Daniels v. Woodford

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACKSON CHAMBERS DANIELS, JR., 

Petitioner-Appellee,

v. No. 02-99002

JEANNE S. WOODFORD, Warden, of  D.C. No.

California State Prison at San CV-92-04683-JSL

Quentin,

Respondent-Appellant.



JACKSON CHAMBERS DANIELS, JR., 

Petitioner-Appellant,

No. 02-99003

v.

JEANNE S. WOODFORD, Warden, of  D.C. No.

CV-92-04683-JSL

California State Prison at San

OPINION

Quentin,

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

J. Spencer Letts, District Judge, Presiding

Argued and Submitted

February 10, 2004—Pasadena, California

Filed November 2, 2005

Before: Betty B. Fletcher, Harry Pregerson, and

Warren J. Ferguson, Circuit Judges.

Opinion by Judge Pregerson

14945

14950 DANIELS v. WOODFORD

COUNSEL

John T. Philipsborn, San Francisco, California and John G.

Cotsirilos, San Diego, California, for the petitioner-

appellee/cross-appellant.

Warren P. Robinson, Deputy Attorney General, San Diego,

California, for the respondent-cross-appellant/appellee.

OPINION

PREGERSON, Circuit Judge:

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Jackson Chambers Daniels, Jr., is a sixty-six-year-old para-

plegic on California’s death row. On December 1, 1983, Dan-

iels was convicted of two counts of first-degree murder for the

shooting deaths of police officers Dennis Doty and Phil Trust.

DANIELS v. WOODFORD 14951

Daniels shot and killed the officers when they attempted to

take him into custody following the denial of his appeal on an

earlier robbery conviction. Daniels was sentenced to death on

January 31, 1984.

I. Events Prior to the Instant Offense

To understand the circumstances of the murders of officers

Doty and Trust, it is necessary to first review the events sur-

rounding a bank robbery Daniels committed in 1980.

Attempting to flee from that robbery, Daniels was shot nine

times by police officers. As a result of the shooting, Daniels

was rendered a paraplegic and confined to a wheelchair. Pur-

suant to a plea agreement negotiated by Daniels’s public

defender and the prosecutor, Daniels agreed to plead guilty in

exchange for being permitted to remain free on his own

recognizance for six months so that he could seek medical

treatment and rehabilitation for his injuries. Despite this plea

agreement, after Daniels pled guilty, the trial court sentenced

him to thirteen years in prison and remanded him to immedi-

ate custody.

On the same day Daniels was sentenced, attorney Andrew

Roth, who knew Daniels from prior representations, met Dan-

iels in the hall of the court house. Roth later testified that

Daniels appeared to be “in great distress due to improper

medical care.” Roth later visited with Daniels in custody and,

although Daniels’s physical distress was somewhat lessened,

Roth was disturbed by Daniels’s psychological condition and

expression of suicidal thoughts. After this meeting with Dan-

iels, Roth took over Daniels’s case and appealed the robbery

conviction on the ground that the plea agreement had been

violated because the trial court did not permit Daniels to seek

six months of rehabilitation and treatment before surrendering

to custody. During the pendency of that appeal, Daniels was

released on bond.

In 1981, while Daniels remained free on bond, a Riverside

police officer mistakenly arrested Daniels on the erroneous

14952 DANIELS v. WOODFORD

belief that a warrant had been issued for his arrest. In a suit

for money damages filed in state court against the City of

Riverside, Daniels alleged that while in custody, he was

beaten, dragged into a jail cell without his wheelchair, and

denied necessary medical care, including a catheter. As a con-

sequence, Daniels required treatment for urine poisoning and

became fearful of being returned to custody. According to

Daniels, he feared incarceration because the prison system

lacked the medical professionals and supplies necessary to

provide the care he needed as a paraplegic.

II. The Current Offense

In April 1982, the California Court of Appeal denied Dan-

iels’s appeal of his bank robbery conviction, and Daniels was

ordered to surrender to custody. When he failed to appear at

two hearings as ordered, a warrant was issued for his arrest.

On May 13, 1982, officers Doty and Trust were sent to arrest

Daniels at the residence of James Cornish.

When the officers arrived at the Cornish home, they were

shown to Daniels’s bedroom by his caretaker, Renee Ross.

According to Ross, only she, Daniels, the two officers, and

Cornish’s infant son were in the house at the time. The offi-

cers found Daniels sitting on his bed wearing only a shirt.

While Ross was assisting Daniels with getting dressed, Dan-

iels reached between his legs and produced a gun. When Ross

saw Daniels with the gun, she ducked into a bedroom closet.

From inside the closet, Ross heard gunshots in the bedroom.

After the gunfire stopped, Daniels called Ross out of the

closet. Ross saw Daniels sitting on the floor with a gunshot

wound in his right hand. Doty was lying on the floor. At Dan-

iels’s direction, Ross assisted Daniels into his wheelchair. As

they left the house, Ross saw Trust in another bedroom,

kneeling on the floor.

Daniels instructed Ross to drive to Delores Butler’s home.

During the drive, Daniels told Ross that he had “pa[id] them

DANIELS v. WOODFORD 14953

back because of what they had done to him” and that the

police had previously shot him nine times. When Butler asked

about the injury to his hand, Daniels admitted killing the two

officers. With Ross’s help, Daniels then fled to Ted Smith’s

house, where he was later apprehended by the police.

Before his arrest, Daniels told Ted Smith what had hap-

pened that morning. According to Smith, Daniels told him

that after he shot Doty, Trust shot the gun out of his hand.

When Daniels fell to the floor, he got Doty’s gun and used

that to shoot Trust. Ballistics evidence supports Daniels’s

confession, showing that (1) Doty was shot three times from

an unidentified gun; (2) Trust had fired four bullets, three of

which were recovered in the house, the fourth in Daniels’s

hand; and (3) Trust had been shot six times, primarily with

Doty’s gun.

III. Appointment of Counsel

The trial court appointed the Riverside County Public

Defender’s Office to represent Daniels during the trial on the

murder charges. At his arraignment, Daniels was represented

by Patricia Lahti, but Daniels moved to have attorney Roth

substituted as his counsel.1 Roth, who also attended Daniels’s

arraignment, advised the court that he was available to repre-

sent Daniels.

As the basis for his motion to substitute counsel, Daniels

explained to the trial court that he had a conflict of interest

with the Public Defender’s Office, which had represented him

in plea negotiations concerning the 1980 robbery arrest. The

conflict arose when, unknown to Daniels, his public defender

in the robbery case, Patrick Magers, simultaneously engaged

in negotiations with the District Attorney’s Office for Dan-

1

Daniels specified Roth because Roth was an established criminal

defense attorney with whom Daniels had a relationship of trust and confi-

dence.

14954 DANIELS v. WOODFORD

iels’s plea and—acting in his own interest—for a position

within the same District Attorney’s Office. Indeed, after Dan-

iels accepted the plea agreement, Magers left the Public

Defender’s Office to work in the District Attorney’s Office,

and Daniels was assigned a new public defender for his sen-

tencing hearing. Neither the prosecutor nor the public

defender who replaced Magers apprised the court of the plea

agreement’s condition permitting Daniels to seek treatment in

lieu of immediate incarceration. This is why, at the sentencing

hearing, Daniels was remanded to immediate custody.

Patricia Lahti, Daniels’s public defender at his arraignment

on the murder charges, notified the court that Daniels had

filed a federal habeas petition alleging that the public

defender in his robbery case had provided ineffective assis-

tance of counsel.2 Although she believed it was “close,” she

declined to state that a conflict existed.3 Nevertheless, Lahti

urged the court to appoint Roth as Daniels’s counsel, advising

the court that Daniels mistrusted the Public Defender’s

Office, would not cooperate with it in his representation, and

that she could not assure Daniels that the office would effec-

tively represent him.

2

As the district court pointed out, because the robbery conviction would

be introduced as evidence at the murder trial, Daniels’s public defender

would be required to argue that the office had provided ineffective assis-

tance of counsel in the robbery case. But, if Daniels’s habeas petition was

still pending, the office would be required to defend the conviction in that

proceeding.

3

Lathi lacked the authority to declare a conflict without the approval of

head Public Defender Malcolm McMillian. McMillian, however, refused

to declare a conflict. At about this time, McMillian’s office had come

under fire: McMillian was under investigation for his management of the

office by a Grand Jury and by a two-member panel appointed by the Riv-

erside County Board of Supervisors. Part of this investigation inquired

into complaints that McMillian was declaring too many conflicts and

thereby causing the County of Riverside to expend additional funds on

alternate counsel to represent indigent defendants.

DANIELS v. WOODFORD 14955

Despite this evident conflict, the trial court denied Dan-

iels’s motion to substitute counsel.4 At Roth’s urging, Deputy

Public Defender Robert Keller undertook representation of

Daniels after Roth promised that he would work on Daniels’s

case pro bono. Keller himself voiced strong reservations

about the appointment, writing to Public Defender McMillian

that there was an “obvious” conflict of interest in the Office’s

representation of Daniels and asking McMillian to withdraw

from the case. After the Office again refused to declare a con-

flict, Keller became the attorney of record, while Roth took

the actual lead in the case.

Roth was appointed co-counsel on October 15, 1982. One

month later, the prosecution moved to have Roth removed on

the ground that the state intended to call him as a witness to

testify regarding Daniels’s robbery conviction and appeal.

According to the prosecution, Roth’s testimony was necessary

to establish that Daniels knew that his appeal had been denied

and that he was to return to custody. Under the prosecution’s

theory of the case, whether Roth told Daniels to surrender to

custody was material on the issues of premeditation, delibera-

tion, and malice aforethought.

In opposing the motion, Roth argued that the attorney-

client privilege prohibited him from revealing his communi-

cations with Daniels and that, in any event, evidence on these

issues was available through other sources.5 In addition, Dan-

iels agreed to stipulate that Roth had informed him about the

4

After this ruling, Lahti again urged the court to appoint Roth, stating

that the office had not ruled out a conflict. According to Lahti, “It’s very

rare that a defendant walks into court and asks our office be removed

because he is suing us literally for incompetency and has an active case

on appeal or before the court.”

5

For example, in a declaration filed with his habeas challenge to his rob-

bery conviction, Daniels stated that the California Supreme Court had

denied his appeal. This declaration was dated April 20, 1982, and would

have established that Daniels knew the appeal had been denied before he

was to surrender and before officers Doty and Trust came to arrest him.

14956 DANIELS v. WOODFORD

denial of his appeal and had advised him to surrender. Daniels

also agreed to waive all conflicts after Roth arranged for him

to consult with separate counsel. Despite these assurances, the

trial court removed Roth, leaving Keller as Daniels’s only

counsel.

One month later, Keller became too ill to work on Dan-

iels’s case, and it was assigned to two other deputy public

defenders. Two months later, Daniels’s new counsel recom-

mended to a new head Public Defender that the Office with-

draw as counsel due to a conflict of interest in its

representation of Daniels. Consequently, more than nine

months after its appointment, the Public Defender’s Office

was permitted to withdraw as counsel based on its declared

conflict of interest, the same conflict Daniels had raised at his

arraignment.

The trial court did not re-appoint attorney Roth to replace

the public defender. Instead, the court appointed Carl Jordan,

a former Riverside County prosecutor who had just started in

solo private practice. Daniels’s capital murder case was Jor-

dan’s first criminal defense matter. Indeed, Jordan had never

handled a death penalty case as either a prosecutor or defense

attorney, and his new office lacked the administrative and

legal resources necessary to defend such a case. Jordan hoped

the case would lead to future appointments.

To assist Jordan, the trial court appointed Warren Small as

co-counsel. At the time he was appointed, Small had been

practicing law for two and a half years as a solo practitioner

and had no experience trying homicide cases. Like Jordan,

this was Small’s first capital case. Despite his inexperience,

Small was tasked with preparing all pleadings, legal argu-

ments, and jury instructions that would be necessary during

the trial. He was also given responsibility for preparing the

penalty phase defense in consultation with Jordan.

DANIELS v. WOODFORD 14957

From the beginning of their representation, the attorney—

client relationship between Daniels and his defense counsel

was strained. Daniels questioned whether Small had sufficient

experience to properly handle his defense. More importantly,

Daniels suspected Jordan’s motives in representing him

because of Jordan’s past experience as a Riverside County

prosecutor, a factor that Daniels believed made Jordan easier

for the court and district attorney to control. To Daniels, it

appeared that Roth had been removed as his counsel at the

behest of the district attorney because he was a strong advo-

cate on Daniels’s behalf. Daniels viewed Roth’s removal as

part of a larger conspiracy between the police, courts, and dis-

trict attorney to prevent Daniels from presenting a defense

and thereby ensure his execution.6 Daniels believed his

defense team was part of this conspiracy and that Jordan had

been appointed to hasten his conviction and death sentence.7

The trial court was aware of the conflict between Daniels

and his counsel. On June 3, 1983, Daniels told the trial court

“I don’t trust Mr. Jordan and there has been some things that

happened that has increased my doubt about him properly

representing me.” Before the guilt phase of his trial began,

Daniels sent a letter to the trial court informing the court that

he did not trust his counsel. People v. Daniels, 802 P.2d 906,

918 (Cal. 1991). In this letter, Daniels expressed his belief

that his attorneys’ representation was ineffective, that they

were not interested in providing effective representation and

were, in fact, talking to the prosecution outside of his pres-

ence. Daniels also expressed his belief that there was a con-

spiracy to kill him.

By the time Jordan and Small were appointed as defense

counsel, they were left with roughly three months to prepare

6

Daniels also believed that his erroneous arrest in 1981 was part of a

police plot to kill him.

7

Roth, who spoke with Daniels during this time, believed that Daniels’s

distrust of Jordan and Small seemed “unrealistically extreme.”

14958 DANIELS v. WOODFORD

Daniels’s defense.8 This short time was exacerbated by the

lack of preparation done on the case during the public defend-

er’s nine month tenure.9 When Jordan and Small took over,

very little work, if any, had been done to investigate Daniels’s

mental state as possible mitigating evidence. No psychiatric

or psychological testing had been done. In addition, there had

been no investigation of the crime scene by defense counsel

and, by the time Jordan was appointed more than nine months

later, much of the evidence was no longer available, and the

crime scene had been cleaned and repaired by the owner of

the home. Thus, Jordan and Small had approximately three

months to do the bulk of the investigative and trial preparation

for both the guilt and penalty phases in their first capital mur-

der case and no access to the crime scene or to other evidence.

This exceedingly short period of time was further aggra-

vated by the inability of counsel to meaningfully consult with

their client as a result of Daniels’s paranoia and distrust.

According to Small, because of Daniels’s experiences prior to

their appointment—including the removal of Roth, the con-

flict with the Public Defender’s Office, and that office’s fail-

ure to timely declare a conflict—it was “difficult to establish

the relationship of trust and confidence that should character-

ize the attorney—client relationship.”10 Instead, Daniels’s lack

of trust and confidence in his defense counsel’s motives

8

Indeed, in moving for a continuance, Jordan argued that Daniels would

be denied effective representation if the trial was forced to proceed as

scheduled. At the hearing on the motion for continuance, however, Dan-

iels refused to waive time and the motion was denied.

9

According to Keller, he had done little preparation on the case because

he believed “that eventually the Public Defender would have to declare

what [he] thought was an obvious conflict of interest in Mr. Daniels’s

case.”

10

Nor could attorney Roth be of much assistance to Jordan and Small.

By the time the two were appointed, Roth had been designated as a prose-

cution witness and feared that the trial court might rule that any disclosure

of the content of Daniels’s communications to Jordan and Small might

place the communication outside the attorney-client privilege.

DANIELS v. WOODFORD 14959

resulted in a total lack of communication between them. Thus,

Daniels proceeded to trial with defense counsel he did not

trust and who lacked the time and experience to adequately

try a capital murder case.

IV. Trial and Conviction

The State of California tried Daniels for first degree mur-

der, alleging that he acted with premeditation and malice

aforethought in killing officers Doty and Trust in retaliation

for the injuries he received after the bank robbery. The evi-

dence against Daniels included the testimony of Ross, who

was in the house at the time of the murders. In addition, Ross,

Butler, and Smith all testified that Daniels admitted to them

that he had shot the officers. This testimony was supported by

the ballistics evidence from the crime scene.

Despite the overwhelming evidence of Daniels’s guilt,

Daniels’s counsel presented a defense that Daniels was not

the perpetrator of the officers’ murders. Although he appeared

willing to testify in his own behalf—and despite the fact that

his counsel believed that the only valid defense strategy was

for Daniels to testify—Daniels did not testify.11 Instead, Jor-

dan attempted to paint Daniels as having a generally positive

attitude toward the police even after the 1980 shooting. Jordan

also attempted to establish that the gunshot injury to Daniels’s

hand would have made it difficult for him to have committed

the murders.

After closing arguments, the jury deliberated for just a few

hours before delivering a verdict of guilty on two counts of

first degree murder with special circumstances for (1) multi-

ple murder; (2) murder committed to avoid lawful arrest; and

(3) murder of police officers engaged in the performance of

11

Indeed, Jordan himself believed there was no credible defense to Dan-

iels’s guilt and that the only valid defense strategy was for Daniels to tes-

tify.

14960 DANIELS v. WOODFORD

their duties. The verdicts were returned on December 1, 1983.

The defense team had eleven days to prepare for the penalty

phase.

V. Penalty Phase

The penalty phase proceedings began on December 12,

1983. One month earlier, recognizing that his time had been

devoted exclusively to guilt phase preparation, Jordan had

moved for a continuance on the penalty phase. In that motion,

Jordan argued that he lacked sufficient time to adequately pre-

pare for the penalty phase. According to Jordan, “most, if not

all,” of the witnesses he intended to use for testimony on miti-

gation had yet to be interviewed, and most of these witnesses

resided out of state. Jordan also filed a motion to substitute

Roth as counsel for the penalty phase. Both motions were

denied.

During the penalty phase, Jordan relied on the testimony of

psychologist Robert Banks. Jordan did not retain Banks for a

psychological diagnosis, but rather for the limited purpose of

conducting a preliminary screening of Daniels, to get “im-

pressions” of Daniels in order to determine whether further

evaluation was necessary. After his preliminary screening of

Daniels suggested the presence of an organic brain disease,

Banks attempted to secure the assistance of neuropsychology

experts for further evaluations. However, he was unsuccess-

ful, and defense counsel never sought further evaluation.

Indeed, because Jordan did not request additional funds for

mental health expert testimony until one week before the pen-

alty phase was to begin, no further evaluations were con-

ducted prior to the penalty phase.12

Further, defense counsel failed to follow up on earlier psy-

chiatric evaluations of Daniels. For instance, after the 1980

12

Incomprehensibly, this funding request was eventually granted, but

not until one month after Daniels was sentenced to death.

DANIELS v. WOODFORD 14961

shooting rendered him a paraplegic, Daniels received treat-

ment from psychiatrist Robert Philips. In November 1982,

while he still represented Daniels, public defender Keller had

corresponded with Philips. Even though Philips had estab-

lished a good rapport with Daniels, Jordan did not attempt to

obtain Philips’s assistance and instead sought the assistance of

another psychiatrist, Dr. Anthony Oliver. Daniels refused to

speak or otherwise cooperate with Oliver or to provide “any

information pertinent to [his] purpose.” Rather, Daniels stated

that he believed his conversation with Oliver was being moni-

tored. To Oliver, this belief, paired with Daniels’s distrust of

his counsel and the legal process, indicated a degree of para-

noid ideation.13 Jordan did not follow up on Oliver’s assess-

ment, however. Consequently, despite his limited evaluation,

Banks was the only mental health practitioner to testify on

Daniels’s behalf.

Banks’s testimony was problematic for several reasons.

Banks was not a forensic psychologist and lacked the creden-

tials to testify in a death penalty case. Banks’s only experi-

ence as an expert witness was in evaluating children for

family court child custody cases; he had never before testified

in a death penalty case. In addition, Banks intentionally lim-

ited his evaluation of Daniels: (1) Banks confined his inter-

view of Daniels to the time period before the 1980 robbery;

(2) Banks’s evaluation did not include any consideration of

the events surrounding the murders for which Daniels was

charged; and (3) Banks limited his evaluation to just a few

13

Oliver also stated that he did not find any evidence of psychopathol-

ogy to indicate a mental impairment that would bear on the issue of crimi-

nal responsibility. The State has latched onto this statement to repeatedly

contend that it establishes that Daniels suffered from no mental illness.

What the State repeatedly neglects to mention, however, is that Oliver did

not speak with Daniels, who refused to cooperate in the attempted exami-

nation. Consequently, Oliver was unable to administer any diagnostic tests

or otherwise evaluate Daniels’s mental state. In short, Oliver’s letter does

not come close to being as determinative as the State would have this

court believe.

14962 DANIELS v. WOODFORD

screening tests. Moreover, during his testimony, Banks admit-

ted that he had not fully reviewed even the scant psychologi-

cal background materials provided to him by Jordan.

Based on his limited screening, Banks testified that Daniels

was likely schizophrenic and showed signs of brain damage.

Dr. Sherry Skidmore, who later reviewed Banks’s evaluation,

found that he was conservative in his conclusions. Neverthe-

less, because Banks had so circumscribed his examination of

Daniels, the State was able to effectively discredit his results

on cross-examination by emphasizing Banks’s lack of exper-

tise, lack of preparation, and limited evaluation. In addition,

during his testimony, Banks himself questioned whether the

term “sociopath” applied to Daniels, opening this topic for

discussion by the State’s rebuttal witness.

In rebuttal, the State’s expert, Dr. Rex Julian Beaber,

attacked Banks’s testimony, particularly the validity of certain

tests Banks relied on in evaluating Daniels. In contrast to

Banks, Beaber was an experienced and nationally certified,

forensic psychologist. According to Beaber, the limited infor-

mation relied on by Banks warranted the conclusion that Dan-

iels was a sociopath.14 Beaber went on to define “sociopath”

as someone “without a conscience.”

Jordan did not present any witness in sur-rebuttal. Thus, the

jury heard no psychological testimony to mitigate or explain

Daniels’s behavior other than the testimony of an unqualified

and incompetent psychologist. Instead, Beaber’s testimony

that Daniels was a violent sociopath was the final impression

the jury had of Daniels before it began its deliberations on his

sentence. After two days of deliberations, the jury returned a

verdict imposing death.

14

As discussed below, when the district court held an evidentiary hear-

ing on Daniels’s habeas petition, the court appointed its own expert psy-

chologist. This expert testified that neither of the psychologists who

testified at the penalty phase had sufficient information on Daniels to

make a reliable diagnosis.

DANIELS v. WOODFORD 14963

VI. Federal Habeas Petition & Evidentiary Hearing

The California Supreme Court upheld Daniels’s conviction

and sentence on direct appeal. Daniels, 802 P.2d at 950. His

state habeas petition was denied on July 22, 1992. Daniels

filed a federal habeas petition on October 22, 1992. On July

1, 1999, the district court granted Daniels’s April 30, 1993

motion for an evidentiary hearing on Daniels’s claims of inef-

fective assistance of counsel.

For the evidentiary hearing, Dr. Richard Dudley, Jr., a

licensed psychiatrist, performed a comprehensive evaluation

of Daniels, including a review of Daniels’s records, witness

interviews, and a psychiatric examination of Daniels.15 In his

evaluation, Dudley examined Daniels’s family, developmen-

tal, and criminal history as well as his medical and psychiatric

records, including a series of impressions and opinions by

prison psychiatrists, psychologists, and social workers. Dud-

ley also reviewed the medical records relating to Daniels’s

injuries following the 1980 shooting, Daniels’s own writings

prepared during his capital trial, and transcripts of Banks’s

and Beaber’s testimony.

Dudley’s review of Daniels’s records disclosed that, at var-

ious times prior to 1980, Daniels was described as exhibiting

signs of mental disorders. Based on Daniels’s history and psy-

chiatric evaluations, Dudley concluded that Daniels suffered

from an “underlying mixed personality disorder” at least since

the time he became an adult.16 To Dudley, the 1980 shooting

15

Dudley evaluated Daniels using the diagnostic criteria in use between

May 1982 and March 1984, the period between Daniels’s arrest and con-

viction. At that time, the Diagnostic and Statistical Manual of Mental Dis-

orders III (“DSM-III”) was in use and Dudley relied on that manual for

his diagnosis.

16

In large part, Dudley confirmed an earlier diagnosis that Daniels suf-

fered from organic brain damage. However, Dudley indicated that further

testing was needed to determine if it was the result of the shooting. With-

out this testing, Dudley concluded there was insufficient evidence to con-

firm or eliminate a diagnosis of brain damage and, thus, Dudley did not

consider brain damage as a factor in his opinion.

14964 DANIELS v. WOODFORD

was significant to any evaluation of Daniels’s mental state

before and after the 1982 shooting of officers Doty and Trust.

Dudley believed there was a clear deterioration of Daniels’s

mental state after 1980. A major factor in this deterioration

was the 1980 shooting, from which Daniels suffered a pro-

found physical trauma and severe damage to his psychologi-

cal foundation. Even before this shooting, there was evidence

that Daniels thought the police were “targeting” him. After

the shooting, Daniels began to exhibit signs of a post-

traumatic stress disorder. In Dudley’s opinion, Daniels’s feel-

ings of persecution toward his defense counsel and the court

system rose to the level of a paranoid delusion.17 The delu-

sions that characterized Daniels’s paranoid disorder affected

his behavior and prevented him from cooperating with his

counsel. Dudley reasoned that it was this disorder that caused

Daniels to believe his own defense counsel were part of a

conspiracy to kill him.

Most important, Dudley concluded that it was likely that at

the time of the instant offense, Daniels’s paranoia had already

developed and was exacerbated by the post-traumatic stress

disorder resulting from the 1980 shooting, the 1981 mistaken

arrest, and by Daniels’s occasional cocaine use in the period

before the shootings. Ultimately, Dudley reached the opinion

that Daniels had a mental disorder both before and during

May 1982. Thus, at significant times prior to the shootings, as

well as during the shooting and later during the trial, Daniels

suffered a paranoid disorder. Daniels’s symptoms of this para-

noid disorder persisted at least until the time of his interview

with Dudley. In Dudley’s opinion, if competent psychiatrists

17

“Paranoid delusion” is the term used from 1982 to 1984. Today, this

mental disorder is referred to as a “delusional disorder.” A delusion “in-

volves a ‘. . . false belief based on incorrect inference about external real-

ity that is firmly sustained despite what almost everyone else believes and

despite what constituted incontrovertible and obvious proof or evidence to

the contrary.’ ” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual

of Mental Disorders app. C (rev. 4th ed. 2002) (“DSM-IV”).

DANIELS v. WOODFORD 14965

had had access in 1982 to the information available to him in

this review, they would have reached the same conclusions as

he did.

Also considered at the evidentiary hearing was a declara-

tion filed by psychiatrist Fred Rothenberg, who was retained

by Daniels’s post-conviction counsel to provide psychiatric

evaluations of Daniels. As part of his evaluation, Rothenberg

reviewed portions of Daniels’s medical records, including

prison medical records, and medical testimony from his capi-

tal trial. Rothenberg also performed a psychiatric evaluation

of Daniels and administered certain psychological tests.

Based on his testing and record review, Rothenberg con-

cluded that Daniels suffers from organic brain damage related

to anoxia.18 Of particular relevance to this diagnosis was the

1980 shooting, from which Daniels suffered significant blood

loss and shock. According to Rothenberg, insufficient blood

pressure, and the resulting reduction of blood flow to the

brain, can result in anoxia and brain damage.19 This diagnosis

was also indicated from previous testing that showed brain

18

Anoxia, also known as cerebral hypoxia, refers to a condition in which

there is a decrease of oxygen supply to the brain even though there is ade-

quate blood flow. This condition can result from drowning, strangling,

choking, suffocation, cardiac arrest, head trauma, carbon monoxide poi-

soning, and complications of general anesthesia. Mild anoxia can result in

“inattentiveness, poor judgment, memory loss, and a decrease in motor

coordination. Brain cells are extremely sensitive to oxygen deprivation

and can begin to die within five minutes after oxygen supply has been cut

off. When [anoxia] lasts for longer periods of time, it can cause coma, sei-

zures, and even brain death.” Recovery depends on the duration of the

oxygen deprivation and the amount of resulting brain damage. The longer

the episode, the lower the chances of a full or meaningful recovery. See

National Institute of Neurological Disorders and Stroke, Cerebral Hypoxia

Information Page, at http://www.ninds.nih.gov/health_and_medical/

disorders/anoxia_doc.htm.

19

Rothenberg also suggested further testing to measure the extent of

Daniels’s impairment. The district court denied this request for ancillary

funds.

14966 DANIELS v. WOODFORD

damage and from the results of the psychological testing

administered by Rothenberg. It was further confirmed by

Daniels’s behavior, history, and the results of other cognitive

testing that revealed Daniels’s difficulty with coordination

and attention.20

Rothenberg’s preliminary psychiatric diagnosis was that

Daniels suffered from Organic Personality Disorder and

Dementia secondary to brain damage. This condition rendered

Daniels “unable to assist counsel [at certain times] in a ratio-

nal manner because of a combination of physical, emotional

and psychological factors.” According to Rothenberg, Dan-

iels’s brain damage existed at least since the 1980 shooting.

The resulting personality disorder was also characteristic of

Daniels prior to the 1982 shooting of officers Doty and Trust.

In support of this contention, Rothenberg pointed to a prison

file containing results of tests earlier administered to Daniels,

including a Bender Gestalt21 test from 1984 that evidenced

brain damage.

Finally, the district court retained Dr. John Stalberg as its

case expert to review Daniels’s files. Stalberg testified that the

information made available to Banks and Beaber at the time

of Daniels’s trial was inadequate. Consequently, neither

Banks nor Beaber had sufficient information to make a reli-

able or informed diagnosis. Although Stalberg disagreed with

Rothenberg’s conclusion that Daniels suffered organic brain

damage, he believed that Oliver’s findings and opinion,

expressed in 1983, were “disturbing,” and suggested that Dan-

iels’s mistrust of counsel indicated a paranoia that would, or

20

In addition to the 1980 shooting, Daniels had suffered other head inju-

ries, including a severe motor vehicle accident. Each of these injuries ren-

dered Daniels unconscious and, according to Rothenberg, created a high

likelihood of organic brain damage.

21

The Bender Visual Motor Gestalt (“Bender Gestalt”) Test is used to

measure the cognitive and developmental functioning of children and

adults.

DANIELS v. WOODFORD 14967

should, have raised significant questions about Daniels’s com-

petency bearing on possible defenses or mitigation.

After four days of hearings, the district court granted Dan-

iels’s petition in part. The district court affirmed Daniels’s

conviction, but ordered a new penalty phase trial. The district

court concluded that the lack of communication between Dan-

iels and his counsel resulted in the constructive denial of Dan-

iels’s Sixth Amendment right to counsel at the penalty phase.

The court also found that Daniels was prejudiced by his coun-

sel’s ineffective penalty phase representation such that he was

denied his right to effective assistance of counsel. Finally, the

court held that Daniels’s due process rights were violated by

the cumulative effect of several trial court errors, in particular

the trial court’s denial of Daniels’s motion to change venue

and its failure to instruct the jury that it could consider over-

lapping special circumstances as only a single factor in aggra-

vation. Accordingly, the district court vacated Daniels’s death

sentence. Unless the State opted to grant Daniels a new pen-

alty trial within 120 days of the entry of judgment, the court

ordered that Daniels be re-sentenced to life in prison without

the possibility of parole.22 Both Daniels and the State appeal.

In its appeal, the State argues that the district court erred in

granting Daniels penalty phase relief. Specifically, the State

appeals the district court’s findings (1) that Daniels was con-

structively denied counsel at the penalty phase of his trial;

(2) that Daniels was prejudiced by ineffective penalty phase

representation; and (3) that Daniels’s due process rights were

denied at the penalty phase by the trial court (a) denying

Daniels’s motion to change venue and (b) failing to instruct

the jury that it could consider overlapping special circum-

stances as only a single factor in aggravation. The State fur-

ther argues that the district court correctly denied Daniels’s

petition as to the guilt phase of his trial.

22

We earlier denied the State’s motion for a stay of the district court’s

judgment pending appeal.

14968 DANIELS v. WOODFORD

Daniels appeals the district court’s denial of guilt phase

relief. Specifically, Daniels argues that, for the same reasons

articulated by the district court as to the penalty phase, he was

also (1) constructively denied counsel and (2) prejudiced by

his counsel’s ineffective assistance at the guilt phase of his

trial. Daniels further argues that the district court correctly

granted him penalty phase relief on these grounds. In addi-

tion, he argues that the district court properly concluded that

his due process rights were violated at the penalty phase

because the state court gave an erroneous jury instruction and

rejected his change of venue motion.23

STANDARD OF REVIEW

We review the district court’s decision to grant or deny a

28 U.S.C. § 2254 habeas petition de novo. Alcala v. Wood-

ford, 334 F.3d 862, 868 (9th Cir. 2003). Findings of fact made

by the district court are reviewed for clear error. Id. Habeas

relief should be granted where the alleged errors “had sub-

stantial and injurious effect or influence in determining the

jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637

(1993). A state court’s conclusion that a constitutional error

was harmless is reviewed de novo.24 Ghent v. Woodford, 279

F.3d 1121, 1126 (9th Cir. 2002).

23

Daniels does not, however, argue that the denial of his venue motion

violated his due process rights at the guilt phase.

24

Because his habeas petition was filed on October 22, 1992, the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) stan-

dards of review do not apply to Daniels’s petition. See Mayfield v. Wood-

ford, 270 F.3d 915, 922 (9th Cir. 2001) (noting that pre-AEDPA standards

of review apply when petition filed before effective date); Smith v. Rob-

bins, 528 U.S. 259, 268 n.3 (2000) (noting AEDPA does not apply to peti-

tions filed before its effective date of April 24, 1996).

DANIELS v. WOODFORD 14969

DISCUSSION

I. Sixth Amendment Right to Counsel

The Sixth Amendment provides that “[i]n all criminal pros-

ecutions, the accused shall enjoy the right to . . . have the

Assistance of Counsel for his defense.” U.S. Const. amend.

VI. This right has two components: (1) the right to counsel’s

undivided loyalty, Wood v. Georgia, 450 U.S. 261, 272

(1981), and (2) the right to reasonably competent counsel,

McMann v. Richardson, 397 U.S. 759, 770-71 (1970). Dan-

iels’s habeas petition implicates both of these components.

A. Constructive Denial of Counsel

[1] A defendant has a Sixth Amendment right to conflict-

free representation. United States v. Moore, 159 F.3d 1154,

1157 (9th Cir. 1998). Not every conflict between a defendant

and counsel, however, implicates the Sixth Amendment. See

Schell v. Witek, 218 F.3d 1017, 1027 (9th Cir. 2000). As the

Supreme Court has explained, the right to counsel does not

guarantee “a right to counsel with whom the accused has a

‘meaningful attorney-client relationship.’ ” Morris v. Slappy,

461 U.S. 1, 3-4 (1983). Nevertheless, where a court “com-

pel[s] one charged with [a] grievous crime to undergo a trial

with the assistance of an attorney with whom he has become

embroiled in [an] irreconcilable conflict [it] deprive[s] him of

the effective assistance of any counsel whatsoever.” Brown v.

Craven, 424 F.2d 1166, 1170 (9th Cir. 1970). Thus, a review-

ing court must assess the nature and extent of the conflict and

whether that conflict deprived the defendant of representation

guaranteed by the Sixth Amendment. Schell, 218 F.3d at

1027.

Here, the conflict was not one created by Daniels or by his

counsel. Rather, it was created by a series of events that

occurred before the appointment of Jordan and Small, in par-

ticular, certain decisions of the state trial court regarding the

14970 DANIELS v. WOODFORD

selection and removal of counsel. As detailed above, these

decisions included the trial court’s (1) refusal to recognize the

clear conflict between Daniels and the Public Defender’s

Office until more than nine months had elapsed; (2) removal

of Roth as counsel despite Daniels’s willingness to waive any

conflict and to stipulate to the facts to which Roth would pre-

sumably testify; and (3) appointment of a former prosecutor,

with no criminal defense experience and only three months to

prepare, to represent Daniels. Given this history, it is under-

standable that Daniels would mistrust the judicial process and

his counsel. When viewed in the context of Daniels’s para-

noid delusions—including his belief that his defense counsel

was conspiring with the prosecution to kill him—it is easy to

see why this mistrust led to a complete breakdown of commu-

nication.

The Supreme Court has repeatedly held that a defendant’s

Sixth Amendment right to counsel is violated if the defendant

is unable to communicate with his or her counsel during key

trial preparation times. See Riggins v. Nevada, 504 U.S. 127,

144 (1992) (“We have held that a defendant’s right to the

effective assistance of counsel is impaired when he cannot

cooperate in an active manner with his lawyer. The defendant

must be able to provide needed information to his lawyer and

to participate in the making of decisions on his own behalf.”)

(citations omitted); United States v. Cronic, 466 U.S. 648, 659

n.25 (1984) (“The Court has uniformly found constitutional

error without any showing of prejudice when counsel was . . .

prevented from assisting the accused during a critical stage of

the proceeding.”); Geders v. United States, 425 U.S. 80, 91

(1976) (holding that trial judge’s order that counsel could not

communicate with defendant during overnight recess in the

middle of trial violated defendant’s Sixth Amendment right).

We have applied the constructive denial of counsel doctrine

to cases where the defendant has an irreconcilable conflict

with his counsel, and the trial court refuses to grant a motion

for substitution of counsel. See United States v. Nguyen, 262

DANIELS v. WOODFORD 14971

F.3d 998, 1003-04 (9th Cir. 2001); United States v. Adelzo-

Gonzalez, 268 F.3d 772, 778-79 (9th Cir. 2001). The test for

determining whether the trial judge should have granted a

substitution motion is the same as the test for determining

whether an irreconcilable conflict existed. United States v.

Moore, 159 F.3d 1154, 1159 n.3 (9th Cir. 1998). The court

must consider: (1) the extent of the conflict; (2) whether the

trial judge made an appropriate inquiry into the extent of the

conflict; and (3) the timeliness of the motion to substitute

counsel. Id. at 1158-59.

1. The Extent of the Conflict

[2] Where a criminal defendant has, with legitimate reason,

completely lost trust in his attorney, and the trial court refuses

to remove the attorney, the defendant is constructively denied

counsel. Adelzo-Gonzalez, 268 F.3d at 779. This is true even

where the breakdown is a result of the defendant’s refusal to

speak to counsel, unless the defendant’s refusal to cooperate

demonstrates “unreasonable contumacy.” Brown v. Craven,

424 F.2d 1166, 1169 (9th Cir. 1970); see also Nguyen, 262

F.3d at 1003-04 (quoting and applying Brown); Adelzo-

Gonzalez, 268 F.3d at 780 (same).

“Even if [trial] counsel is competent, a serious breakdown

in communications can result in an inadequate defense.”

Nguyen, 262 F.3d at 1003 (citing United States v. Musa, 220

F.3d 1096, 1102 (9th Cir. 2000)); see also United States v.

D’Amore, 56 F.3d 1202, 1206 (9th Cir. 1995) (“[A] court may

not deny a substitution motion simply because [it] thinks cur-

rent counsel’s representation is adequate.”), overruled on

other grounds by United States v. Garrett, 179 F.3d 1143 (9th

Cir. 1999).

[3] Daniels’s relationship with his trial attorneys is similar

to that in Nguyen, where we held that Nguyen was construc-

tively denied counsel. Nguyen, 262 F.3d at 1004 (“There is no

question in this case that there was a complete breakdown in

14972 DANIELS v. WOODFORD

the attorney-client relationship. By the time of trial, the

defense attorney had acknowledged to the Court that Nguyen

‘just won’t talk to me anymore.’ In light of the conflict,

Nguyen could not confer with his counsel about trial strategy

or additional evidence, or even receive explanations of the

proceedings. In essence, he was ‘left to fend for himself.’ ”).

Similarly, in Brown, we found that the defendant was con-

structively denied his right to counsel where he “was forced

into a trial with the assistance of a particular lawyer with

whom he was dissatisfied, with whom he would not cooper-

ate, and with whom he would not, in any manner whatsoever,

communicate.” Brown, 424 F.2d at 1169. In that case, the

defendant and his public defender became embroiled in an

irreconcilable conflict. Id. at 1169. Brown’s repeated motions

for substitution of counsel were all denied by the state trial

court, which did not attempt to determine the extent of

Brown’s dissatisfaction or to appoint alternative counsel. Id.

As a consequence, Brown’s lawyer was unable to prepare an

adequate defense. At trial, Brown’s attorney offered only a

perfunctory defense, and Brown did not testify in his own

behalf. Id. Here, like Nguyen and Brown, there was a com-

plete breakdown in the communication between Daniels and

his trial counsel. Daniels was not simply being obstreperous

when he refused to communicate with counsel. His distrust

was understandable given that: (1) the court refused to

acknowledge the public defender’s conflict until close to the

trial; (2) the court refused to appoint Roth as his counsel even

though Daniels continued to request him and obviously

trusted him; (3) after all the substitutions for which Daniels

was not responsible, and with three months remaining before

trial, the court appointed an inexperienced former prosecutor

as lead counsel; and (4) once appointed, trial counsel did not

conduct reasonable preparation—they did not seek Roth’s

help, nor did they obtain Daniels’s medical records or any

information about how he became paraplegic and the

extremely poor medical treatment he received after he was

erroneously arrested in 1981.

Daniels’s paranoia led him particularly to distrust a lawyer

who had spent most of his career as a prosecutor and whom

DANIELS v. WOODFORD 14973

he thought was appointed to see that he was convicted and

sentenced to death. Although Daniels’s belief may have been

unwarranted, the court still had an obligation to try to provide

counsel that Daniels would trust. Cf. Nguyen, 262 F.3d at

1003 (holding that trial court should have been sensitive to

cultural and linguistic barriers to communication in consider-

ing motion to substitute counsel); Brown, 424 F.2d at 1170.

For the guilt phase, the complete breakdown in communi-

cation meant that Jordan and Small were unable to discuss

possible defense strategies with Daniels or to discover and

assess basic information about the case from his perspective

so that they might pursue that strategy. As a consequence, the

jury never heard Daniels testify to his version of the events.

Instead, defense counsel presented the implausible defense

that Daniels was not the perpetrator of the murders.

The conflict between Daniels and Jordan had an even more

profound effect on the penalty phase. Jordan believed that

Daniels’s explanation of the events from his perspective—

including his fear when the officers entered his room and of

returning to custody—could have formed the basis of a miti-

gation case. But, because Daniels mistrusted him and would

not communicate with him, Jordan was hampered in his abil-

ity to develop a case of mitigation for the penalty phase

through Daniels’s own words. In addition, because of his

paranoia, Daniels refused to cooperate with psychologist Oli-

ver, believing their conversation was being monitored. Had

Daniels cooperated, Oliver might have been able to make an

evaluation that exposed Daniels’s mental illness for use in

mitigation. Or, Daniels may have revealed a source of infor-

mation leading to mitigating evidence.

The district court’s findings in this case, made after an evi-

dentiary hearing that included testimony from Daniels’s trial

counsel, reflect the extent of the conflict. According to the

court:

14974 DANIELS v. WOODFORD

The lack of communication between Daniels and his

counsel was so profound that it rendered Counsel

completely unable to discover the basic information

necessary to give fair consideration to how best to

defend Daniels at the guilt phase . . . or to develop

any meaningful mitigation at the penalty phase.

No case in which the Ninth Circuit has held that a

defendant’s Sixth Amendment right to counsel was

violated by reason of a breakdown of communica-

tions between client and counsel has involved a more

clear showing that the breakdown amounted to a

constructive denial of the right to counsel itself. . . .

In this case, communications did not “break down,”

but rather never existed. Daniels’[s] refusal to com-

municate was the understandable reaction of a defen-

dant faced with the death penalty whose right to

counsel had been mishandled by the trial judge from

the beginning of the proceedings.

[4] This “serious conflict” between Daniels and his trial

counsel gives rise to a presumption of prejudice. Perry v.

Leeke, 488 U.S. 272, 278-79 (1989); Schell, 218 F.3d at 1027

(“In the event that the trial court determines that a serious

conflict did exist that resulted in the constructive denial of

assistance of counsel, no further showing of prejudice is

required; and Schell’s trial shall be presumed to have been

unfair.”). As this district court stated, “Daniels’[s] case repre-

sents the paradigm case as to why prejudice must be pre-

sumed. . . . It is in a case presenting circumstances like these

—where the breakdown in communication impeded counsel’s

ability to provide assistance as to the most basic consider-

ations for a defense—that prejudice must be presumed

because it is so likely to have occurred.”25 The extent of Dan-

25

The district court goes on to conclude that because Daniels did not

show that other counsel was available to represent Daniels at his trial, his

Sixth Amendment right to counsel was not violated as to the guilt phase

DANIELS v. WOODFORD 14975

iels’s conflict with trial counsel was serious and gives rise to

a presumption that Daniels was prejudiced by his inability to

communicate with counsel.

2. Trial Court’s Duty to Inquire

When a trial court is informed of a conflict between trial

counsel and a defendant, “the trial court should question the

attorney or defendant ‘privately and in depth,’ and examine

available witnesses . . . .” Nguyen, 262 F.3d at 1004 (quoting

Moore, 159 F.3d at 1160). A conflict inquiry is adequate if it

“ease[s] the defendant’s dissatisfaction, distrust, and concern”

and “provide[s] a ‘sufficient basis for reaching an informed

decision.’ ” Adelzo-Gonzalez, 268 F.3d at 777 (citations omit-

ted).

Here, the state trial court never questioned Daniels or his

attorneys individually after Daniels informed the court of the

conflict, and did not call any witnesses on the issue. When

Daniels submitted a letter detailing some of his concerns

before trial, the trial court disregarded Daniels’s concerns. For

example, Daniels told the trial court that “there is things in

this case that I feel like would be vital that the Court’s be

made aware of where the attorney of record do not know and

have no knowledge of.” As a result, Daniels wanted to ques-

tion witnesses himself or have another attorney question

them. Although Daniels had made it clear that he did not trust

his attorneys and could not communicate with them, the trial

court did not conduct any inquiry into the conflict between

of the trial. Not only is a defendant not required to establish the availabil-

ity of alternative counsel, imposing such a requirement would conflict

with the presumption of prejudice that is required by Ninth Circuit and

Supreme Court precedent. See Perry, 488 U.S. at 278-79 (“Actual or con-

structive denial of the assistance of counsel altogether, is not subject to the

kind of prejudice analysis that is appropriate in determining whether the

quality of a lawyer’s performance itself has been constitutionally ineffec-

tive.” (internal citation and quotations omitted)); Schell, 218 F.3d at 1027.

14976 DANIELS v. WOODFORD

Daniels and his counsel. Instead, the court instructed Daniels

that he should discuss the matter with these same attorneys.

3. Timeliness of Motion

“In evaluating the timeliness of [a] motion for substitution

of counsel, we balance ‘the resulting inconvenience and delay

against the defendant’s important constitutional right to coun-

sel of his choice.’ ” Moore, 159 F.3d at 1161 (quoting

D’Amore, 56 F.3d at 1206). Even if the trial court becomes

aware of a conflict on the eve of trial, a motion to substitute

counsel is timely if the conflict is serious enough to justify the

delay. Adelzo-Gonzalez, 268 F.3d at 780. This is particularly

true where the trial court has reason to know of the conflict

months before the trial but does not inquire into the conflict.

Id.

Here, Daniels informed the trial court three months before

the trial that he did not trust his appointed counsel and that

trial counsel could not properly represent him. Daniels again

informed the trial court of the conflict and requested substitu-

tion in a letter dated September 6, 1983, before opening state-

ments in the guilt phase. Daniels’s motion was timely under

Adelzo-Gonzalez. See 268 F.3d at 780.

[5] Because of a conflict not of their making, Daniels and

his counsel, Jordan and Small, were impeded in their

exchange of information and advice. As the district court con-

cluded, “[t]he lack of communication between Daniels and his

counsel was so profound that it rendered counsel completely

unable to discover the basic information necessary” to defend

Daniels. Consequently, Jordan and Small were “understand-

ably deprived of the power to present any adequate defense in

[Daniels’s] behalf.” See Brown, 424 F.2d at 1169. The impact

of this conflict infected counsel’s representation of Daniels at

both the guilt and penalty phases of Daniels’s trial. Ulti-

mately, this meant that Daniels was constructively denied his

right to counsel in violation of the Sixth Amendment. See

DANIELS v. WOODFORD 14977

Strickland v. Washington, 466 U.S. 668, 685 (1984) (noting

that defendant “is entitled to be assisted by an attorney,

whether retained or appointed, who plays the role necessary

to ensure that the trial is fair”); see also Brown, 424 F.2d at

1170.

B. Ineffective Assistance of Counsel

[6] To establish a claim for constitutionally ineffective

assistance of counsel, Daniels must establish that (1) his coun-

sel’s actions were outside the range of professional conduct,

and (2) that, but for counsel’s error, there is a reasonable

probability that the result of the proceeding would have been

different. See Strickland, 466 U.S. at 686. In considering

whether Daniels received the reasonably effective assistance

to which he was entitled, we must determine whether coun-

sel’s representation “fell below an objective standard of rea-

sonableness.” Id. at 686 & 688 (“The benchmark for judging

any claim of ineffectiveness must be whether counsel’s con-

duct so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced

a just result.”). To determine whether counsel’s errors preju-

diced the outcome of the trial, we must compare the evidence

that actually was presented to the jury with that which could

have been presented had counsel acted appropriately. Bonin v.

Calderon, 59 F.3d 815, 834 (9th Cir. 1995).

1. Counsel’s Representation

a. Failure to Resolve Communication Conflict

A major impediment to Jordan and Small’s representation

of Daniels was Daniels’s mistrust of his counsel and the

resulting lack of attorney-client communication. This conflict

meant that Jordan was unable to effectively communicate

with his client Daniels and thus, was deprived of a valuable

source of information in preparing for his defense. Ultimately,

a complete breakdown in communication with their client

14978 DANIELS v. WOODFORD

Daniels rendered Jordan and Small’s assistance ineffective.

See Frazer v. United States, 18 F.3d 778, 782 (9th Cir. 1994)

(noting that Strickland’s performance prong “contemplates

open communication unencumbered by unnecessary impedi-

ments to the exchange of information and advice”). This is

particularly true given Jordan’s ineffective efforts to over-

come the impasse.

The record reveals that although Jordan was aware of the

effect this communication block would have on his represen-

tation of Daniels, he did little to overcome it. As Jordan con-

ceded, the circumstances and events surrounding his

representation of Daniels—including the lack of preparation

on the case by the Public Defender’s Office, Daniels’s lack of

confidence in Jordan and Small, and attorney Roth’s inability

to disclose information—deprived him of information that

would normally be available to defense counsel.

Nevertheless, Jordan did not apprise the district court of the

extent of the communication problem with his client. In addi-

tion, even though Jordan believed Daniels’s best hope was to

testify and explain what had occurred and why, he did not

press Daniels to testify. Nor did he explain to Daniels that his

testimony was critical to his defense—indeed, that it was the

only valid defense strategy. Moreover, Jordan failed to

explain to Daniels how his testimony during the guilt phase

would benefit his penalty phase presentation. Having Daniels

describe his fears and paranoia to the jury would provide con-

text to the psychological or other mitigating evidence offered

at the penalty phase.

Even more puzzling is Jordan’s failure to contact attorney

Roth for assistance in overcoming this problem, despite

knowing that Daniels trusted and confided in Roth. Roth later

testified that he had refrained from speaking with Jordan after

Roth was designated a prosecution witness to avoid learning

any new information from Jordan that he might be forced to

reveal to the prosecution. However, Roth’s concern should

DANIELS v. WOODFORD 14979

not have kept Jordan from seeking information from Roth, as

that would not have necessitated Jordan revealing any

attorney-client privileged information that Roth did not

already know. In addition, Jordan could have sought Roth’s

advice or assistance in securing Daniels’s trust.

[7] Jordan, however, took no steps to obtain Roth’s assis-

tance in communicating with Daniels.26 Instead, it appears that

either Jordan or Small told Roth to “keep [his] hands off and

let’s see if we can handle this to the best of our ability.”

Moreover, Jordan did not attempt to use Roth during the pen-

alty phase even though Roth was no longer a prosecution wit-

ness and the trial court had expressly suggested that Jordan

contact Roth. As the district court concluded, “[i]n light of

[Jordan’s] admitted knowledge that Daniels’[s] testimony was

critical to his defense and his ongoing inability to communi-

cate with Daniels, his failure to use Roth in any way to over-

come the communication failure, particularly by the time of

the penalty phase when any threat from Roth’s designation as

a witness had been lifted, constituted deficient performance.”

b. Failure to Investigate Mental Health Defenses or

Mitigation Evidence

More troubling is counsel’s failure to conduct a thorough

investigation into Daniels’s mental illness and possible brain

damage. Even though Daniels refused to speak to his counsel,

Jordan still had an independent duty to investigate the facts of

his case and possible mitigation evidence. See Sanders v.

Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (“[C]ounsel must,

at a minimum, conduct a reasonable investigation enabling

him to make informed decisions about how best to represent

his client.”); see also Birt v. Montgomery, 709 F.2d 690, 701

26

Jordan’s only explanation was that he did not contact Roth because he

believed that if Roth had any useful information, he would have contacted

Jordan. This explanation, however, ignores the fact that it was Jordan who

owed a duty of effective representation to Daniels, not Roth.

14980 DANIELS v. WOODFORD

(7th Cir. 1983) (“Essential to effective representation . . . is

the independent duty to investigate and prepare.”); Goodwin

v. Balkcom, 684 F.2d 794, 805 (11th Cir. 1982) (“At the heart

of effective representation is the independent duty to investi-

gate and prepare.”); 1 ABA Standards for Criminal Justice 4-

4.1 (2d ed. 1982 Supp.) (“It is the duty of the lawyer to con-

duct a prompt investigation of the circumstances of the case

and to explore all avenues leading to facts relevant to the mer-

its of the case and the penalty in the event of conviction. . . .

The duty to investigate exists regardless of the accused’s

admissions or statements to the lawyer of facts constituting

guilt or the accused’s stated desire to plead guilty.”).

[8] We have found counsel “ineffective where he neither

conducted a reasonable investigation nor made a showing of

strategic reasons for failing to do so.” See Hendricks v.

Vasquez, 974 F.2d 1099, 1109 (9th Cir. 1992) (vacating judg-

ment of district court where it was not possible to “determine

if counsel’s decision was a strategic one, and if so, whether

the decision was a sufficiently informed one.”). As we have

explained, “[p]retrial investigation and preparation are the

keys to effective representation of counsel. Courts have

repeatedly stressed the importance of adequate consultation

between attorney and client, the interviewing of important

witnesses, and adequate investigation of potential defenses.”

United States v. Tucker, 716 F.2d 576, 581 (9th Cir. 1983)

(internal citations omitted).

In Wiggins v. Smith, the Supreme Court concluded that

Wiggins was denied effective assistance of counsel because

his trial counsel failed to conduct an investigation that would

have revealed a background of sexual and physical abuse,

borderline mental retardation, and troubling experiences in the

foster care system. 539 U.S. 510 (2003). Wiggins’s trial coun-

sel had made a minimal investigation: they had obtained

reports from the Department of Social Services, had consulted

a pre-sentence investigation report, and had hired a psycholo-

gist to perform some preliminary tests. Despite preliminary

DANIELS v. WOODFORD 14981

findings suggesting that Wiggins had been significantly vic-

timized as a child, his trial counsel did not conduct any addi-

tional investigation or pursue any of these leads.

In reversing the Fourth Circuit’s denial of the petition, the

Court explained the focus of its inquiry this way:

[O]ur principal concern in deciding whether [Wig-

gins’ trial counsel] exercised ‘reasonable profes-

sional judgment,’ is not whether counsel should have

presented a mitigation case. Rather, we focus on

whether the investigation supporting counsel’s deci-

sion not to introduce mitigating evidence of Wig-

gins’ background was itself reasonable.

Wiggins, 539 U.S. at 522-23 (internal citation omitted). Coun-

sel’s decision not to expand their investigation beyond the

preliminary reports they had access to fell below professional

standards. Id. at 524-25. The Court found it particularly

unreasonable for counsel to limit the scope of their investiga-

tion given the preliminary reports, noting that “any reasonably

competent attorney” would have pursued such leads in order

to make an informed choice among possible defenses. Id. at

525. “In assessing the reasonableness of an attorney’s investi-

gation . . . a court must consider not only the quantum of evi-

dence already known to counsel, but also whether the known

evidence would lead a reasonable attorney to investigate fur-

ther.” Id. at 527. Using this standard, the Wiggins Court found

that Wiggins’s counsel had chosen to abandon their investiga-

tion at an unreasonable juncture, and thus had made a fully

informed decision with respect to sentencing strategy “impos-

sible.” Id.

[9] Here, the record reveals that although Jordan believed

Daniels may have suffered from a mental illness, he did little

to investigate Daniels’s mental health. Even after Dr. Banks’s

preliminary examination indicated a strong probability that

Daniels was schizophrenic and suffered from paranoia, trial

14982 DANIELS v. WOODFORD

counsel did not follow up on these important leads by seeking

a comprehensive evaluation by more qualified and experi-

enced practitioners. Given these preliminary results, counsel

was expected to investigate further, rather than “abandon their

investigation at an unreasonable juncture.” Wiggins, 539 U.S.

at 527-28; see also Strickland, 466 U.S. at 691 (“[C]ounsel

has a duty to make reasonable investigations or to make a rea-

sonable decision that makes particular investigations unneces-

sary.”).

Nor did counsel follow up on the evidence of Daniels’s

impaired mental state that was available in reports at the time

he was preparing for trial. For instance, Jordan failed to

review Daniels’s family and social history, which described a

family history of mental illness. Although many of the docu-

ments related to Daniels’s social history were not collected

until after he was convicted, they were all available at the

time of Daniels’s trial. Similarly, much of Daniels’s medical

history was available even without Daniels’s cooperation as

it was held by prison hospitals. Had counsel reviewed these

records, they would have found that, even before 1982, prison

psychiatrists and psychologists considered Daniels mentally

ill, at risk of experiencing a psychotic episode, and in need of

psychotherapy. Daniels’s medical records also contained

information about prescription medications he was taking at

the time of the offense. Nevertheless, counsel never investi-

gated what, if any, potential effect these medications may

have had on Daniels’s mental state. Counsel’s failure to

review readily available records held by prison officials fell

below a reasonable level of performance. See Rompilla v.

Beard, 125 S. Ct. 2456, 2464-67 (2005) (“With every effort

to view the facts as a defense lawyer would have done at the

time, it is difficult to see how counsel could have failed to

realize that without examining the readily available file they

were seriously compromising their opportunity to respond to

a case for aggravation.”).

DANIELS v. WOODFORD 14983

Instead of seeking further mental evaluations, Daniels’s

counsel relied on the expert witness testimony of psychologist

Banks, who was not qualified to testify in a capital case and

whose testimony toyed with the idea that Daniels could be a

sociopath.27 See Ainsworth v. Woodford, 268 F.3d 868, 874-85

(9th Cir. 2001) (“[C]ounsel’s ill-preparation resulted in the

testimony of one defense witness . . . [whose testimony] con-

tribut[ed] to the evidence in aggravation[,]” not mitigation)

(hereinafter Ainsworth II). This alone constituted a significant

error. See Caro v. Woodford, 280 F.3d 1247, 1257 (9th Cir.

2002) (“It is significant in considering the impact of the omit-

ted evidence on the reliability of [the defendant’s] sentence,

that the evidence presented by the defense as mitigation con-

sisted primarily of lay background and character evidence.

The only expert testimony presented relating to [the defen-

dant’s] mental health did not shed light on his brain damage,

[but] tended, rather, to paint him as a violent psychopath.”).

Consequently, Daniels never received a thorough mental

health examination or diagnosis, and the jury never heard any

mitigating psychological explanation for Daniels’s behavior.

In addition, Jordan failed to investigate or present evidence

explaining Daniels’s fear of returning to custody, which may

have offered some explanation for his actions. Much of this

fear could be based on Daniels’s erroneous arrest in 1981,

during which he received such inadequate medical care that

he contracted urine poisoning. Evidence of this arrest and

mistreatment was easily accessible in police records and in

the public records of Daniels’s suit filed against the County

of Riverside. Counsel could have uncovered these records

regardless of Daniels’s cooperation.

27

According to Jordan, he agreed to have Banks testify only upon Dan-

iels’s insistence. This, however, does not absolve Jordan of responsibility

for the disastrous results. See Douglas v. Woodford, 316 F.3d 1079, 1089

(9th Cir. 2003) (“[A]lthough the client’s desires are not to be ignored alto-

gether, it may be inappropriate for counsel to acquiesce to the client’s

demands.”).

14984 DANIELS v. WOODFORD

[10] The evidence presented at the district court’s evidenti-

ary hearing suggests that if Jordan had undertaken a thorough

investigation of Daniels’s mental state, the jury would have

heard evidence that Daniels suffered from a mental disorder

at the time he committed the murders. After conducting a

comprehensive review of Daniels, psychiatrist Dudley con-

cluded that Daniels suffered a paranoid disorder at significant

times prior to the shootings as well as during the shooting and

later during the trial. In Dudley’s opinion, a competent psy-

chiatrist would have reached the same conclusion in 1982.

Equally compelling would have been Rothenberg’s testimony

that Daniels suffered from brain damage, at least since the

1980 shooting. Because his counsel did not thoroughly inves-

tigate Daniels’s mental history, none of this evidence was put

before the jury and could not be considered in the jury’s

deliberations.

[11] Nothing in the record suggests that the failure to inves-

tigate was the result of a strategic decision. According to the

district court, Jordan’s “decision to delay his investigation and

preparation for the penalty phase until it was essentially too

late to permit the development and therefore introduction of

meaningful mitigation is without explanation or justification.”28

28

The State argues that the mental health evaluations conducted by Oli-

ver and Philips indicate that they found no evidence of mental disease or

defect. Thus, according to the State, there was nothing to indicate to

defense counsel that they should pursue further testing, and their failure

to do so was a strategic choice. Contrary to the State’s suggestion, Jordan

had every reason to doubt Oliver’s conclusions, as he was aware that Oli-

ver had not been able to examine Daniels because of Daniels’s refusal to

cooperate. Nothing in Oliver’s letter indicates that he evaluated Daniels’s

medical, social, educational, or criminal records or that he conducted any

medical or psychological testing to assess Daniels’s mental state. Simi-

larly, Philips’s letters contain no evidence that he conducted any testing,

evaluation procedures, or structured assessment of Daniels’s mental state.

The only defense psychologist to even do a limited assessment of Daniels

was Banks’s assessment done immediately before the penalty phase.

Moreover, according to Jordan, the decision not to conduct more testing

was not based on trial strategy, but necessitated by a lack of time and ade-

quate funding.

DANIELS v. WOODFORD 14985

Jordan did request additional funds for mental health expert

testimony, but not until one week before the penalty phase

was to begin. Thus, when preliminary screening suggested

that Daniels was both schizophrenic and brain damaged,

insufficient time and funding prevented further evaluations by

neuropsychology experts. Indeed, at the evidentiary hearing,

Jordan testified that he was unable to pursue further mental

health evidence because of funding and time limitations. It

was this lack of time and funding—and not a strategic choice

—that hampered Jordan’s representation and ability to present

mitigation evidence.

In summary, counsel (1) primarily relied on one inexperi-

enced psychologist, who had conducted only a cursory

screening of Daniels, as the principal witness in mitigation;

(2) failed to follow up when this preliminary screening sug-

gested that Daniels suffered from a mental disorder; (3) failed

to follow up on evidence of paranoia; (4) failed to review

Daniels’s family and social history which described a family

history of mental illness; (5) failed to investigate whether the

medication prescribed for Daniels impacted his state of mind

at the time of the shootings; and (6) failed to investigate Dan-

iels’s use of illegal substances, in particular, the combined

impact of these with the prescription medications on his state

of mind.

[12] More importantly, counsel’s failures were not the

result of strategic decision-making, but of a communication

breakdown with their client, the court’s refusal to grant a con-

tinuance, a shortage of time, and repeated problems with

securing state funding. As Wiggins makes clear, without a

reasonable investigation, a fully-informed decision with

respect to trial strategy is “impossible.” Wiggins, 539 U.S. at

527-28. Because the failure to conduct a reasonable investiga-

tion lacked a strategic rationale, Daniels’s representation was

ineffective. See Hendricks, 974 F.2d at 1109; Williams v. Tay-

lor, 529 U.S. 362, 396 (2000) (finding that counsel had an

obligation to conduct a thorough investigation of the defen-

14986 DANIELS v. WOODFORD

dant’s background); see also Strickland, 466 U.S. at 691

(finding that counsel has “a duty to make reasonable investi-

gations or to make a reasonable decision that makes particular

investigations unnecessary”).

2. Prejudice

Next we must consider whether Daniels was prejudiced by

this deficient performance, that is, whether there is a reason-

able probability that, but for his counsel’s errors, the jury

would have reached a different conclusion. See Avila v.

Galaza, 297 F.3d 911, 921 (9th Cir. 2002) (citing Strickland,

466 U.S. at 695). A “ ‘reasonable probability’ is a ‘probability

sufficient to undermine confidence in the outcome.’ ” Id.

(quoting Strickland, 466 U.S. at 694).

a. Guilt Phase

It is clear in this case that Daniels shot the two officers and

is guilty of some type of unlawful killing. However, as dem-

onstrated during the evidentiary hearing, there was evidence

that his mental state at the time of the offense could have been

used as a defense to first degree murder.

[13] A defendant suffers prejudice when counsel’s ineffec-

tive performance leads to an increased sentence for the defen-

dant. Glover v. United States, 531 U.S. 198, 202-05 (2001).

We have repeatedly held that defense counsel in a murder trial

was ineffective where there was some evidence of the defen-

dant’s mental illness in the record, but counsel failed to inves-

tigate it as a basis for a mental defense to first degree murder.

See Jennings v. Woodford, 290 F.3d 1006, 1010, 1014-16 (9th

Cir. 2002) (holding that where “trial counsel failed adequately

to investigate and present considerable evidence regarding

petitioner’s psychological and family history that might have

. . . defeated the jury’s finding of the requisite intent for first

degree murder in the guilt phase,” defendant was denied

effective assistance of counsel); Seidel v. Merkle, 146 F.3d

DANIELS v. WOODFORD 14987

750, 755-56 (9th Cir. 1998) (reasoning that counsel was prej-

udicially ineffective for failing to conduct reasonable investi-

gation of guilt phase mental defenses where there was

evidence in record that defendant had previous psychiatric

treatment in jail); Bloom v. Calderon, 132 F.3d 1267, 1277

(9th Cir. 1997) (“The complete lack of effort by Bloom’s trial

counsel to obtain a psychiatric expert until days before trial,

combined with counsel’s failure to adequately prepare his

expert and then present him as a trial witness, was constitu-

tionally deficient performance.”); see also Sanders, 21 F.3d at

1456 (holding that trial counsel was deficient during guilt

phase for “fail[ing] to conduct even the minimal investigation

that would have enabled him to come to an informed decision

about what defense to offer,” and that “[d]escribing [coun-

sel]’s conduct as ‘strategic’ strips that term of all substance”).

This is particularly true where the defense that was presented

at trial was weak or meritless. See, e.g., Jennings, 290 F.3d at

1016 (“[A] possible conflict between a diminished capacity

and an alibi defense would not excuse counsel’s failure ini-

tially to investigate the potential strengths of a ‘mental

defense’ vis-a-vis an uncorroborated alibi defense.”) (quoting

People v. Mozingo, 671 P.2d 363, 367 (Cal. 1983)).

[14] Prison psychiatrists diagnosed Daniels as schizophre-

nic as early as 1965, but the only psychiatrist who spoke with

Daniels before the trial did not review any of Daniels’s medi-

cal records and was only able to conduct a cursory examina-

tion. There was no evidence presented at trial of Daniels’s

mental illness or brain damage, nor of his fear of returning to

prison. Instead, counsel presented a defense that went against

all the weight of evidence, i.e., that Daniels was not the perpe-

trator. As the district court concluded, “even in the face of his

inability to communicate with Daniels, selecting such a strat-

egy was ineffectual and in fact was indefensible.” See Silva

v. Woodford, 279 F.3d 825, 846 (9th Cir. 2002) (“Certain

defense strategies may be so ill-chosen that they may render

counsel’s overall representation constitutionally defective.”

(quoting United States v. Tucker, 716 F.2d 576, 586 (9th Cir.

14988 DANIELS v. WOODFORD

1983))). More important, this defense deprived Daniels of the

opportunity to challenge the prosecution’s theory that he acted

with premeditation and denied him two available mental

health defenses that, under California law, may have reduced

his conviction from first to second degree murder, thereby

making him ineligible for the death penalty. See Cal. Penal

Code § 190.2(a) (noting that defendant must be convicted of

first degree murder to be sentenced to death).

First, evidence regarding Daniels’s mental illness may have

demonstrated that Daniels was incapable of forming the requi-

site intent to commit first degree murder. California’s dimin-

ished capacity defense provides that a defendant can be

legally sane at the time of the murders, but “if he was suffer-

ing from a mental illness that prevented his acting with malice

aforethought or with premeditation and deliberation, he can-

not be convicted of murder of the first degree.”29 People v.

Cruz, 605 P.2d 830, 834 (Cal. 1980). If there was evidence

that a mental illness prevented the defendant from “maturely

and meaningfully reflect[ing] upon the gravity of his contem-

plated act,” then the defendant would not be guilty of first

degree murder despite “[s]ubstantial evidence supporting a

finding of premeditation and deliberation.” Id. at 835 (quoting

People v. Wolff, 394 P.2d 959, 975 (Cal. 1964)).

Here, there is evidence that Daniels suffered from severe

mental illness and possible brain damage. Under the dimin-

ished capacity standard, a jury could well have found that he

did not have the capacity to truly premeditate and understand

the gravity of shooting at the officers who were coming to

take him to prison. See People v. Ledesma, 729 P.2d 839,

29

California abolished the diminished capacity defense in June 1982.

However, the California Supreme Court has held that for crimes that took

place before June 1982, the defense is still available, and trial counsel can

be held to be ineffective if they did not pursue the defense where it was

warranted. People v. Weaver, 29 P.3d 103, 130, 130 n.8 (Cal. 2001). Dan-

iels killed the police officers in May 1982, and therefore the diminished

capacity defense was still available to him at the time of his trial.

DANIELS v. WOODFORD 14989

872-73 (Cal. 1987) (holding that counsel was prejudicially

ineffective for failure to investigate mental illness evidence

despite expert’s report stating that defendant was competent

to stand trial because report raised other issues); People v.

Mozingo, 671 P.2d 363, 367-68 (Cal. 1983) (holding trial

counsel ineffective for failure to investigate diminished

capacity defense despite defendant’s unwillingness to cooper-

ate where he previously had been diagnosed with schizophre-

nia by prison psychologist during previous incarceration);

People v. Frierson, 599 P.2d 587, 596-97 (Cal. 1979) (hold-

ing that even though defendant was rational and appeared to

be without mental abnormalities, and even though killings

appeared to be deliberate, counsel was prejudicially ineffec-

tive for failing to investigate evidence that defendant was

impaired on day of murders); People v. Corona, 145 Cal.

Rptr. 894 (Ct. App. 1978) (“[T]rial counsel in gross neglect

of his basic duty, failed to conduct the requisite factual and

legal investigation in an effort to develop [a diminished

capacity defense] and as a result of his neglect, [this] crucial

defense [was] withdrawn from the case.”); In re Hwamei, 112

Cal. Rptr. 464, 469 (Ct. App. 1974) (holding that where there

were some indications on record that defendant may have had

mental illness, counsel was prejudicially ineffective for not

investigating and pursuing diminished capacity defense, and

instead presenting mistaken identity defense where facts did

not support it).

Evidence of Daniels’s mental illness may also have demon-

strated imperfect self-defense. A defendant can be convicted

of second degree rather than first degree murder if he subjec-

tively experienced heat of passion or provocation at the time

of the murder, such that it negated deliberation or premedita-

tion. People v. Fitzpatrick, 963 Cal. Rptr. 2d 808, 814-15 (Ct.

App. 1992). This defense applies even if the defendant’s sub-

jective belief was unreasonable. See People v. Padilla, 126

Cal. Rptr. 2d 889, 892-93 (Ct. App. 2002) (holding defendant

entitled to argue provocation as defense to first degree murder

where he killed his cellmate after hallucinating that cellmate

14990 DANIELS v. WOODFORD

had killed defendant’s family, even though it was objectively

unreasonable to believe that cellmate killed his family).

“Imperfect self-defense obviates malice because that most

culpable of mental states ‘cannot coexist’ with an actual belief

that the lethal act was necessary to avoid one’s own death or

serious injury at the victim’s hand.” People v. Rios, 2 P.3d

1066, 1074 (Cal. 2000). A defendant who killed with a sub-

jective but unreasonable belief that he is going to be killed or

seriously harmed is not guilty of first degree murder. Id.

Daniels may have believed that officers Doty and Trust

were coming to kill or seriously harm him. This is objectively

unreasonable, but there are several indications that it may be

what Daniels actually thought. First, diagnoses of Daniels’s

mental condition support this conclusion. Oliver stated that

Daniels exhibited a degree of paranoid ideation. Dudley later

assessed that Daniels had a delusional disorder, and that Dan-

iels remained delusional for “some time” surrounding the

murders and the trial. Second, Daniels had previously been

shot by the police nine times, arrested erroneously, betrayed

by his own attorney, and subjected to insufficient and harmful

medical treatment in jail that resulted in urine poisoning. Pre-

senting evidence that Daniels was paranoid delusional and

feared for his life or safety when the officers came to arrest

him could have created a reasonable doubt in the minds of the

jurors as to whether Daniels premeditated or deliberated these

killings.

[15] Because he did not overcome the communication fail-

ure, Jordan failed to learn Daniels’s version of the shooting

and failed to advise Daniels regarding his possible testimony.

Exacerbating this, Jordan also failed to adequately investigate

Daniels’s mental health and background. Because of coun-

sel’s deficient performance, Daniels was denied the opportu-

nity to rebut the State’s theory that he acted with

premeditation and malice in shooting officers Doty and Trust,

DANIELS v. WOODFORD 14991

opening the possibility of a verdict on less than first degree

murder.

b. Penalty Phase

[16] In the penalty phase of a capital trial, “[i]t is impera-

tive that all relevant mitigating information be unearthed for

consideration at the capital sentencing phase.” Caro v. Calde-

ron, 165 F.3d 1223, 1227 (9th Cir. 1998). This is necessary

because “[t]he determination of whether to impose a death

sentence is not an ordinary legal determination which turns on

the establishment of hard facts. The statutory factors give the

jury broad latitude to consider amorphous human factors, to

weigh the worth of one’s life against his culpability.” Id.

(quoting Hendricks v. Calderon, 70 F.3d 1032, 1044 (9th Cir.

1995)).

Here, Jordan’s failure to overcome the communication

problems and failure to investigate meant that the jury did not

have before it all the possible evidence of mitigation when it

deliberated Daniels’s sentence. If he had done more to over-

come the communication problem, Jordan may have prevailed

upon Daniels to testify regarding his fear of returning to cus-

tody. In addition, post-conviction evaluations of Daniels

revealed that he likely suffered from brain damage or a mental

disorder at the time of the murders of Doty and Trust. If his

counsel had been able to communicate with him, such evi-

dence may have come to light earlier and been available to the

jury in its deliberations.

Moreover, Jordan made no reasonable attempt to work

around Daniels’s refusal to speak with him. Even if Daniels

had never spoken with his counsel, possible mitigating evi-

dence was still available to Jordan, if he had undertaken an

independent investigation. For instance, a review of Daniels’s

prison medical records would have revealed that prison psy-

chiatrists and psychologists considered Daniels mentally ill

and in need of psychotherapy. A review of Daniels’s social

14992 DANIELS v. WOODFORD

history would have shown that Daniels’s family had a history

of mental illness. Finally, the records of Daniels’s wrongful

arrest in 1981, including the records of his suit for damages,

contained information about the effects of that mistreatment,

which may have been used to explain his fear of returning to

custody. Jordan’s failure to investigate and present this evi-

dence deprived the jury of possible mitigating evidence that

did not depend on Daniels’s cooperation or communication.

The jury deliberated for two days before returning a verdict

of death. This suggests that the jury may have been influenced

by mitigation evidence had it been offered. Instead, the only

mitigating evidence presented was the testimony of Banks,

who was woefully unprepared and who suggested Daniels

may be a sociopath. This alone is sufficient for a finding of

prejudice. See Caro v. Woodford, 280 F.3d at 1257.

[17] In addition to a deficient penalty phase representation,

Daniels was likely prejudiced by Jordan’s guilt phase defense

that claimed Daniels was not the shooter. As a result, Daniels

faced a jury that could only be profoundly annoyed by this

ludicrous defense in the face of overwhelming evidence of

culpability. Thus, Daniels appeared before the sentencing jury

as a man charged with murder to evade arrest, implausibly

arguing that he was not the shooter to evade justice. The com-

bination of counsel’s guilt and penalty phase deficiencies,

including their failure to investigate their client’s mental

health and failure to overcome a complete communication

failure, combined to deny Daniels effective representation and

prejudiced the outcome of his penalty phase trial. Harris v.

Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (“[P]rejudice may

result from the cumulative impact of multiple deficien-

cies.”).While the trial court’s refusal to grant a continuance

hampered Daniels’s penalty phase presentation, Jordan’s fail-

ure to investigate, to seek funding for mental health expert

testimony until a week before the penalty phase began, or to

otherwise prepare for this stage of the trial, clearly prejudiced

Daniels. As a consequence, the jury considering Daniels’s

DANIELS v. WOODFORD 14993

sentence was never exposed to meaningful mitigation evi-

dence that may have meant the difference between a life or

death sentence.

II. Due Process

A. Change of Venue

In light of the extensive pretrial publicity surrounding the

murders of the two police officers, Daniels’s defense counsel

moved for a change of venue and for funds to conduct a com-

munity survey to demonstrate the impact of this publicity on

the community. In denying the motions, the trial court took

the position that whether an impartial jury could be empan-

eled would be determined by the outcome of the voir dire pro-

cess. Daniels twice renewed the motion, once during voir dire

and again after voir dire. The trial court denied each of the

motions.

[18] “In essence, the right to jury trial guarantees to the

criminally accused a fair trial by a panel of impartial, ‘indif-

ferent’ jurors. The failure to accord an accused a fair hearing

violates even the minimal standards of due process.” Irvin v.

Dowd, 366 U.S. 717, 722 (1961) (citing In re Oliver, 333 U.S.

257 (1948)). Because a criminal defendant has the right to an

impartial jury, a court must grant a motion to change venue

“if prejudicial pretrial publicity makes it impossible to seat an

impartial jury.” Ainsworth v. Calderon, 138 F.3d 787, 795

(9th Cir. 1998), as amended, 152 F.3d 1223 (citations and

internal quotations omitted) (“Ainsworth I”). When “sitting in

habeas corpus [the duty of the federal court] is to make an

independent review of the record to determine whether there

was such a degree of prejudice against the petitioner that a

fair trial was impossible.” Harris v. Pulley, 885 F.2d 1354,

1360 (9th Cir. 1988) (quoting Bashor v. Risley, 730 F.2d

1228, 1234 (9th Cir. 1984)). Thus, the reviewing federal court

must conduct an independent review of news reports about

the case. Id.

14994 DANIELS v. WOODFORD

Here, the district court was unable to make an independent

review of the pre-trial publicity because the news coverage

was not included in the record. It is also not included in the

appellate record before us. Like the district court, we rely on

the findings of the California Supreme Court regarding pub-

licity.

[19] To support a change of venue motion, Daniels must

demonstrate either actual or presumed prejudice. Id. To dem-

onstrate actual prejudice, Daniels must show that “the jurors

demonstrated actual partiality or hostility that could not be

laid aside.” Id. at 1363. Here, Daniels concedes that the record

contains no findings that any jurors demonstrated partiality or

prejudice that could not be laid aside. Thus, to prevail, Dan-

iels must make a showing sufficient for a presumption of prej-

udice. Prejudice is presumed only in extreme instances “when

the record demonstrates that the community where the trial

was held was saturated with prejudicial and inflammatory

media publicity about the crime.” Ainsworth I, 138 F.3d at

795.

Three factors should be considered in determining pre-

sumed prejudice: (1) whether there was a “barrage of inflam-

matory publicity immediately prior to trial, amounting to a

huge . . . wave of public passion”; (2) whether the news

accounts were primarily factual because such accounts tend to

be less inflammatory than editorials or cartoons; and (3)

whether the media accounts contained inflammatory or preju-

dicial material not admissible at trial. Id. (citations omitted).

Applied here, these factors compel a finding “that the

venue [wa]s saturated with prejudicial and inflammatory

media publicity about the crime” sufficient for a presumption

of prejudice. See id. at 795. The murders of Doty and Trust

generated extensive and nearly continuous publicity immedi-

ately after the shootings and again before Daniels’s trial. See

Daniels, 802 P.2d at 919. Articles described SWAT team

searches of the neighborhood where Daniels was hiding. Id.

DANIELS v. WOODFORD 14995

News accounts described the perpetrator as a Black paraple-

gic, and Daniels was identified in press accounts as the killer

from the very beginning. Id.

Although the publicity diminished after Daniels’s arrest, it

resumed as trial approached. Three months before the trial,

news articles covered the local school board’s proposal to

rename its football stadium in honor of officer Doty. Id. One

month before Daniels’s trial was to begin, on the anniversary

of the killings, a statue commemorating fallen police officers

was unveiled by the county. Id. The publicity surrounding the

memorial and its unveiling ceremony largely referred to offi-

cers Trust and Doty. Id. The memorial statue, standing nine

feet tall, was located across the street from the Riverside

County courthouse where Daniels was tried.30 Id.

Based on our review of the California Supreme Court’s

findings, the public’s response to this publicity clearly

amounted to a “huge” wave of public passion. As the Califor-

nia Supreme Court described it, police stations were “del-

uged” with calls from citizens offering tips on the

investigation and offering to establish a memorial fund. Id. at

920. In addition, local newspapers printed numerous letters

from readers calling for Daniels’s execution. Id. The officers

were turned into “posthumous celebrities,” and approximately

three thousand people attended their funerals. Id. That the

news coverage saturated the county is reflected in the fact that

eighty-seven percent of the jury pool recognized the case

from the media coverage. Id. Two-thirds of those empaneled

remembered the case from the press accounts—some recalled

that the suspect was a Black paraplegic, others recalled that

police officers were shot, and two jurors remembered Daniels

by name. Id.

30

In closing argument, the prosecution referred to this monument, say-

ing, “The monuments that we build to these people are appropriate, ‘Lest

we forget.’ ”

14996 DANIELS v. WOODFORD

The press accounts did not merely relate factual details, but

included editorials and letters to the editor calling for Dan-

iels’s execution. Id. at 919-20. In addition, news articles

reflected the prosecution’s theory of the case by attributing

the killings to Daniels’s desire to escape justice. See id. at

919. Also well-publicized by the press was Daniels’s past

criminal offenses, including an arrest for shooting at a police

officer. Id. Such information was highly prejudicial and

would not have been admissible at the guilt phase of Daniels’s

trial. Id.

[20] The nature and extent of the pre-trial publicity, paired

with the fact that the majority of actual and potential jurors

remembered the pretrial publicity warranted a change of

venue. The trial court’s denial of this motion for change of

venue violated Daniels’s right to a fair and impartial jury and

thus, his right to due process.31

B. Overlapping Special Circumstances

Daniels also challenges the jury instructions given in the

penalty phase. He argues that the trial court should have

instructed the jury not to “double count” the multiple-murder

special circumstance as to both murders. Specifically, the jury

in Daniels’s trial found to be true the special circumstance

that Daniels had been convicted of killing more than one indi-

vidual. See Cal. Penal Code § 190.2(a)(3). But the jury double

counted by making this finding twice: once for each officer

killed. The court neglected to instruct the jury that it could

only consider the multiple-murder special circumstance as a

single factor in aggravation. Daniels contends that the trial

court erred in allowing this double counting, basing his argu-

ment on the plurality opinion of the California Supreme Court

in People v. Harris, 679 P.2d 433 (Cal. 1984).

31

While the same publicity that tainted the penalty phase would also

have infected the guilt phase, Daniels does not raise this argument on

appeal, limiting our analysis to the penalty phase only.

DANIELS v. WOODFORD 14997

On Daniels’s direct appeal, the California Supreme Court

found the jury’s finding of two multiple-murder special cir-

cumstances erroneous and set the second finding aside. Dan-

iels, 802 P.2d at 938. Citing People v. Harris, the court held

that because one finding of a multiple murder special circum-

stance was sufficient to establish that Daniels was “convicted

of more than one offense of murder,” the second such finding

was erroneous.32 Id. The jury, therefore, should have consid-

ered only one multiple murder circumstance at the penalty

phase. See id.; see also Harris, 679 P.2d at 452 (“Since there

must be more than one murder to allege this special circum-

stance at all, alleging two special circumstances for a double

murder improperly inflates the risk that the jury will arbitrar-

ily impose the death penalty, a result also inconsistent with

the constitutional requirement that the capital sentencing pro-

cedure guide and focus the jury’s objective consideration of

the particularized circumstances of the offense and the indi-

vidual offender.”) (citing Jurek v. Texas, 428 U.S. 262, 273-

74 (1976)). Nevertheless, the California court concluded that

any error was harmless.33 Id.

Similarly, the district court found that the jury was

instructed to weigh the aggravating and mitigating factors in

its deliberations, but not to count and compare aggravating

32

In its plurality opinion in Harris, the California Supreme Court stated

that “[b]ecause the jury is directed to take into account the existence of

any special circumstances found to be true, the constitutionally mandated

objective of focusing on the particularized circumstances of the crime and

the defendant is undercut when the defendant’s conduct is artificially

inflated by the multiple charging of overlapping special circumstances or

multiple special circumstances based on an indivisible course of conduct

having one principal criminal purpose.” Harris, 679 P.2d at 449. Thus, in

“those cases involving a single act or an indivisible course of conduct with

one principal criminal objective, the jury should be instructed that

although it found several special circumstances to be true, for purposes of

determining the penalty to be imposed, the multiple special circumstances

should be considered as one.” Id. at 452.B

33

A state court’s conclusion that a constitutional error was harmless is

reviewed de novo. Ghent, 279 F.3d at 1126.

14998 DANIELS v. WOODFORD

and mitigating factors. Despite this, the district court con-

cluded that this erroneous “double counting” did not result in

prejudice warranting reversal. In rejecting Daniels’s argu-

ment, the court relied on Williams v. Calderon, 52 F.3d 1465

(9th Cir. 1995). In Williams, the petitioner was convicted

under the 1977 death penalty statute, and we conducted a

harmless-error analysis based on the structure of that statute,

which we concluded was a “nonweighing” statute. See id. at

1475-80. By contrast, Daniels was prosecuted under the 1978

version of the California death penalty statute,34 which the

Williams court found to be, “undoubtedly,” a weighing

regime. Id. at 1477.35

Although the differences between the two statutes are sub-

tle, they are critically important when addressing the harm-

lessness question. See id. at 1477. Under both statutes, a jury

must find at least one special circumstance to be true for the

defendant to become “death-eligible.” See id. Under the 1977

statute, however, once the jury had made that determination,

it had unfettered discretion to impose the death penalty. Id. at

1479 (citing People v. Boyd, 700 P.2d 782 (Cal. 1985)). The

statute simply required the jury to “consider, take into account

and be guided by the aggravating and mitigating circum-

stances” listed in the statute. Id. Under the 1977 statute, the

“improper label” of an invalid special circumstance would not

prejudice the defendant because the jury could still consider

the facts underlying the circumstance and because the jury

was not instructed on how it must apply the aggravating and

mitigating factors. Id. at 1479-80.

34

The 1978 death penalty statute went into effect in November 1978.

See Williams, 52 F.3d at 1471 n.6. The crime that underlies Daniels’s con-

viction occurred on May 13, 1982.

35

The statement by the Williams court was dicta and, therefore, the

question of whether the 1978 statute is a weighing statute is still open in

this Circuit. See Morales v. Woodford, 336 F.3d 1136, 1147 (9th Cir.

2003) (assuming, without deciding, that 1978 statute instituted a “weigh-

ing” regime). Nonetheless, the structure of the 1978 statute, as explained

below, strongly indicates that it creates a “weighing” regime.

DANIELS v. WOODFORD 14999

In contrast, the 1978 statute instructs the jury to “weigh”

aggravating and mitigating circumstances, and requires them

to impose the death penalty if they find that the aggravating

circumstances outweigh any mitigating factors. See Cal. Penal

Code § 190.3 (“[T]he trier of fact . . . shall impose a sentence

of death if the trier of fact concludes that the aggravating cir-

cumstances outweigh the mitigating circumstances.” (empha-

sis added)). Under the 1978 statute, the presence of an invalid

aggravating circumstance—such as an invalid multiple-

murder special circumstance36—is no longer simply an

improper label, but becomes an additional consideration

impermissibly pushing the jury towards a death sentence.

Given the differences between the 1977 and 1978 statutes,

Williams does not control our analysis here. Rather, we find

that the “double counting” error was not harmless.37 As the

Supreme Court has noted, “when the sentencing body is told

to weigh an invalid factor in its decision, a reviewing court

may not assume it would have made no difference if the

thumb had been removed from death’s side of the scale.”

Stringer v. Black, 503 U.S. 222, 232 (1992).

[21] When coupled with other penalty phase errors—such

as the court’s refusal to change venue, its decision to remove

Roth as counsel, and its appointment of inexperienced counsel

36

California Penal Code section 190.3 requires that, in its sentencing

decision, the trier of fact consider “the existence of any special circum-

stances found to be true pursuant to Section 190.1.” While the statute does

not label the special circumstances “aggravating factors,” it is beyond

question that they serve that purpose.

37

Further, the “weighing” nature of the 1978 statute reinforces Daniels’s

Sixth Amendment penalty phase claims. The fact that the jury was con-

fronted with substantial aggravating circumstances and was then told that

it must return a death sentence if it found those circumstances to outweigh

the mitigating factors illustrates that Daniels’s only chance was a strong

penalty-phase defense. These facts strengthen Daniels’s contention that he

was prejudiced by the weak presentation made by defense counsel during

the penalty phase that Daniels was not the shooter.

15000 DANIELS v. WOODFORD

—the court’s failure to instruct the jury that it could not dou-

ble count the multiple-murder special circumstance gave the

jury one more improper reason to tip the scales against Dan-

iels. We agree with the district court that the cumulative effect

of the these errors “so infected the[ proceedings] with unfair-

ness as to make the death sentence invalid.” As we pointed

out in Thomas v. Hubbard, 273 F.3d 1164 (9th Cir. 2001),

“[i]n analyzing prejudice in a case in which it is questionable

whether any single trial error examined in isolation is suffi-

ciently prejudicial to warrant reversal, this court has recog-

nized the importance of considering the cumulative effect of

multiple errors and not simply conducting a balkanized, issue-

by-issue harmless error review.” Id. at 1178 (internal quota-

tions omitted) (citing United States v. Frederick, 78 F.3d

1370, 1381 (9th Cir. 1996)); see also Whelchel v. Washington,

232 F.3d 1197, 1212 (9th Cir. 2000) (noting that cumulative

error applies on habeas review); Matlock v. Rose, 731 F.2d

1236, 1244 (6th Cir. 1984) (“Errors that might not be so prej-

udicial as to amount to a deprivation of due process when

considered alone, may cumulatively produce a trial setting

that is fundamentally unfair.”).

CONCLUSION

[22] Because Daniels was denied his Sixth Amendment

right to counsel at both the guilt and penalty phases of his

trial, we REVERSE the district court’s denial of his petition

as to the guilt phase of his trial, and AFFIRM as to the pen-

alty phase.