the head. $1,164 had been taken from the cash

drawers.

SIMS v. BROWN 13485

At the hospital, the paramedic asked Melkie who had shot

him and Melkie responded, “Sims. Mitch Sims.” Melkie said

that Sims had tied him up and then shot Zerr. Melkie repeated

the same thing to a police officer, including a description of

Sims, and said that Sims worked for Domino’s. Melkie died

after surgery.2

Melkie had suffered four gunshot wounds to the head and

neck, a bullet casing was removed from his tongue, and a fifth

bullet, which had exited from his head, was recovered from

a wall at the parlor.

An unedited version of the tape recording of Sims’s

December 26 statement to Perkins was admitted into evidence

and played for the jury. In that portion of the statement, Sims

recounted that he had robbed a Domino’s Pizza parlor in

South Carolina before going to California.

The defense presented as mitigating evidence a number of

witnesses who testified about Sims’s brutal family back-

ground of physical, sexual, and emotional abuse. His mother,

Mildred, testified that Sims only saw his natural father (from

whom she was divorced) on two or three occasions during his

childhood, and that she married Arnold Cranford in 1961. She

had three children with her first husband and two with Cran-

ford. Cranford had a drinking problem and became violent

and sexually abusive when intoxicated. She testified that

Cranford raped Sims when he was seven years old, and forced

Sims to engage in oral sex with him over the years. When

Sims was sixteen, Cranford made him have sexual intercourse

with his mother. They both cried during the incident. On

another occasion, Cranford forced Sims to have intercourse

2

Following the trial in this case, Sims was tried and convicted in South

Carolina of the murders of Melkie and Zerr during the commission of a

robbery, and the death penalty was imposed. The convictions and sentence

of death were affirmed by the Supreme Court of South Carolina. State v.

Sims, 304 S.C. 409, (1991), cert. denied, 502 U.S. 1103 (1992).

13486 SIMS v. BROWN

with his older sister Merlon. Cranford repeatedly told Sims

that Sims was “no good” and a bad person. Sims began drink-

ing heavily at fourteen, and attempted suicide by drowning

when he was an adolescent.

Merlon testified to repeated incidents of physical and sex-

ual abuse that she and the other children suffered at the hands

of Cranford. She said that every night was a nightmare, and

that “[i]t ain’t never going to leave me alone.” Cranford

would drag her out of bed, force her to strip, and then beat

her, tie her to a bed, fondle her, and occasionally have sexual

intercourse with her. Cranford brought men home and forced

her to have sex with them. She also attempted suicide several

times. Cranford threatened to kill the children if they told any-

one about what he did. When Sims was sixteen, Cranford

forced Sims’s younger stepsister, Margaret, to undress and lie

beside him in bed. He began to fondle her and told her he was

going to have sex with her, but Sims called the police. Cran-

ford was arrested and convicted.

Sims’s brother Eddie also testified. He watched as Cranford

forced Sims to have sex with Cranford on many occasions. He

heard Cranford having sex with Margaret in the next room.

Eddie also tried to commit suicide, and he said that Sims tried

to lift up his spirits. Sims’s other siblings did not testify, but

there was evidence that Margaret ran away from home and

began taking drugs, and that his brother Jimmy was a career

army officer.

Sims’s wife, Theresa, had known Sims since she was nine,

and she, too, had experienced an abusive childhood. They

were married when Sims was twenty and she was sixteen.

They had three children, who worship Sims and live for his

phone calls and letters. She testified about various jobs that

Sims had held, and said that he became withdrawn and

depressed whenever he was promoted at work, that he

engaged in extensive substance abuse, and that he suffered a

sense of worthlessness and guilt from the incestuous act he

SIMS v. BROWN 13487

committed with his mother. While he was working at Domi-

no’s, Sims had an affair with a co-worker but came back to

Theresa. He left Theresa again when he met Padgett. Sims

told Theresa he was no good for her and did not want to pull

her, and the boys, down with him. At her urging, he saw a

counselor and cried as he recounted the abuse he had suffered.

Sims’s mother, sister and stepbrother, as well as his wife, tes-

tified that Sims was sensitive and continued to be a good, sup-

portive father to his three children.

Dr. William Vicary, a psychiatrist, testified that Sims suf-

fered from chronic depression, and alcohol and drug abuse.

He stated that Sims had long-standing feelings of inadequacy,

low self-esteem, despair, shame, and humiliation. Vicary

explained that individuals who have suffered a lot of verbal

and physical abuse tend to be crippled from a psychological

point of view and have trouble later in life, becoming violent,

abusive adults. On cross-examination Vicary admitted that

Sims had never been diagnosed as mentally ill, and that his

depression was not severe.

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

punishment at death.

C

Sims appealed to the California Supreme Court, which

upheld both the conviction and sentence. Sims, 5 Cal.4th at

467. With respect to the issues that are now before us, it con-

cluded that the prosecutor based his juror challenges on his

perception of an individual bias, not on the basis of group

bias; that admission of Sims’s confessional statements on

December 25 and 26 was harmless error under Chapman v.

California, 386 U.S. 18 (1967), given overwhelming evidence

of Sims’s intent to kill Harrigan independent of those state-

ments;3 and that there was no reasonable possibility the jury

3

Justice Mosk dissented from the Chapman analysis; Justice Kennard

wrote in her concurring and dissenting opinion that she would have held

that Sims initiated conversation on both days and waived his right to coun-

sel.

13488 SIMS v. BROWN

was misled to believe it could not consider Sims’s back-

ground in mitigation. The United States Supreme Court

denied Sims’s petition for writ of certiorari. Sims v. Califor-

nia, 512 U.S. 1253 (1994). Sims filed a state habeas petition

in February 1993, which was summarily denied on March 2,

1994.

Sims initiated federal proceedings by filing a request for

stay of execution and appointment of counsel on August 8,

1995. His petition for habeas relief was filed on April 22,

1996. The district court found some claims unexhausted and

granted Sims leave to amend his petition to delete those

claims. Sims filed a second petition in state court on October

10, 1997, which the California Supreme Court denied on

April 29, 1998. After he amended his federal petition, Sims

asked for an evidentiary hearing and was given a hearing on

one of the claims that is pursued on appeal — ineffective

assistance of counsel regarding mental health evidence. On

this claim the district court found that Sims failed to establish

that his attorney’s performance was deficient because counsel

consulted qualified experts who did not suggest the need for

additional information or experts after being informed of the

relevant information about Sims’s background and relation-

ships. On other claims raised on appeal, the court held in an

exhaustive order that Sims’s claim of juror misconduct was

not supported by any indication that there were improper

communications between the Sims juror and the Padgett juror.

With respect to Sims’s admissions, the district court agreed

with the trial court (rather than with the California Supreme

Court) that the statement “I had to kill that boy” was not made

in response to interrogation; it held that Sims’s statement

“The boy would have identified me” was the product of

remarks by Perkins that the officer should have known were

reasonably likely to elicit an incriminating response; and it

concluded that Sims’s December 26 statement that “I just got

drunk, and I didn’t know what the fuck I was . . . I knew what

I was doing, but I shouldn’t have done it” was a response to

express questioning about the crime itself by Perkins that

SIMS v. BROWN 13489

should not have been admitted, but that his post-Miranda

statements were properly admitted. Regardless, applying

Brecht harmless error analysis,4 the district court embraced

the California Supreme Court’s finding (applying the stricter

Chapman standard) that even if a portion of Sims’s statements

were admitted erroneously, any error was harmless. The court

rejected Sims’s challenge to the prosecutor’s argument about

mitigating evidence because, in its opinion, the prosecutor

never told the jury to disregard Sims’s history of abuse but

instead argued that it lacked weight and, even if the argument

were improper, any error was cured by the trial court’s

instructions. With respect to Sims’s Batson claim, the district

court held that Sims failed to show purposeful discrimination

given the prosecutor’s explanation that his challenges were

based on the jurors’ lack of life experience and responsibility.

Finally, the court saw no ineffectiveness in counsel’s failure

to object to the prosecutor’s comment on Sims’s failure to tes-

tify as the prosecutor’s comments were not improper.

Sims has timely appealed the denial of his habeas petition.5

II

Sims argues that the incriminating statements he made to

4

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (holding that a fed-

eral court may only grant habeas relief from a state court judgment if con-

stitutional error “had substantial and injurious effect or influence in

determining the jury’s verdict” (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946))).

5

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

under 28 U.S.C. § 2254. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.

2003). A district court’s factual findings are reviewed for clear error.

Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir. 2003). In pre-AEDPA

cases such as this, we review legal questions and mixed questions of law

and fact de novo. Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir. 2001)

(en banc). State court findings of fact are presumed correct to the extent

they are “fairly supported by the record.” 28 U.S.C. § 2254(d) (1994);

Mayfield, 270 F.3d at 922.

13490 SIMS v. BROWN

police officers on December 25 and 26 while he was in their

custody and after he had invoked his right to counsel were

obtained, and introduced, in violation of his Fifth and Four-

teenth Amendment rights under Miranda and its progeny.6

After Sims had declined to waive his rights on the 25th, and

Perkins had started to leave, Sims asked what was going to

happen to him from that point on, and said that he would

rather go to South Carolina than California. Perkins replied

that he planned to obtain Sims’s extradition to California, that

there were warrants for Sims’s arrest in connection with the

murder of two Domino’s employees in South Carolina as well

as for the murder in Glendale, that he was investigating the

Glendale murder, and that the body of a Domino’s delivery

driver was discovered in room 205 of the Regalodge where he

had reason to believe that Sims and a young woman were

staying. Sims interjected, “I had to kill that boy.” Perkins

6

See, e.g., Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (holding that

interrogation under Miranda refers to words or actions by the police that

they “should know are reasonably likely to elicit an incriminating

response”); Edwards v. Arizona, 451 U.S. 477, 485 (1981) (holding that

once an accused asserts his right to the presence of counsel he must him-

self “initiate[ ] further communication, exchanges, or conversations with

the police” before further interrogation may take place); Oregon v. Brad-

shaw, 462 U.S. 1039, 1045-46 (1983) (plurality opinion) (holding that

once an accused asserts the right to counsel, re-initiation occurs when he

“evince[s] a willingness and a desire for a generalized discussion about the

investigation”); see also Shedelbower v. Estelle, 885 F.2d 570, 573 (9th

Cir. 1989) (holding that an officer’s false statement that the suspect had

been identified by a rape victim was not the type of comment that would

encourage the accused to make some incriminating spontaneous remark);

United States v. Moreno-Flores, 33 F.3d 1164, 1169 (9th Cir. 1994) (hold-

ing that agent’s statements that the government had seized cocaine, the

accused was in serious trouble, and he faced a lengthy prison sentence

were not the functional equivalent of interrogation because they did not

invite a response); United States v. Orso, 266 F.3d 1030, 1033-34 (9th Cir.

2001) (en banc) (holding that officer should have known it was reasonably

likely that engaging in discussion about evidence and witnesses against the

accused as well as the penalties for the crime would cause the suspect to

respond).

SIMS v. BROWN 13491

responded, “What did you say?” and Sims repeated, “I had to

kill that boy.” Perkins then described how Harrigan’s body

was found, and commented that Harrigan “did not have to die

in this manner and could have been left there tied and gagged

in the manner in which he was found.” Sims stated “The boy

would have identified me.” As he was leaving, Perkins told

Sims that he would have to initiate further conversation about

the investigation. The next day Sims asked to see the Glen-

dale officers.

Perkins took a tape recorder with him on the 26th. Sims

complained about being in the “hole” because jail authorities

thought he was going to kill himself. Perkins asked whether

he was going to and Sims said “Why should I?” Perkins said,

“O.K., that’s all I want to hear . . . You don’t seem like that

kind of guy.” Sims responded: “I’m not, I’m not a murderer

either but, . . . .” Perkins said: “What does that mean?” And

Sims answered: “That means that I just got drunk, and I didn’t

know what the fuck I was, I knew I was doing it, but I

shouldn’t of done it.” Perkins told Sims he had trouble dis-

cussing the case because Sims had not waived his Miranda

rights. Sims expressed interest in returning to South Carolina

where his family was, and remaining in the same state as Pad-

gett. Perkins explained that Sims would likely be tried first in

California, then be released to South Carolina, when Sims

said: “You know they won’t even let me see a lawyer, they

have charges against me in Nevada, huh . . . , lawyer.” Perkins

said: “You’re a fugitive, yeah. Well tomorrow, you go to

court.” Sims asked: “Why don’t they charge me with posses-

sion of pot or something? (Laughs.) I had a bag.”

Later, Perkins readvised Sims of his Miranda rights, and

Sims waived them to discuss Padgett’s lack of involvement in

the South Carolina crimes. Sims said that he had worked at a

Domino’s Pizza in Columbia for thirteen months before mov-

ing to Charleston. He admitted robbing a Domino’s in a

Charleston suburb, but told the officers that Padgett was

unaware of the robbery until after it happened. The next

13492 SIMS v. BROWN

morning they left for Jacksonville, Florida, and from there

went to Los Angeles. Sims said he and Padgett rented room

205 at the Glendale Regalodge on December 8. He told Per-

kins they had gone to Domino’s for directions to a drugstore,

and to Sears to buy a knife. He said that the next day they

returned to Domino’s for a pizza. At that point Sims ended the

interview.

A

Sims contends that the California Supreme Court correctly

held that he unambiguously invoked his right to counsel on

December 25; that for this reason all interrogation had to stop;

and that he did not re-initiate discussion about the Glendale

murder either by asking about extradition on the 25th, because

that question concerned the routine incidents of the custodial

relationship instead of the criminal investigation, or by con-

tacting the Glendale officers on the 26th. The state counters

that the trial court and the district court correctly determined

that Sims’s initial incriminating statement “I had to kill that

boy” was spontaneous and not in response to interrogation,

and that the trial court’s findings with respect to the remaining

comments were correct. This is a debate that we need not

engage, however, because we agree with both the California

Supreme Court and the district court that admitting Sims’s

incriminating remarks was harmless.7

We “review the evidence at trial to determine whether the

confession likely had a substantial and injurious impact on the

verdict; if not, its admission was harmless.” Taylor v. Mad-

dox, 366 F.3d 992, 1016 (9th Cir. 2004) (citing Brecht v.

Abrahamson, 507 U.S. 619, 637-39 (1993)). “If a habeas

court is left with ‘grave doubt’ about whether a constitutional

error substantially influenced the verdict, then the error was

not harmless.” Parle v. Runnels, 387 F.3d 1030, 1044 (9th

7

See, e.g., Spicer v. Gregoire, 194 F.3d 1006, 1008 (9th Cir. 1999)

(assuming constitutional error and finding it harmless).

SIMS v. BROWN 13493

Cir. 2004) (citing O’Neal v. McAninch, 513 U.S. 432, 438

(1995)).

Sims suggests that both courts conducted their harmless

error analysis — the California Supreme Court under Chap-

man, and the district court under Brecht — improperly by

assessing the strength of the state’s evidence apart from the

erroneously admitted statements. We do not think so, because

courts do review all the state’s evidence to determine whether

error had a substantial and injurious effect on the jury’s ver-

dict. See, e.g., Brecht, 507 U.S. at 639 (finding harmless error

in part because “the State’s evidence of guilt was, if not over-

whelming, certainly weighty”); Parle, 387 F.3d at 1044 (con-

cluding that error was harmless where “the prosecution had

overwhelming evidence” of intent); see also Arizona v. Ful-

minante, 499 U.S. 279, 310 (1991) (noting, under the Chap-

man standard, that “[w]hen reviewing the erroneous

admission of an involuntary confession, the appellate court

. . . simply reviews the remainder of the evidence against the

defendant to determine whether the admission of the confes-

sion was harmless beyond a reasonable doubt”). In any event,

as we explain, the evidence of Sims’s guilt was overwhelming

and there is no reasonable likelihood that the challenged state-

ments actually prejudiced him.

[1] At trial on the guilt phase, Sims’s only argument was

that he did not intend to kill Harrigan, and thus the prosecu-

tion could not establish either first degree murder or the spe-

cial circumstance of lying in wait. His theory was that

Harrigan could have drowned himself, after Sims left, by

turning onto his side and thereby submerging his head under

water. However, as the California Supreme Court found, Har-

rigan “had been hog-tied and gagged, with a pillowcase pulled

over his head and secured by a ligature bound so tightly that

the victim inevitably would die of strangulation if death did

not occur first by drowning — the victim having been left in

the bathtub with the water running over his head.” Sims, 5

Cal. 4th at 448. In light of the record as a whole, it is clear

13494 SIMS v. BROWN

that Sims’s incriminating statements did not have a substantial

and injurious effect on the verdict.

Sims had it in for Domino’s, wanted revenge, and had

expressed the desire to blow up a Domino’s pizza parlor with

employees inside it. As a former Domino’s manager Sims

knew how Domino’s operated. He had scouted out the Glen-

dale Domino’s the day before, so he knew how long it would

take the delivery driver to get to the motel and for Padgett and

him to get from the motel to the parlor. Sims lured the deliv-

ery driver to Room 205 by calling to order a pizza at 11:03

p.m. Sometime after that he cut the phone cord. Harrigan left

the parlor at 11:26 to deliver Sims’s pizza. Within less than

twenty minutes, Harrigan had made the delivery, and Sims

had stuffed a washcloth in Harrigan’s mouth and tied it with

a sock around his head; put a pillow case over Harrigan’s

head, and tied it with a rope knotted in back of the neck

tightly enough to strangle him; taken off Harrigan’s Domino’s

shirt; tied Harrigan’s wrists together and tied his feet together,

then hog-tied his hands and feet behind his back; stolen Harri-

gan’s keys and money; put Harrigan into the bathtub with

cold water running at full blast, which was unnecessary if

Sims’s only aim were to incapacitate; and gone with Padgett

to the parlor, arriving there (wearing Harrigan’s shirt under-

neath a sweater) before the delivery driver’s absence would

be noticed. Room 205 was meticulously wiped clean of fin-

gerprints, also a largely unnecessary precaution if Harrigan

were meant to survive because he would be able to identify

both of them.

Once at the parlor, Sims responded to Spiroff’s warning

that Harrigan would be returning from a delivery by chuck-

ling, “No, I don’t think so,” and removing his sweater to

reveal a Domino’s shirt with Harrigan’s name tag. Sims then

proceeded to order Spiroff and Sicam into the corner of the

office where he pointed his gun directly at them before being

interrupted by Wagner’s arrival, and after taking care of Wag-

ner’s order, bound the two employees in the cooler in such a

SIMS v. BROWN 13495

way that they, too, would almost certainly die before the

cooler was opened the following day. When Spiroff and

Sicam complained, Sims responded “Shut up. At least you

live.”

Although the prosecutor did rely on Sims’s statements in

closing argument, the emphasis was on the “extremely life-

endangering” way that Sims’s victims were bound, his calcu-

lated and expeditious execution of the crimes, his threats to

blow up the South Carolina Domino’s, his meticulous wiping

down of the motel room, and his apparent intention to kill

Spiroff and Sicam. The prosecutor’s main point was that Sims

guaranteed Harrigan would die in one of two ways: either he

would be strangled to death by the ligature around his neck,

or he would drown to death in the bathtub.

[2] In sum, there was strong evidence of motive to kill,

other circumstantial evidence that reflected careful planning

to make sure Harrigan would not be missed or return, and evi-

dence that pointed to death as the only possible outcome of

putting a hog-tied person with a ligature around his neck in

a bathtub with the water running. Accordingly, we conclude

that although confessions are undoubtedly powerful evidence,

Fulminante, 499 U.S. at 296, apart from Sims’s statements,

the evidence overwhelmingly showed that he meant for Harri-

gan to die, one way or the other.

B

Sims also argues that the prosecutor’s reliance on his state-

ments at the penalty phase had a substantial and injurious

effect in determining his sentence. First, he asserts that the

prosecutor used Sims’s statements to argue that Harrigan’s

killing was “vicious, sadistic, cruel, and needless.” In addi-

tion, he contends that the prosecutor’s reliance on the South

Carolina crimes, which Sims partially described in his

December 26 statements, to establish his planning, intent to

13496 SIMS v. BROWN

kill, and lack of remorse “surely affected” the jury’s sentenc-

ing deliberations.8

To show that Sims deserved the death penalty, the prosecu-

tion predominantly relied on the depraved way in which Sims

perpetrated his series of killings and attempted killings. Sims

began in South Carolina, where he killed his coworkers, Zerr

and Melkie. After Zerr was rendered helpless with his hands

tied behind his back, Sims shot him to death at point blank

range in the head. He proceeded to shoot Melkie, also bound,

in the head, through the mouth (knocking out several teeth),

in the back of the head, and through the neck, as Melkie

moved around the room. After traveling to Glendale, Sims

lured Harrigan, an innocent pizza delivery man, to his motel

room, hogtied and gagged him, and, despite his incapacita-

tion, then placed him in a bathtub with the water running full

force. Having just killed three people in the last few days,

Sims then drove to Domino’s in Harrigan’s uniform, chuckled

as he told Spiroff and Sicam that Harrigan would not be

returning, pointed a gun at Spiroff and Sicam in the corner of

the office before Wagner’s entrance, and laughed and joked

with people in the store as he took pizza orders at the front

counter. Before leaving, he hanged Spiroff and Sicam in the

cooler in a manner that promised a slow, agonizing, and pain-

ful death. When he was arrested a couple of weeks later in a

Las Vegas motel room, the police found a yellow page torn

from a Las Vegas telephone book listing Domino’s Pizza

establishments.

During the prosecutor’s discussion of the manner of Harri-

gan’s death in his closing argument, he suggested that Harri-

8

Whether the verdict was “surely affected” is not the standard by which

we measure harmless error. Sims apparently drew the concept from Sulli-

van v. Louisiana, 508 U.S. 275, 279 (1993), which discussed the distinc-

tion between structural error and Chapman harmless error review of trial

errors — noting in that connection that the verdict must be “surely unattri-

butable” to error. However, Chapman does not apply to federal habeas

review.

SIMS v. BROWN 13497

gan had raised his head above the waterline in the bathtub to

avoid drowning, leaving Sims to push his head back under the

water. The prosecutor then made a passing reference to

Sims’s statement, “I had to kill that boy.” He continued,

“What more could Mitchell Sims do to John Harrigan other

than to take this helpless individual who was hogtied, bound,

gagged, and strangled and hold his head under water until he

stopped moving. It is as vicious, it is as sadistic, it is as cruel,

it is as needless, absolutely needless a death as you can

think.” Thus, the reference to Sims’s statement added nothing

to the prosecutor’s point — that the circumstances of Harri-

gan’s death were especially heinous.

Sims also notes that the prosecutor relied on Sims’s South

Carolina crimes, which Sims partially described in his

December 26 statement. However, Sims’s statement could not

have had any prejudicial effect because the entire story of

how Sims shot and killed Melkie and Kerr was independently

presented to the jury in the penalty phase.

III

During jury selection, the prosecutor used eight of his first

twelve peremptory challenges to strike four African-American

and four Hispanic venire panelists. These strikes left no black

and one Hispanic-surnamed individual in the box. Sims

argues that this statistical disparity, combined with other evi-

dence, shows that two of the strikes — against Rolando

Mandujano and Maria Cerda — were exercised on the basis

of race in violation of Batson v. Kentucky, 476 U.S. 79

(1986).

Defense counsel raised a Wheeler objection after the prose-

cutor had challenged four prospective jurors who were black.9

9

People v. Wheeler, 22 Cal.3d 258 (1978), is the California analogue of

Batson, although it has somewhat different standards. Our review, of

course, is for federal constitutional error under Batson. The United States

13498 SIMS v. BROWN

The prosecutor offered individualized justifications for each

strike, primarily having to do with the jurors’ views of the

death penalty and reasonable doubt. One juror, Torey Gaines,

the prosecutor believed was “too young” and he wanted peo-

ple who were accustomed to exercising responsibility. The

prosecutor also said: “There are several black jurors, I think,

that are outstanding in this case that just haven’t been called.

There are no Blacks. The only Black person in this case is the

people’s expert witness. We have a southern white defendant

and we have white victims. Why would I not want Blacks on

the jury? As a matter of fact, I do want Blacks on the jury.”

When counsel objected to peremptory challenges of Sonia

Vasconcellos, Alfredo Estevez, Mandujano and Cerda, the

prosecutor also volunteered an explanation for his strikes.

Vasconcellos had a language problem and the prosecutor had

problems communicating with her; Estevez was very hostile

to the death penalty; Mandujano was a “sharp guy” but was

“a college student” who did not have the “life experiences”

nor did he “exercise the kinds of responsibility needed in a

case like this”; and Cerda was “[v]ery young” and did not

“have the type of life experiences or responsibility to take on

a case like this.” The prosecutor remarked that “[t]here are

many Latins in the audience who I hope are called as jurors

in this case. The defendant in this case is white. All the wit-

nesses are white. There is one exception, a black expert that

the people called, and there is a — at least one Latino that the

people are going to call.” He added that he applied neutral

criteria, likes minority jurors, and preferred “on a case like

this to have minority jurors. I just haven’t gotten lucky yet.”

The trial judge found “some reason for the prosecution’s

actions” with respect to six of those struck, including Mandu-

Supreme Court recently rejected the standard that California required

under Wheeler for a prima facie showing. Johnson v. California, 125

S. Ct. 2410 (2005). However, Johnson does not affect our analysis

because Sims’s appeal does not turn on the prima facie case.

SIMS v. BROWN 13499

jano, who “appeared quite young to the court,” but made no

specific finding on Cerda. He denied the Wheeler motion,

finding that “[t]here is no evidence other than the fact that all

four Black jurors have been peremptorily excused to support

a finding at this time by the court of a systematic exclusion

of Blacks or Hispanics.”

The California Supreme Court found that “the prosecutor’s

stated justifications were facially race-neutral, based upon a

perception of a ‘specific’ or individual bias of each juror

rather than a group bias, and thus afforded a constitutionally

permissible basis for the exercise of the peremptory chal-

lenges in question.” Sims, 5 Cal. 4th at 430. It also found that

the voir dire of Cerda supported the prosecutor’s justifications

as she “gave tentative, uncertain, and equivocal responses to

nearly every question that was asked relating to the death pen-

alty.” Id. at 431. Finally, addressing Sims’s contention that

the age of Mandujano, Cerda and Gaines did not justify their

excusal because the prosecution did not challenge two young

Caucasian jurors (Karlberg and Blakely), the court found that

“the full explanation given by the prosecutor for his chal-

lenges of the three jurors [was] not their numerical age but

rather their apparent immaturity and inexperience with assum-

ing weighty decisions and responsibilities. Additionally, the

prosecutor did challenge one prospective Caucasian juror

because of her youth.” Id. at 431. The district court recog-

nized that the trial court’s ruling that it was necessary to show

a “systematic exclusion” of prospective jurors was incorrect,

as the Constitution forbids striking a single juror for a dis-

criminatory purpose, but agreed that the prosecutor gave race-

neutral reasons for excluding jurors.

[3] Batson involves a familiar three-step analysis:

First, the defendant must make out a prima facie case

by showing that the totality of the relevant facts

gives rise to an inference of discriminatory purpose.

Second, once the defendant has made out a prima

13500 SIMS v. BROWN

facie case, the burden shifts to the State to explain

adequately the racial exclusion by offering permissi-

ble race-neutral justifications for the strikes. Third,

if a race-neutral explanation is tendered, the trial

court must then decide . . . whether the opponent of

the strike has proved purposeful racial discrimina-

tion.

Johnson v. California, 125 S. Ct. 2410, 2416 (2005) (internal

quotations and citations omitted). Here, there is no issue about

the first step, as the trial court had no occasion to rule on

whether a prima facie case had been made out because the

prosecutor moved directly to step two. In these circumstances,

“the preliminary issue of whether the defendant had made a

prima facie showing becomes moot.” Hernandez v. New York,

500 U.S. 352, 359 (1991).

Nor is there much of an issue about the second step. Sims

acknowledges that the prosecutor’s explanation does not need

to be persuasive, and argues only that it apparently proceeded

from stereotypical assumptions about how jurors of particular

races might react in a case like this. However, the prosecu-

tor’s proffered reasons for striking Mandujano and Cerda,

which centered on their lack of responsibility, were race neu-

tral.

With respect to the third step, Sims first contends that the

California Supreme Court did not cure the trial court’s incor-

rect articulation of the legal standard. Even under de novo

review, however, we conclude that the record demonstrates

that there was no Batson error.

[4] Sims argues that the pretextual nature of the prosecu-

tor’s explanations is manifest in the racially disparate pattern

of his peremptory challenges, his explicit race-based strategy,

and a comparative analysis of the struck jurors with empan-

eled jurors. Although discriminatory intent may be inferred

from the fact that the prosecutor exercised four of his first

SIMS v. BROWN 13501

twelve peremptory challenges to strike jurors with Hispanic

surnames, see Hernandez, 500 U.S. at 363, at least one

Hispanic-surnamed member of the venire was empaneled.

This might indicate that the prosecutor’s motive was non-

discriminatory. See Turner v. Marshall, 121 F.3d 1248, 1254

(9th Cir. 1997). As we have already discussed, the prosecutor

commented that he had no reason to strike minority jurors,

and in fact had a black and Hispanic witness. See Hernandez,

500 U.S. at 370 (noting that the ethnicity of victims and pros-

ecution witnesses could be taken as evidence of the prosecu-

tor’s sincerity).

[5] Finally, the prosecutor explained that he struck Cerda

and Mandujano because he doubted their capacity to exercise

the responsibility of jurors in a capital case. The Supreme

Court recently made clear that “[i]f a prosecutor’s proffered

reason for striking a black panelist applies just as well to an

otherwise-similar nonblack who is permitted to serve, that is

evidence tending to prove discrimination to be considered at

Batson’s third step.” Miller-El v. Dretke, 125 S. Ct. 2317,

2325 (2005). In Miller-El, comparative analysis undermined

the proffered race-neutral bases for striking two black venire-

men because nonblacks who served on the jury should have

been excluded for the same reasons. However, here, the pros-

ecutor’s explanation for striking Cerda and Mandujano was

consistent with leaving two young whites, Karlberg and

Blakely, on the jury. The record is clear that Cerda, unlike

Karlberg and Blakely, waffled in response to questions about

the imposition of the death penalty.10 Although Mandujano

looked like a very strong juror, he was younger than Karlberg

10

Sims’s suggestion that the California Supreme Court and the district

court crafted an additional ground that Cerda had equivocal feelings about

the death penalty is misplaced, as Cerda’s equivocal responses to ques-

tions about the death penalty showed lack of maturity that reasonably led

the prosecutor to doubt her ability to “take on” a death case. Cf. Miller-El,

125 S. Ct. at 2332 (explaining that a court’s “substitution of a reason for

eliminating [a prospective juror] does nothing to satisfy the prosecutors’

burden of stating a racially neutral explanation for their own actions”).

13502 SIMS v. BROWN

and Blakely and the only college student, so the prosecutor’s

stated nondiscriminatory reasons for striking him are plausi-

ble. Therefore, Sims’s comparative argument fails.

IV

Sims claimed in his state habeas petition to the California

Supreme Court and in his federal petition that his right to an

impartial jury was violated when a member of his jury, Mar-

lene Mauro, met with a friend who had served on Padgett’s

jury, agreed to write a book with her, and told this to other

jurors.

He submitted the declaration of Sarah Nordell, a Sims

juror, in support. Nordell avers that Mauro related to some of

the Sims jurors that she learned about her friend’s service on

the Padgett jury when they met at a beauty shop and discov-

ered that both occupied the same seat in the jury box, that she

and her friend were thinking of writing a book together about

the two trials titled something like “Seat Number 3,” and that

they were both looking forward to getting together, once the

Sims trial was over, to compare their experiences as jurors

and to work on their book.11 The supreme court summarily

denied relief, and the district court denied Sims’s request for

discovery and for an evidentiary hearing on the claim. It held

that Nordell’s declaration does not establish any improper

communication.

[6] Sims contends that the unauthorized communication

between Mauro and her friend is presumptively prejudicial

11

The state suggests that the Nordell declaration has multiple layers of

hearsay and so Sims did not present the California Supreme Court with

competent evidence of this allegation, thus making it noncognizable on

federal habeas review. It is unclear to us that this point was raised in dis-

trict court, but in any event, we decline to avoid the issue on this basis.

See Jeffries v. Blodgett, 5 F.3d 1180, 1189-91 (9th Cir. 1993) (considering

two juror affidavits filed two years after petitioner was sentenced that

recounted the remarks of a third juror).

SIMS v. BROWN 13503

under Mattox v. United States, 146 U.S. 140 (1892), and Rem-

mer v. United States, 347 U.S. 227 (1954). In Mattox, the bai-

liff told jurors after the jury had retired to deliberate that this

was the third fellow the defendant had killed. The Court held

that “[p]rivate communications, possibly prejudicial, between

jurors and third persons, or witnesses, or the officer in charge,

are absolutely forbidden, and invalidate the verdict, at least

until their harmlessness is made to appear.” Mattox, 146 U.S.

at 150. In Remmer, an unnamed person communicated with a

juror and remarked that he could profit by bringing in a ver-

dict favorable to the petitioner. Elaborating upon Mattox, the

Court declared that “[i]n a criminal case, any private commu-

nication, contact, or tampering directly or indirectly, with a

juror during a trial about the matter pending before the jury

is, for obvious reasons, deemed presumptively prejudicial[.]”

Remmer, 347 U.S. at 229. In Sims’s view, the Mauro contact

was especially pernicious as it gave Mauro a real, or per-

ceived, pecuniary interest in the outcome of the case. For this

he relies on our statement in Dyer v. Calderon, 151 F.3d 970,

982 (9th Cir. 1998) (en banc), that a juror who has “the hope

of writing a memoir . . . introduces the kind of unpredictable

factor into the jury room that the doctrine of implied bias is

meant to keep out.”

[7] Dyer involved the situation where a prospective juror

perjured herself during voir dire, whereas the alleged impro-

priety here arose after the juror was empaneled. Whether or

not Dyer’s comments about the “hope of writing a memoir”

apply in our circumstances is academic, however, because,

without condoning the contact — which the state agrees was

unfortunate — we see no prejudice resulting from it. “A com-

munication is possibly prejudicial, not de minimis, if it raises

a risk of influencing the verdict.” See Caliendo v. Warden,

365 F.3d 691, 697 (9th Cir. 2004) (so holding in a case where

the case agent talked to several jurors for twenty minutes in

the hallway outside the courtroom, and identifying factors that

may inform the decision whether the communication raised a

risk that the verdict was influenced). Here, taking Nordell’s

13504 SIMS v. BROWN

declaration as true, Mauro’s unauthorized communication did

not risk influencing the verdict. The Padgett juror was not

involved in any way with the Sims trial; she was not a party,

a witness, or a court official. The contact was fortuitous and

the communication was of a relatively innocuous nature in

that it centered on the serendipity of two friends ending up as

jurors in related trials sitting in the same seat. Even if Mauro

planned to write a book about “Seat Number 3,” there is no

suggestion that she had a financial interest in any particular

outcome. This is quite unlike the suggestion by a third-party

in Remmer that the juror could make a deal, or the bribery of

a juror by a co-defendant in United States v. Dutkel, 192 F.3d

893, 894-95 (9th Cir. 1999). As appears from Nordell’s decla-

ration, Mauro intended to wait until after Sims’s trial to dis-

cuss her experiences. And there is no indication that Mauro’s

communication had any actual impact on her or anyone else.

The connection between the allegations contained in the Nor-

dell declaration and any pecuniary interest on Mauro’s part is

simply too tenuous to raise a serious concern about undermin-

ing impartiality. In these circumstances, the unauthorized

communication raised no risk of influencing the Sims verdict.

See United States v. Armstrong, 654 F.2d 1328, 1333 (9th Cir.

1981) (finding no prejudice from juror’s receiving obscene

phone calls from an unknown person regarding the juror’s

treatment of another juror, as the calls did not refer to the

merits of the case, were not threatening, and were not identi-

fied with either party).

Sims contends that he should at least have been accorded

discovery or an evidentiary hearing on the basis of allegations

in his petition, but we see no abuse of discretion. See Villa-

fuerte v. Stewart, 111 F.3d 616, 633 (9th Cir. 1997) (per

curiam) (noting that abuse of discretion is the standard of

review). Discovery is indicated where specific allegations

give the court reason to believe that a petitioner may be able

to demonstrate that he is entitled to relief. Bracy v. Gramley,

520 U.S. 899, 908-09 (1997). An evidentiary hearing is

required under pre-AEDPA law if “(1) the petitioner’s allega-

SIMS v. BROWN 13505

tions would, if proved, entitle him to relief; and (2) the state

court trier of fact has not, after a full and fair hearing, reliably

found the relevant facts.” Silva v. Woodford, 279 F.3d 825,

853 (9th Cir. 2002) (quoting Jones v. Wood, 114 F.3d 1002,

1010 (9th Cir. 1997)). Only three things are alleged in Sims’s

petition that were not encompassed in the Nordell declaration:

that Mauro’s friend told Mauro information from Padgett’s

testimony shifting blame to Sims, that Padgett had been con-

victed and that, in the friend’s opinion, Padgett was a young,

beautiful girl who had wasted her life by getting involved

with Sims. Assuming the truth of these statements, they could

not have had a substantial or injurious effect on the verdict.

At trial, Sims did not attempt to exculpate himself by blaming

Padgett; indeed, the evidence showed that Sims directed, and

committed most of the conduct in furtherance of the crimes,

himself. The friend’s opinion of Padgett could have had no

effect on the verdict at all. And the fact that a number of

jurors knew about Padgett’s conviction was aired before the

district court, which concluded that any such knowledge was

rendered insignificant by the overwhelming evidence of

Sims’s guilt. This decision is not pursued on appeal, and we

can see no way in light of it that Sims’s allegation that Mauro

knew about Padgett’s conviction, if proved, would entitle him

to relief.

SIMS v. BROWN 13507

Volume 2 of 2

13508 SIMS v. BROWN

V

Sims maintains that his rights to due process and a nonarbi-

trary sentence were violated when the prosecutor told the jury

during closing argument in the penalty phase that evidence

about Sims’s abusive childhood did not qualify as mitigating

evidence and was therefore irrelevant to the jury’s delibera-

tions. The state responds that this is not what happened.

[8] At the penalty phase the jury was instructed in accor-

dance with California Penal Code § 190.3 and 1 California

Jury Instructions, Criminal (CALJIC) 8.84.1 (1986 rev.). The

instruction identifies eleven factors that a juror must consider

in aggravation and mitigation of a capital crime. Factor (k) is

the last of these and is a “catch-all” factor that directs the jury

to consider “any sympathetic or other aspect of the defen-

dant’s character or record that the defendant offers as a basis

for a sentence less than death, whether or not related to the

offense for which he is on trial.”12

[9] Sims contends that the prosecutor’s arguments negated

this instruction in two respects: first, by telling the jury that

the abuse Sims suffered during his childhood, and the depres-

sion traceable to it that he suffered as an adult, did not qualify

as mitigating evidence in any context when he stated that “if,

in fact, it were a mitigating factor that a person had a bad

12

With respect to factor (k), the jury was instructed:

In determining which penalty is to be imposed on the defendant,

you shall consider all of the evidence which has been received

during any part of the trial of this case. You shall consider, take

into account, and be guided by the following factors if applicable

. . . K, any other circumstance which extenuates the gravity of the

crime, even though it is not a legal excuse for the crime, and any

sympathetic or other aspect of the defendant’s character or record

that the defendant offers as a basis for a sentence less than death,

whether or not related to the offense for which he is on trial. . . .

You, and each of you, are the sole judges of whether a factor is

an aggravating or a mitigating factor.

SIMS v. BROWN 13509

childhood, that would apply to virtually every violent felon

currently incarcerated”; and second, by stating that Sims’s

background was not a mitigating factor because there was

“nothing to bridge the background of what happened in

[Sims’s] family to the murders that we have dealt with here.”

Sims argued the same points to the California Supreme Court,

which concluded that “[t]he prosecutor’s remarks, in general,

fall within the bounds of proper argument.” Sims, 5 Cal.4th at

464. It explained that “[f]or the most part, he did not imply

that the jury should disregard the evidence of defendant’s

background, but rather that, in relation to the nature of the

crimes committed, it had no mitigating effect. ‘A prosecutor

does not mischaracterize such evidence [offered in mitigation]

by arguing it should not carry any extenuating weight when

evaluated in a broader factual context.’ ” Id. (internal citations

omitted). The supreme court thought that the prosecutor’s

comment that the troubled background of a defendant does

not constitute mitigating evidence might have tended to sug-

gest incorrectly that the jury could not consider such evidence

in mitigation, but that any such suggestion was harmless

beyond a reasonable doubt given defense counsel’s vigorous

argument that Sims’s background had mitigating relevance

and instructions that specifically told the jury to consider as

mitigating the evidence relating to Sims’s childhood. Id. In

these circumstances, the court concluded that there was no

reasonable possibility the jury was misled to believe it could

not consider Sims’s background in mitigation. The district

court agreed. As it read the prosecutor’s summation, he never

told the jury to disregard Sims’s history of abuse but instead

argued that the evidence lacked mitigating weight because it

was unexplained, but that even if it could be viewed as some-

how improper, any error was cured by the instructions that

admonished the jurors that the prosecutor’s remarks were

merely argument and that the court would instruct them on the

law. We agree with both courts.

The controlling standard is “whether there is a reasonable

likelihood that the jury has applied the challenged instruction

13510 SIMS v. BROWN

in a way that prevents the consideration of constitutionally

relevant evidence.” Boyde v. California, 494 U.S. 370, 380

(1990); Brown v. Payton, 125 S. Ct. 1432, 1440-41 (2005).

The Eighth and Fourteenth Amendments require that the sen-

tencer, “in all but the rarest kind of capital case, not be pre-

cluded from considering, as a mitigating factor, any aspect of

a defendant’s character or record . . . that the defendant prof-

fers as a basis for a sentence less than death.” Lockett v. Ohio,

438 U.S. 586, 604 (1978) (plurality opinion) (emphasis in

original) (footnotes omitted). If there is constitutional error,

that is, if inappropriate comments were made and there is a

reasonable likelihood that because of them the jury applied

factor (k) in a way that prevented consideration of relevant

mitigating evidence, then Brecht harmless error analysis

applies. See Calderon v. Coleman, 525 U.S. 141, 146 (1998).

In his argument the prosecutor told the jury to be guided by

the court’s instructions, which list factors in mitigation, and

to make its determinations based upon the instructions. He

stated that the various factors in mitigation and aggravation

are the law. He explained that mitigating facts would be an

aspect of the crime or the individual that make the crime or

the individual less vicious, cruel, painful, and deserving of the

ultimate punishment. He emphasized that the statute indicates

that “you shall consider” the various factors in aggravation

and mitigation if applicable. The prosecutor went through

each of the aggravating and mitigating factors, arguing which

he believed applied. When he got to factor (k), he explained

Now, in this respect, we get into areas of sympathy.

Any sympathetic or other aspects of the defendant’s

character or background. In this you can consider

background, family, anything else . . . you can con-

sider whatever you want to find sympathy or pity for

the defendant, even though it does not relate to the

other factors in mitigation or aggravation.

Discussing Dr. Vicary’s testimony and Sims’s depression, the

prosecutor again stated “[i]t is the law you can feel sympathy

SIMS v. BROWN 13511

and pity for a defendant if you deem it appropriate, if you

attach a moral or sympathetic value to that.”

The prosecutor described evidence of Sims’s background

as “shocking.” He stated that he had no evidence to contradict

it, that it should be taken at face value, and that it paints a

very ugly picture. He then posed the rhetorical question: What

does it mean? The prosecutor’s answer was: “There is nothing

to bridge the background of what happened in that family to

the murders that we have dealt with here, nothing to connect

it.” Relying on Vicary’s testimony that most people in prison

for violent offenses were themselves the victims of abuse

when they were younger, the prosecutor stated that “if, in fact,

it were a mitigating factor that a person had a bad childhood,

that would apply to virtually every violent felon currently

incarcerated. If that were, therefore, a mitigating factor, then

you would be emptying prisons because it would apply to vir-

tually everybody.”13 The prosecutor pointed out that Vicary

never said that mental disease or defect or emotional distur-

bance were produced by the acts perpetrated on Sims’s fam-

ily. The prosecutor contrasted the absence of a bridge for

these murders with the bridge that might exist, for example,

in an offense against Sims’s stepfather, or an offense involv-

ing rape or child abuse. He noted that Vicary did testify that

Sims suffered depression, child abuse, and low self-esteem,

but argued that it did not result in a mitigating factor because,

as Vicary also testified, Sims’s depression was somewhere

between the mental illness suffered by 20 million people and

that suffered by people in Boston when the Celtics lost the

playoffs — which, the prosecutor submitted, does not mitigate

three murders and two attempted murders.

13

Vicary testified during the sentencing phase that “the vast majority”

of people who are in prison for violent sexual offenses, rape, and child

molesting, were, themselves, the victims of some sort of abuse when they

were younger. He also testified that “in the vast majority of cases” that

people who commit acts of premeditated murder, were themselves abused

as children.

13512 SIMS v. BROWN

[10] Overall, the prosecutor’s statements do not suggest

that the jury cannot consider Sims’s background as a mitigat-

ing factor but rather that it should not find that his back-

ground, shocking though it was, mitigated the vicious murders

he committed and attempted. Cf. Payton, 125 S. Ct. at 1436-

37 (describing the prosecutor’s argument there as erroneously

telling the jury that it could not consider post-crime reform

and religious conversion as mitigating under factor (k)). He

emphasized that the jurors must follow the instructions, must

consider mitigating evidence, must take Sims’s background

and anything else into account, must take Sims’s evidence of

abuse at face value, and must feel sympathy and pity if the

jury deems it appropriate. Given these entirely correct state-

ments, we cannot conclude that the prosecutor’s remarks

about a missing bridge or emptying prisons created a reason-

able likelihood that the jury misapplied the factor (k) instruc-

tion so as to preclude consideration of Sims’s background.

See Boyde, 494 U.S. at 384-86 (rejecting contention that pros-

ecutor’s arguing that the mitigating evidence did not “suggest

that [petitioner’s] crime is less serious or that the gravity of

the crime is any less,” and that “[n]othing I have heard lessens

the seriousness of this crime” undermined the factor (k)

instruction).

[11] Even if the jurors heard the prosecutor’s closing differ-

ently from the way we have read it, and even if the jurors

inferred from any of his remarks that he believed Sims’s

background should be ignored as the California Supreme

Court concluded, it is evident that in the whole context of the

case, the prosecutor’s remarks could not have substantially

influenced the verdict. The court admonished the jury that

statements of the attorneys were simply argument, and that

the jury would determine what the evidence was and the court

would instruct on the law. The prosecutor reminded the jury

that the court’s instructions would define the law and that the

instructions must be followed. The instructions clearly stated

that the jury “shall” consider “any sympathetic or other aspect

of the defendant’s character or record that the defendant

SIMS v. BROWN 13513

offers as a basis for a sentence less than death, whether or not

related to the offense for which he is on trial.” Sims presented

significant evidence of horrific abuse and what impact that

abuse had on him. The prosecutor accepted the evidence as

true and acknowledged it was “shocking.” Defense counsel

told the jury that “what [he and the prosecutor] disagree on,

however, is the significance of the mitigating factor or factors

and what weight should be accorded them.” He emphasized

that factor (k) is the “sum and substance of Mitchell’s life

before December 2, 1985.” Sims’s attorney countered the

prosecutor’s “bridge” argument by explaining that it was

wrong, and that while Sims had choices as the prosecutor

argued, the “scar tissue builds up and you keep it inside and

then it comes out and it explodes in some people.” He

explained why the jury should weigh the evidence of Sims’s

childhood background and adult depression heavily as factors

in mitigation. Finally and most importantly, for the jury to

have believed it could not consider Sims’s mitigating evi-

dence, it would have had to believe that Dr. Vicary conducted

an extensive examination of Sims, and that Sims’s mother, his

sister, his stepbrother, and his wife came out to California to

testify, for naught. We think this is unlikely, as the Court

thought of the similar situation in Boyde. See Boyde, 494 U.S.

at 383-84 (observing that it is unlikely that reasonable jurors

would believe that the court’s instructions on factor (k), even

if ambiguous, transformed all of the defendant’s favorable

testimony into a “virtual charade”). We thus conclude that any

Boyde error was harmless.

VI

Although trial counsel, Morton Borenstein, presented evi-

dence at the penalty phase about Sims’s abusive childhood,

Sims contends that he failed to present expert testimony

establishing: (1) that Sims suffers from Post-Traumatic Stress

Disorder (PTSD) as a result of the abuse he suffered as a

child; (2) that the abuse Sims suffered played a direct role in

his involvement with Padgett and in the crimes at issue; (3)

13514 SIMS v. BROWN

that Sims has organic brain damage; and (4) that Sims demon-

strated good adaptability to confinement. Sims argues that

expert testimony establishing all of these points was readily

available and if the jury had known about the full range of

mitigating evidence, it is highly likely that Sims would not

have been sentenced to death. The district court conducted an

evidentiary hearing on this issue and found that Borenstein’s

performance was neither deficient nor prejudicial. In a federal

habeas action factual findings by the district court are

accepted unless they are clearly erroneous. Hendricks v. Cal-

deron, 70 F.3d 1032, 1036 (9th Cir. 1995) (as amended).

Borenstein had been a deputy public defender for sixteen

years and was a Grade IV (the highest grade) defender at the

time he was assigned to Sims’s case. He had tried a number

of special circumstances cases. Although the Sims case was

the first he had tried through the penalty phase, Borenstein

had been preparing to do capital cases for a long time. He

attended seminars and meetings about the death penalty,

watched death penalty trials, and spoke with other attorneys

about issues attendant to capital cases. Borenstein worked

long hours consistently on Sims’s case for eleven months; he

was assisted by a paralegal and two investigators as well as

by an experienced South Carolina attorney familiar with death

penalty issues, Jack Swerling.14 Borenstein’s other cases were

reassigned before Sims’s trial began and he then worked

exclusively on it.

The district court found that Borenstein sent Swerling

extensive materials and was in regular communication with

him while he prepared Sims’s defense. Swerling and his law

14

Borenstein arranged for Swerling’s appointment so that Swerling

could investigate Sims’s background and the South Carolina crimes. Swer-

ling had defended some 100 homicides, four of which involved the death

penalty. He was an adjunct professor of criminal trial advocacy at the Uni-

versity of South Carolina Law School, and had served as chair of the crim-

inal law sections of the South Carolina Bar Association and the South

Carolina Trial Lawyers Association.

SIMS v. BROWN 13515

clerk interviewed witnesses and obtained Sims’s school and

work records. Borenstein traveled to South Carolina person-

ally to speak with family members and witnesses and to view

the crime scene.

Borenstein spoke with Sims “a lot” and he or his paralegal

visited Sims in jail at least 24 times between March 6, 1986,

when Borenstein was assigned to the case, and March 10,

1987, when the trial began.

Borenstein retained the services of two experts: Dr. Wil-

liam Vicary, a forensic psychiatrist, and Dr. Michael

Maloney, a forensic psychologist, so that he could have the

benefit of opinions from experts in both disciplines. Vicary

was a board-certified forensic psychiatrist who received his

medical degree from the University of Southern California in

1973 and a law degree from Harvard in 1969. Most of his

practice was devoted to conducting evaluations of individuals

charged with felonies in the Los Angeles Superior Court.

Borenstein gave Vicary a nine-page single-spaced letter out-

lining the crimes and Sims’s background, and Vicary also had

extensive conversations with Borenstein, who gave him sig-

nificant details about Sims’s background. Vicary interviewed

Sims six times, and interviewed Sims’s mother, wife, siblings,

and jail deputies. He reviewed police reports, Sims’s school,

army, and work records, his South Carolina therapy records,

psychiatric records, and court records regarding Cranford’s

prosecution for sexually abusing Margaret. Vicary also con-

ferred with Maloney on the results of Sims’s psychological

testing. Vicary never told Borenstein that he needed any addi-

tional material to evaluate Sims’s case, or that additional test-

ing or experts were needed.

Maloney had a Ph.D. in Psychology from the University of

Colorado and completed his post-doctoral fellowship at the

University of Southern California Medical Center. He was a

Diplomate in Forensic Psychology licensed to practice in Cal-

ifornia since 1970. Maloney was retained to “conduct a psy-

13516 SIMS v. BROWN

chological evaluation of Sims to determine the existence of

any possible mental defenses for the guilt phase, and to iden-

tify any factors that could be considered as mitigating evi-

dence in the event the case proceeded to a penalty phase.”

Borenstein selected Maloney because he had extensive expe-

rience in capital cases as well as issues involving allegations

of physical, emotional and sexual abuse. Maloney was famil-

iar with the potential impact of physical and sexual abuse on

an individual’s development. Borenstein also chose Maloney

because he would give him an honest opinion and would point

him in the right direction if other things were needed. Boren-

stein sent Maloney the same nine-page letter he sent Vicary,

as well as reports of interviews conducted with Sims’s family,

friends, and high school principal, and Sims’s military

records. He and Maloney also met several times and discussed

the case at length. Maloney interviewed Sims several times

and administered several tests, including: the Wechsler Adult

Intelligence Scale Revised, the Minnesota Multiphasic Per-

sonality Inventory, and the Rorschach inkblot test. Maloney

concluded that Sims was of “clearly above average intelli-

gence” and that there were no mental defenses to the crimes.

Sims showed a disparity between his Verbal and Performance

IQ scores, but Maloney believed that the disparity could be

attributed to factors other than neuropsychological deficits. In

his opinion, Sims also showed signs of antisocial personality

disorder. Maloney never told Borenstein that he lacked any

background materials to conduct the evaluation, nor did he

suggest that additional testing was needed or that additional

experts should be retained. Maloney indicated to Borenstein

that he did not believe he would be a good witness for Sims

because of what he had discovered in his testing, and Boren-

stein decided not to have Maloney testify because of this.

Vicary did testify, relating in light of his interviews and

investigation that Sims had suffered a lengthy pattern of abuse

(along with other members of his family), had been suicidal

since the age of fifteen, and had a history of drug and alcohol

abuse as well as long-standing feelings of inadequacy, low

SIMS v. BROWN 13517

self-esteem, despair, shame, and humiliation. He explained

that these feelings cause the victims to become more and

more frightened that, as they succeed, people will find out

who they really are and that they can not actually handle

responsibilities. This in turn can result in their intentionally or

unintentionally creating a situation so that the anticipated neg-

ative feedback occurs. Vicary also opined that Sims suffered

chronic depression.

The district court held an evidentiary hearing at which testi-

mony was received from Borenstein and eight experts.15 The

district court found that Borenstein conducted an extensive

investigation regarding Sims’s background and the crimes,

15

Dr. Whyte, a psychiatrist, testified that he believed Sims suffered from

PTSD, alcohol dependence, and a personality change due to organic brain

damage; he disagreed with Maloney and Dr. Ornish who determined that

Sims suffered from antisocial personality disorder. Dr. Lebowitz, a psy-

chologist licensed as a healthcare provider in Massachusetts, assessed

Sims as tormented, impaired and desperate so far as Padgett was con-

cerned. Dr. Venn, a psychologist, diagnosed Sims with PTSD and

explained that Sims’s history of severe sexual abuse affected him pro-

foundly; that Sims suffers anxiety, depression, and low self-esteem; and

that Sims meets the DSM-IV criteria for alcohol dependence, although

when he originally interviewed Sims in 1992 and 1993, he diagnosed him

with anti-social disorder. Vicary stated that he did not realize that Maloney

had administered a shortened version of some tests to Sims; that he did not

consider a diagnosis of PTSD; that details of Padgett’s life would have

helped him explain why the offenses occurred; and that he was prepared

to offer testimony that Sims would adapt well to confinement. Dr. Halleck

reviewed the expert reports, and Dr. Hamrick, who testified in Sims’s

South Carolina trial, opined that the difference in Sims’s IQ scores would

generally indicate at least some mild brain dysfunction. Dr. Delis was a

neuropsychologist who found no evidence of brain damage that affected

Sims’s cognitive ability, or of frontal lobe cognitive dysfunction. Dr.

Ornish is a forensic psychiatrist who determined that Vicary’s trial assess-

ment of Sims was competent; that Sims had antisocial personality disor-

der, alcohol dependence and a history of substance abuse, that it was

inappropriate to diagnose brain damage solely based on differences

between verbal and performance IQ, and that there was no other evidence

of brain damage; and that Sims was a textbook sociopath and substance

abuser.

13518 SIMS v. BROWN

retained well-qualified experts experienced in capital cases to

whom he reported the results of his investigation, and was not

told by either expert that additional information or expertise

was needed. With respect to the claims that Sims now makes,

the court found that Borenstein identified that brain damage

was a possibility, conducted a thorough investigation, and

provided the results of his investigation to the experts. Experts

testified convincingly at the hearing that the disparity in

Sims’s verbal and performance IQ was not indicative of brain

damage, and that Sims’s own calculated actions during the

crimes belie any claim that he suffered an impairment in fron-

tal lobe functioning. With respect to PTSD, the court deter-

mined that in Vicary, Borenstein hired an expert who was

exceptionally qualified to render a diagnosis based on Sims’s

history of childhood sexual abuse, and Vicary admitted that

he had knowledge of PTSD. Finally, the court found that Sims

minimized Padgett’s involvement in the crimes during con-

versations with Borenstein and that Borenstein saw signs that

Sims was the domineering partner even though he was a

“fool” for Padgett. Borenstein discussed Padgett’s influence

on Sims with Maloney, watched Padgett testify at her trial,

and based on all these things, concluded that there was noth-

ing about the relationship that he could effectively use to miti-

gate the heinous nature of the crimes. Borenstein was also

concerned that if he exploited Sims’s relationship with Pad-

gett, the prosecution would call her as a witness and if so, that

she would testify as she did at her trial that Sims forced her

to go to California and how Sims cut rope and laid out which

portions he would use to tie up Harrigan’s hands and feet, laid

out a washcloth and socks that he planned to use to gag the

victim, and considered drowning the victim or cutting his

throat. Thus, the court found that Borenstein’s decision not to

present evidence regarding Padgett’s effect on Sims was a

reasonable strategic decision. Finally, the court found that

Borenstein also made a reasonable tactical decision not to

pursue future dangerousness because it would open the door

for the prosecution to present evidence of a crime that Sims

committed in the Army, another structured setting.

SIMS v. BROWN 13519

Suffice it to say, the district court’s findings are fully sup-

ported. At the end of the day, Sims’s argument turns on a

latter-day battle of experts; however, the question is whether

counsel did all that he was constitutionally required to do at

the time. As carefully explained by the district court, it is

clear that Borenstein did. Indeed, Sims submitted no evidence

during the evidentiary hearing from experts in the legal com-

munity that Borenstein’s performance fell short of prevailing

legal norms.

[12] The legal framework is well-settled. In order to prevail

on a claim for ineffective assistance of counsel a defendant

must show (1) that his counsel’s representation “fell below an

objective standard of reasonableness”; and (2) that counsel’s

deficient performance “prejudiced” the defense. Strickland v.

Washington, 466 U.S. 668, 688, 692 (1984). Defense counsel

“must conduct sufficient investigation and engage in suffi-

cient preparation to be able to ‘present[ ] and explain[ ] the

significance of all the available [mitigating] evidence.’ ” May-

field v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc)

(quoting Williams v. Taylor, 529 U.S. 362 (2000)).

“[S]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchal-

lengeable; and strategic choices made after less than complete

investigation are reasonable precisely to the extent that rea-

sonable professional judgments support the limitations on

investigation.” Strickland, 466 U.S. at 690-91. In determining

whether counsel’s conduct falls within the broad range of pro-

fessionally acceptable conduct, this court “will not view coun-

sel’s actions through the distorting lens of hindsight. Rather,

under the rule of contemporary assessment, an attorney’s

actions must be examined according to what was known and

reasonable at the time the attorney made his choices.” Hen-

dricks, 70 F.3d at 1036 (internal quotations and citations

omitted). Counsel has “an obligation to conduct an investiga-

tion which will allow a determination of what sort of experts

to consult. Once that determination has been made, counsel

must present those experts with information relevant to the

13520 SIMS v. BROWN

conclusion of the expert.” Caro v. Calderon, 165 F.3d 1223,

1226 (9th Cir. 1999). Finally, a court must indulge a strong

presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance. Bell v. Cone, 535

U.S. 685, 702 (2002).

Borenstein did not fall short of the mark in any of the

respects claimed by Sims. First, he did not unreasonably fail

to retain an expert who could properly analyze the impact of

childhood abuse, in particular, PTSD. Vicary was qualified to

do so, as he admitted.

Second, Borenstein did not unreasonably fail to elicit expert

testimony explaining the dynamics of Sims’s relationship

with Padgett; he informed Vicary about Padgett, and Vicary

interviewed Sims a number of times knowing that Padgett

was his girlfriend and accomplice. Vicary had nothing posi-

tive to say about the dynamics, perhaps because Sims had said

that he told Padgett what his plans were and she protested but

was scared of him and he wouldn’t let her leave. Sims submits

that Borenstein could not make a reasonable strategic decision

to forego assessing Padgett’s impact on Sims because he

could only make this call if it were informed by an investiga-

tion into Padgett’s background. While the investigation sup-

porting counsel’s decision not to introduce mitigating

evidence must itself be reasonable, see, e.g., Wiggins v. Smith,

539 U.S. 510, 522-23, 526 (2003); Williams v. Taylor, 529

U.S. 362 (2000); Jennings v. Woodford, 290 F.3d 1006, 1014

(9th Cir. 2002), it is immaterial that Borenstein did not inves-

tigate Padgett’s background because it was Sims’s perspective

on the relationship that mattered. Sims’s experts evidently

thought so as well, as their testimony at the evidentiary hear-

ing focused on the relationship from Sims’s point of view.

Third, Borenstein did not unreasonably fail to pursue the

possibility that Sims had organic brain damage. Maloney

alerted Borenstein to the possibility, but found none. He did

not advise Borenstein to retain a specialist in neurological

SIMS v. BROWN 13521

impairment to pursue the possibility. Some experts who testi-

fied at the evidentiary hearing agreed with Maloney’s diagno-

sis, others didn’t.16 But there is no evidence that Maloney was

not qualified; the district court found that he was well-

regarded by the defense bar, prosecutors and judges alike. In

these circumstances, as we explained in Hendricks, attorneys

are entitled to rely on the opinions of mental health experts,

and to impose a duty on them to investigate independently of

a request for information from an expert would “defeat the

whole aim of having experts participate in the investigation.”

70 F.3d at 1038, 1039.

Fourth, Borenstein did not unreasonably fail to elicit testi-

mony from Vicary about Sims’s adaptability to confinement.

Vicary’s optimistic assessment would have been severely

undercut by Sims’s bad conduct discharge from the Army for

a crime that involved the use of force or violence and which

would have been admissible as aggravating evidence during

the penalty phase. Cal. Penal Code § 190.3(b). Without doubt

Borenstein’s decision to keep this door closed was reasonable.

[13] In sum, by contrast with other cases in which the

Supreme Court or we have found deficient performance,17

16

Sims is extremely intelligent, and scored in the 99th percentile on the

most sensitive test of frontal-lobe dysfunction, in the top two percent of

people in the country on a comprehension test, and average to above aver-

age in higher level cognitive functioning but in many ranges is in the top

ten percent of the population.

17

See, e.g., Wiggins, 539 U.S. at 510 (counsel performed deficiently

where they failed to put on any evidence of petitioner’s life history; failed

to follow up on preliminary information suggesting that petitioner had a

horrific and traumatic childhood; and failed to comply with the standards

of performance established in their state and by the ABA at the time of

trial); Williams, 529 U.S. at 362 (counsel performed deficiently where he

did not begin to prepare for sentencing until one week before trial; did not

obtain records on petitioner’s background; did not obtain petitioner’s

prison records which revealed adaptability to confinement; and failed to

return call of witness who offered favorable testimony regarding peti-

13522 SIMS v. BROWN

Sims’s counsel thoroughly prepared for the penalty phase,

retained and informed well-qualified experts upon whom he

could reasonably rely, and presented heart-wrenching evi-

dence in mitigation. His performance passes constitutional

muster.

tioner); Allen v. Woodford, 395 F.3d 979 (9th Cir. 2005) (counsel failed

to prepare for the sentencing phase of capital case until a week before that

phase began and failed to present available mitigation and the failure was

deemed harmless); Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir.

2001) (en banc) (counsel billed only 40 hours in preparation for guilt and

penalty phases, only substantively met with the client once, and on the day

trial commenced, failed to obtain relevant material records, spent less than

half the allowed budget and failed to consult relevant experts despite being

alerted to “evidence of diabetes and substance abuse . . .”); Lambright v.

Stewart, 241 F.3d 1201 (9th Cir. 2001) (counsel failed to obtain psychiat-

ric evaluation despite knowing of petitioner’s traumatic wartime experi-

ence and extensive drug abuse); Bean v. Calderon, 163 F.3d 1073, 1078

(9th Cir. 1998) (completely unprepared attorney presented only “disorga-

nized and cursory” penalty phase); Turner v. Duncan, 158 F.3d 449, 456

(9th Cir. 1998) (counsel’s failure “to arrange a psychiatric examination or

utilize available psychiatric information also falls below acceptable perfor-

mance standards”); Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998) (coun-

sel was ineffective for failing to conduct any investigation into defendant’s

psychiatric history despite evidence that defendant had been treated for

mental illness); Caro, 165 F.3d at 1228 (counsel’s performance was defi-

cient because, although aware of his acute and chronic exposure to toxic

chemicals, counsel did not acquire any experts on the effects of chemical

poisoning, did not provide the experts who did examine Caro with the

information that he had, and failed to properly consult experts); Wallace

v. Stewart, 184 F.3d 1112, 1118 (9th Cir. 1999) (petitioner stated prima

facie case for ineffective assistance during penalty phase where there was

complete failure to investigate family or background despite evidence sug-

gesting petitioner had mental problems); Jennings, 290 F.3d 1006 (counsel

was ineffective where he failed to inquire into possible child abuse in the

family, failed to appoint additional experts to evaluate Jennings’s mental

state or the possible effects of methamphetamine on a heavy, long-time

user, despite the fact that he knew that Jennings had been “strung out” for

over a year, did not discuss the effects of Jennings’s drug use with Jen-

nings himself, nor did he follow up on a report that Jennings had

attempted suicide, that Jennings was schizophrenic, and that his ex-wife

believed that he was crazy).

SIMS v. BROWN 13523

VII

Sims argues that during the prosecutor’s summation at the

penalty phase, he made numerous impermissible comments

about Sims’s silence regarding whether Sims was sorry for

the crimes he committed, which invited the jury to penalize

him for exercising his Fifth Amendment right not to testify.18

Borenstein did not make a Griffin19 objection, and Sims

claims that this amounted to ineffective assistance of counsel

with respect to these statements:

I was waiting for Mitchell Sims to express remorse,

to apologize to somebody for what he had done and

what he had taken. What I heard was a preoccupa-

tion with getting cigarettes, seeing his girlfriend

Ruby Padgett. I did not hear any of that remorse.

Anything that would tell me that Mitchell Sims will

be living the rest of his life with his stomach in a

knot. That he will be preoccupied with the evil he

has done. There is nothing like that.

18

Sims’s argument has shifted from his position before the California

Supreme Court, where his argument appeared to be that the prosecutor

improperly urged the jury to consider his lack of remorse. The supreme

court found this argument was procedurally defaulted because Sims failed

to object, and that in any event the prosecutor properly suggested that lack

of remorse should weigh against the jurors’ assigning significance to the

mitigating evidence. Sims, 5 Cal. 4th at 465. The district court noted that

in addition to this point, Sims further contended in his federal habeas pro-

ceeding that by referring to his lack of remorse, the prosecutor impermiss-

ibly commented on his failure to testify. It concluded that the claim was

procedurally barred because the California Supreme Court invoked the

contemporaneous objection rule. The district court also found the claim

lacked merit, because the prosecutor did not refer to Sims’s failure to tes-

tify in describing Sims’s lack of remorse.

19

Griffin v. California, 380 U.S. 609, 615 (1965) (forbidding comment

by the prosecution on the accused’s silence). Counsel did object on Griffin

grounds to the prosecutor’s reference to Sims’s statement to Perkins on

December 26 that he preferred not to discuss what happened inside the

store in Hanahan.

13524 SIMS v. BROWN

...

Now, at no time did I hear any remorse. Hear a tear.

I mean, we have all felt guilty about things in life.

It’s a human reaction, but granted, we haven’t killed

people. We are not mass murderers. But there was

no feeling of guilt. There is absolutely no feeling of

guilt.

...

The life in prison, is he going to spend it brooding

and contemplating about the evil he has done? You

really think he will? You think he is going to have

that knot in his stomach? You think he will think

about the lives he has taken? The years he has

stolen? Has he yet? Has he yet come out and said to

anyone that tearfully he is sorry for what happened,

that he thinks about it every day, that he can’t sleep

at night?

However, the statements must be considered in context. In

context, the first statement to which Sims says counsel should

have objected is as follows:

Now, many things go into a case in judging what the

appropriate punishment should be and we have a

statement to Mr. Perkins on the 25th, the taped con-

versation that I would like you — respectfully ask

you to listen to for several reasons — on the 26th,

and we have Dr. Vicary who said he interviewed the

defendant 6 times for a total of 6 hours.

And I was waiting for those pieces of evidence to

hear that Mitchell Sims was sorry. I was waiting to

hear that Mitchell Sims felt bad about the years he

had stolen. I was waiting for Mitchell Sims to

SIMS v. BROWN 13525

express remorse, to apologize to somebody for what

he had done and what he had taken.

What I heard was a preoccupation with getting ciga-

rettes, seeing his girlfriend Ruby Padgett. I did not

hear any of that remorse. Anything that would tell

me that Mitchell Sims will be living the rest of his

life with his stomach in a knot. That he will be pre-

occupied with the evil he has done. There is nothing

like that.

The second is:

Next day Mitchell Sims calls back Jon Perkins and

conversation picks up again about cigarettes. First

thing on Mitchell Sims’ mind is cigarettes. He has

killed 3 people, tried to kill 2 more, and the first

thing on his mind is cigarettes; the second one is

Ruby.

And he says, “Well, I knew I was doing it,” and then

kicks in as an afterthought, “Maybe I shouldn’t have

done it.” That’s the only thing, the closest thing we

have to even remotely showing any remorse for what

he did. And that was dropped immediately because

he said, “Oh, well, I was drunk.”

[colloquy]

Now, at no time did I hear any remorse. Hear a tear.

I mean, we have all felt guilty about things in life.

It’s a human reaction, but granted, we haven’t killed

people. We are not mass murderers. But there was

no feeling of guilt. There is absolutely no feeling of

guilt.

Listen to this tape. Listen to the tone of his voice on

[that] tape, and ask yourself where is the guilt?

13526 SIMS v. BROWN

Where is the remorse? Where is the repentance?

Where is asking for forgiveness there? You won’t

find it.

And the third is:

His world, we learned a little bit about when we

heard first from Mrs. Sims and then from Detective

Yarborough about his fascination with the movie

“The Executioner’s Song.” About Gary Gilmore

who was himself a multi-murderer, about how Sims

wanted to go out in a blaze of glory. That is his

world. Fascination with multiple murderers. That’s

his world. A life in prison, that’s what his world will

be like. That’s what he will be like. The life in

prison, is he going to spend it brooding and contem-

plating about the evil he has done? You really think

he will? You think he is going to have that knot in

his stomach? You think he will think about the lives

he has taken? The years he has stolen? Has he yet?

Has he yet come out and said to anyone that tearfully

that he is sorry for what happened, that he thinks

about it every day, that he can’t sleep at night? That

he can’t eat? That he feels guilty and he can’t take

it any longer? Will he spend the rest of his life in

remorse or will it be like you hear on the tape: ciga-

rettes, Ruby, me first, satisfy my needs today.

[13] Each of these comments is tethered to evidence that

was part of the record in the penalty phase, as the district

court found. For this reason, Sims’s contention—that the

prosecution may not argue that the defendant has failed to

show remorse by using his silence at trial as the evidence of

remorselessness—while true in the abstract, is misplaced. We

held in Beardslee v. Woodford that “[a] prosecutor’s comment

is impermissible if it is ‘manifestly intended to call attention

to the defendant’s failure to testify or is of such a character

that the jury would naturally and necessarily take it to be a

SIMS v. BROWN 13527

comment on the failure to testify.’ ” 358 F.3d 560, 586 (9th

Cir. 2004) (quoting United States v. Tarazon, 989 F.2d 1045,

1052 (9th Cir. 1993)). However, the situation and the prosecu-

tor’s statements in Beardslee were both quite different from

the situation and the prosecutor’s statements here. Beardslee

had testified at a preliminary hearing and at the guilt phase.

In that light, the prosecutor’s comments implied that the

defendant’s failure to testify at the penalty phase had signifi-

cance when he stated: “Since you only heard the defendant

through the tape recorder and his previous testimony, you

were not able to observe his demeanor and sincerity at the

time he testified so you, too, could judge if there was any feel-

ing in the man . . . . Wouldn’t you expect a man on trial for

his life would, through his statements, cry out for forgiveness,

cry out for pity? He did not. Never heard any in the state-

ments.” Id. Nothing similar occurred at the Sims trial or could

have been inferred from the prosecutor’s remarks, which

rested entirely upon statements that Sims himself had made.

The prosecutor made no allusion to the difficulty of gauging

an absent defendant’s credibility. This being so, counsel’s

failure to object to the prosecutor’s statements did not fall

below an objective standard of reasonableness.

VIII

As with the individual claims, we conclude that the cumu-

lative effect of any constitutional errors did not prejudice

Sims.

AFFIRMED.

13528 SIMS v. BROWN

B. FLETCHER, Circuit Judge, concurring in part and dissent-

ing in part.

I concur in the majority’s disposition of Sims’s guilt-phase

claims, but I must respectfully dissent from the denial of

habeas relief with respect to Sims’s death sentence, and in

particular from Parts III-B, VI, and IX of the majority opin-

ion.

I view this case through a different lens than does the

majority. I conclude that constitutional error infected Sims’s

trial in two respects that I will elaborate. I then turn to Brecht

v. Abrahamson, 507 U.S. 619 (1993), to determine whether

the constitutional errors had “substantial and injurious effect

or influence in determining the jury’s verdict.” Id. at 623

(citation and internal quotation marks omitted). I add the gloss

of O’Neal v. McAninch, 513 U.S. 432 (1995), which instructs

that if there is “grave doubt” as to the effect of the constitu-

tional errors, the petitioner is entitled to relief. Id. at 436.

In this death penalty case, I take this “grave doubt” stan-

dard very seriously and have viewed this case in that light. I

conclude that the determination of guilt must stand despite

constitutional error. In my view, it did not have a substantial

and injurious effect or influence in determining the jury’s ver-

dict. There was too much compelling evidence of guilt. How-

ever, the constitutional error carried over into the penalty

phase, and together with additional error introduced into the

penalty phase, engenders “grave doubt” as to what effect or

influence the constitutional errors had on the jury’s verdict.

The penalty phase was marred by two constitutional errors:

the prosecutor’s use of Sims’s inculpatory statements

obtained in violation of Miranda, and the prosecutor’s insis-

tence that the compelling evidence of Sims’s childhood abuse

could not be considered by the jury in mitigation. Because

there is “grave doubt” as to the effect of these errors, the dis-

SIMS v. BROWN 13529

trict court’s denial of the writ with respect to Sims’ death sen-

tence should be reversed.

I. Miranda Error

The majority ignores the fact that the California Supreme

Court held that the admission of crucial portions of Officer

Perkins’s interrogation of Sims violated Miranda v. Arizona,

384 U.S. 436 (1966). People v. Sims, 853 P.2d 992, 1015

(Cal. 1993).1 I agree with the California Supreme Court that

the admission of Sims’s inculpatory statements was error. I

conclude further that the manner in which the statements were

used by the prosecution had a substantial and injurious effect

on the jury’s penalty phase deliberations.2

1

It held:

We conclude defendant’s statement that he ‘had to kill that

boy,’ his repetition of that statement, and his third statement that

the victim would have identified him, were elicited in contraven-

tion of Miranda. All three statements should have been excluded

from evidence. The trial court’s denial of defendant’s motion to

suppress these statements therefore constituted error.

The three statements constituted a confession, i.e., a declara-

tion of defendant’s intentional participation in the murder. (See

People v. McClary, [ ] 571 P.2d 620 (1977).

853 P.2d at 1015.

2

Because “the availability of the Fifth Amendment privilege does not

turn upon the type of proceeding in which its protection is invoked, but

upon the nature of the statement or admission and the exposure which it

invites,” the Supreme Court has found “no basis to distinguish between the

guilt and penalty phases of [a] capital murder trial so far as the protection

of the Fifth Amendment privilege is concerned.” Estelle v. Smith, 451 U.S.

454, 462-63 (1981) (citation, internal quotation marks, source’s alteration

marks, and footnote omitted). Therefore, Miranda’s exclusionary rule

regarding improperly obtained unfavorable statements applies with equal

force to both the penalty and guilt phases. Id. (“Just as the Fifth Amend-

ment prevents a criminal defendant from being made ‘the deluded instru-

ment of his own conviction,’ [ ], it protects him as well from being made

the ‘deluded instrument’ of his own execution.” (internal quotation marks

and citations omitted)); cf. Jones v. Cardwell, 686 F.2d 754, 756 (9th Cir.

1982) (holding that the Fifth Amendment protects defendant against self-

incrimination in non-capital case for purposes of increasing sentence

based on judicial fact-finding).

13530 SIMS v. BROWN

Once having invoked his right to silence and to have an

attorney present during questioning, a suspect “is not subject

to further interrogation by the authorities until counsel has

been made available, unless the accused himself initiates fur-

ther communication.” Edwards v. Arizona, 451 U.S. 477, 484-

85 (1981). A suspect initiates further communication of his

own accord only when he “evince[s] a willingness and a

desire for a generalized discussion about the investigation.”

Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). If

police then begin anew with interrogation of the suspect, the

prosecution must demonstrate under the totality of the circum-

stances that the suspect has knowingly and intelligently

waived his previously invoked rights. Edwards, 451 U.S. at

486 n.9. “Interrogation” in this context may be express ques-

tioning or “any words or actions on the part of the police

(other than those normally attendant to arrest and custody)

that the police should know are reasonably likely to elicit an

incriminating response.” Rhode Island v. Innis, 446 U.S. 291,

301 (1980).

On December 25, Sims unequivocally invoked his rights to

silence and to have an attorney present during questioning.

Once this occurred, Perkins prepared to leave the interroga-

tion room. Perkins’s own testimony then establishes 1) that

Sims asked questions narrowly directed at issues relating to

extradition, 2) that Perkins responded with a rambling expla-

nation of his role in the investigation and details from the

crime scene, and 3) that only after Perkins had related this

extensive crime-scene information did Sims state “I had to

kill that boy.”

The California Supreme Court’s determination that Per-

kins’s response was “nonresponsive to [Sims’s] inquiry and

served no legitimate purpose incident to [Sims’s] arrest or

custody” was entirely correct. Sims’s statement cannot be

read to “evince[ ] a willingness and a desire for a generalized

discussion about the investigation.” Bradshaw, 462 U.S. at

SIMS v. BROWN 13531

1045-46. Rather, Sims was asking simple questions about

extradition.3 Perkins’s responses, in contrast, went directly to

the substance of the investigation; at one point Perkins even

stated that he had “reason to believe that [Sims] and a female

companion occupied that room prior to the demise of Mr.

Harrigan.” This statement was reasonably likely to elicit a

response from Sims related to whether or not he had occupied

the room, and whether or not he killed Harrigan. Thus, Per-

kins’s non-responsive narrative was tantamount to further

interrogation and in violation of Miranda and its progeny.

Following this straightforward confession, Perkins contin-

ued to ply Sims with details of the murder, even remarking

that Harrigan did not need to die in that manner. Both the

Supreme Court of California and the district court concluded

that Perkins’s statements were likely to elicit an incriminating

response, and Sims’s response that “he would have identified

me” should have been suppressed. This conclusion is correct

for the reasons stated in those opinions.

The following day, Sims requested to see the Glendale offi-

cers once more. When he mentioned that people thought he

was crazy and might kill himself, Perkins asked him if he

would, and stated that he didn’t “seem like that kind of guy.”

Sims remarked that he was not suicidal, and that he was “not

a murderer either.” Perkins’s statements until that point can-

not be characterized as interrogation, as they were not “rea-

sonably likely to elicit an incriminating response.” I have no

quarrel with the admission of this statement.

3

The district court’s determination that Sims inquired about “why Per-

kins was there, and his authority for being there” is unsupported by the

record. Indeed, the pages cited by the district court demonstrate that Per-

kins understood Sims’s questions to be related to “purely extradition.”

Despite this understanding, Perkins continued to speak of subjects far

afield from extradition. The district court’s factual finding in this regard

is clearly erroneous.

13532 SIMS v. BROWN

However, when Perkins then asked Sims “What does that

mean?” Perkins was posing a question that was likely to elicit

an incriminating response. This is exactly what happened, as

Sims confessed, “That means that I just got drunk, and I

didn’t know what the fuck I was, I knew I was doing it, but

I shouldn’t [have] done it.” The district court concluded that

this statement should have been suppressed. I agree.

In all, I conclude that three of the four incriminating state-

ments were admitted into evidence by the trial court in viola-

tion of Miranda and its progeny.

II. The Miranda Error’s Injurious Effect

The majority concludes that whatever Fifth Amendment

error occurred was harmless with respect to both phases of

Sims’s trial. Though I cannot say that the admission of Sims’s

confessions to Officer Perkins had a “substantial and injurious

effect or influence in determining the jury’s verdict,” Brecht,

507 U.S. at 623 (citation and internal quotation marks omit-

ted), at the guilt phase of Sims’s trial, it did have such an

effect on the penalty phase deliberations.

Throughout both phases of the trial, the jury heard numer-

ous and extensive references to the December 25 and 26

incriminating statements, both during the presentation of the

evidence and the prosecution’s argument. During the guilt

phase, Officer Montecuollo testified that Sims had confessed

that “I had to kill that boy” during the December 25 interview.

The jury heard the same statement twice more during Mon-

tecuollo’s cross examination, and twice more on re-direct.

Officer Perkins corroborated that testimony, stating that when

he described the investigation and the crime scene, Sims twice

said, “I had to kill that boy,” then that “he was going to iden-

tify me.” The statement “I had to kill that boy” was then

repeated once more during direct testimony, four more times

on cross examination, and two more times on re-direct.4 Offi-

4

Sims’s explanation that “he was going to identify me” was heard by the

jury twice more during cross examination and once more during re-direct.

SIMS v. BROWN 13533

cer Perkins went on to testify as to the December 26 inter-

view, recounting Sims’s admission that, “That means that I

just got drunk. I didn’t know what the fuck I was — I knew

what I was doing but shouldn’t have done it.” This same state-

ment was heard again by the jury when the prosecution played

the cassette tape of the December 26 conversation between

Perkins and Sims. A copy of the transcript of that taped con-

versation was admitted into evidence over defense counsel’s

objection, read in part to the jury during the prosecution’s

closing, and allowed into the jury room during deliberations.

The use of these incriminating admissions was central to

the prosecutor’s closing argument in the guilt phase. After

using the statement “I had to kill that boy” four more times

during the closing to show intent to kill, the prosecutor used

the phrase as a refrain in his rebuttal. In bolstering Officer

Montecuollo’s credibility, the prosecutor stressed three times

how important the statement was. The prosecutor explained

that Montecuollo’s failure to remember Sims’s explanation

that Harrigan could have identified him was not significant

because “[Montecuollo and Perkins] both remember the key

important part: I had to kill that boy. That’s the important part

of that conversation” (emphasis added). The prosecutor then

continued:

It is only natural that things — that people’s mem-

ories begin to fade, accept [sic] for the really impor-

tant things, and the important thing was: I had to kill

that boy.

But here is a man that is coming into court and

telling you the honest truth. That’s what he recalls.

And it is important because of what he recalls. He

recalls the important part of that conversation, which

is: I had to kill that boy.

(emphasis added). The prosecutor then spent a comparable

amount of time expounding on the importance of Sims’s other

13534 SIMS v. BROWN

admission: “I knew I was doing it, but I shouldn’t [have] done

it.” Repeating the statement several times, the prosecutor

argued that it conclusively confirmed Sims’s intent to kill.

During the penalty phase, the prosecution again played the

tape of Sims’s admission that “I just got drunk, and I didn’t

know what the fuck I was, I knew I was doing it, but I

shouldn’t [have] done it.” Then, in his penalty phase closing

argument, the prosecutor reiterated once again for the jury

Sims’s two most damning statements: “I had to kill that boy”

and “I knew I was doing it but I shouldn’t [have] done it.”

Specifically, the prosecutor used “I had to kill that boy” in

conjunction with a hypothesis about how the murder might

have taken place:

We can assume that John Harrigan would want to

live. Raises his head out of the water and it would

take Mitchell Sims to push his head back under the

water. What did Mitchell Sims say? “I had to kill

that boy.” And that’s how he killed John Harrigan.

In sum, the improperly admitted statements were repeated

throughout the proceedings, becoming a refrain for the prose-

cution.

The prosecution’s use of these statements prejudiced

Sims’s capital sentencing proceeding in two ways. First, the

use of Sims’s statements reflecting his intent to kill Harrigan

completely foreclosed any residual doubt argument Sims

might have mounted with respect to his intent to kill. We have

recently reiterated that reliance on residual doubt is an accept-

able penalty phase strategy. See Williams v. Woodford, 384

F.3d 567, 617-17 (9th Cir. 2004). Here, the evidence of intent

was strong enough that, after considerable review and study

of the record, I cannot say Sims’s statements to Perkins had

a “substantial and injurious effect or influence” on the jury’s

determination of Sims’s intent beyond a reasonable doubt,

and therefore I agree with the majority that Sims was not prej-

SIMS v. BROWN 13535

udiced at the guilt-phase. However, there were lingering ques-

tions about Sims’s intent to kill that, absent the introduction

of Sims’s admission “I had to kill that boy,” could have pre-

vented the jury at the penalty phase from finding Sims’s intent

beyond all possible doubt (the standard for lingering doubt).

During the guilt phase, defense counsel argued that evidence

such as the cut phone cord, Sims’s deliberate misstatement to

Sicam and Spiroff that he and Padgett were headed to San

Francisco, the slackness of the ligature around Harrigan’s

neck, and the fact that the bathtub drain was unplugged, raised

a doubt as to Sims’s intent to kill. Sims’s admissions blunted

any potential impact this evidence may have had in support of

a residual doubt theory. Unsurprisingly, the defense’s argu-

ment that Sims lacked intent was entirely abandoned during

the penalty phase, and defense counsel did not press a residual

doubt argument with any specificity or vigor. Meanwhile the

prosecutor was able to argue very effectively during the pen-

alty phase that the case had been proved beyond all possible

doubt. Had Sims’s crucial statements to Officer Perkins — “I

had to kill that boy” and “I knew I was doing it” — been

excluded (as they should have been), the prosecutor’s argu-

ment on this score would have been open to challenge and the

residual doubt question would have been very much in play,

as several of Sims actions appear inconsistent with an intent

to kill. The effect of admitting the statements, then, was to

eliminate an entire legitimate and effective argument in favor

of sparing Sims’s life.

Second, the prosecutor used Sims’s statements as the foun-

dation of his extensive argument that Sims lacked remorse.

The prosecutor argued:

. . . [N]o remorse. Now, many things go into a

case in judging what the appropriate punishment

should be and we have a statement to Mr. Perkins on

the 25th . . . [and] on the 26th . . . .

And I was waiting for those pieces of evidence to

hear that Mitchell Sims was sorry. I was waiting to

13536 SIMS v. BROWN

hear that Mitchell Sims felt bad about the years he

had stolen. I was waiting for Mitchell Sims to

express remorse, to apologize to somebody for what

he had done and what he had taken.

What I heard was a preoccupation with getting

cigarettes, seeing his girlfriend Ruby Padgett. I did

not hear any of that remorse. Anything that would

tell me that Mitchell Sims will be living the rest of

his life with his stomach in a knot. That he will be

preoccupied with the evil he has done. There is noth-

ing like that.

What did we hear on the 25th? Mitchell Sims

looking out for number one. “What is going to hap-

pen to me in terms of extradition. I want to see

Ruby. I want to go the same place Ruby goes.” . . .

. . . And then he said, “I had to kill that boy.” And

Mr. Perkins indicated, went through the facts of the

Glendale case. “Well, you know this kid was tied up

and bound and gagged.” Jon Perkins says, “Mitch

he didn’t have to die.” At that point, Mitchell Sims

says, “Well, I didn’t want him to identify me.”

Next day Mitchell Sims calls back Jon Perkins and

conversation picks up again about cigarettes. He has

killed 3 people, tried to kill 2 more, and the first

thing on his mind is cigarettes; the second one is

Ruby.

And he says, “Well, I knew I was doing it,” and

then kicks in as an afterthought, “maybe I shouldn’t

have done it.” That’s the only thing, the closest thing

we have to even remotely showing remorse for what

he did.

(emphasis added).

SIMS v. BROWN 13537

Sims’s lack of remorse was thus the subject of extended

discussion by the prosecutor, and Sims’s December 25 and 26

statements to Officer Perkins were at the heart of the prosecu-

tor’s portrayal of Sims as selfish, unfeeling, and utterly with-

out conscience. The record reflects that the prosecutor

repeatedly used the conversations between Sims and Officer

Perkins to portray Sims as remorseless. The prosecutor began

by drawing the jury’s attention to the most damning of Sims’s

statements taken in violation of Miranda: “I had to kill that

boy” and “Well, I knew I was doing it . . . maybe I shouldn’t

have done it.” The prosecutor told the jury that, as he listened

to the Perkins interviews, he “was waiting for those pieces of

evidence to hear that Mitchell Sims was sorry”; he “was wait-

ing to hear that Mitchell Sims felt bad about the years he had

stolen”; he “was waiting for Mitchell Sims to express

remorse, to apologize to somebody for what he had done and

what he had taken.” What the prosecutor heard instead “was

a preoccupation with getting cigarettes, seeing his girlfriend

Ruby Padgett”; the prosecutor “did not hear any of that

remorse.” The question “where is the remorse?” appears three

times in the prosecutor’s argument, along with two other simi-

lar formulations: “Where is the knot in his stomach?” and

“Where is asking for forgiveness there?” With these ques-

tions, the prosecutor drew out the contrast between the type

of remorse he would have expected to hear from a person who

“ha[s] a conscience,” and the Sims’s passionless confessions

— particularly, “Well, I knew I was doing it . . . maybe I

shouldn’t have done it,” a statement the prosecutor character-

ized as “the only thing, the closest thing we have to even

remotely showing remorse for what he did.” The prosecutor’s

extensive remarks on the subject of remorse, a point of

emphasis in his argument that Sims should be put to death,

thus arose directly from the prosecutor’s discussion of Sims’s

constitutionally inadmissible statements to Officer Perkins.

Sims’s confessions were the force behind the no-remorse

argument.

“As the Supreme Court has observed: ‘A confession is like

no other evidence. Indeed, the defendant’s own confession is

13538 SIMS v. BROWN

probably the most probative and damaging evidence that can

be admitted against him.’ ” Hayes v. Brown, 399 F.3d 972,

986 (9th Cir. 2005) (en banc) (quoting Arizona v. Fulminante,

499 U.S. 279, 296 (1991)) (further citation and internal quota-

tion marks omitted). So it was here. By presenting and

emphasizing to the jury Sims’s own admission of intent, the

prosecution foreclosed any residual doubt argument Sims

might have made, and Sims’s December 25 and 26 statements

became the centerpiece of the argument — featured promi-

nently throughout the prosecutor’s closing — that Sims

lacked remorse for his crime.

In spite of the ghastly nature of the crime, a death sentence

was not a foregone conclusion in this case. Sims’s decade of

tragic abuse at the hands of his stepfather was, even in the

prosecutor’s characterization, “shocking.”5 Additionally, had

the prosecutor not been able to invoke Sims’s statements

taken in violation of Miranda, the jury might have retained

lingering doubt as to Sims’s intent and would not have been

presented with the prosecutor’s extensive argument that Sims

lacked any remorse for his crime. In light of the evidence

Sims presented in mitigation and the twin advantages the

prosecution gained by its use of Sims’s December 25 and 26

statements, I must conclude that, with respect to the penalty

phase, the Miranda violations had a “substantial and injurious

effect or influence in determining the jury’s verdict.” Brecht,

507 U.S. at 623 (citation and internal quotation marks omit-

ted). I would find Sims entitled to relief from his sentence of

death on this error alone.

III. Mitigating Evidence: The Prosecutor Misleads

the Jury

I also strongly disagree with the majority’s rejection (in

5

The details are so gruesome that I do not belabor them here. If the

reader needs to refresh his or her memory, turn to the majority opinion,

at 13485-86.

SIMS v. BROWN 13539

Part VI of the opinion) of Sims’s Eighth Amendment claim

that the prosecutor repeatedly misstated the law as to the

jury’s use of mitigating evidence. The prosecutor misstated

the law to the jury in two respects: first, by telling the jury

that evidence of a childhood characterized by abuse is simply

not a mitigating factor at all because it would apply to practi-

cally all criminals; and second, by advising the jury that evi-

dence of Sims’s background does not qualify as mitigating

evidence because there is no connection or “bridge” between

that background and Sims’s crime. The prosecutor’s use of

these misstatements was pervasive during his closing. As I

shall explain, I cannot agree with the majority’s conclusion

that these misstatements were merely arguments that the jury

should not attach weight to Sims’s mitigating evidence: the

prosecutor’s misstatements of the law created the overwhelm-

ing impression that the jury could not consider evidence of

Sims’s dreadful childhood, which was the heart of the evi-

dence he offered to convince the jury to spare his life.6 As a

6

The record offers scant support for the majority’s conclusion that the

confusion sown by the prosecutor’s improper arguments was in any way

dispelled by the court’s instructions or the arguments of defense counsel.

The court’s instructions on mitigating evidence were of the most general

nature, were far removed in time from the prosecutor’s misstatements of

the law, and were not addressed to counteract these misstatements. When

the prosecutor presented his erroneous theories, no curative instruction

was given. Even worse, when defense counsel objected, the court over-

ruled him, thereby implicitly placing the court’s own imprimatur on the

prosecutor’s improper argument.

Nor could the jury’s confusion have been ameliorated by the arguments

of defense counsel, who at first suggested that no bridge was required and

later argued as if it were. Moreover, it is doubtful whether the arguments

of defense counsel alone could ever suffice to cure misleading arguments

by the prosecutor, as the jury is likely to view a debate between defense

and prosecution as merely inviting resolution of the issue by the jury. Such

a result does not cure the constitutional violation. See Payton v. Woodford,

299 F.3d 815, 825-26 (9th Cir. 2002) (en banc) (“In effect, the court’s

instruction delegated to the jury the legal question whether factor (k)

allowed consideration of Payton’s mitigating evidence. Nothing prevented

the jury from refusing to consider Payton’s mitigating evidence and

thereby reaching an unconstitutional result.”), vac’d on other grounds, 538

U.S. 975 (2003), on remand at Payton v. Woodford, 346 F.3d 1204 (9th

Cir. 2003) (en banc), rev’d sub nom. Brown v. Payton, 125 S. Ct. 1432

(2005).

13540 SIMS v. BROWN

result, the capital sentencing proceeding did not comport with

the standards of Lockett v. Ohio, 438 U.S. 586 (1978), and its

progeny, which require that the capital sentencer consider all

relevant mitigating evidence.

In his penalty phase closing, the prosecutor argued:

Now, let’s talk about Mitchell Sims because there

was evidence put on about his background. Evidence

— certainly is shocking about the evidence. . . . It

certainly paints a very ugly picture. . . . The question

is: what does it mean?

We have had a psychiatrist come in and testify to

tell us what it meant. . . . I have a notation: no

bridge. There is nothing to bridge the background of

what happened in that family to the murders that we

have dealt with here. Nothing to connect it.

And I kept waiting for something to connect it up.

Connect it up. What does it mean that person has had

an abused childhood? What does it mean in terms of

this case right here? There is nothing to connect it up

because when Dr. Vicary testified, he said that if you

go up to state prison and you talk to violent crimi-

nals, murderers, and rapists, and whatever, you find

a violent childhood. If you go up to prison and find

and talk to murderers and rapists and robbers, you

are not going to find a lot of Harvard M.B.A.’s. You

are going to find people who in turn were abused as

children. What does that mean in terms of mitiga-

tion? If, in fact, it were a mitigating factor that a

person had a bad childhood, that would apply to ver-

tually [sic] every violent felon currently incarcer-

ated.

If that were, therefore, a mitigating factor, then

you would be emptying prisons because it would

SIMS v. BROWN 13541

apply to vertually [sic] everybody. . . . Were it a mit-

igating favor that a person had a bad childhood,

then you would have no death penalty statute at all.

(emphasis added). After defense counsel objected to this line

of argument and was overruled, the prosecutor continued:

So, the question is: what does it mean? Let’s put

it in context. Because we are dealing with a common

background to a criminal population. . . .

Now, I kept waiting for a bridge. Something to

connect this to the offenses here. Some kind of rea-

son why it should be a mitigating factor. . . .

...

So, again, we are searching for a bridge, we are

searching for some kind of bridge. I suppose if the

offense was against his stepfather, certainly it would

be relevant, then, wouldn’t it? No question about

that.

If the offenses here were sexual in nature, for

example, rape murders, child molestation murders,

then there would be a nexus, you would have that

connection there, wouldn’t you? But there aren’t. I

mean, there is no bridge. There is no bridge that

bridges this bad background to anything we have in

the case before us. We have murders of people who

were strangers. People who were friends. People

who were delivering pizzas. There is no connection.

Also, we have a gap in time. What happened to Mr.

Sims, as bad as it was, was ten years before the

crimes in question. A lot of water under the bridge

in ten years. The more you analyze it, and I know it

sounded terrible when we heard it, we can’t help but

be affected by it, but it is the jury’s job to avoid —

13542 SIMS v. BROWN

dispassionately analyze it. What does it mean in

terms of assigning a mitigating factor to it? What

does it mean in terms of punishment? It doesn’t

mean a thing. There is no mitigating factor there.

(emphasis added).

The Supreme Court has repeatedly held that, in a capital

sentencing proceeding, “a sentencer may not be precluded

from considering, and may not refuse to consider, any rele-

vant mitigating evidence offered by the defendant as the basis

for a sentence less than death.” Penry v. Lynaugh, 492 U.S.

302, 318 (1989), overruled on other grounds, Atkins v. Vir-

ginia, 536 U.S. 304 (2002); see also Skipper v. South Caro-

lina, 476 U.S. 1 (1986); Eddings v. Oklahoma, 455 U.S. 104

(1982); Lockett v. Ohio, 438 U.S. 586 (1978). The sentencer

must be able not only to consider but also to “give effect to

all relevant mitigating evidence offered” by a capital defen-

dant. Boyde v. California, 494 U.S. 370, 377-78 (1990)

(emphasis added). The Supreme Court has refused to tolerate

“[a]ny barrier” to the proper use of mitigating evidence:

“Whatever the cause, the conclusion would necessarily be the

same: Because the sentencer’s failure to consider all of the

mitigating evidence risks erroneous imposition of the death

sentence, in plain violation of Lockett, it is our duty to remand

. . . for resentencing.” McKoy v. North Carolina, 494 U.S.

433, 442 (1990) (citations, internal quotation marks, and

source’s alteration marks omitted).

Regarding the definition of relevant mitigating evidence,

the Supreme Court has recently reaffirmed the breadth of the

range of evidence that the capital sentencer must be instructed

to consider:

“Relevant mitigating evidence is evidence which

tends logically to prove or disprove some fact or cir-

cumstance which a fact-finder could reasonably

deem to have mitigating value.” Thus, a State cannot

SIMS v. BROWN 13543

bar “the consideration of evidence if the sentencer

could reasonably find that it warrants a sentence less

than death.”

Tennard v. Dretke, 124 S. Ct. 2562, 2570 (2004) (quoting

McKoy, 494 U.S. at 440, 441) (further citations, internal quo-

tation marks, and source’s alteration marks omitted). Apply-

ing this “low threshold for relevance,” id., the Supreme Court

specifically rejected the view, espoused by the Fifth Circuit,

that mitigating evidence is only relevant if it demonstrates

that the defendant had “a uniquely severe permanent handi-

cap” and that such condition bore a “nexus” to the crime. Id.

at 2569-70, 2573. The Supreme Court has subsequently char-

acterized the “nexus” requirement as “a test we never counte-

nanced and now have unequivocally rejected.” Smith v. Texas,

125 S. Ct. 400, 405 (2004).

Here, the prosecutor gave the jury two reasons to believe

Sims’s background did not constitute legally cognizable miti-

gating evidence. First, according to the prosecutor, having a

bad background is too common among criminal defendants to

act as a mitigating factor: “If that were, therefore, a mitigating

factor, then you would be emptying prisons because it would

apply to vertually [sic] everybody. . . . Were it a mitigating

factor that a person had a bad childhood, then you would have

no death penalty statute at all.” Second, in the prosecutor’s

view Sims’s mitigating evidence was disqualified as a factor

to be considered and weighed by the jury because of the

absence of a connection between Sims’s background and his

crime: “There is no bridge that bridges this bad background

to anything we have in the case before us. . . . What happened

to Mr. Sims, as bad as it was, was ten years before the crimes

in question. . . . What does it mean in terms of assigning a

mitigating factor to it? What does it mean in terms of punish-

ment? It doesn’t mean a thing. There is no mitigating factor

there” (emphasis added). Under the Supreme Court’s Eighth

Amendment jurisprudence, the prosecutor’s argument was

wrong on both counts.

13544 SIMS v. BROWN

When the Supreme Court “addressed directly the relevance

standard applicable to mitigating evidence in capital cases,” it

“spoke in the most expansive terms.” Tennard, 124 S. Ct. at

2570 (describing McKoy). Discounting an aspect of a defen-

dant’s background because he shares it in common with other

defendants is the antithesis of the individualized consideration

the Supreme Court has found indispensable to a capital sen-

tencing process that comports with the Eighth Amendment.

See, e.g., Eddings, 455 U.S. at 112. Thus, the Supreme Court

has rejected the proposition that mitigating evidence can be

restricted to facts about the defendant that are “uniquely

severe.” Tennard, 124 S. Ct. at 2569-70. The prosecutor’s

“bridge” theory is equally faulty: the requirement that mitigat-

ing evidence bear some connection to the defendant’s crime

is one that the Supreme Court “never countenanced and now

[has] unequivocally rejected.” Smith, 125 S. Ct. at 405 (citing

Tennard). Thus, it is clear that the prosecutor misstated the

law of mitigating evidence in both of the respects Sims

alleges.

The prosecutor’s misstatements of law entitle Sims to

reversal of his death sentence if “there is a reasonable likeli-

hood that the jury has applied the challenged instruction in a

way that prevents the consideration of constitutionally rele-

vant evidence.” Boyde, 494 U.S. at 380. Though “arguments

of counsel generally carry less weight with a jury than do

instructions from the court,” the Supreme Court has acknowl-

edged that prosecutorial misstatements of law may “have a

decisive effect on the jury.” Id. at 384. “[T]he arguments of

counsel, like the instructions of the court, must be judged in

the context in which they are made.” Id. at 385.

Viewed in context, the prosecutor’s statements during

Sims’s penalty phase more than likely misled the jury and

clearly were intended by the prosecutor to persuade the jury

that they could not consider Sims’s dreadful childhood. The

prosecutor did not merely argue (as the majority would have

it) that Sims’s mitigating evidence lacked persuasive power;

SIMS v. BROWN 13545

rather, the prosecutor repeatedly argued both implicitly and

explicitly that Sims’s background was not legally cognizable

mitigating evidence at all. By hypothesizing what would hap-

pen “[i]f, in fact, it were a mitigating factor that a person had

a bad childhood” (emphasis added), the prosecutor clearly

implied that a bad childhood is, in fact, not a mitigating fac-

tor. I agree with the California Supreme Court’s conclusion in

Sims’s direct appeal that “the prosecutor’s comment that the

troubled background of a defendant does not constitute a miti-

gating factor might have tended to suggest erroneously that

the jury could not consider such evidence in mitigation.”

Sims, 853 P.2d at 1029. If anything, this is an understatement.

The prosecutor was even more explicit in his assertion that the

absence of a connection between Sims’s background and his

crime disqualified his background as mitigating evidence:

“There is no bridge that bridges this bad background to any-

thing we have in the case before us. . . . It doesn’t mean a

thing. There is no mitigating factor there” (emphasis added).7

The prosecutor’s clear message — that Sims’s background

was not mitigating evidence for two reasons — was not con-

fined to an isolated or offhand remark. On the contrary, the

prosecutor made extensive use of both of his theories as to

why Sims’s background categorically did not qualify as miti-

gating evidence. Three times the prosecutor invoked the prev-

alence of troubled backgrounds among the criminal

7

The prosecutor’s closing was replete with implicit as well as explicit

assertions that a connection between Sims’s background and his crime was

a prerequisite to the jury’s consideration of that background as mitigating

evidence. For example:

So, again, we are searching for a bridge, we are searching for

some kind of bridge. I suppose if the offense was against his step-

father, certainly it would be relevant, then, wouldn’t it? No ques-

tion about that.

(emphasis added). Again, by posing a hypothetical in which Sims’s back-

ground “would be relevant,” the prosecutor clearly implied that it was not

relevant in Sims’s case.

13546 SIMS v. BROWN

population to suggest that a bad background is not mitigating

evidence. The prosecutor’s invocation of the “bridge” theory

was even more ubiquitous: in total, the prosecutor used the

word “bridge” or some form of the word “connection” in ref-

erence to Sims’s background no fewer than seventeen times

during the penalty phase closing. Perhaps most damaging, on

three occasions the prosecutor told the jury flat out that

Sims’s background was “not a mitigating factor,” that “[t]here

is no reason for mitigating factors,” that “[t]here is no mitigat-

ing factor there.” Although determining the effect of the pros-

ecutor’s closing on the jury is not a mere matter of counting

words or phrases, in this case the numbers are a reasonable

barometer of the extent to which the prosecutor’s misstate-

ments of the law were a point of emphasis with the jury.

Squarely on point is our en banc decision in Payton v.

Woodford, 299 F.3d 815 (9th Cir. 2002) (en banc) (“Payton

I”), vac’d on other grounds, 538 U.S. 975 (2003), on remand

at Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2003) (en

banc) (“Payton II”), rev’d sub nom. Brown v. Payton, 125

S. Ct. 1432 (2005) (“Payton III”).8 In Payton I, we affirmed

the grant of a habeas petition as to a death sentence because

an ambiguous instruction (a forerunner of the factor (k)

instruction given at Sims’s trial), combined with prosecutorial

misstatements of the law, had prevented the jury from consid-

ering mitigating evidence of the defendant’s post-crime reli-

gious conversion. 299 F.3d at 820-23, 830. While Sims does

not argue (as Payton did) that the factor (k) instruction itself

was inherently ambiguous, “[t]he prosecutor’s arguments can-

8

Payton I granted relief under pre-AEDPA law, see 299 F.3d at 822,

830, and the Supreme Court summarily vacated and remanded for recon-

sideration of whether AEDPA applied to Payton’s petition. See 538 U.S.

975 (citing Woodford v. Garceau, 538 U.S. 202 (2003)). In so doing, the

Court suggested only that we had applied the wrong standard of review,

not that our application of that standard was faulty. Payton I remains good

law with respect to the determination of a claim — such as Sims’s — of

Eighth Amendment instructional error evaluated under pre-AEDPA stan-

dards.

SIMS v. BROWN 13547

not be isolated from the instruction itself or from the failure

of the trial judge properly to instruct the jury or to correct the

prosecutor’s error.” Id. at 823. The prosecutorial misrepresen-

tations of law that occurred in Sims’s case bear a striking

resemblance to those we refused to countenance when we

applied pre-AEDPA habeas standards in Payton I.

There as here, the prosecutor asserted several times (erro-

neously) that factor (k) did not permit jurors to consider in

mitigation precisely the type of evidence that the defendant

had offered. Id. at 821. There as here, the prosecutor told the

jury that they had “not heard any evidence of mitigation in

this trial.” Id. If anything, the misstatements of the law in

Sims’s case were more injurious than those in Payton’s

because Sims’s prosecutor offered the jury two erroneous

legal principles as alternative bases for disregarding Sims’s

mitigating evidence. And there as here, the prosecutor did not

merely “argue[ ] that in his view the evidence did not suffi-

ciently mitigate [the defendant’s] conduct,” Boyde, 494 U.S.

at 385 (citation and internal quotation marks omitted); rather,

“the prosecutor here told the jurors that the statutory list of

factors precluded them from considering the only mitigating

evidence [the defendant] presented.” Payton I, 299 F.3d at

825 (emphasis altered).9 The majority’s contrary conclusion is

belied by the record of what Sims’s prosecutor actually said,

which can be summed up in six of his own words: “[t]here is

no mitigating factor there.”

In sum, the prosecutor misstated the law repeatedly and

extensively. His erroneous “bridge” theory was a particular

point of emphasis. The prosecutor’s conclusion that “[t]here

is no mitigating factor there,” which he reiterated to the jury

9

I note that Sims’s family witnesses also testified to Sims’s generosity

and that his children worshiped him and urged that his life was worth sav-

ing; however, this testimony was brief and limited. Aside from these few

remarks, Sims’s case in mitigation consisted entirely of the compelling

evidence of his traumatic childhood.

13548 SIMS v. BROWN

on several occasions, explicitly instructed the jury to disre-

gard — not just to devalue — the mitigating evidence that

Sims offered. The trial court failed to give any sort of curative

instruction directed at the prosecutor’s misstatements of the

law; what instructions the court did give were entirely inade-

quate. Coupled with the court’s refusal to correct the prosecu-

tor when there was objection, this left the jury with the

uncorrected and inaccurate impression that Sims’s back-

ground did not qualify as mitigating evidence, because he had

not established a “bridge” between his background and his

crime, and because a troubled background is too common

among criminals to count as a mitigating factor. Conse-

quently, there is at least “a reasonable likelihood that the jury

has applied the challenged instruction in a way that prevents

the consideration of constitutionally relevant evidence.”

Boyde, 494 U.S. at 380.

IV. Injurious Effect of the Prosecutor’s Misstatements

I circle back to the issue with which I began: whether the

error meets the Brecht standard for harmfulness. The Supreme

Court has explained that the Boyde test “is not a substitute for

the Brecht harmless-error test. The Boyde analysis does not

inquire into the actual effect of the error on the jury’s verdict;

it merely asks whether constitutional error has occurred.” Cal-

deron v. Coleman, 525 U.S. 141, 146-47 (1998) (per curiam).

Here, there is at least “grave doubt” as to whether the con-

stitutional error wrought by the prosecutor’s repeated mis-

characterizations of the law of mitigation had a “substantial

and injurious effect or influence” on the verdict. O’Neal, 513

U.S. at 436 (internal quotation marks omitted). The crime was

unquestionably brutal. The evidence against Sims was strong.

Several aggravating factors were present, including Sims’s

commission of two other murders, and the horrific circum-

stances of this one. The callous nature of Sims’s conduct and

his leading role in the murder also weigh against him.

SIMS v. BROWN 13549

But Sims’s childhood abuse was quite shocking as well, as

even the prosecutor admitted. The prolonged and continuous

physical, emotional, and sexual abuse he endured at the hands

of his stepfather may well have been sufficient to generate

enough sympathy to move a jury to spare Sims’s life — had

the jury understood that it was its duty to consider it. Instead,

there is at least a “reasonable likelihood that,” as a result of

the prosecutor’s repeated distortions of the law as to the role

of mitigating evidence, “the jury has applied the challenged

instruction in a way that prevent[ed] the consideration of con-

stitutionally relevant evidence.” Boyde, 494 U.S. at 380.

Because Sims’s troubled background was central to his miti-

gation defense, the prosecutor’s insistent assertion that the

jury could not consider Sims’s background “left the jury

bereft of any countervailing evidence to weigh against the

prosecution’s evidence of aggravating circumstances.” Payton

I, 299 F.3d at 829. It is difficult to imagine that the jury’s cal-

culus would not have changed significantly had the powerful

evidence of Sims’s background been brought to bear.

The defendant “for whom life or death hangs in the balance

deserves the benefit of the doubt.” Mayfield v. Woodford, 270

F.3d 915, 933 (9th Cir. 2001) (en banc) (Gould, J., concur-

ring) (internal punctuation omitted). In Sims’s case, ulti-

mately “[w]e cannot know whether the jury would have

returned a verdict of life or of death had it been properly

instructed.” Payton I, 299 F.3d at 829. Given “grave doubt”

as to the harmlessness of the error, reversal is the prescribed

course. O’Neal, 513 U.S. at 436. I would hold that the prose-

cution’s misstatements of the law of mitigating evidence vio-

lated the Eighth Amendment and that Sims is entitled to relief

from his death sentence.

V. Cumulative Error

“Even if no single error were sufficiently prejudicial, where

there are several substantial errors, their cumulative effect

may nevertheless be so prejudicial as to require reversal.”

13550 SIMS v. BROWN

Alcala v. Woodford, 334 F.3d 862, 893 (9th Cir. 2003) (cita-

tions, internal quotation marks, and source’s brackets omit-

ted). Even were the Miranda and Eighth Amendment

violations insufficient on their own to warrant habeas relief

from the penalty-phase verdict, the combined effect of these

errors certainly prejudiced Sims and warrants setting aside the

death sentence.

In this case, the Miranda and Eighth Amendment violations

present a particularly compelling claim of cumulative error,

because the combined effect of these errors was more power-

ful than that of the errors taken individually. The prosecutor’s

emphasis on Sims’s statements “I had to kill that boy” and “I

knew I was doing it, but I shouldn’t [have] done it,” and the

prosecutor’s repeated insistence to the jury that Sims’s back-

ground was not mitigating evidence, comprised two of the

major themes of the prosecutor’s penalty-phase closing argu-

ment. Cf. Alcala, 334 F.3d at 893 (finding cumulative error in

part because “the cumulative impact of the errors goes to the

heart of the prosecution’s theory of the case”). As I have

noted, the prosecutor’s closing argument emphasized both

Sims’s lack of remorse (as demonstrated in the December 25

and 26 conversations with Officer Perkins) and Sims’s sup-

posed failure to present mitigating evidence. Additionally, the

tape of Sims’s December 26 statements — which included the

admission “I knew I was doing it, but I shouldn’t [have] done

it” — was replayed for the jury during the prosecution’s pen-

alty phase case.

Just as significant as the extent of the constitutionally

impermissible comments was their force. The prosecutor’s

reiteration of the statements “I had to kill that boy” and “I

knew I was doing it, but I shouldn’t [have] done it” — both

obtained in violation of Miranda — focused the jury’s atten-

tion on what was probably the most powerful evidence of

Sims’s guilt. They completely foreclosed any attempt to argue

lingering doubt as to intent. They formed the backbone of the

prosecutor’s argument that Sims’s lacked remorse. Equally

SIMS v. BROWN 13551

damaging, the prosecutor’s misrepresentations of the law of

mitigation invited the jury to disregard evidence of Sims’s

awful childhood, which was substantially the only evidence

Sims offered in mitigation.

These errors — if not separately, then certainly together —

undermined the fairness of the process by which Mitchell

Sims was sentenced to death: in one morning, in one concen-

trated pitch to the jury just hours before they retired to delib-

erate, the prosecutor stressed powerful but constitutionally

inadmissible evidence in support of death and improperly

undercut practically all of Mitchell Sims’s evidence in favor

of life. As a result of these errors, the jurors quite likely com-

menced their deliberations with the wrong mind-set.

“The collective presence of these errors is devastating to

one’s confidence in the reliability of this verdict[.]” Killian v.

Poole, 282 F.3d 1204, 1211 (9th Cir. 2002). Faced with two

substantial penalty-phase errors and their correspondingly

serious effects on the evidence Mitchell Sims’s jury consid-

ered in imposing its sentence of death, we should follow the

Supreme Court’s example and refuse to “risk that the death

penalty will be imposed in spite of factors which may call for

a less severe penalty. When the choice is between life and

death, that risk is unacceptable and incompatible with the

commands of the Eighth and Fourteenth Amendments.”

Penry, 492 U.S. at 328 (citations and internal quotation marks

omitted).

I respectfully dissent from the majority’s decision to uphold

Sims’s death sentence.