Correll v. Schriro

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL EMERSON CORRELL,  No. 03-99006

Petitioner-Appellant, D.C. No.

v. CV-87-01471-PHX-

SMM

CHARLES L. RYAN, Warden, Acting

Director, Arizona Department of  ORDER AND

Corrections; DORA B. SCHRIRO, AMENDED

Director, OPINION AND

Respondent-Appellee. AMENDED

 DISSENT

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, District Judge, Presiding

Argued and Submitted

September 26, 2005—San Francisco, California

Filed May 14, 2008

Before: Mary M. Schroeder, Diarmuid F. O’Scannlain and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Thomas

Dissent by Judge O’Scannlain

5409

CORRELL v. RYAN 5413

COUNSEL

Thomas Phalen and Jon M. Sands, Phoenix, Arizona, for the

appellant.

James P. Beene, Kent E. Cattani, and Terry Goddard, Phoe-

nix, Arizona, for the appellee.

ORDER

In response to the petition for rehearing, the panel has

elected to file an amended opinion and amended dissent. The

amended opinion and dissent are filed concomitantly here-

5414 CORRELL v. RYAN

with. With the filing of the amended opinion and dissent,

Judges Schroeder and Thomas voted to deny the petition for

rehearing and rehearing en banc. Judge O’Scannlain voted to

grant the petition for rehearing and rehearing en banc.

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the mat-

ter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc con-

sideration. Fed. R. App. P. 35.

The petition for rehearing and rehearing en banc is

DENIED. The Court will entertain a further petition for

rehearing and rehearing en banc as to the amendments made

to the opinion. See Ninth Circuit General Order 5.3(a).

All pending motions are DENIED.

Judge Callahan’s dissent from rehearing en banc follows:

CALLAHAN, Circuit Judge, with whom KOZINSKI, Chief

Judge, and O’SCANNLAIN, KLEINFELD, TALLMAN, and

BEA, Circuit Judges, join, in dissenting from the denial of

rehearing en banc:

I respectfully dissent from our denial of rehearing en banc

because the panel majority fails to give deference to the dis-

trict court’s factual findings as required by Hovey v. Ayers,

458 F.3d 892, 900 (9th Cir. 2006), and improperly interprets

the test for ineffective assistance of counsel set forth in Strick-

land v. Washington, 466 U.S. 668 (1984), so as to create an

almost irrebutable presumption of prejudice.

Over twenty years ago, Michael Correll was convicted of

three counts of first-degree murder, with four aggravating cir-

cumstances, and sentenced to death. State v. Correll, 148

CORRELL v. RYAN 5415

Ariz. 468, 471, 478-81 (1986). The Arizona Supreme Court

affirmed the convictions, three of the aggravating circum-

stances, and the sentence. Id. at 485. In his federal habeas

petition Correll contends that he was denied the effective

assistance of counsel at trial as guaranteed by the Sixth

Amendment. On remand from this court, the district court

conducted a nine-day evidentiary hearing. The district court

concluded that although the performance of Correll’s attorney

at sentencing was deficient, Correll was not prejudiced.

The panel majority’s opinion reweighs the evidence before

the district court and reverses its conclusion by ignoring the

district court’s factual findings as well as the second prong of

the Strickland test for ineffective assistance of counsel. The

majority opinion collapses the two Strickland prongs into one

prong. The opinion implies that if counsel makes a strategic

decision not to investigate or present what it calls “classic

mitigating circumstances” that would nonetheless open the

door to more damaging aggravating evidence, prejudice will

be presumed. It compounds this mistake by failing to appreci-

ate that in this case even if a presumption of prejudice arises,

the presumption was, as the district court found, rebutted.

Moreover, if the facts in this case do not rebut the majority’s

presumption of prejudice, the presumption in effect becomes

irrebutable. For these reasons, I dissent from our decision not

to rehear this matter en banc.

I

Although it is not clear from the panel majority opinion, the

district court in its 109-page opinion found that trial counsel’s

performance had been deficient on only two matters. First, the

district court held:

Notwithstanding Strickland’s recognition that

defense counsel’s duty to investigate, develop and

present mitigating evidence can be reasonably based

on a judge’s sentencing tendencies, the Court reluc-

5416 CORRELL v. RYAN

tantly and narrowly concludes that [counsel’s] per-

formance was deficient because he failed to review

Petitioner’s mental health records . . . before making

sentencing strategy decisions.

Second, the district court again narrowly concluded that given

the overwhelming aggravating circumstances that Correll

faced, counsel “should have obtained the medical treatment

records” concerning Correll’s head injury when a wall fell on

him when he was seven years old.

The district court, however, rejected a number of other

challenges to the attorney’s performance. For example, the

district court noted:

The Court specifically finds that [counsel] did main-

tain regular contact with Petitioner prior to sentenc-

ing and rejects Petitioner’s allegation that [counsel]

only spent five minutes with him between conviction

and sentence. . . . Petitioner did provide names of

persons for [counsel] to contact prior to sentencing,

including Susan Curry. [Counsel] followed-up and

interviewed or tried to interview the persons Peti-

tioner suggested. . . . The witnesses were not able to

provide relevant useful mitigation information. In

fact, in many instances, the witnesses only pro-

vided inculpatory and non-mitigating informa-

tion.

(Emphasis in original.) The district court rejected the conten-

tion that counsel had improperly failed to present mitigating

evidence concerning drug use. It also found that counsel’s

performance was not deficient in failing to present expert tes-

timony on methamphetamine intoxication at the time of the

crime because “there was no lay witness testimony to support

Petitioner’s intoxication at the time of the crimes.” In addi-

tion, the district court rejected challenges to counsel’s limited

investigation of Correll’s family background. It concluded

CORRELL v. RYAN 5417

that information concerning incest in the family was not avail-

able to counsel because neither Correll nor any of the family

members that counsel interviewed provided him with any

information. The district court also concluded that counsel

“was not deficient in failing to present evidence corroborating

the child abuse allegations because such corroborating testi-

mony was not reasonably available to, and thus could not

have been obtained by [counsel] at sentencing.” As to the

charge that Correll suffered from his mother’s religious fanat-

icism, the district court concluded that counsel had the avail-

able information regarding Petitioner’s mother being a

Jehovah’s Witness, but reasonably chose to present such evi-

dence as an abandonment issue.

Thus, as indicated by Judge O’Scannlain’s dissent, a review

of the district court’s 109-page memorandum of decision and

order, although confirming that counsel provided deficient

representation when he failed to seek documents relating to

Correll’s mental health and medical conditions, also shows

that counsel’s efforts on behalf of his client were considerably

more nuanced than implied by the panel majority.

II

The panel majority alleges that defense counsel basically

abandoned his client at sentencing because Arizona law, as it

then existed, mandated the death penalty when a defendant

had a qualifying prior conviction, and there was no mitigating

evidence. Indeed, this would be a much easier case if this

assertion were true. However, it misstates the law in a critical

manner, and implies the existence of clearly mitigating evi-

dence where no clearly mitigating evidence exists.

The Arizona Supreme Court affirmed Correll’s conviction,

the presence of three aggravating circumstances, and his sen-

tence.1 The Arizona Supreme Court did not find that counsel

had abandoned Correll. Rather it held:

1

It should be noted that the majority does not suggest that any investiga-

tion or effort by counsel could have prevented the Arizona courts’ finding

three aggravating factors.

5418 CORRELL v. RYAN

The trial court found no mitigating circumstances

which called for leniency. Defendant offered five

mitigating circumstances: upbringing, cooperation in

preparation of the pre-sentence report, psychological

problems such that he did not understand the wrong-

fulness of his conduct, his minor participation in the

murders, and age. A.R.S. § 13-703(G) provides that

any relevant mitigating circumstance proffered must

be considered in determining whether to impose the

death penalty. We find that none of these factors,

alone or in combination, are sufficiently substantial

to call for leniency.

State v. Correll, 148 Ariz. at 482. Later in its opinion, after

affirming the existence of three aggravating factors, the Ari-

zona Supreme Court noted that it had “also considered the

mitigating circumstances offered by defendant, and [ ] con-

clude[d] that even in combination the mitigating circum-

stances are not sufficiently substantial to call for leniency.”

Id. at 483. Thus, it appears that Arizona law did not mandate

the death penalty, but required that the courts determine

whether there were factors that were “sufficient to call for

leniency.” Furthermore, the Arizona Supreme Court’s opinion

rebuts the panel majority’s suggestion that counsel had aban-

doned Correll at the sentencing hearing.

In addition, much of the majority’s criticism of counsel’s

performance fails to recognize the critical difference between

raising reasonable doubt as to the prosecutor’s case for the

death penalty and presenting affirmative evidence of mitigat-

ing circumstances. In Williams v. Woodford, 384 F.3d 567

(9th Cir. 2004), we recognized the validity of the lingering-

doubt defense at the penalty phase, particularly as it “did not

require introduction of mitigating evidence that would open

the door to damaging rebuttal evidence.” Id. at 624. We

wrote:

based upon our review of the reasons underlying

[counsel’s] penalty-phase strategy, we cannot fault

CORRELL v. RYAN 5419

[counsel’s] sound tactical decision to present a

lingering-doubt defense in lieu of a defense based

upon mitigating evidence of Williams’s family and

life history, drug use, or mental state. We note in this

regard that the defense of “ ‘residual doubt has been

recognized as an extremely effective argument for

defendants in capital cases.’ ” Lockhart v. McCree,

476 U.S. 162, 181, 106 S.Ct. 1758, 90 L.Ed.2d 137

(1986) (quoting Grigsby v. Mabry, 758 F.2d 226,

248 (8th Cir. 1985) (en banc) (Gibson, J., dissent-

ing)). A comprehensive study on the opinions of

jurors in capital cases concluded:

‘Residual doubt’ over the defendant’s guilt

is the most powerful “mitigating fact.” . . .

[T]he best thing a capital defendant can do

to improve his chances of receiving a life

sentence has nothing to do with mitigating

evidence strictly speaking. The best thing

he can do, all else being equal, is to raise

doubt about his guilt.

Stephen P. Garvey, Aggravation and Mitigation in

Capital Cases: What Do Jurors Think?, 98 Colum.

L. Rev. 1538, 1563 (1998) (footnote omitted);

accord William S. Geimer & Jonathan Amsterdam,

Why Jurors Vote Life or Death: Operative Factors

in Ten Florida Death Penalty Cases, 15 Am. J.

Crim. L. 1, 28 (1988) (“The existence of some

degree of doubt about the guilt of the accused was

the most often recurring explanatory factor in the life

recommendation cases studied.”).

Williams, 384 F.3d at 624.

Here counsel represented a client who insisted on his inno-

cence.2 Under such circumstances, a lingering-doubt defense

2

The district court noted:

Based on Petitioner’s continuing claim of innocence and Petition-

5420 CORRELL v. RYAN

was not only reasonable, but in light of then existing Arizona

law and the double-edged nature of the so-called “classic mit-

igating evidence,” perhaps the only reasonable approach

available.

III

It follows that because Arizona law did not mandate the

entry of the death penalty and counsel did not abandon Cor-

rell, the second prong of the Strickland test for ineffective

assistance of counsel cannot be presumed. Indeed, the pur-

poses of the district court’s nine-day evidentiary hearing was

to determine whether the evidence that counsel failed to dis-

cover could possibly have been “sufficiently substantive to

call for leniency.” What the district court found, and the

majority does not really dispute, is that there was no evidence

that might humanize Correll or portray Correll as sympa-

thetic. Rather, the evidence concerning Correll’s sociopathic

or antisocial personality disorder, drug use, and troubled fam-

ily was double-edged. Although the evidence might offer

some explanation for Correll’s criminal acts, the evidence

would also shed light on his prior criminal acts, violent ten-

dencies, and unremorseful attitude. The Supreme Court has

held that evidence of a troubled upbringing and mental issues

can be mitigating. See Rompilla v. Beard, 545 U.S. 374, 392-

93 (2005); Wiggins v. Smith, 539 U.S. 510, 534-35 (2003).

However, such evidence is also recognized to be double-

edged, and it can be a reasonable strategic choice not to pre-

sent such evidence. Williams, 384 F.3d at 619-20.3 This case

er’s failure to prove otherwise, the Court concludes that Peti-

tioner did not discuss or attempt to help [counsel] prove that he

was intoxicated when he committed the crime or that his condi-

tion at that time of the crimes would mitigate his sentence.

3

In Williams, we stated:

The Supreme Court and this court have consistently held that

counsel’s performance is not deficient for the failure to present

CORRELL v. RYAN 5421

requires a determination of whether the mitigating evidence

could have been sufficiently substantial to call for leniency.

In other words, whether there is “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S.

at 694.

This question must be asked in the context of Arizona law

as it then existed. When Correll was tried, the death penalty

was not the province of a jury, but the responsibility of the

trial judge and the Arizona Supreme Court. Accordingly, the

inquiry is not whether a juror might possibly have been

moved to alter his or her view of the case, but whether there

is a reasonable possibility that any of the mitigating evidence

would have changed the trial judge’s or the Arizona Supreme

Court’s positions.

IV

By not asking this question, the panel majority fails to

appreciate that Correll has not, and cannot, meet the second

prong of the Strickland test for ineffective assistance of coun-

sel. Instead the majority (a) improperly substitutes its view of

the evidence for the district court’s findings, (b) fails to appre-

evidence in mitigation at the penalty phase when counsel’s deci-

sion is based upon a reasonable tactical determination that the

mitigating evidence would allow for the introduction of rebuttal

evidence ‘that might be literally fatal.’ Burger [v. Kemp], 483

U.S. [776,] at 791-94, 107 S.Ct. 3114 [(1987)] (counsel’s failure

to present any mitigating evidence, including the defendant’s

own testimony or the testimony of the defendant’s mother that he

had an exceptionally unhappy and physically abusive childhood,

or the expert testimony of a psychologist, was reasonable profes-

sional judgment because the testimony would risk bringing

before the jury evidence of the defendant’s unremorseful attitude,

violent tendencies, and prior criminal acts).

384 F.3d at 619-20.

5422 CORRELL v. RYAN

ciate Arizona’s death penalty provisions that were in exis-

tence when Correll was tried, and (c) ignores the fact that

presentation of the alleged “classic mitigating evidence”

would have opened the door to overwhelmingly damaging

rebuttal evidence.

A. The panel majority’s improper substitution of its inde-

pendent analysis of the record is well presented in Judge

O’Scannlain’s dissent; however, its treatment of two issues —

Correll’s alleged brain injury and the allegation that he was

under the influence of drugs at the time of the crimes — illus-

trates the extent to which the majority’s conclusions differ

from the evidence in the record and the district court’s per-

spective.

Addressing Correll’s alleged brain injury, the panel stated:

When Correll was seven, a brick wall collapsed on

his head. Although he was unconscious for some

time after the accident, his parents did not seek med-

ical treatment until several days later when he was

still not back to normal. Several experts testified that

this type of accident and the symptoms Correll

exhibited then and now indicate a high likelihood of

brain impairment.

The district court, however, made the following findings:

Petitioner received a head injury on April 8, 1967,

when he was 7, at which time his parents took him

to see their family doctor. Four days later, Petitioner

was vomiting and again taken to the family doctor

where an X-ray was taken and an EEG scheduled.

On April 14, 1967, an EEG was done. On April 15,

in response to more vomiting, Petitioner’s parents

took him to the emergency room at Children’s Hos-

pital of Los Angeles. At the hospital, he was seen by

a treating physician, who diagnosed a subgaleal

CORRELL v. RYAN 5423

hematoma, which is a bruise or collection of blood

under the scalp, but above the skull. The treating

physician recommended a neurosurgery consulta-

tion, which was done. The doctor in the neurosur-

gery clinic also diagnosed Petitioner with a subgaleal

hematoma. On May 3, 1967, Petitioner was brought

back to the neurosurgery clinic for a follow-up visit.

The follow-up visit noted that Petitioner’s hematoma

cleared in 5 days and that Petitioner was alert and

well.

In addition, the record indicates that when Correll was

examined by experts around 2000, his brain functioned at a

high level, although there was some evidence of impairment

in the prefrontal lobe.4 Also, there was little in the record to

connect the alleged impairment in 2000 to the 1967 accident.

The district court, having had the benefit of hearing from both

parties’ neuropsychologists, concluded that Correll did not

suffer any brain injury from the 1967 accident.

The majority, however, chastises the district court for mak-

ing such a finding asserting that it should “have decided only

whether there existed a ‘reasonable probability’ that ‘an

objective fact-finder’ in a state sentencing hearing would have

concluded that Correll had a brain injury that impaired his

judgment at the time of the crimes.” But the majority’s cor-

rection of the standard cannot change the fact that the district

court determined that there was no reasonable probability that

a fact-finder would find that Correll had a brain injury that

impaired his judgment, and that the majority, rather than defer

to this reasonable perspective, improperly substitutes its view

of the record for that of the district court.

4

The district court noted that Dr. Martell, a neuropsychologist, testified

that this mild impairment did not “have a lot of import for [Correll’s]

everyday behavior” and that “of all the capital defendants he has tested,

[Correll] is one of the highest functioning defendants.”

5424 CORRELL v. RYAN

The majority’s myopic view of the record also allows it to

conclude that “the evidence of Correll’s methamphetamine

use on the night of the crimes, had it been fully presented,

could have risen to the level of a statutory mitigator.” The

majority states that there was undisputed evidence induced

that Correll was addicted to methamphetamine and had used

it on the day of the crime, and further relies on expert testi-

mony “that gross methamphetamine intoxication, unlike gross

alcohol intoxication, is not necessarily apparent to outside

observers.”

The majority’s conclusion cannot be reconciled with Ari-

zona law at the time of the crimes and the evidence in the

record. As noted by Judge O’Scannlain, Arizona law provided

“[a] defendant’s intoxication or alcoholism at the time of the

offense is a mitigating circumstance if the evidence shows

that it significantly impaired the defendant’s capacity to

appreciate the wrongfulness of his conduct or to conform his

conduct to the requirements of the law.” State v. Zaragoza,

659 P.2d 22, 30 (Ariz. 1983) (emphasis added).

The district court, after holding a nine-day evidentiary

hearing, found:

* due to Correll’s continued maintenance of his

innocence, Correll did not discuss his mental state

with counsel and did not attempt to help counsel

prove that he was intoxicated when he committed the

crimes;

* counsel interviewed the persons Correll indicated

he was with prior to when the crimes were commit-

ted and they did not indicate that he was grossly

intoxicated by alcohol abuse or drug abuse on the

day of the crimes, but did indicate that Correll had

been using methamphetamine prior to the day the

crimes were committed;

CORRELL v. RYAN 5425

* “none of the witnesses could have testified that

they observed Petitioner injecting methamphetamine

in close proximity to the time the crimes occurred”;5

* the first thing that Correll and Nabors asked

Snelling when they gained entry into his trailer home

was whether he had any speed;

* Correll had spent the vast majority of his life

incarcerated in prison where his access to drugs was

limited;6

* Correll’s self-reporting of drug use was severely

limited due to the lack of corroboration;7

5

The district court noted that at the evidentiary hearing, Robin Correll,

petitioner’s sister, testified that on the morning before the crimes she wit-

nessed Correll inject some amount of methamphetamine. However, Robin

did not testify at the trial. The district court explained:

Had Robin testified about Petitioner’s use of methamphetamine

the day prior to the crimes, she could have been cross-examined

about her knowledge of Petitioner’s whereabouts at the time of

the crimes. Had Robin testified concerning Petitioner’s conversa-

tions about his need to leave town quickly, she would have dis-

closed that Petitioner was with John Nabors and had wanted an

immediate ride out-of-state very soon after the murders occurred.

Such testimony would have totally eliminated any mitigating

weight from Petitioner’s claim of innocence and residual doubt

(i.e., the guilt phase misidentification defense).

6

The district court noted that except for 229 days, Correll had been

incarcerated for the 9-year period between October 1975 and March 1984,

a month before the crimes.

7

The district court concluded:

The court does not credit Petitioner’s unsubstantiated self-report

that he abused methamphetamine every day before the crimes

were committed. Petitioner chose not to testify at the evidentiary

hearing; Petitioner chose not to fully cooperate with Dr. Mat-

thews’s examination regarding the issue of drug abuse. Because

of the obvious motive to fabricate, Petitioner’s self-serving state-

ments about his drug usage prior to the crimes is unreliable and

subject to searching skepticism.

5426 CORRELL v. RYAN

* Correll’s expert’s testimony was “thoroughly

impeached” because he admitted that he only mini-

mally considered the facts of the crimes before

reaching his conclusion, he admitted that the facts

did not necessary establish that Correll had promi-

nent hallucinations or delusions, and the facts of the

crimes show that Correll “was involved in deliberate

acts, planning, conspiring, avoiding detection,

awareness of wrongdoing, and that he was oriented

to time, place and reality.”

* the determination by Arizona’s expert in addic-

tion that Correll was not in a substance abuse psy-

chosis was credible because “he utilized the facts of

the case to support his opinion and tied his opinion

to the facts of the case;”

* “the evidence shows that it was Petitioner who

remained calm when the gun misfired as Nabors was

trying to kill Robin Cady. It was Petitioner who

encouraged Nabors to remain calm as there were no

cars coming, to get a shell chambered and shoot

Cady. Such behavior at the time of the crime does

not demonstrate intoxication and, in fact, undercuts

an assertion of intoxication.”

Accordingly, the majority’s assertions that there is a rea-

sonable probability that a fact-finder could have found that

Correll had a brain injury or that he was intoxicated by drugs

at the time of the crimes are not supported by the record.

More importantly, the majority’s reweighing of the evidence

violates our established law of deferring to the district court’s

findings. Hovey, 458 F.3d at 900 (“[F]actual findings made by

the district court are reviewed under the ‘significantly defer-

ential’ clearly erroneous standard, in which we accept the dis-

trict court’s findings of fact absent a ‘definite and firm

CORRELL v. RYAN 5427

conviction that a mistake has been committed.’ ”) (citations

omitted).8

Here, the district court held a nine-day evidentiary hearing

and made detailed findings of fact on remand from this court.

We abuse our role as an appellate court when we cavalierly

ignore the findings that a district court makes on remand.

Again, the question is not whether reasonable minds might

differ, but whether a review of the record creates “a definite

and firm conviction that a mistake has been committed.”9 The

majority, in pursuing “some mitigating evidence [that] could

have spared Correll’s life,” fails to appreciate — as it is

required to — that the district court’s contrary position is rea-

sonable and entitled to deference.

B. Although counsel’s decision not to investigate Cor-

rell’s medical and psychiatric records fell below an acceptable

level of competence, his underlying reasons may be relevant

to a determination of whether the failure to investigate was

prejudicial. The district court explained defense counsel’s per-

spective as follows:

8

Our deference to the district court’s factual findings did not arise in

Hovey, 458 F.3d at 900, but is of a longstanding principle of habeas

review. See Silva v. Woodward, 279 F.3d 825, 835 (9th Cir. 2002) (“[O]ur

review for clear error is ‘significantly deferential,’ in that we must accept

the district court’s factual findings absent a ‘definite and firm conviction

that a mistake has been committed.’ ”); United States v. Syrax, 235 F.3d

422, 427 (9th Cir. 2000) (“Clearly erroneous review is ‘significantly defer-

ential,’ requiring that the appellate court accept the district court’s findings

absent a ‘definite and firm conviction that a mistake has been commit-

ted.’ ”); McMillan v. United States, 112 F.3d 1040, 1044 (9th Cir. 1997)

(quoting Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers

Pension Trust, 508 U.S. 602 . . . (1993).).

9

In Hayes v. Woodford, 301 F.3d 1054, 1067 n.8 (9th Cir. 2002), we

noted that “[t]o be clearly erroneous, a decision must strike us as more

than just maybe or probably wrong; it must, as one member of this court

recently stated during oral argument, strike us as wrong with the force of

a five-week-old, unrefrigerated dead fish.” (internal quotation omitted).

5428 CORRELL v. RYAN

[Counsel] estimated that Petitioner had one chance

in twenty for a life sentence if he did not present the

psychological diagnosis but only one chance in fifty

if he presented Petitioner’s psychological diagnosis

to Judge Howe [the trial judge]. . . . Rather than

argue Petitioner’s personality disorder to Judge

Howe, [counsel] decided that Petitioner had a better

chance to avoid the death penalty if he portrayed that

Petitioner was involved in a drug ripoff which had

gone terribly wrong, that Petitioner had only been a

follower in the matter, that he had not been the

trigger-man as to the three people who died, that

Gary Snelling had reported to police that Petitioner

was under the influence of drugs and/or alcohol at

the time of the crimes, and that he should be shown

sympathy because his family abandoned him at the

age of 14. . . . [Counsel] concluded that any psycho-

logical diagnosis of Petitioner could not be presented

and argued without producing witnesses and other

evidence that might destroy any residual doubt aris-

ing from the presentation of his misidentification

defense at trial and the mitigation theory [counsel]

intended to present regarding Petitioner being only a

follower in the drug mishap and not the trigger-man.

The district court further explained:

[Counsel] acknowledged that Judge Howe would

consider and give effect to constitutionally relevant

mental health evidence, but believed that once Judge

Howe knew Petitioner’s diagnosis, he would find it

easier not to show sympathy and sentence him to

death. . . . Likewise, [counsel] did not believe that

Judge Howe would give substantial mitigating

weight to antisocial personality disorder evidence.

. . . On the other hand, [counsel] did believe that

there was some possibility that Judge Howe might

CORRELL v. RYAN 5429

give Petitioner a break for not being the trigger-man

in the murders.

Although the panel majority opines that defense counsel

“was afraid of the sentencing judge,” a review of the record

indicates that counsel’s evaluation of Judge Howe’s outlook

was probably accurate and definitely reasonable. Furthermore,

the panel majority’s criticism of counsel’s focus on Judge

Howe ignores that under existing Arizona law, it was Judge

Howe who was responsible for sentencing Correll. If Judge

Howe imposed the death sentence, the Arizona Supreme

Court would review that decision. However, if Judge Howe

had declined to impose the death sentence, it is doubtful that

Arizona or the Arizona Supreme Court could have, or would

have, sought to change that decision.10

C. Perhaps the most critical factor, which is not really

denied by the majority, is that the introduction of the “classic

mitigating circumstances” would open the door to the admis-

sion of overwhelming negative evidence. The district court

explained:

Although the Court has attempted to recount the mit-

igation evidence presented at Petitioner’s evidentiary

hearing in detail, the bottom line is clear: a strategy

of presenting Petitioner’s emotional and mental

10

The majority dismisses counsel’s perspective concerning Judge Howe

by labeling it a presumption that “the judge would not follow the law.”

The district court, however, specifically rejected the suggestion that Judge

Howe would not follow the law. Rather, counsel thought that if Judge

Howe found out that Correll was a sociopath or psychopath, he was more

likely to sentence him to death. The district court found counsel’s perspec-

tive to be credible. Moreover, Judge Howe’s alleged perspective does not

appear to be either irrational or illegal. In Strickland, the Supreme Court

recognized that the trial judge’s known views could be considered by

counsel. 468 U.S. at 699. The trial judge’s views were particularly impor-

tant in Correll’s case as three aggravating circumstances were established

beyond dispute and a life sentence depended on Judge Howe finding suffi-

cient mitigating circumstances to warrant leniency.

5430 CORRELL v. RYAN

problems, his condition at the time of the crime, or

as a victim of an abusive and tragic upbringing,

would have required the following additional disclo-

sures of facts, none of which are “mitigating:” (i)

Petitioner’s rape of a female psychotic patient while

he was undergoing mental health treatment for his

antisocial personality disorder and mild depression

. . . ; (ii) Petitioner’s numerous escapes from mental

health treatment facilities and rejections of institu-

tional efforts to provide him with mental health treat-

ment . . . ; (iii) Petitioner’s hostage taking and armed

aggression against mental health workers in an

escape attempt from a mental health treatment facil-

ity . . . ; (iv) the underlying factual basis of Petition-

er’s prior conviction for armed robbery . . . ; (v) the

revelation that, shortly after the murders were com-

mitted, Petitioner and Nabors woke up Robin Correll

and informed her that they needed a ride out-of-state

right away . . . ; (vi) Petitioner’s lack of effort to

seek any type of treatment for his substance abuse

problem . . . ; (vii) Petitioner’s acts of regularly

molesting his sister Robin . . . ; (viii) the conclusion

of the social evaluation at age 18 that Petitioner was

not a candidate for probation and was a danger to the

community . . . ; (ix) additional information showing

the efforts of Petitioner’s parents to deal with his

drug abuse problem and obtain psychological treat-

ment for him following his armed threat against a

teacher at school . . . ; (x) that Petitioner had no

desire to work but only wished to enjoy himself . . . ;

and (xi) Petitioner’s statement that when he commit-

ted the 1978 armed robberies that it gave him a

strong sense of power and excitement . . . .

The district court also agreed with counsel that the prosecutor

“had a reputation of excellent preparation and that she would

have left no stone unturned in her opportunity to rebut any

mitigation evidence presented.”

CORRELL v. RYAN 5431

The panel majority seeks to minimize the negative impact

of this evidence by suggesting that a “significant portion” of

the “damaging rebuttal evidence was already available

through the pre-sentence report.” This is a misleading over-

statement. Such facts as Correll’s molestation of his sister, his

use of minors to facilitate armed robberies, and his rape of a

psychotic female patient were not set forth in the pre-sentence

report. Moreover, as has already been noted, there is a world

of difference between raising questions as to the sufficiency

of the State’s presentation and introducing “mitigating evi-

dence that would open the door to damaging rebuttal evi-

dence.” Williams, 384 F.3d at 624.

Regardless of how much of the negative evidence was

already before the trial court, the inquiry remains whether fur-

ther presentation of the evidence would have been substantial

enough to mitigate a death sentence.11 The majority does not

really take issue with the district court’s determination that

Correll, at most, had an antisocial personality disorder, and

that there was “insufficient evidence to support that [Correll]

has ever suffered from any major mental illness, whether

PTSD, a major depressive disorder, or a bipolar disorder.”

Instead, the panel majority opines that the damaging rebuttal

evidence “could, in the hands of a competent attorney, have

been used to support Correll’s claims of dysfunctional

upbringing and continuing mental disorder.” This may be true

in the abstract, but in light of the horrific nature of the crimes,

Correll’s defense of innocence, the extant standard for the

imposition of the death penalty, and the damaging rebuttal

evidence, the majority engages in wishful thinking.

Here we are concerned with the possible impact of damag-

ing rebuttal evidence on Judge Howe and the Arizona

11

Ironically, the panel majority’s suggestion that the evidence was in the

pre-sentence report would appear to weigh against its conclusion that the

presentation of the evidence would have made a difference.

5432 CORRELL v. RYAN

Supreme Court. The district court properly noted that the stan-

dard is high:

Based on both the horrific facts surrounding these

murders and [Correll’s] prior criminal history, this is

the type of case that demands powerful mitigation

before it may be said that confidence in the outcome

at sentencing has been undermined. See Bonin v.

Calderon, 59 F.3d 815, 836 (9th Cir. 1995); see also

Gerlaugh v. Stewart, 129 F.3d 1027, 1042-43 (9th

Cir. 1997) (horrific crime facts require substantial

mitigation before it may be said that the balance of

aggravating factors did not warrant death); Campbell

[v. Kincheloe], 829 F.2d [1453,] 1464 [(9th Cir.

1987)] (overwhelming aggravating factors and the

heinous nature of the crime required more than

insubstantial mitigation to establish prejudice).

Also, Arizona argues that under Arizona law:

Correll’s personality disorder, his alleged drug

addiction, his past psychological and medical his-

tory, and his dysfunctional family, as non-statutory

mitigators, are not entitled to any significant mitigat-

ing weight, because Correll failed to demonstrate

any causal nexus between these mitigators and the

crimes he committed. [State] v. Murdaugh, 209 Ariz.

19, 35 . . . (2004) (drug impairment, personality dis-

order, and paranoia not entitled to significant miti-

gating weight because there was no proven causal

nexus between them and the defendant’s crimes);

[State] v. Hoskins, 199 Ariz. 127, 151-53 . . . (2000)

(antisocial or borderline personality disorder, and

dysfunctional family, not mitigating in absence of

causal link to crime.).

Furthermore, even the panel majority does not question that

the state proved three aggravating factors. In light of the hor-

CORRELL v. RYAN 5433

rific nature of the murders, the reasonably perceived nature of

the trial judge’s jurisprudence, and the incredibly damaging

nature of some of the rebuttal evidence, it is not reasonable to

conclude that the admission of the evidence would have had

any mitigating impact on either Judge Howe or the Arizona

Supreme Court.

V

This case presents an instance in which counsel’s instinct

that an investigation into Correll’s medical and mental history

would not yield any positive evidence, although an unaccept-

able reason for not conducting an investigation, turns out after

17 years, a full investigation, and a 9-day evidentiary hearing,

to have been correct. The panel majority does not really deny

that there is no positive evidence, but argues that evidence

concerning Correll’s alleged brain damage, sociopathic or

antisocial personality disorder, drug use, and troubled family,

constitute “classic mitigating circumstances.” The second

prong of the Strickland test, however, does not call for an

abstract analysis of what might be mitigating evidence, but a

determination of whether there is “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S.

at 694.

The Supreme Court reiterated this standard in Woodford v.

Visciotti, 537 U.S. 19, 22 (2002), when it reversed this court

for failing to defer to the California Supreme Court’s determi-

nation that trial counsel’s inadequacy was not prejudicial.12

12

The Supreme Court’s description of the California Supreme Court’s

determination — that it held we had improperly failed to accept — bears

an uncanny resemblance to the district court’s determination in this case.

The Supreme Court noted:

The California Supreme Court concluded that despite the failure

to present evidence of respondent’s “troubled family back-

ground,” which included his being “berated,” being “markedly

5434 CORRELL v. RYAN

Moreover, in Allen v. Woodford, 395 F.3d 979 (9th Cir.

2005), we first found that “counsel’s failure to prepare for the

sentencing phase until a week before that phase began, and

his resulting failure to thoroughly investigate and present

Allen’s mitigation case, was constitutionally deficient,” id. at

1002, but denied relief because we could not “conclude that

there is a reasonable probability, had trial counsel presented

the potential mitigation evidence developed during habeas,

that the jury would have weighed the evidence in favor of a

life sentence.” Id. at 1005. Although Allen presented a very

different factual situation, it does require that we look beyond

the fact of counsel’s deficient performance to determine

whether it had any effect on the result.

The record in this case clearly shows that the presentation

of evidence of Correll’s alleged brain damage, sociopathic or

antisocial personality disorder, drug use, and troubled family

would not have made any difference to the trial judge or the

Arizona Supreme Court. This conclusion is solidly based on

the horrific nature of the murders, the applicable constitu-

tional and state law as it existed when Correll was tried, the

perceived nature of the trial judge’s jurisprudence, and the

incredibly damaging nature of the rebuttal evidence. It is one

lacking in self-esteem and depressed,” having been “born with

club feet,” having “feelings of inadequacy, incompetence, inferi-

ority,” and the like, moving “20 times” while he was growing up,

and possibly suffering a “seizure disorder,” the aggravating fac-

tors were overwhelming. In the state court’s judgment, the cir-

cumstances of the crime (a cold-blooded execution-style killing

of one victim and attempted execution-style killing of another,

both during the course of a preplanned armed robbery) coupled

with the aggravating evidence of prior offenses (the knifing of

one man, and the stabbing of a pregnant woman as she lay in bed

trying to protect her unborn baby) was devastating. The Califor-

nia Supreme Court found these aggravating factors to be so

severe that it concluded respondent suffered no prejudice from

trial counsel’s (assumed) inadequacy.

Woodford, 537 U.S. at 26 (citations omitted).

CORRELL v. RYAN 5435

thing to cast about for alternate theories after the imposition

of the death penalty, and an entirely different thing to argue

that a defendant who has been convicted by a jury of first-

degree murder should not receive the death penalty because

he is a sociopath who cannot control himself. Correll’s coun-

sel thought that there was a one in twenty chance that Judge

Howe would not impose the death penalty if the murders were

presented as the result of a “routine robbery, drug rip off that

went bad.” The presentation of further evidence of Correll’s

mental and medical records, antisocial behavior, and prior

crimes — far from eliciting sympathy — would have ren-

dered a death sentence a certainty rather than a probability.

The panel majority’s opinion is not only factually wrong,

but more importantly for Ninth Circuit law, fails to follow the

standard for ineffective assistance of counsel mandated by the

Supreme Court and followed in our prior cases. First, instead

of fairly asking separately whether counsel’s performance

was deficient and whether the deficient performance was prej-

udicial, the opinion collapses the two standards into a single

inquiry of whether counsel’s performance was deficient. In

other words, it in effect allows a finding of a deficient strate-

gic decision to carry an irrebutable presumption of prejudice.

Second, it fails to recognize that even assuming that a pre-

sumption of prejudice may arise from a determination of defi-

cient performance, here the presumption was rebutted. It does

this by insisting that there were “classic mitigating circum-

stances,” without acknowledging the seriously damaging

nature of this evidence.13

The panel majority’s opinion makes it almost impossible

for defense counsel in a death penalty to render effective

assistance of counsel. Where, as here, defense counsel recog-

nizes that what might arguably be mitigating evidence is also

13

As previously noted, we have held that the double-edged nature of

arguably mitigating evidence may justify a decision not to present such

evidence. Williams, 384 F.3d at 619-20.

5436 CORRELL v. RYAN

damaging, he or she faces an impossible decision. If counsel

decides to forego presentation of the evidence, counsel’s per-

formance may be subsequently determined to be ineffective

because the choice was prejudicial (the client received the

death penalty). If defense counsel proffers the controversial

evidence, and the client gets the death penalty, counsel will be

chastised for introducing evidence that was prejudicial to the

client. Moreover, every criminal defendant who persuades a

court that his or her counsel was ineffective will argue that if

the deficiency was prejudicial in this case, it must be prejudi-

cial in his or her case. Because the panel majority miscon-

ceives the Strickland standard for ineffective assistance of

counsel and then applies it in such a way as to suggest an irre-

butable presumption of prejudice from a counsel’s deficient

strategic decision, I dissent from our decision not to rehear

this matter en banc.

OPINION

THOMAS, Circuit Judge:

Michael Emerson Correll, an Arizona inmate sentenced to

death, appeals the district court’s denial of his petition for writ

of habeas corpus following our remand for an evidentiary

hearing. We reverse.

I

This capital case arises under a federal habeas corpus pro-

visions that have been supplanted by the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

110 Stat. 1214 (“AEDPA”), and a state capital sentencing

statute that has since been repealed.

The factual history of this case was detailed in our earlier

opinion, Correll v. Stewart, 137 F.3d 1404, 1408-10 (9th Cir.

CORRELL v. RYAN 5437

1998) (“Correll I”). Briefly, Correll was convicted by an Ari-

zona jury in 1984 of first degree murder, attempted first

degree murder, kidnapping, armed robbery, and first degree

burglary, all for his role in a triple homicide. Id. at 1408. He

was sentenced to death by the trial judge, id. at 1410, and the

Arizona Supreme Court upheld his conviction, State v. Cor-

rell, 715 P.2d 721 (Ariz. 1986). The Supreme Court, however,

modified his death sentence as to one of the victims and inval-

idated one aggravating factor. Id. at 730-31; 734-35.

In 1987, Correll timely filed a petition for post-conviction

relief pursuant to Arizona Rule of Criminal Procedure 32. In

this petition, Correll asserted multiple violations of his consti-

tutional rights, including his right to the effective assistance

of counsel during the guilt and penalty phases of his trial, his

right to confrontation, and his right to reliability in capital

sentencing. Correll later filed five supplements to his petition,

adducing evidence of his mental impairment and his attor-

ney’s ineffectiveness. The Arizona trial court summarily dis-

missed Correll’s petition and subsequently denied Correll’s

motion for rehearing. The Arizona Supreme Court denied

review without comment.

Correll subsequently filed a petition for writ of habeas cor-

pus in federal district court under 28 U.S.C. § 2254. Correll

alleged fifty-three constitutional violations at trial, at sentenc-

ing, and during the appellate process. The district court deter-

mined that twenty-six of Correll’s claims were procedurally

barred, then granted summary judgment against Correll on his

remaining constitutional claims.

On appeal, we affirmed all of the district court’s order

except as to Correll’s contention that he was entitled to an

evidentiary hearing on his claim of ineffective assistance of

counsel at sentencing. Correll I, 137 F.3d at 1420. We

remanded that issue to the district court with instructions to

hold an evidentiary hearing. Id.

5438 CORRELL v. RYAN

On remand, the district court conducted a nine day eviden-

tiary hearing. Applying the standards set forth in Strickland v.

Washington, 466 U.S. 668 (1984), and its progeny, the district

court concluded that the performance of Correll’s attorney at

sentencing was deficient but that Correll had suffered no prej-

udice. The district court therefore granted judgment against

Correll on his federal habeas corpus petition. This timely

appeal followed.

Because Correll’s petition for a writ of habeas corpus was

filed before the effective date of AEDPA, pre-AEDPA law

governs our consideration of the merits. Lindh v. Murphy, 521

U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1494

(9th Cir. 1997) (en banc). Under pre-AEDPA law, we con-

sider a claim alleging ineffective assistance of counsel as a

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

Rios v. Rocha, 299 F.3d 796, 799 n.4 (9th Cir. 2002). We

review the district court’s denial of Correll’s habeas petition

de novo and the district court’s factual findings for clear error.

Id.

II

[1] As the Supreme Court has long instructed, the Sixth

Amendment right to counsel in a criminal trial includes “the

right to the effective assistance of counsel.” McMann v. Rich-

ardson, 397 U.S. 759, 771 n.14 (1970). This right extends to

“all critical stages of the criminal process,” Iowa v. Tovar,

541 U.S. 77, 80-81 (2004), including capital sentencing, Silva

v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002). “Because of

the potential consequences of deficient performance during

capital sentencing, we must be sure not to apply a more

lenient standard of performance to the sentencing phase than

we apply to the guilt phase of trial.” Mak v. Blodgett, 970

F.2d 614, 619 (9th Cir. 1992).

Under the familiar Strickland standard, to prevail on his

claim of ineffective assistance of counsel during the penalty

CORRELL v. RYAN 5439

phase of his trial, Correll must demonstrate first that the per-

formance of his counsel fell below an objective standard of

reasonableness at sentencing and, second, that “there is a rea-

sonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been differ-

ent.” 466 U.S. at 694. Under Strickland, we measure an attor-

ney’s performance against an “objective standard of

reasonableness,” calibrated by “prevailing professional

norms.” Id. at 688.

There are two aspects of Correll’s penalty phase defense

that are at issue in this appeal: the investigation of possible

defenses and the presentation of valid ones.

A

[2] Counsel has a duty at penalty phase “to conduct a thor-

ough investigation of the defendant’s background.” Williams

v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d

389 (2000). “To perform effectively in the penalty phase of

a capital case, counsel must conduct sufficient investigation

and engage in sufficient preparation to be able to ‘present[ ]

and explain[ ] the significance of all the available [mitigating]

evidence.’ ” Mayfield v. Woodford, 270 F.3d 915, 927 (9th

Cir. 2001) (en banc) (quoting Williams, 529 U.S. at 399)

(alterations in original). When it comes to the penalty phase

of a capital trial, “[i]t is imperative that all relevant mitigating

information be unearthed for consideration.” Caro v. Calde-

ron, 165 F.3d 1223, 1227 (9th Cir. 1999), as amended.

The ABA Standards for Criminal Justice provide guidance

as to the obligations of criminal defense attorneys in conduct-

ing an investigation. Rompilla v. Beard, 545 U.S. 374, 387,

125 S.Ct. 2456, 2466 (2005); Williams, 529 U.S. at 396. The

standards in effect at the time of Correll’s capital trial clearly

described the criminal defense lawyer’s duty to investigate,

providing specifically:

5440 CORRELL v. RYAN

It is the duty of the lawyer to conduct a prompt

investigation of the circumstances of the case and to

explore all avenues leading to facts relevant to the

merits of the case and the penalty in the event of

conviction. The investigation should always include

efforts to secure information in the possession of the

prosecution and law enforcement authorities. The

duty to investigate exists regardless of the accused’s

admissions or statements to the lawyer of facts con-

stituting guilt or the accused’s stated desire to plead

guilty.

ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982

Supp.).

As measured against these prevailing professional norms,

there can be little doubt that Correll’s penalty phase counsel

fell below an objective standard of reasonableness.

[3] First, Correll’s attorney did little to counsel Correll

about potential mitigating arguments, even though

“[a]dequate consultation between attorney and client is an

essential element of competent representation of a criminal

defendant.” United States v. Tucker, 716 F.2d 576, 581 (9th

Cir. 1983) (citation omitted). Correll alleges that defense

counsel met with him only once, for five minutes, between

trial and sentencing. Correll I, 137 F.3d at 1412. At the evi-

dentiary hearing, his attorney contradicted that allegation, tes-

tifying that he met with Correll “[p]robably two or three

times.” Based on the attorney’s testimony, the district court

rejected Correll’s assertion of minimal consultation, specifi-

cally finding that Correll’s attorney “did maintain regular con-

tact with Petitioner prior to sentencing.”

The record, however, reveals that the district court’s find-

ing of adequate consultation was clearly erroneous. Even if

counsel’s efforts to communicate with Correll exceeded one

five-minute meeting, his penalty phase consultation was

CORRELL v. RYAN 5441

unreasonably limited. Indeed, Correll’s attorney was not even

confident that he had met with Correll more than once; he tes-

tified, “I know definitely one time that I can recall, but I think

probably two or three times.” His hand-written notes from the

time period confirm only two meetings. More importantly, the

attorney’s notes make clear that Correll failed to grasp the sig-

nificance of the sentencing hearing and that his attorney

made, at best, minimal efforts to explain it to him. In fact,

Correll asked to be sentenced as soon as possible so that he

could go to the Department of Corrections in time to pick up

a Christmas package, and his attorney acquiesced in that

request. At no point did Correll’s counsel explain to Correll

the possibility of a mitigation defense arising from Correll’s

drug use, brain damage, family history, or psychiatric record,

and at no point did counsel ask Correll for information or con-

tacts specifically related to those issues. We therefore con-

clude that the district court’s factual finding on this issue was

clearly erroneous and that the district court’s legal conclusion

was in error. Correll’s attorney did not maintain constitution-

ally adequate contact or engage in constitutionally adequate

consultation with Correll in between conviction and sentenc-

ing.

[4] Second, penalty phase investigations in capital cases

should include inquiries into social background, including

investigation of any family abuse, mental impairment, physi-

cal health history, and substance abuse history. Summerlin v.

Schriro, 427 F.3d 623, 630 (9th Cir. 2005) (en banc). That

investigation should include examination of mental and physi-

cal health records, school records, and criminal records. Id.

“Defense counsel should also personally review all evidence

that the prosecution plans to introduce in the penalty phase

proceedings, including the records pertaining to criminal his-

tory and prior convictions.” Id. (citing Rompilla, 125 S.Ct. at

2465). In this case, although defense counsel was aware that

potential mitigating evidence existed, he did not explore any

avenues that might lead to development of that evidence.

5442 CORRELL v. RYAN

[5] The district court excused defense counsel’s failure to

investigate many of these mitigating factors on the ground

that Correll “had not informed” his attorney of the various

“allegations” that amounted to classic mitigating circum-

stances. On that basis, the district court apparently concluded

that defense counsel was unaware of — and could not investi-

gate — many of the mitigating factors that Correll proffered

during the evidentiary hearing. Although the district court was

apparently right to conclude that Correll did not specifically

inform his counsel of some mitigating factors, the court’s

implicit conclusion that the attorney was ignorant of those

factors is clearly erroneous. When questioned during the miti-

gation hearing, Correll’s trial counsel explicitly confirmed

that he was aware of Correll’s mental health disorders, psy-

chiatric commitments, drug abuse history, brain injury, and

family dysfunction. Defense counsel testified as follows:

Q. Were you aware that [Correll] had spent nearly

his entire teen life, from ages 14 to 18, as a

ward of the State of California and an inmate of

the California Youth Authority?

A. Yes.

...

Q. [T]hese [referring to exhibit] are notes from

your first interview and your first meeting with

Mr. Correll?

A. Yes.

Q. And you see there noted, don’t you, that you

learned of mental disorders. You checked the

mental disorders box, and that he had been

committed twice, and “in joint.” Do you see

that?

CORRELL v. RYAN 5443

A. Yes.

Q. So you knew from the inception of this case that

Mr. Correll had a couple of commitments to

psychiatric or mental institutions?

[Objection colloquy omitted.]

THE WITNESS: Yes, I definitely knew that.

[Colloquy omitted.]

Q. You also learned, during the course of your rep-

resentation of Mr. Correll, that he had a rather

lengthy drug abuse history, didn’t you?

A. Yes.

Q. Did you also learn, during the course of your

representation, that other of the Correll brothers

had criminal records and themselves had been

incarcerated in the Youth Authority?

A. Yes.

Q. Did you learn that his sister Robin was residing

in a foster home?

A. I believe I was aware of that. I don’t recall at

this point.

Q. Did you then, conclude that there were prob-

lems of some description within the Correll

household that may have contributed to the Cor-

rell childrens’ [sic] poor record of success?

A. Oh, it was obviously an extremely dysfunc-

tional family.

5444 CORRELL v. RYAN

This testimony makes perfectly clear that Correll’s trial coun-

sel was aware of many if not all relevant mitigating factors.

The district court’s implicit conclusion to the contrary was

clearly erroneous.

Indeed, in light of the abundance of classic mitigation evi-

dence of which counsel was aware, his almost complete fail-

ure to investigate is startling. Despite his knowledge that

Correll was a drug user with an extremely troubled childhood,

defense counsel did not interview witnesses about these issues

or obtain records concerning these matters. The district court

found that Correll’s attorney “interviewed or tried to inter-

view” about forty or fifty witnesses but that “[t]he witnesses

were not able to provide relevant useful mitigation informa-

tion.” On that basis, the district court found that counsel’s

investigative efforts, at least with respect to the interviews,

were adequate. Once again, the district court’s factual finding

and legal conclusion are clearly erroneous.

Admittedly, counsel did meet with some witnesses during

the trial phase, including those members of Correll’s family

who would cooperate. But counsel testified that he met only

once with Correll’s father, sister, and brother, “around the

kitchen table at the same time,” and probably spent only “[a]

couple hours” with them. Furthermore, Correll’s counsel

admitted that he interviewed witnesses only during the guilt

phase, not during the sentencing phase. Although the attorney

testified that he was looking for mitigation information as

well as exculpatory information during those pre-trial inter-

views, he failed to ask any direct questions or to conduct any

direct investigation related to the mitigating factors that are

now at issue. When counsel was asked at the evidentiary hear-

ing whether he had questioned the interviewees about Cor-

rell’s drug abuse, head injury, psychiatric history, or family

dysfunction, counsel testified that he asked no such specific

questions but, rather, asked the interviewees simply to “tell

[him] anything [they could] tell [him] that would help.” As a

result, counsel’s interviews were substantively worthless.

CORRELL v. RYAN 5445

Thus, his failure to gather mitigating information did not

result from its unavailability; it resulted from counsel’s com-

plete failure to ask any relevant questions. The district court’s

conclusion to the contrary was clearly erroneous.

Additionally, trial counsel did not obtain records from Cor-

rell’s schools or from psychiatric institutions, even though

counsel admitted that those records may have contained miti-

gating evidence. Counsel also failed to obtain police reports

on prior convictions and records regarding the time that Cor-

rell was in the custody of the California Youth Authority.

Counsel did not obtain Correll’s medical records, and he

made no inquiry into whether an X-ray or other diagnostic test

was performed to determine whether Correll suffered any

brain injury following an incident in which a wall fell on Cor-

rell’s head.

During the evidentiary hearing, counsel could not recall

what efforts he made to gather Correll’s psychiatric records,

though he did remember that he failed to obtain records from

Correll’s stays at various mental health centers.1 As the dis-

trict court correctly concluded, counsel’s failure to obtain

these relevant records constituted deficient performance.

In sum, defense counsel’s investigation into classic mitiga-

tors was extremely limited. Two of the district court’s conclu-

sions were clearly erroneous: that counsel was unaware of

some mitigators and that counsel conducted sufficient inter-

views to investigate the mitigators of which he was aware.

The district court correctly concluded that counsel failed to

obtain relevant records that were available at the time. Taken

together, this evidence demonstrates that counsel’s investiga-

tion into classic mitigators was unreasonably limited — that

counsel’s penalty phase representation was constitutionally

inadequate.

1

As the district court found, some of these records were destroyed

between the time of the trial and the time of the habeas investigation.

5446 CORRELL v. RYAN

Of course, Correll’s attorney was not wholly without a mit-

igation strategy. But the limited strategy that he developed

was unreasonably constricted, and even with respect to that

anemic strategy, counsel’s investigative efforts were unrea-

sonably weak.

Defense counsel testified that the principal mitigation evi-

dence he sought was information that would show Correll as

a “good person” and one who had “done good deeds.” Such

a limitation on the scope of the mitigation investigation was,

in and of itself, unreasonable given the extreme unlikelihood

that any testimony about Correll’s character would have been

sufficient to “humanize[ ] him during the time frame of the

murder conspiracy at issue.” Allen v. Woodford, 366 F.3d 823,

851 (9th Cir. 2004). Rather, as Correll’s attorney knew at the

time, the most likely type of evidence available was the type

that would portray Correll as a “person whose moral sense

was warped by abuse, drugs, [or] mental incapacity.” Id.

Even assuming, however, that reliance on a character

defense was a reasonable strategy in this case, counsel’s

investigation into character evidence was inadequate. For

example, Correll’s attorney was aware that a chaplain with the

California Youth Authority, Reverend Curry, might have been

willing to testify on Correll’s behalf, but the attorney never

even attempted to contact Reverend Curry.2

[6] Based on the foregoing, we conclude that Correll’s

counsel provided constitutionally deficient representation dur-

2

The district court concluded that this failure was not prejudicial

because Reverend Curry’s employer did not permit him to testify on Cor-

rell’s behalf. The district court, however, completely misunderstood Rev-

erend Curry’s testimony. The California Youth Authority prohibited

Reverend Curry from initiating contact with Correll’s attorney, but it did

not prohibit him from appearing on Correll’s behalf at the hearing. Rever-

end Curry testified repeatedly that he would have been happy to speak on

Correll’s behalf if Correll’s attorney had initiated contact (which, again,

he never did).

CORRELL v. RYAN 5447

ing his investigation into possible mitigation defenses. The

district court was correct in its limited holding that defense

counsel failed to seek and obtain mental health and other

medical records, and we further conclude that the rest of

defense counsel’s investigative efforts, including his contact

and consultation with Correll, his interviews with relevant

witnesses, and his development of a character-based mitiga-

tion strategy, were also constitutionally inadequate. Defense

counsel’s failure to investigate falls far short of any objective

standard against which we might measure reasonable attorney

performance under the Sixth Amendment.

B

Compounding his errors during the investigative phase of

sentencing, Correll’s attorney then presented to the court vir-

tually none of the little mitigating evidence that he had devel-

oped. “There is no more important hearing in law or equity

than the penalty phase of a capital trial.” Gerlaugh v. Stewart,

129 F.3d 1027, 1050 (9th Cir. 1997) (Reinhardt, J., concur-

ring and dissenting). At the penalty phase, a capital defendant

has a “constitutionally protected right [ ] to provide the jury

with . . . mitigating evidence.” Williams, 529 U.S. at 393.

“Failure to present mitigating evidence at the penalty phase of

a capital case constitutes ineffective assistance of counsel.”

Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998).

[7] As anemic as the defense counsel’s investigation was,

his presentation of mitigating evidence at the penalty phase

was worse. In fact, defense counsel put on no affirmative pen-

alty phase defense whatsoever. He did not call a single wit-

ness to testify. He did not introduce any evidence. The state

trial court record states: “Defendant waives presentation of

mitigating evidence.”

Indeed, the only proactive effort that Correll’s attorney

made at sentencing was to write a short response to the pre-

sentence report. In that written submission, he included a list

5448 CORRELL v. RYAN

of mitigating arguments, but he did not support those argu-

ments with any evidence, affidavits, or testimony. The

entirety of the written submission in mitigation reads as fol-

lows:

A. Defendant was under the influence of alcohol

and drugs at the time the offenses were commit-

ted.

Guy Snelling stated in an interview with police

officers on April 12, 1984, that there was alco-

hol on the breath of Defendant at the time the

offenses were committed. It is obvious from

this and the conduct of the perpetrators, that

they were under the influence of alcohol or

drugs or both at the time the offenses were com-

mitted.

B. Defendant was only a follower in the commis-

sion of the crimes.

Guy Snelling stated in an interview with

defense counsel on August 14, 1984 that it was

clear that John Nabors was the leader of the two

perpetrators and was making the decisions. This

is further corroborated by the fact that it was

John Nabors who knew Guy Snelling would

have illicit drugs and money and therefore, John

Nabors must have done the planning of the rob-

bery.

C. Prior to the robbery, there was no reason to

believe that anyone would be present other than

Guy Snelling, and therefore, there was no prior

plan to kill Debra Rosen, Robin Cady or Shawn

Di’Brito.

CORRELL v. RYAN 5449

D. Defendant has cooperated with the Adult Proba-

tion Office in the preparation of his presentence

report.

E. Defendant’s age.

Predictably, the Arizona Supreme Court and the federal dis-

trict court concluded that this mitigation argument was not

sufficiently significant to call for leniency.

[8] The anemia of counsel’s mitigation presentation was a

critical error, certainly rising to the level of constitutionally

deficient representation. “The failure to present mitigating

evidence during the penalty phase of a capital case, where

there are no tactical considerations involved, constitutes defi-

cient performance, since competent counsel would have made

an effective case for mitigation.” Smith v. Stewart, 189 F.3d

1004, 1008-09 (9th Cir. 1999).

[9] The error’s full magnitude, however, does not become

apparent until we consider the effect it had under Arizona law

in particular. At the time of the penalty phase proceedings,

Arizona law mandated the death penalty if the trial judge

found any one of the enumerated aggravating factors and

determined that there were no mitigating factors that were

sufficiently substantial to call for leniency. Ariz. Rev. Stat.

§ 13-703 (1984). One of the enumerated aggravating circum-

stances is a previous violent felony, for which Correll unques-

tionably qualified. State v. Correll, 715 P.2d at 731. In

Correll’s case, therefore, the failure to present any evidence

in mitigation “all but assured the imposition of a death sen-

tence under Arizona law.” Summerlin, 427 F.3d at 640; see

also Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (not-

ing that in Arizona, once an aggravating circumstance like a

prior aggravated felony was found, death was inevitable with-

out mitigating evidence, and thus holding that the failure to

pursue psychiatric evidence constituted prejudicially deficient

performance).

5450 CORRELL v. RYAN

In fact, the State argued five aggravating factors, and Cor-

rell’s defense counsel disputed only a few of them. He dis-

puted that the crimes were cruel, heinous, and depraved, and

he argued that convictions for more than one homicide could

not be used as an aggravating factor because the statute autho-

rizing this factor was not in effect on the offense date. At the

evidentiary hearing in the district court, he conceded that he

thought “it was a veritable certainty” that the court would find

“at least two, and probably all five of [the] aggravating fac-

tors.” The court found four.

Defense counsel’s sentencing memo does not even attempt

to rebut three of the five aggravating factors urged by the

State. In his oral presentation at sentencing, counsel men-

tioned the aggravating factors, but in form only, without any

substantial legal position or evidentiary support. The entirety

of his oral argument at the penalty phase consists of approxi-

mately 7 pages of transcript.

Given counsel’s virtual concession of most of the aggravat-

ing factors argued by the State and his waiver of the presenta-

tion of mitigation evidence, the outcome was obvious:

imposition of the death penalty. The Arizona Supreme Court,

in re-weighing the aggravating and mitigating factors, found

no mitigating factors “sufficiently substantial to call for

leniency.” State v. Correll, 715 P.2d at 735. The Court high-

lighted the lack of evidence presented in mitigation and noted

that the “defendant has offered no evidence or expert testi-

mony on which we could base a finding that he was unable

to appreciate the wrongfulness of his conduct.” Id. The Court

was particularly dismissive of his attempt to count coopera-

tion in the pre-sentence investigation as a mitigating factor,

noting “[i]t is in defendant’s interest to cooperate at sentenc-

ing; defendant should not be rewarded for self-serving acts.”

Id.

[10] In sum, Correll’s counsel was constitutionally defi-

cient in failing to investigate and present mitigating evidence.

CORRELL v. RYAN 5451

Particularly in light of Arizona’s death penalty regime, the

failure to develop a robust mitigation defense — and the fail-

ure to defend against the State’s aggravation case — was

unreasonable, falling below any objective standard of ade-

quate representation.

C

The State contends that the failure to put on penalty phase

evidence was a strategic choice, protected under Strickland.

To be sure, under Strickland, we must defer to trial counsel’s

strategic decisions. “A reasonable tactical choice based on an

adequate inquiry is immune from attack under Strickland.”

Gerlaugh, 129 F.3d at 1033. However, to be considered a

constitutionally adequate strategic choice, the decision must

have been made after counsel has conducted “reasonable

investigations or [made] a reasonable decision that makes par-

ticular investigations unnecessary.” Strickland, 466 U.S. at

691. In addition, “[e]ven if [a] decision could be considered

one of strategy, that does not render it immune from attack —

it must be a reasonable strategy.” Jones v. Wood, 114 F.3d

1002, 1010 (9th Cir. 1997) (emphasis in original). In this case,

because of defense counsel’s failure to investigate potential

mitigation evidence, he had too little information to make any

informed strategic decision. Furthermore, when considered

objectively, his purported “strategy” cannot be considered

reasonable.

1

[11] A decision by counsel not to present mitigating evi-

dence cannot be excused as a strategic decision unless it is

supported by reasonable investigations. See Williams, 529

U.S. at 394 (recognizing a constitutional right to present miti-

gating evidence to the jury); Silva, 279 F.3d at 843 (recogniz-

ing “the breadth of a criminal defendant’s constitutional

protection against his attorney’s failure to investigate mitigat-

ing evidence when defending his client against a capital sen-

5452 CORRELL v. RYAN

tence”). In Wiggins, the Supreme Court held that the

traditional deference owed to the strategic judgments of coun-

sel is not justified where there was not an adequate investiga-

tion “supporting those judgments.” 539 U.S. at 521.

Here, as we have discussed, defense counsel failed to make

a reasonable investigation into potential mitigating evidence.

Therefore, his decision not to put on a mitigation case cannot

be considered to be the product of a strategic choice. An unin-

formed strategy is not a reasoned strategy. It is, in fact, no

strategy at all. Cf. Strickland, 466 U.S. at 690-91 (holding that

“strategic choices made after less than complete investigation

are reasonable precisely to the extent that reasonable profes-

sional judgments support the limitations on investigation”).

In Silva, for example, we held that in the absence of dili-

gent investigation, counsel cannot make a reasoned tactical

decision regarding whether or not to present mitigating evi-

dence. 279 F.3d 846-47. Indeed, we determined that even if

a client forecloses certain types of mitigation evidence, “it

arguably becomes even more incumbent upon trial counsel to

seek out and find alternative sources of [mitigating evi-

dence].” Id.

[12] Here, an abundance of classic mitigation evidence

existed. However, counsel failed to investigate these potential

avenues and was therefore unable to make an informed deci-

sion as to whether to present the evidence and arguments that

were available. His choice not to present mitigation evidence,

therefore, cannot be justified as strategic.

2

To the extent that there was any strategy involved in the

penalty phase presentation, it cannot be considered a reason-

able strategy by any objective measure.

Defense counsel chose to rely on the pre-sentence report

prepared by a state probation officer, despite his own charac-

CORRELL v. RYAN 5453

terization of that report as “one-sided.” During his short sen-

tencing argument, defense counsel criticized the author of the

pre-sentence report for failing to interview several people who

could have provided mitigating statements. The irony, of

course, is that defense counsel could have introduced during

the penalty phase the very mitigating evidence that he felt the

probation officer should have gathered.

The sentencing report described the crimes as “particularly

heinous” and speculated that “the murder scene in the desert

must have been particularly gruesome.” The probation officer

concluded that, given the circumstances of the crime, “[t]hey

obviously planned the murders ahead of time and then cal-

culatingly and unemotionally carried out their plans.” The

pre-sentence report described Correll’s history as “a text book

of psychopathology,” and “riddled with instances of violent

behavior and armed aggression.” The probation officer deter-

mined that Correll “was not capable of functioning in soci-

ety.” The report concluded with the observation that “[h]e is

a threat, a menace, and in my opinion, the community at large

should never again be subjected to the risk of recurrence of

this type of behavior.” These statements are hardly the words

of mitigation, and no competent capital defense counsel

would have relied upon such a report as providing mitigation

evidence, much less as the sole source of mitigation evidence.

[13] Defense counsel testified at the evidentiary hearing

that he “was basically hoping [the judge] would think it was

a one-time incident and want to give Mr. Correll a break and

find a mitigating factor.” However, the pre-sentence report

contained explicit references to an extensive criminal history

that belied this theory. Indeed, the page and a half of criminal

convictions reported is longer than defense counsel’s entire

mitigation presentation in his sentencing memorandum. It was

not a reasonable strategy to rely on the pre-sentence report to

prove that the crime was a “one-time incident” when the

entire report drew the opposite conclusion.

5454 CORRELL v. RYAN

When asked at the evidentiary hearing, “what was your

sentencing strategy,” trial counsel responded that it was “hop-

ing that [the judge] liked Mr. Correll” and hoping that the

judge found that the crime “was a drug ripoff that went bad[,]

that Michael was under the influence,” and that “he wasn’t the

leader in the crimes.” When pressed, however, defense coun-

sel was forced to admit that portraying the crime as a one-

time drug ripoff gone bad was not something that would con-

stitute a mitigating factor.

Throughout the evidentiary hearing, defense counsel

revealed a fundamental misconception of mitigation evidence.

He referred to the sentencing hearing as “a dog and pony

show” and “so much smoke.” He said he felt that the judge

would not have been receptive to mitigation evidence that was

“touchy-feelly [sic] fuzzy-headed kind of stuff.” When asked

about the classic mitigation evidence that was available, such

as potential brain injury,3 a history of drug addiction, and

abuse suffered as a child, counsel testified that he didn’t think

of the evidence as favorable evidence. However, it is pre-

cisely this type of evidence that the Supreme Court has

deemed “powerful.” Wiggins, 539 U.S. at 534.

It appears clear from examination of his testimony that

defense counsel was afraid of the sentencing judge. In fact, he

forewent psychological testing because he feared that the

judge would learn of it, and he testified that he might have

presented evidence of Correll’s history of drug addiction had

he been before a different judge.4 He believed that the judge

3

As the district court noted, the Arizona Courts place significant weight

on brain injuries as mitigating evidence. Similarly, “[w]e have repeatedly

held that counsel may render ineffective assistance if he is on notice that

his client may be mentally impaired, yet fails to investigate his client’s

mental condition as a mitigating factor in a penalty phase hearing.” Caro

v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002) (internal quotations

omitted).

4

The dissent characterizes this decision not to present psychological evi-

dence as strategic because it would “make it easier for the judge to sen-

CORRELL v. RYAN 5455

would use mitigating evidence as an aggravating factor, in

violation of the mandatory language of Ariz. Rev. Stat. § 13-

703(E). When asked in a pre-hearing interview about his deci-

sion not to introduce evidence of Correll’s psychological dis-

orders, counsel responded:

[A]s a practical matter, and certainly with Judge

Howe [the trial judge], once he found out that this

man was a sociopath or psychopath, whichever term

you want to use, he didn’t have a chance in a hun-

dred of keeping from getting the death penalty.

‘Cause even though he can claim that this is a miti-

gating factor the reality is that when you tell some-

one in society and certainly Judge Howe, the man is

a sociopath, that dictates that he’s the kind of person

who should get the death penalty, that’s what the

thinking’s going to be.

This entire line of reasoning, however, presumes that the

judge would not follow the law5—speculation that is never

appropriate and that is not supported by the record here.

tence Correll to death because it would cause him to view Correll as

permanently psychologically damaged.” However, counsel’s failure to

investigate Correll’s psychological history for fear of the trial judge cannot

be termed “strategic.” Counsel worried that the trial judge would presume

that any psychological evaluation portrayed Correll in a negative light if

he granted a contact visit order for such an evaluation and the results were

never submitted to the court. This fear presumes that the trial judge would

act inappropriately by considering evidence outside of the record in mak-

ing his sentencing decision, and it fails to recognize the importance of cre-

ating a record for review, even if the trial judge likely would be

unsympathetic. Psychological injury is the type of evidence the Supreme

Court has viewed as classic mitigating evidence. Wiggins, 539 U.S. at 534.

5

See State v. Vickers, 129 Ariz. 506, 515, 633 P.2d 315, 324 (1981)

(holding that personality disorders, while they do not qualify as statutory

mitigators, must be considered as potential mitigators, particularly where

there is evidence that the personality disorder influenced the defendant’s

behavior).

5456 CORRELL v. RYAN

Fear of a particular sentencing judge’s reaction also ignores

the fact that, in capital cases, the Arizona Supreme Court con-

ducts an independent review of the aggravating and mitigating

factors, re-weighing them afresh. See State v. Johnson, 710

P.2d 1050, 1055 (Ariz. 1985) (“Whenever the trial court

imposes the death sentence we must conduct an independent

review of the facts that established the aggravating and miti-

gating circumstances in order to determine for ourselves if the

latter outweigh the former and justify the sentence.”); see also

State v. Richmond, 560 P.2d 41, 51 (Ariz. 1976) (“[T]he grav-

ity of the death penalty requires that we painstakingly exam-

ine the record to determine whether it has been erroneously

imposed.”). At the time of Correll’s appeal, the Arizona

Supreme Court was also required to conduct an independent

proportionality review. State v. Correll, 715 P.2d at 737-38.

Therefore, even if defense counsel’s fears about the judge

were legitimate, there is no strategic excuse for failing to put

on evidence in support of statutory mitigating factors that the

Arizona Supreme Court could have considered in its indepen-

dent re-weighing of aggravating and mitigating factors.

[14] In short, to the extent that defense counsel had a strat-

egy at all, it cannot be considered an objectively reasonable

strategy.

3

Counsel’s ineffective assistance at sentencing cannot be

excused as strategic. He failed to conduct an investigation suf-

ficient to make an informed judgment. To the extent that his

decisions reflected any tactical considerations, his approach of

not putting on a mitigation case cannot be considered an

objectively reasonable strategy, even when viewed under the

highly deferential Strickland standard.

CORRELL v. RYAN 5457

Volume 2 of 2

5458 CORRELL v. RYAN

III

[15] It is, of course, not enough for Correll to establish that

his counsel’s performance at sentencing fell below an objec-

tive standard of reasonableness. He must also “show that there

is a reasonable probability that, but for counsel’s unprofes-

sional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. A reasonable probabil-

ity is a probability sufficient to “undermine confidence in the

outcome.” Id.

In considering this question, we have recognized that defi-

cient performance and prejudice questions may be closely

related. See Summerlin, 427 F.3d at 643 (“[W]e conclude that

the failure of trial counsel to investigate, develop, and present

mitigating evidence at the penalty phase hearing has under-

mined our confidence in the sentence of death imposed by the

trial judge.”); Smith, 189 F.3d at 1011 (“Because of [coun-

sel’s] failure to provide competent representation, our confi-

dence in the outcome of Smith’s sentencing has been

undermined.”). In establishing prejudice under Strickland, it

is not necessary for the habeas petitioner to demonstrate that

the newly presented mitigation evidence would necessarily

overcome the aggravating circumstances. Williams, 529 U.S.

at 398. Accordingly, even where the facts discovered on

habeas review do not rise to the level of statutory mitigation,

we have held that a reasonable probability existed that this

information could have affected the sentence. Smith, 140 F.3d

at 1270; see also Rompilla, 125 S. Ct. at 2469 (noting that “al-

though we suppose that [the sentencer] could have heard it all

and still have decided on the death penalty, that is not the

test”).

Here, there was a substantial amount of classic mitigating

evidence that could have been presented, but was not.

Correll had endured an abusive childhood. His mother was

a Jehovah’s Witness, whose commitment to her church came

CORRELL v. RYAN 5459

before her commitment to her family. She spent most of her

time with the church, often neglecting her six children’s basic

needs. The children were required to attend adult bible study

class with her three nights a week, for three hours per night.

If they misbehaved or indicated that they were confused or

did not understand the religious doctrine, they were punished.

Correll’s father was largely absent but sometimes aided his

wife in physically punishing their children. There was evi-

dence of incest in the family.

When Correl was seven, a brick wall collapsed on his head.

Although he was unconscious for some time after the acci-

dent, his parents did not seek medical treatment until several

days later when he was still not back to normal. Several

experts testified that this type of accident and the symptoms

Correll exhibited then and now indicate a high likelihood of

brain impairment.6

Against this backdrop, Correll began experimenting with

alcohol and drugs around age ten. He was using marijuana,

LSD, and amphetamines regularly by age twelve, behavior

that can be characterized as self-medication for the everyday

6

The district court dismissed evidence of Correll’s brain injury, con-

cluding that any organic brain injury played no role in Correll’s crimes.

The district court’s conclusion was based on the judge’s own evaluation

of two conflicting experts. But in the procedural context of this case, the

district court’s role was not to evaluate the evidence in order to reach a

conclusive opinion as to Correll’s brain injury (or lack thereof). The dis-

trict court should have decided only whether there existed a “reasonable

probability” that “an objective fact-finder” in a state sentencing hearing

would have concluded, based on the evidence presented, that Correll had

a brain injury that impaired his judgment at the time of the crimes. Sum-

merlin, 427 F.3d at 643. Because the competing neuropsychologists who

testified at the evidentiary hearing agreed that the evidence of brain injury

was at least strong enough to deserve presentation at a sentencing hearing,

we conclude that Correll’s evidence had at least a “reasonable probability”

of persuading an objective fact-finder. The district court clearly erred

when it concluded that Correll presented insufficient evidence of organic

brain damage.

5460 CORRELL v. RYAN

trauma of his life and for the mental health illnesses that were

later diagnosed when he became a ward of the state.

It is notable that each of the six Correll children reported

that they had or have had substance abuse problems beginning

in childhood or adolescence. Further, at least five of the six

children spent time in juvenile correctional facilities, and all

four of the boys in the family have spent time in adult correc-

tional facilities.

In response to Correll’s obvious substance abuse problems,

his parents intervened with beatings and threats of kicking

him out of the house. Further, the state failed to recommend

drug or alcohol treatment despite Correll’s frequent contact

with the juvenile authorities.

After Correll was shot in the arm at age 14, the hospital

asked his parents to let him come home. They allowed him to

recuperate at home for three or four days before asking the

state to sever their parental rights. At that time, they cut off

all communication with their son and considered him dead, as

required by their church’s teachings.

Correll became a ward of the state at age 14 and spent his

teenage years in various state institutions described as “gladi-

ator schools,” which were characterized as cruel and inhu-

mane, even by those who worked there. He was placed in

programs for low-performing students, which were referenced

as “dummy shacks.” Within months of becoming a ward of

the state, 14-year-old Correll became addicted to heroin.

Correll was committed to psychiatric institutions at least

twice during his teen years and was described at age 16 as

“severely psychologically impaired.” He was treated with a

tranquilizer/anti-psychotic drug while institutionalized, and he

attempted suicide on two occasions. However, there is no evi-

dence that Correll continued to receive treatment after these

stays.

CORRELL v. RYAN 5461

Methamphetamine eventually became Correll’s drug of

choice, which he used whenever he could. Correll offered

expert testimony during the evidentiary hearing of the effect

of high methamphetamine use, including brain damage,

blackouts, and methamphetamine-induced psychosis, all of

which may be compounded by sleep deprivation.

At the time of the murders, Correll was injecting a quarter

gram to a gram of methamphetamine in one shot, and he was

injecting three to four shots a day. According to expert testi-

mony at the evidentiary hearing, Correll was in the top 1% of

methamphetamine users in terms of quantity. During the

period of time in which the crimes were committed, Correll’s

typical pattern was to go seven to ten days without sleep, fol-

lowed by one to two days of continuous sleep. He was

observed injecting methamphetamine shortly before the

crimes were committed. Expert testimony indicated that he

was likely having impulse control problems, judgment impair-

ment, and aggressiveness at the time of the crime and that he

may have been experiencing drug-induced paranoia.7

In sum, there was a substantial amount of mitigating evi-

dence available,8 which, taken together, is sufficient to raise

7

The district court discounted much of this evidence on the ground that

it was based on Correll’s self-reported drug habits, which the court con-

cluded were not credible. The conclusion that Correll’s reports were not

credible, however, is clearly erroneous in light of the substantial corrobo-

rating evidence introduced at the evidentiary hearing. Two witnesses,

Dawn Day and Reverend Curry, testified as to their own observations of

Correll’s drug habits, and their observations fully comported with Cor-

rell’s self reports. Medical and prison records indicated that Correll had

issued identical self reports at times when he had no incentive to exagger-

ate the extent of his drug abuse. Furthermore, Correll’s reports of his drug

use have never varied, over the course of several decades. In short, there

was no reason for the district court to doubt the veracity of Correll’s self

reports. On the contrary, there was significant evidence tending to corrob-

orate Correll’s account, including several records showing consistency

over time of Correll’s story.

8

The government argues that much of this evidence was already before

the sentencing court in the pre-sentence report. While the bare facts of

5462 CORRELL v. RYAN

a presumption of prejudice under the Supreme Court’s stan-

dard in Wiggins, 539 U.S. at 534-38.

But we need not rest on presumption. All of the available

evidence constituted classic mitigation evidence that certainly

had the potential to persuade “an objective fact-finder” that

Correll was, at the time of the crimes, incapable of appreciat-

ing the wrongfulness of his conduct. Summerlin, 427 F.3d at

643. To use the Supreme Court’s words, “[h]ad [a] jury been

able to place petitioner’s excruciating life history on the miti-

gating side of the scale, there is a reasonable probability that

at least one juror would have struck a different balance.” Wig-

gins, 539 U.S. at 537.

[16] Indeed, in this case, the evidence of Correll’s “excruci-

ating” history could have provided an alternative — and much

more sympathetic — context for the horrific observations and

conclusions that were before the judge in the presentence

report. While the presentence report characterized Correll as

a “threat” and a “menace,” the evidence of Correll’s family

history, personality disorder, and brain injury could have col-

ored Correll as an organically diseased and injured person

who, through no fault of his own, lacks the ability to compre-

hend the immorality of his conduct. Correll’s full history also

had the potential to convince an objective fact-finder that his

criminal behavior has, throughout his life, been his means of

gaining the negative and destructive attention that he was

taught to seek from a very young age. As the Supreme Court

has consistently instructed, these kinds of claims constitute

classic mitigation, which a fact-finder must consider when

deciding between life imprisonment and death.

Correll’s troubled past were indeed presented to the court, without further

investigation and presentation of contextual evidence and argument, such

facts served only to demonize Correll rather than to mitigate the appropri-

ateness of imposing the death penalty for his actions.

CORRELL v. RYAN 5463

Perhaps more compellingly, the evidence of Correll’s

methamphetamine use on the night of the crimes, had it been

fully presented, could have risen to the level of a statutory

mitigator. Under Arizona law, gross intoxication at the time

of the crime constitutes a statutory mitigator if that intoxica-

tion impaired the defendant’s “capacity to appreciate the

wrongfulness of his conduct or to conform his conduct to the

requirements of law.” A.R.S. § 13-703(G)(1). There was

undisputed evidence adduced at the evidentiary hearing that

Correll was addicted to methamphetamine, that Correll used

some methamphetamine on the day of the crime, that Correll

habitually used methamphetamine in astonishingly and unusu-

ally high dosages, and that drug addicts generally are incapa-

ble of using their drug of choice in any dosage that is lower

than their usual dosage. Thus, the evidence strongly indicated

that Correll used an extremely high dosage of methamphet-

amine on the day of the crime.

The district court, however, concluded that there was no

evidence of gross intoxication at the time of the crimes

because certain witnesses indicated that Correll was oriented

during the commission of the crimes. This conclusion rests on

a critical misunderstanding of the evidence.

At the evidentiary hearing, expert testimony made it clear

that gross methamphetamine intoxication, unlike gross alco-

hol intoxication, is not necessarily apparent to outside observ-

ers. The experts described a state known as

“methamphetamine blackout,” during which the user would

be capable of performing complex tasks but would be incapa-

ble of understanding or remembering his behavior. One of the

experts, a recovered methamphetamine addict, specifically

confirmed the possibility that “those observing a person in a

methamphetamine blackout [wouldn’t] know that the person

is in a methamphetamine blackout.” This evidence severely

undermines the propriety of the district court’s reliance on

witness observation in concluding that Correll was not intoxi-

5464 CORRELL v. RYAN

cated on the night of the crimes. Those witnesses might not

have known whether Correll was intoxicated or not.

Furthermore, the experts also testified that gross metham-

phetamine intoxication impairs a person’s inhibition and judg-

ment, rendering the intoxicated person incapable of measuring

and understanding the consequences of his actions. A person

in a methamphetamine blackout, the experts implied, would

not be capable of understanding the “wrongfulness of his con-

duct.”

[17] Thus, the district court was clearly wrong to conclude

that there was no available evidence that Correll was grossly

intoxicated — to the point of being unable “to appreciate the

wrongfulness of his conduct” — on the night of the crime.

Expert testimony at the evidentiary hearing clearly established

that methamphetamine use, in the quantities that Correll

undisputably used the drug on a regular basis, would signifi-

cantly impair judgment and consciousness without causing

perceptible symptoms of intoxication. We conclude that this

evidence — had it been developed and presented — could

reasonably be expected to persuade an objective fact-finder

that Correll was incapable of understanding the wrongfulness

of his conduct on the night of the murders.

The dissent argues that Correll was not prejudiced by the

failure to investigate and present mitigation evidence and

argument because the presentation of such evidence and argu-

ment “would have enabled the prosecution to present very

damaging evidence in rebuttal.” However, a significant por-

tion of that damaging rebuttal evidence was already available

through the pre-sentence report. For example, the “numerous

escapes from mental health treatment facilities” and the “hos-

tage taking and armed aggression against mental health work-

ers” were both clearly delineated in the pre-sentence report.

Furthermore, all of the so-called “damaging rebuttal evi-

dence” could, in the hands of a competent attorney, have been

CORRELL v. RYAN 5465

used to support Correll’s claims of dysfunctional upbringing

and continuing mental disorder. For example, Correll’s state-

ment that he felt “a strong sense of power and excitement”

when he committed armed robbery could show either that

Correll is dangerous — as the presentence report concluded

— or that Correll has a diseased perception of social interac-

tion, which prevents him from conforming his conduct to the

law. Indeed, all of the facts on which the dissent relies could

be either dehumanizing or mitigating, depending on the con-

text and history given for each cited fact.9

In view of the record developed at the evidentiary hearing,

we conclude that there is a reasonable probability that the out-

come of Correll’s sentencing would have been different had

he received competent representation. This was an unusual

case in the capital context because it involved a defendant

who had not killed any of the victims, although he certainly

attempted to kill one person who fortunately survived. The

actual murders were committed by another person. The failure

to present a mitigation case was particularly indefensible

under Arizona law that existed at the time, which required the

imposition of the death penalty absent a case in mitigation.

Given all of these factors, there is a significant possibility that

the introduction of some mitigating evidence could have

spared Correll’s life.

IV

[18] Correll was constitutionally entitled to the presentation

of a mitigation defense. He did not receive one, although sub-

stantial mitigation evidence existed. Most importantly,

because Arizona law required the imposition of a death sen-

tence if aggravating factors were proven and no mitigating

9

That some of the defense witnesses at sentencing might have presented

inculpatory testimony is not particularly significant, given that counsel had

abandoned at sentencing any claims of actual innocence or misidentifica-

tion.

5466 CORRELL v. RYAN

factors presented, the failure to present any mitigation defense

constituted ineffective assistance of counsel under the stan-

dards set forth in Strickland. The fear of a trial judge cannot

be considered strategic justification for forgoing the presenta-

tion of a mitigation defense, particularly given that (1) Ari-

zona law required imposition of the death penalty when no

mitigating factors were found, and (2) the Arizona Supreme

Court was required to re-weigh the aggravating and mitigating

factors. Furthermore, the evidence adduced at the evidentiary

hearing revealed several classic mitigators that a reasonable

attorney could have used to contextualize Correll’s violent

past and to mitigate Correll’s current culpability.

[19] We conclude the Correll is entitled to relief in the form

of a new penalty phase trial. We reverse the judgment of the

district court and remand with instructions to issue a writ of

habeas corpus.

REVERSED.

O’SCANNLAIN, Circuit Judge, dissenting:

I respectfully dissent from the court’s conclusion that Cor-

rell has met the “highly demanding and heavy burden of

establishing actual prejudice” in the pursuit of his claim of

ineffective assistance of counsel during the penalty phase of

the trial. Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.

2005) (quoting Williams v. Taylor, 529 U.S. 362, 394 (2000))

(internal quotation marks omitted). The majority ignores the

mountain of precedent which requires us, in assessing preju-

dice, to consider not only the likely benefits of the mitigating

evidence Correll’s counsel failed to present, but also its likely

drawbacks. In addition, the majority substitutes its indepen-

dent analysis of the record for that of the district court, relying

on its own view of the evidence rather than considering, as we

must, the effect the evidence would have had on an Arizona

CORRELL v. RYAN 5467

sentencing judge 23 years ago. Because I do not believe that

Correll has met his burden “affirmatively [to] prove preju-

dice,” I would affirm the judgment of the district court deny-

ing the petition for writ of habeas corpus. See Strickland v.

Washington, 466 U.S. 668, 693 (1984).

I

The facts of Correll’s brutal crimes are disturbing, but must

be recounted to illustrate the unlikelihood that Correll’s new

evidence would have convinced the sentencing judge not to

impose the death penalty.1

A

On the night of April 11, 1984, as Guy Snelling and his

girlfriend Debra Rosen were getting ready to go to sleep, a

knock came at the door. Snelling answered the door and

found John Nabors, his co-worker, and Correll, whom he had

not met.

After Snelling let the two men into his home, Nabors pulled

a gun and demanded money. Correll secured Snelling and

Rosen with duct tape. When Robin Cady and Shawn D’Britro,

two friends of Snelling, unwittingly arrived at the house, Cor-

rell secured them with duct tape as well. Then Correll and

Nabors escorted Snelling throughout his home to search for

money and valuables.

After raiding the house for approximately 45 minutes,

Nabors and Correll exited with Cady, D’Brito, and Snelling,

whom they forced into Cady’s car. Nabors briefly went back

inside to secure Rosen. While holding the gun on the three

1

Although it is normally not necessary to restate the facts and proce-

dural history in a dissenting opinion, the reader will understand that this

exercise is necessary due to the sharp divergence between the majority’s

presentation of the facts and the district court’s factual findings.

5468 CORRELL v. RYAN

victims, Correll drove to a deserted area where Nabors’s truck

was parked. Nabors took his truck and followed Correll, who

was still driving Cady’s car with the three victims, to a desert

area north of Phoenix. There, they forced the three victims out

of the car and made them lie face down on the ground. Correll

shot Snelling in the back of the head. Nabors then shot and

killed D’Britro, and then tried to shoot Cady. The gun mis-

fired a couple of times and Correll said “hurry up, hurry up,

. . . okay, it’s cool, no cars coming, get a shell chambered.”

After reloading the gun, Nabors was finally successful in

shooting and killing Cady. After Correll and Nabors left,

Snelling, who miraculously did not die, reported the crime.

Rosen, whom Nabors and Correll had left in the house when

they drove the other three victims into the desert, was later

found in the house, killed by strangulation.

B

At trial, Correll’s sole defense was misidentification—

namely, that Snelling, who was under the influence of drugs

and alcohol when the crimes occurred, had wrongly identified

Correll as one of his assailants, and that it was reasonably

likely that Correll’s brother Terry, who resembled Correll,

had committed the crimes instead. Unpersuaded by this

defense, a jury convicted Correll of three counts of first

degree murder, one count of attempted first degree murder,

one count of armed robbery, one count of first degree bur-

glary, and four counts of kidnaping.

At sentencing, the government urged the court to impose

the death penalty. The government asserted that five statutory

aggravating factors were present: (1) a previous violent felony

conviction;2 (2) grave risk of death to others in addition to the

persons murdered;3 (3) commission of the murders in antici-

2

Ariz. Rev. Stat. § 13-703(F)(2).

3

Id. § 13-703(F)(3).

CORRELL v. RYAN 5469

pation of pecuniary gain;4 (4) commission of the murders in

an especially heinous, cruel or depraved manner;5 and (5) con-

victions for multiple murders during the offense.6

In response, Correll’s attorney argued that the prosecution

had failed to prove, as required by Enmund v. Florida, 458

U.S. 782 (1982), that Correll intended to kill Rosen, Cady,

and D’Brito. Although the sentencing court did not accept this

argument, Correll’s attorney preserved it for appeal and the

Arizona Supreme Court later modified one of Correll’s death

sentences to life imprisonment on this ground. See State v.

Correll, 715 P.2d 721, 730-31 (Ariz. 1986). Correll’s attorney

also countered each of the government’s proffered aggravat-

ing factors.7 He argued—and the sentencing court agreed—

that the “grave risk of death to others” aggravating factor did

not apply. He also argued that the multiple murder aggravat-

ing factor could not be considered. Although the sentencing

court did not accept this argument, Correll’s attorney pre-

served it for appeal and the Arizona Supreme Court later

invalidated this aggravating factor. See id. at 734-35. Correll’s

attorney further argued, unsuccessfully, that the evidence did

not support the remaining aggravating factors.

4

Id. § 13-703(F)(5).

5

Id. § 13-703(F)(6).

6

Id. § 13-703(F)(8).

7

The majority unduly discounts defense counsel’s attack of the govern-

ment’s asserted aggravating factors. See Maj. Op. at 5450-51. Both the

Arizona Supreme Court and the state trial court disagreed with the majori-

ty’s assessment of counsel’s performance with respect to the “grave risk

of death to others” and the “multiple murders” aggravating factors, agree-

ing with counsel’s assertion that the first factor was unsupported and the

second was unconstitutional in this case. The Arizona Supreme Court also

found persuasive defense counsel’s argument that the government failed

to prove beyond a reasonable doubt that Correll intended to kill one victim

and therefore the death penalty could not be imposed on that count. Fur-

thermore, counsel made compelling substantive legal and factual argu-

ments with respect to the other aggravating factors.

5470 CORRELL v. RYAN

In addition to challenging the government’s aggravating

factors, Correll’s attorney also presented substantial mitigat-

ing evidence.8 First, counsel emphasized that it was John

Nabors, not Correll, who actually shot the three victims who

died. Second, counsel endeavored to present Nabors as the

“leader” and “planner” of the criminal endeavor, accentuating

the facts that “Mr. Nabors was the one that knew Guy Snell-

ing was a drug dealer,” and that “Snelling would have money

and drugs [when] the robbery occurred. In addition, counsel

drew the court’s attention to Snelling’s statement that “it

appeared to him that John Nabors was the leader, was the one

calling the shots, so to speak.” Finally, counsel pointed out

that, prior to the robbery, it was impossible for Correll reason-

ably to have anticipated that anyone would be present in the

home other than Snelling, and that, consequently, Correll

could not have planned the three deaths.9

Third, Correll’s attorney also argued for mitigation, both in

his sentencing memorandum and at oral argument, on the

grounds that Correll was under the influence of drugs and

alcohol at the time of the murders.10 Counsel specifically drew

the sentencing judge’s attention to Snelling’s statement to the

police that he smelled alcohol on Correll’s breath during the

crimes.

8

The majority quotes the state trial court record, which reads that “De-

fendant waive[d] presentation of mitigating evidence.” Maj. Op. at 5447.

This excerpt, however, was merely the conclusion of the court clerk. In the

district court proceedings, defense counsel adamantly maintained that

“[w]e didn’t waive” the presentation of mitigating evidence.

9

At the time of sentencing, Arizona state law explicitly provided that

such inability reasonably to foresee that one’s conduct would cause death

to another person was a statutory mitigating factor. Ariz. Rev. Stat. § 13-

703(G)(4).

10

A defendant’s inability to appreciate the wrongfulness of his conduct

or to conform his conduct to the requirements of law is a statutory mitigat-

ing factor. See Ariz. Rev. Stat. § 13-703(G)(1).

CORRELL v. RYAN 5471

Fourth, counsel presented Correll’s troubled family history,

explaining that “the reason that Mike [Correll] has had prob-

lems is the fact that when he was 14 years old, that both of

his parents abandoned him and what can be expected when

someone is abandoned by their parents at such an early age?”

Finally, Correll’s attorney also argued that Correll’s age—24

—was mitigating.11

Although Correll’s attorney knew that Correll had received

psychological counseling, he declined to develop psychologi-

cal evidence because he believed, based on his conversations

with Correll, that the only possible diagnosis was antisocial

personality disorder. As counsel explained at the evidentiary

hearing, he believed such a diagnosis would carry little, if

any, mitigating weight with the sentencing judge and would,

in fact, make it easier for the judge to sentence Correll to

death because it would cause him to view Correll as perma-

nently psychologically damaged.12

C

The sentencing judge ultimately found four statutory aggra-

vating circumstances.13 Determining that the mitigating evi-

11

A defendant’s age is a statutory mitigating factor. See Ariz. Rev. Stat.

§ 13-703(G)(5).

12

As the district court summarized the evidence presented at the sen-

tencing hearing:

Rather than argue Petitioner’s personality disorder to Judge

Howe, [counsel] decided that Petitioner had a better chance to

avoid the death penalty if he portrayed that Petitioner was

involved in a drug ripoff which had gone terribly wrong, that

Petitioner had only been a follower in the matter, that he had not

been the trigger-man as to the three people who died, that Guy

Snelling had reported to police that Petitioner was under the

influence of drugs and/or alcohol at the time of the crimes, and

that he should be shown sympathy because his family abandoned

him at the age of 14.

13

The Supreme Court has since held that Arizona’s practice of judges

finding aggravating factors violates the Sixth Amendment right to a jury.

5472 CORRELL v. RYAN

dence did not outweigh these factors, the judge sentenced

Correll to death on each of the murder counts. The Arizona

Supreme Court affirmed Correll’s convictions, with the modi-

fications previously mentioned. It then re-weighed the aggra-

vating and mitigating factors and determined that the death

penalty was appropriate. Correll, 715 P.2d at 736.

In his state petition for postconviction relief, Correll

alleged that his counsel rendered ineffective assistance at sen-

tencing. He contended that during the month that elapsed

between the jury verdict and the sentencing hearing, his attor-

ney met with him for just five minutes. He also contended that

his attorney failed to investigate and to develop available evi-

dence relating to his psychiatric history and condition at the

time of the crimes. The state trial court summarily dismissed

Correll’s petition, concluding that Correll raised “no colorable

issues” relating to ineffective assistance of counsel. The court

went on to explain that “the Court specifically recalls that the

trial work of defense counsel was precise, careful, and compe-

tent, and manifested strategic and tactical judgments of the

same high quality.” The Arizona Supreme Court denied

review without comment.

Correll later filed a federal petition for writ of habeas cor-

pus and the district court entered summary judgment against

him. On appeal (“Correll I”), we held that Correll’s ineffec-

tive assistance allegations, which had not been fully explored

in state court, entitled him to an evidentiary hearing. We held

that Correll had established (1) that the state court trier of fact

had not conducted a full and fair hearing to find the relevant

facts, and (2) that his allegations, if proven, might constitute

a colorable ineffective assistance claim. Correll v. Stewart,

137 F.3d 1404, 1411-12 (9th Cir. 1998).

See Ring v. Arizona, 536 U.S. 584 (2002). Ring does not apply, however,

to cases such as this one that were already final on direct review. See

Schriro v. Summerlin, 542 U.S. 348, 358 (2004).

CORRELL v. RYAN 5473

D

Pursuant to our instructions on remand, the district court

conducted an evidentiary hearing on Correll’s ineffective

assistance of counsel claim. The evidentiary hearing lasted

nine days. The district court heard testimony from 17 wit-

nesses, 14 called by Correll (who waived his appearance), and

three called by the government. In addition, the district court

reviewed reams of documents, including Correll’s attorney’s

notes, which were nearly a quarter-century old, and Correll’s

childhood medical records, which were two decades older.

After outlining all the evidence in a detailed 109-page dis-

position, the district court made several findings. First, as to

the sufficiency of counsel’s consultation with Correll, the

court rejected Correll’s allegation that counsel spent only five

minutes with him between conviction and sentence. Instead,

the district court found that “[p]rior to sentencing, [counsel]

had multiple face-to-face meetings and phone calls with Peti-

tioner” in which he “discuss[ed] with Petitioner the overall

mitigation case and the specific reasons he would present to

the court in favor of a life sentence rather than the death pen-

alty.”

Second, as to the sufficiency of counsel’s investigation of

possible mitigating evidence, the district court found that

counsel spoke to between 40 and 50 witnesses, including

every member of Correll’s family who would cooperate. The

district court further found that, unfortunately, “[t]he wit-

nesses were not able to provide relevant useful mitigation

information.” In fact, “in many instances, the witnesses only

provided inculpatory and non-mitigating information.”

The district court did find that counsel’s performance was

constitutionally deficient in two respects: (1) counsel’s failure

to obtain medical treatment records relating to the head injury

Correll suffered at seven years old and (2) counsel’s failure to

thoroughly review Correll’s mental health records. The court

5474 CORRELL v. RYAN

determined that a reasonable attorney would have investigated

these matters for possible mitigating evidence rather than

relying on his own impression, based on his interaction with

the defendant, that the defendant had no intellectual or psy-

chological deficits that could serve as mitigating evidence.

Nevertheless, the district court found that Correll was not

prejudiced by these errors. After Correll’s postconviction

counsel developed all the evidence relating to Correll’s head

injury and mental health history, the district court still found

Correll to be a “highly functioning adult” who never suffered

from brain damage or a major psychological disorder. Thus,

the district court found that Correll’s medical and mental

health records provided no substantial evidence of mitigation.

Furthermore, the district court found that much of the new

evidence Correll offered would have been counterproductive

if put before the sentencing judge because it would have

“opened the door for the prosecution to come forward with

strong damaging rebuttal information to counter its mitigating

effect.”

II

In reversing the district court’s judgment, the majority con-

cludes that the district court committed “clear error” in find-

ing that counsel’s investigation and presentation of possible

mitigating defenses was constitutionally sufficient. Under the

clearly erroneous standard of review, our scrutiny of a district

court’s factual findings must be “significantly deferential, in

that we must accept the district court’s factual findings absent

a definite and firm conviction that a mistake has been com-

mitted.” Hovey v. Ayers, 458 F.3d 892, 900 (9th Cir. 2006)

(quoting Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.

2002)) (internal quotation marks omitted).14 In other words, as

14

Because Correll’s petition for a writ of habeas corpus was filed before

the effective date of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, pre-AEDPA law

governs our review. Lindh v. Murphy, 521 U.S. 320, 327 (1997).

CORRELL v. RYAN 5475

long as the district court’s account of the evidence “ ‘is plau-

sible in light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that had it

been sitting as the trier of fact, it would have weighed the evi-

dence differently.’ ” Phoenix Engineering and Supply Inc. v.

Universal Elec. Co., Inc., 104 F.3d 1137, 1141 (9th Cir. 1997)

(quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74

(1985)).

Unfortunately, the majority ignores these instructions and

embarks on its own independent examination of the facts

presented to the district court. By contrast, as indicated by its

exhaustive 109-page disposition, the district court’s findings

were well-supported by the facts and reached only after a

thorough review of all available evidence. I simply cannot

agree that the district court’s findings were erroneous at all,

let alone clearly erroneous.

More alarming than its reconstruction of the record, how-

ever, the majority jumps with startling speed from its new fac-

tual determination that Correll received ineffective assistance

of counsel to its ultimate conclusion that his habeas petition

must be granted. In so doing, the majority ignores Strick-

land’s second requirement, that even if Correll proves ineffec-

tive assistance of counsel, he must also prove that the result

was actually prejudicial. Wiggins, 539 U.S. at 534 (citing

Strickland, 466 U.S. at 692). As the Supreme Court has made

clear, we do not presume prejudice from counsel’s ineffective

assistance. Strickland, 466 U.S. at 693. Rather, even if coun-

sel’s performance was deficient, Correll still bears the “highly

demanding and heavy burden of establishing actual preju-

dice.” Allen, 395 F.3d at 1000 (internal quotation marks omit-

ted) (emphasis added). This burden “affirmatively [to] prove

prejudice” requires Correll to show more than the mere possi-

bility that counsel’s performance prejudiced the outcome.

Strickland, 466 U.S. at 693. Instead, Correll must demonstrate

“a reasonable probability” that, but for counsel’s constitution-

5476 CORRELL v. RYAN

ally deficient performance, he would have received a lesser

sentence. Id. at 695.

In assessing prejudice in this case, it is important to remem-

ber that “we are not asked to imagine what the effect of cer-

tain testimony would have been upon us personally,” Stewart

v. Smith, 140 F.3d 1263, 1270 (9th Cir. 1998), or even to

imagine the effect of such testimony on an abstract juror.

Instead, we must determine what the effect of Correll’s new

evidence would have been upon the Arizona sentencing judge

at the time of Correll’s sentencing hearing 23 years ago. Id.

As discussed below, none of the evidence unearthed during

the district court’s evidentiary hearing creates a “reasonable

probability” that Correll would have received a lesser sen-

tence had it been presented at the sentencing phase of his trial.

Accordingly, I cannot conclude that Correll has met the heavy

burden required to establish prejudice.

A

First, Correll’s attorney’s failure to obtain the medical

records relating to Correll’s childhood head injury was not

prejudicial because these records did not, in fact, demonstrate

any brain damage. After receiving testimony from neuropsy-

chologists, the district court found that Correll “did not suffer

any brain injury from the block wall that fell on him when he

was 7 years old.” Quite to the contrary, the district court cred-

ited a neuropsychologist’s testimony that “of all the capital

defendants he has tested, Petitioner is one of the highest func-

tioning.”

The medical records from the incident support this assess-

ment. After his childhood injury, Correll was diagnosed with

a subgaleal hematoma, which is a bruise or collection of

blood under the scalp, but above the skull. The hematoma

cleared in five days, at which time a doctor described the

seven-year-old Correll as alert and well. I accordingly cannot

agree with the majority’s conclusion that Correll has carried

CORRELL v. RYAN 5477

his burden to establish a reasonable probability that he would

have received a lesser sentence if the records relating to his

childhood head injury had been before the sentencing judge.

Indeed, as we have suggested before, counsel’s failure to

present “mitigating evidence may be irrelevant when no sub-

stantial mitigating evidence is available.” Smith v. Stewart,

189 F.3d 1004, 1013 n.4 (9th Cir. 1999) (citing Gerlaugh v.

Stewart, 129 F.3d 1027, 1042 (9th Cir. 1997)). The medical

records, which led the district court to conclude that Correll

was a “highly functioning adult,” presented no opportunity for

mitigation.

B

In assessing the remainder of Correll’s mitigating evidence,

it is important to emphasize that the majority’s conclusion

that Correll has met the heavy burden of demonstrating actual

prejudice ignores a mountain of precedent which requires us

to consider not only the benefits of the ostensibly mitigating

evidence counsel failed to present, but also its potential draw-

backs. In Darden v. Wainwright, 477 U.S. 168, 186 (1986),

trial counsel’s failure to present any mitigating evidence did

not constitute deficient performance because the presentation

of such evidence would have opened the door to damaging

rebuttal evidence. Similarly, in Burger v. Kemp, 483 U.S. 776

(1987), trial counsel’s failure to present psychological records

did not amount to ineffective assistance because the records

were “by no means uniformly helpful to petitioner,” as they

suggested “violent tendencies” that would have undermined

counsel’s strategy of portraying petitioner’s actions as the

result of another person’s “strong influence upon his will.” Id.

at 793. Based on these cases, we have held that an attorney

who failed to present psychological testimony relating to the

defendant’s antisocial personality disorder was not ineffective

because such testimony “would have allowed the prosecution

during cross-examination and rebuttal to rehash the horrific

details of [the] crimes.” Bonin v. Calderon, 59 F.3d 815, 836

(9th Cir. 1995). Most recently, the Supreme Court, in Wiggins

5478 CORRELL v. RYAN

v. Smith, 539 U.S. 510 (2003), repeatedly emphasized that the

Darden-Burger line of cases remains in effect. In Wiggins, the

Court held that the petitioner had met his heavy burden of

proving actual prejudice because “Wiggins d[id] not have a

record of violent conduct” that the State could have intro-

duced to offset the mitigating evidence his attorney failed to

offer. Id. at 537. The majority fails to realize that unlike Wig-

gins, much of the new mitigating evidence Correll offers

would have enabled the prosecution to present very damaging

evidence in rebuttal. Indeed, Correll’s mitigating evidence

presents precisely the type of “double edge” the Supreme

Court found lacking in Wiggins’s case. Id. at 535 (distin-

guishing the mitigating evidence presented by Wiggins from

the double-edged evidence presented in Burger, 483 U.S. 776,

and Darden, 477 U.S. 168).

1

I begin with Correll’s new psychiatric evidence, which

would not have significantly helped his case. The district

court found that “there is insufficient evidence to support that

Petitioner has ever suffered from any major mental illness,

whether PTSD [post traumatic stress disorder], a major

depressive disorder, or a bipolar disorder.” The district court

reached this factual finding after two psychological experts

testified that there was no evidence Correll has ever suffered

from these disorders. The sole witness who speculated that

Correll might have suffered from post traumatic stress disor-

der acknowledged that such a diagnosis was “only a possibili-

ty.” The district court found Correll’s self-reporting of bipolar

disorder and severe depression incredible in light of Correll’s

obvious motive to fabricate and in light of the fact that these

diagnoses do not appear in his records and Correll indicated

that he was never given medication to treat them.

The district court also found that the evidence did not sup-

port Correll’s contention that he was given anti-psychotic

medications while in custody. In reaching this factual finding,

CORRELL v. RYAN 5479

the district court noted that the mental health experts for both

parties scrutinized Correll’s medical records from the Califor-

nia Department of Corrections (“CDC”) and reported the

absence of any indication that anti-psychotic medication was

ever prescribed. Although it appears that Correll was given

Mellaril for a period of time as a juvenile, the government’s

mental health expert, Dr. John Scialli, M.D., testified without

opposition that the dosage—25 milligrams—would have

served as a mild tranquilizer and was far lower than the dos-

age that would be utilized to counteract psychosis (approxi-

mately 625 milligrams).

Accordingly, had Correll’s attorney thoroughly reviewed

Correll’s mental health records, he would have only had cred-

ible evidence for the diagnosis he already suspected: antiso-

cial personality disorder accompanied by mild depression. As

we have repeatedly acknowledged, a diagnosis of antisocial

personality disorder may be “potentially more harmful to [a]

petitioner than [helpful].” Gerlaugh, 129 F.3d at 1035. We

have explained that, because of its “obvious countervailing

tactical dangers,” such evidence “[i]n its best possible light,

it is a basket of cobras.” Id. Accordingly, in a prior case, “we

c[ould] identify no prejudice flowing from counsel’s failure to

develop” psychiatric testimony relating to a defendant’s anti-

social personality disorder. Id.; see also Darden, 477 U.S. at

186-87 (counsel’s decision not to present mitigating character

or mental-state evidence was sound trial strategy because it

would have opened the door to damaging rebuttal evidence,

including a psychiatric opinion that the defendant had a socio-

pathic personality); Daniels v. Woodford, 428 F.3d 1181,

1204, 1210 (9th Cir. 2005) (indicating that testimony suggest-

ing that a capital defendant is a “sociopath” is aggravating

rather than mitigating); Beardslee v. Woodford, 358 F.3d 560,

583 (9th Cir. 2004) (acknowledging that an antisocial person-

ality diagnosis can be damaging to a capital defendant); Caro

v. Woodford, 280 F.3d 1247, 1257 (9th Cir. 2002) (concluding

that a psychologist’s testimony did not help the defendant’s

mitigation case because it tended “to paint him as a violent

5480 CORRELL v. RYAN

psychopath”); Clabourne v. Lewis, 64 F.3d 1373, 1384 (9th

Cir. 1995) (noting that mental health records omitted from the

sentencing hearing “hardly turned out to be helpful” because

they indicated that the defendant had “an antisocial personali-

ty”); Williams v. Calderon, 52 F.3d 1465, 1472 (9th Cir.

1995) (“We have no doubt that . . . statements [suggesting that

the defendant is sociopathic] did nothing to advance Wil-

liams’s cause.”).

Furthermore, had counsel presented Correll’s mental health

records at sentencing, he would have opened the door for the

prosecution to present extremely damaging rebuttal evidence

that would have likely eviscerated the minimal mitigating

impact these records carried. The district court “credit[ed

counsel’s] testimony that the prosecutor, Sidney Davis, had a

reputation for excellent preparation and that she would have

left no stone unturned in her opportunity to rebut any mitiga-

tion evidence presented.” Accordingly, the district court

found that, had Correll’s attorney presented mental health evi-

dence, this “highly skilled” prosecutor would have presented

a great deal of aggravating evidence that was not already

before the sentencing judge, specifically: (1) Correll’s rape of

a female psychotic patient while being treated for his antiso-

cial personality disorder and mild depression; (2) Correll’s

numerous escapes from mental health treatment facilities and

numerous rejections of institutional efforts to provide him

with mental health treatment; (3) an incident where Correll

took hostages in an armed attempt to escape from a mental

health treatment facility; (4) the underlying factual basis of

Correll’s prior convictions for armed robbery; (5) the conclu-

sion of a social evaluation at age 18 that Correll was a danger

to the community and was not a candidate for probation; (6)

additional information showing the efforts of Correll’s parents

to deal with his drug abuse problem and to obtain psychologi-

cal treatment for him following his armed threat against a

teacher at school; (7) Correll’s statement that he had no desire

to work but only wished to enjoy himself; and (8) Correll’s

CORRELL v. RYAN 5481

statement that when he committed the 1978 armed robberies

that it gave him a strong sense of power and excitement.

Finally, presentation of Correll’s antisocial personality dis-

order at sentencing would have severely undermined coun-

sel’s strategy of arguing that Correll was merely following

Nabors’s lead during the commission of the crimes. Had

counsel introduced evidence of Correll’s antisocial personal-

ity disorder diagnosis, the prosecution would have almost cer-

tainly responded by pointing out that Correll, at age 18,

instigated the armed robbery of three convenience stores at

gunpoint, an effort in which he enlisted the assistance of his

13-year-old brother and 15-year old girlfriend. We have pre-

viously held that counsel’s failure to present psychological

evidence is not prejudicial where it would have distracted the

fact-finder from counsel’s main mitigation theory and other

mitigation evidence. See Bonin, 59 F.3d at 836 (finding that

counsel’s failure to present expert psychological testimony

was not prejudicial because it “would have distracted jurors

. . ., reduced [the defendant’s] credibility with the jury, and

opened the door to powerful cross-examination and rebuttal”);

see also Burger, 483 U.S. at 793 (holding that a petitioner

failed to prove ineffective assistance where the affidavits

detailing the defendant’s behavioral history his attorney failed

to present “are by no means uniformly helpful to petitioner

because they suggest violent tendencies that are at odds with

the defense’s strategy of portraying petitioner’s actions on the

night of the murder as the result of [another person’s] strong

influence upon his will”).

In sum, the psychological evidence, if presented, would

have demonstrated only that Correll has an antisocial person-

ality with mild depression. Such evidence has tremendous

potential to be more harmful than helpful. Further, such evi-

dence would have opened the door for the prosecution to

introduce a laundry list of extremely damaging information

not already before the sentencing judge and would have crip-

pled Correll’s chances of convincing the sentencing judge that

5482 CORRELL v. RYAN

he was merely following Nabors’s lead during the crimes.15

Accordingly, contrary to the majority’s conclusion, Correll

cannot prove a reasonable probability that he would have

received a lesser sentence if the available psychological evi-

dence had been before the sentencing judge.

2

Given the lack of substantial mitigation found in Correll’s

medical and psychiatric records, Correll cannot claim to have

been prejudiced by counsel’s failure to offer further evidence

of Correll’s drug use beyond what he already presented to the

sentencing judge. The district court found that there was no

evidence—other than Correll’s self-serving statements—that

Correll was significantly impaired at the time of the crimes.

Arizona law at the time provided that “[a] defendant’s intoxi-

cation or alcoholism at the time of the offense is a mitigating

circumstance if the evidence shows that it significantly

impaired the defendant’s capacity to appreciate the wrongful-

ness of his conduct or to conform his conduct to the require-

ments of the law.” State v. Zaragoza, 659 P.2d 22, 30 (Ariz.

1983) (emphasis added). The district court specifically found

that Correll’s behavior during the murders indicated he was

not intoxicated:

[I]t was Petitioner who remained calm when the gun

15

While the majority concludes that “a significant portion of that dam-

aging rebuttal evidence was already available through the pre-sentence

report,” Maj. Op. at 5464, it fails to acknowledge what Correll’s counsel

realized, that the introduction of some potentially mitigating evidence

would open the door to a parade of horribles. For example, while the pre-

sentence report summarily discloses Correll’s conviction of three counts

of armed robbery in 1978, Correll’s attorney understandably wanted to

preclude damning rebuttal evidence revealing that Correll enlisted his 13-

year-old younger brother and his 15-year-old girlfriend in these crimes.

Furthermore, the pre-sentence report is silent regarding other extremely

damaging information that the prosecutor would have surely brought to

light in rebutting certain potentially mitigating evidence.

CORRELL v. RYAN 5483

misfired as Nabors was trying to kill Robin Cady. It

was Petitioner who encouraged Nabors to remain

calm as there were no cars coming, to get a shell

chambered and shoot Cady. Such behavior at the

time of the crime does not demonstrate intoxication

and, in fact, undercuts an assertion of intoxication.

See Williams v. Woodford, 384 F.3d 567, 624 (9th Cir. 2004)

(reasoning that there is little basis for believing that drugs

materially affected the defendant’s behavior at the time of the

crimes when the facts of the crimes reflect deliberate and

methodical action).

Furthermore, no witnesses could have established that Cor-

rell was intoxicated on the date of the crimes. The best evi-

dence Correll can point to would have come from his sister,

who could have testified that Correll used methamphetamine

in the morning on the day before the crimes. Correll was not

prejudiced by counsel’s decision not to present his sister’s tes-

timony, however, because cross-examination would have

eviscerated any remaining residual doubt in the sentencing

judge’s mind as to Correll’s guilt. Correll maintained his

innocence throughout the sentencing proceedings. However,

Correll’s sister knew he was with Nabors at the time of the

crimes and that they had sought a ride out of the state very

soon after the murders occurred. Accordingly, as the district

court found, her testimony would have “totally eliminated any

mitigating weight” and residual doubt from Correll’s assertion

at the guilt phase of his trial that it was his brother, not he,

who had committed the murders. See Allen, 395 F.3d at 1004

(explaining that “mitigation witnesses proffered by [the

defendant] would not have proved helpful given their own

involvement in [the defendant]’s criminal enterprise.”); Wil-

liams v. Woodford, 384 F.3d 567, 624 (9th Cir. 2004) (“[T]he

best thing a capital defendant can do to improve his chances

of receiving a life sentence has nothing to do with mitigating

evidence strictly speaking. The best thing he can do, all else

being equal, is to raise doubt about his guilt.”).

5484 CORRELL v. RYAN

The only other witness Correll’s postconviction counsel

presented relating to drug use was Dawn Day, who testified

that she used methamphetamine with Correll during a four

month period from November 1982 until February 1983. We

cannot consider Day’s testimony, however, because Correll

failed to establish that Day was available to testify at his sen-

tencing hearing. See Douglas v. Woodford, 316 F.3d 1079, at

1086 n. 2 (9th Cir. 2003) (explaining that testimony presented

at a district court evidentiary hearing that was not available to

counsel at the sentencing hearing may not be considered for

prejudice purposes). Furthermore, even if Correll had estab-

lished that Day would have been available, Day’s testimony

that Correll used methamphetamine more than one year

before the crime would have provided little support for Cor-

rell’s argument that, at the time of the crime, he was so

impaired that he was unable “to appreciate the wrongfulness

of his conduct or to conform his conduct to the requirements

of the law.” Zaragoza, 659 P.2d at 30.16

The majority attempts to minimize counsel’s complete

inability to present any corroborating evidence that Correll

either used methamphetamine on the date of the crimes or

appeared intoxicated to anyone he encountered that day by

instead pointing to expert testimony that “gross methamphet-

amine intoxication, unlike gross alcohol intoxication, is not

necessarily apparent to outside observers.” Maj. Op. at 5463.

Consequently, the majority appears content to rely exclusively

on Correll’s self-serving statement that he was intoxicated at

the time of the crimes to reach the conclusion that counsel’s

failure to present further evidence of his drug use was prejudi-

cial. I, on the other hand, would prefer to rely on the credibil-

ity findings made by the district court. Those findings bear

repeating in full:

16

Indeed, there was evidence in the record that suggested that Correll

was not intoxicated at the time of the crimes. Specifically, when Correll

and Nabors entered Snelling’s trailer home, the first thing they asked

Snelling was “whether he had any speed.”

CORRELL v. RYAN 5485

The Court does not credit [Correll’s] unsubstantiated

self-report that he abused methamphetamine every

day before the crimes were committed. Petitioner

chose not to testify at the evidentiary hearing; Peti-

tioner chose not to fully cooperate with [the govern-

ment’s drug abuse expert’s] examination of him

regarding the issue of drug abuse. Because of the

obvious motive to fabricate, Petitioner’s self-serving

statements about his drug usage prior to the crimes

is [sic] unreliable and subject to searching skepti-

cism. See, e.g., [State v.] Medrano, 914 P.2d [192,]

227 [(Ariz. 1996) (“the defendant provided most of

the information concerning his use of cocaine in the

past and on the night of the murder, as well as the

drug’s effect on him. Because of the obvious motive

to fabricate, such self-serving testimony is subject to

skepticism and may be deemed insufficient to estab-

lish mitigation.”)]; see also Bernard Smith [v. Stew-

art], 140 F.3d [1263,] 1270 [1998] (evaluating

evidence based on impartial sentencing judge apply-

ing Arizona law); see generally, Strickland, 466 U.S.

at 695 (“The assessment of prejudice should proceed

on the assumption that the decision maker is reason-

ably, conscientiously, and impartially applying the

standards that govern the decision.”). The Court’s

searching skepticism toward Petitioner’s self report

is corroborated by Respondent’s drug abuse expert,

Dr. Matthews, who opined as follows: “Antisocial

personality disorder is characterized by malingering

and deceit; instances of [Petitioner’s] lifelong pattern

of deceptiveness abound throughout his penal and

other records. He has been deceitful about a great

many matters, including his history of substance

abuse. Because of [Petitioner’s] history of deceit, it

is a major clinical error to accept [Petitioner’s] self-

serving view of his condition at the time of the

offense as accurate.

5486 CORRELL v. RYAN

Because there was no other evidence to establish that Cor-

rell was intoxicated at the time of the crimes, I cannot agree

with the majority that Correll was prejudiced by counsel’s

failure to present expert testimony regarding the effects of

methamphetamine addiction at the sentencing hearing. Con-

versely, I agree with the district court that counsel’s decision

reflects a reasonable strategic choice. First, the district court

found that “any expert would have to take into account the

underlying facts of the crimes, which show that [Correll] was

involved in deliberative acts, such as planning, conspiring,

avoiding detection, . . . awareness of wrongdoing,” and the

fact that he was “generally orientated [as] to time, place, and

reality.” This would have materially undermined counsel’s

strategy of portraying Correll as merely following Nabor’s

lead. Second, the district court acknowledged that any expert

“would have been forced to utilize hypothetical supposition

regarding [Correll’s] conduct at the time of the crimes,” and

that “[s]uch hypothetical supposition would have opened the

door for contrary rebuttal argument and reiteration by the

prosecution regarding the lack of factual support and incredu-

lity of [Correll’s] alleged intoxicated condition at the time of

the crimes.”

Yet it is solely on the strength of such “hypothetical suppo-

sition” that the majority now declares that the district court

was “clearly wrong” to conclude that there was no evidence

to support Correll’s assertion that, on the night of the crimes,

he was “grossly intoxicated—to the point of being unable to

appreciate the wrongfulness of his conduct,” as required for

mitigation. Maj. Op. at 5464. The majority points to the testi-

mony of two drug abuse experts presented by Correll’s post-

conviction counsel at the evidentiary hearing. The district

court, however, reasonably declined to credit these experts’

opinions because they were not based on an examination of

Correll but instead were based on a hypothetical set of facts

provided by Correll’s postconviction counsel. As the district

court explained:

CORRELL v. RYAN 5487

Dr. Sullivan did not examine Petitioner nor did he

look at Petitioner’s Arizona Department of Correc-

tions or CDOC records. Rather, Dr. Sullivan was

asked to assume [a set of] hypothetical facts [that] do

not accurately or reliably portray Petitioner’s alleged

drug abuse. . . . [H]is opinion was based on unsub-

stantiated and unreliable assumptions.

In addition, Correll’s other expert witness on drug addic-

tion, Dr. Shaw, whom the majority quotes for the proposition

that Correll “may have been experiencing drug-induced para-

noia” at the time of the murders, Maj. Op. at 5461, was “thor-

oughly impeached” at the evidentiary hearing. As the district

court explained, “Dr. Shaw admitted that he only minimally

considered the facts of the crime before reaching his conclu-

sion.” The district court found Dr. Shaw’s opinion “entirely

not credible and wholly speculative” because, like Dr. Sulli-

van’s opinion, it was “based upon hypothetical drug usage at

the time of the crimes that was not established.”

In stark contract to the hypothetical assumptions on which

Drs. Sullivan and Shaw based their opinions, the district court

found that, except for 229 days, Correll was incarcerated

throughout the nine-year period between October 1975 (when

he was first incarcerated, at age 14) and March 1984 (one

month before the murders) and that Correll “was not a

methamphetamine addict or a long-term abuser of metham-

phetamine during the time he was incarcerated.”

Consequently, I agree with the district court that counsel’s

failure to present further evidence of Correll’s drug use was

not prejudicial. Counsel had already stated that Correll had

been using alcohol and drugs and presented Snelling’s state-

ment that he smelled alcohol on his captor’s breath. I agree

with the district court that if Correll’s attorney had called an

expert to testify, “it is highly likely any lay witness basis for

the expert’s opinion could have been cross-examined at sen-

tencing and impeached by virtue of the fact that no lay wit-

5488 CORRELL v. RYAN

ness could testify that Petitioner was intoxicated at the time

of the crimes.” I also credit the district court’s observation

that “if an expert had testified based solely on Petitioner’s

self-reporting . . . it is very likely that the expert’s opinion

would have been severely undermined by undisputed evi-

dence that Petitioner had spent almost 9 of the last 10 years

incarcerated with little or no access to drugs.”

Nevertheless, the majority’s independent review of the

expert testimony leads it to conclude that the evidence

“clearly established that methamphetamine use, in the quanti-

ties that Correll indisputably used the drug on a regular basis,

would significantly impair judgment and consciousness with-

out causing perceptible symptoms of intoxication.” Maj. Op.

at 5464 (emphasis added). I do not quarrel with the notion that

severe use of methamphetamine may significantly impair

judgment and consciousness. Whether the symptoms of

methamphetamine intoxication are perceptible or not, how-

ever, it is quite disputable that Correll used the drug “on a

regular basis” and it is entirely unproven that Correll used the

drug on the date of the crime.

Accordingly, I share the district court’s inability to find that

Correll was prejudiced by counsel’s decision not to present

additional evidence of drug use beyond what he already had.17

17

I would further note that a drug defense likely would have evoked less

sympathy from an Arizona sentencing judge 22 years ago than it does

from the court today. See Mayfield v. Woodford, 270 F.3d 915, 931 (9th

Cir. 2001) (crediting testimony that there were “no death penalty cases

tried in San Bernardino County prior to 1983 where a drug defense had

been successful in gaining either an acquittal or in reducing the sentence

from death to life without parole.”). The sentencing judge very likely

would have taken note of the fact that Correll never sought treatment for

his substance abuse problem and repeatedly secured his removal from the

mental health programs in which he was placed either by escaping or by

violently assaulting the staff.

CORRELL v. RYAN 5489

3

Finally, Correll has presented no credible evidence about

his childhood that his attorney could have placed before the

sentencing judge other than the evidence the sentencing judge

already had before him. The district court, who is in the best

position to determine credibility, found Correll’s uncorrobo-

rated allegation that his mother banged his head against a

kitchen table incredible. In regard to the head injury Correll

suffered at age seven when a cinder block wall fell on him,

the district court expressly found that Correll’s parents were

not negligent in securing medical care. After reviewing the

medical records presented at the evidentiary hearing, the dis-

trict court found that Correll’s parents took him to the family

doctor the same day the accident occurred and “acted reason-

ably in caring for Petitioner, which included two visits to their

family doctor, one emergency room visit and a follow-up visit

for additional specialized testing.”

The majority cites evidence of Correll’s family history pro-

vided by Reverend Curry, whom the district court found “was

not an available witness” for counsel at the time of the sen-

tencing hearing. The district court found “that if [Reverend

Curry] had been contacted by [counsel] prior to sentencing, he

would have informed him that he would not discuss informa-

tion about Petitioner or appear at sentencing because it was

against California law for him to discuss former residents of

the CYA.”18 Accordingly, Reverend Curry’s testimony cannot

18

While the majority quotes Reverend Curry’s testimony that he “would

have unhesitatingly come to help” Correll, see Maj. Op. at 5446 n.2, I

credit the district court’s finding that at the time of the sentencing hearing

he was unavailable to help. Reverend Curry testified that he “cannot offer

testimony or assertions regarding people who have been in California

Youth Authority [because] [i]t is forbidden by law.” Reverend Curry testi-

fied that while others could contact him, he “could not make contact with”

counsel and when he “talked with [his] supervisors about it, . . . they said

no.” Furthermore, defense counsel testified that when he contacted Rever-

end Curry’s wife, she informed him that the Reverend “didn’t really want

to be involved.”

5490 CORRELL v. RYAN

factor into the prejudice analysis. See Douglas, 316 F.3d at

1086 (explaining that testimony presented at a district court

evidentiary hearing that was not available to counsel at the

sentencing hearing may not be considered for prejudice pur-

poses).

The majority suggests that counsel should have presented

evidence of Correll’s parents’ religious fanaticism as Jeho-

vah’s Witnesses, specifically their decision, “[a]fter Correll

was shot in the arm at age 14,” to “cut off all communication

with their son and consider[ ] him dead, as required by their

church’s teachings.” Maj. Op. at 5460. Of course, the majori-

ty’s analysis ignores the district court’s finding that, by age

14, Correll had “already been arrested several times,” that his

parents had responded by providing him with “extensive psy-

chological treatment,” and that only after “another arrest” did

his parents allow him to become a ward of the state.

Similarly, the majority suggests that counsel should have

presented evidence that Correll’s parents used corporal pun-

ishment “in response to his obvious substance abuse prob-

lems.” Maj. Op. at 5460. Once again, the majority ignores the

district court’s finding that, had counsel emphasized such evi-

dence, the prosecution would have countered with evidence

that Correll’s parents took him to a private psychologist and

participated in a six-month treatment program with him after

Correll was expelled from the eighth grade for threatening a

teacher with a knife.

Finally, the majority indicates that evidence of incest in the

family could have served as mitigating evidence. Maj. Op. at

5459. At the evidentiary hearing, Correll’s sister Patty testi-

fied that their father had been arrested and convicted of child

molestation. Correll’s sister Robin testified that she suffered

“repeated and continual” sexual molestation at the hands of

her father and her brothers, specifically Correll himself.

Because the prosecution almost certainly would have pres-

ented such evidence in rebuttal, Correll cannot claim that he

CORRELL v. RYAN 5491

was prejudiced by counsel’s failure to present evidence of

incest as a mitigating fact.

Accordingly, on balance, presentation of family history evi-

dence would have been counterproductive. I cannot agree

with the majority’s conclusion that Correll has met his burden

to prove that, had counsel presented more detailed evidence

about his childhood, he would have received a lesser sen-

tence.

III

The sum of the majority’s analysis in this case simply evis-

cerates the requirement that a habeas petitioner demonstrate

actual prejudice in order to prevail on a claim for ineffective

assistance of counsel. See Wiggins, 539 U.S. 510. Not satis-

fied with merely reconstructing the facts, the majority also

reinvents Supreme Court authority, asserting that Correll pre-

sented evidence sufficient to establish a presumption of preju-

dice under Wiggins, and that this “classic mitigation evidence

. . . certainly had the potential to persuade at least one fact-

finder that Correll was, at the time of the crimes, incapable of

appreciating the wrongfulness of his conduct.” Maj. Op. at

5462. These statements, of course, are patently absurd, as

even a cursory review of the facts in Wiggins reveals that Cor-

rell fell drastically short of carrying the demanding burden of

proving actual prejudice the Supreme Court found sufficient

in that case.

In holding that Wiggin

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