Belmontes v. Brown

Volume 1 of 2

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO BELMONTES, JR., 

Petitioner-Appellant,

No. 01-99018

v.

ROBERT L. AYERS, JR., Warden for  D.C. No.

CV-89-00736-DFL

the California State Prison at San

OPINION

Quentin,

Respondent-Appellee.



Appeal from the United States District Court

for the Eastern District of California

David F. Levi, District Judge, Presiding

Argued and Submitted

May 15, 2007—San Francisco, California

Filed June 13, 2008

Before: Stephen Reinhardt, Diarmuid F. O’Scannlain, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge O’Scannlain

6733

6738 BELMONTES v. AYERS

COUNSEL

Eric Multhaup, Mill Valley, California, and Christopher H.

Wing, Sacramento, California, for the petitioner-appellant.

Edmund G. Brown, Jr., Attorney General for the State of Cali-

fornia, Dane R. Gillette, Chief Assistant Attorney General,

Michael P. Farrell, Senior Assistant Attorney General, Eric L.

Christoffersen, Deputy Attorney General, and Mark A. John-

son, Deputy Attorney General, Sacramento, California, for the

respondent-appellee.

OPINION

REINHARDT, Circuit Judge:

Once again we are presented with a case in which an indi-

vidual sentenced to death received inadequate representation

by his counsel at the penalty phase of his trial. Here, the ques-

tion is only whether counsel’s deficient performance was prej-

udicial. There can be little doubt that it was.

BELMONTES v. AYERS 6739

Fernando Belmontes, Jr. was convicted of first degree mur-

der and sentenced to death in California state court in 1982.

After his conviction and sentence were affirmed by the Cali-

fornia courts on direct appeal and in state post-conviction pro-

ceedings, Belmontes filed a petition for writ of habeas corpus

in the district court, seeking to set aside both his conviction

and sentence. In 2000, the district court found that counsel’s

representation during the penalty phase was deficient, but that

his deficient performance did not prejudice Belmontes. In

2001, the court denied the petition in its entirety. Belmontes

appealed. In 2003, we affirmed the denial of relief with

respect to Belmontes’s guilt-phase claims, but reversed the

denial of penalty-phase relief on the ground that the jury was

improperly instructed as to the mitigating evidence it was

required to consider. Belmontes v. Woodford, 350 F.3d 861

(9th Cir. 2003) (“Belmontes I”). In 2005, the Supreme Court

vacated our judgment and remanded for reconsideration in

light of Brown v. Payton, 544 U.S. 133 (2005). Brown v. Bel-

montes, 544 U.S. 945 (2005). We again granted penalty-phase

relief because, unlike in Payton, Belmontes’s petition was not

subject to the strict requirements of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). Belmontes v.

Brown, 414 F.3d 1094 (9th Cir. 2005) (“Belmontes II”). In

2006, the Supreme Court again granted certiorari and by a

five to four vote reversed our decision with respect to instruc-

tional error, this time on the merits. Ayers v. Belmontes, ___

U.S. ___, 127 S. Ct. 469 (2006). The Court then remanded,

leaving us with the task of resolving Belmontes’s remaining

penalty-phase claims, primarily ineffective assistance of

counsel.

Belmontes’s remaining claims are as follows: (1) that he

received ineffective assistance of counsel during the penalty

phase of his trial; (2) that he was deprived of due process

when the district court denied his request for an evidentiary

hearing on his first claim; and (3) that he was deprived of due

process and a fair penalty phase trial, and subjected to cruel

and unusual punishment, by (a) the admission of evidence of

6740 BELMONTES v. AYERS

his prior acts of misconduct, (b) the trial court’s response to

questions from the jury about the consequences of their fail-

ure to agree on a unanimous verdict with respect to the pen-

alty, and (c) the trial court’s pre-judgment of Belmontes’s

motion to reduce his sentence. Because we conclude that Bel-

montes’s counsel not only provided deficient representation at

the penalty phase of his trial but that Belmontes was preju-

diced by that deficient performance, we reverse and remand

for issuance of a writ of habeas corpus and, if the State so

elects, a new death penalty proceeding.1

I. FACTUAL AND PROCEDURAL BACKGROUND

In our two prior opinions in this case, we summarized the

facts and history that related to the issues before us. See Bel-

montes II, 414 F.3d at 1102-11; Belmontes I, 350 F.3d at 869

78 This is the first time that we have addressed the claim of

penalty-phase ineffective assistance of counsel. Thus, we

again recite the history and facts of this case, but this time

with an emphasis on those facts that are relevant to the inef-

fective assistance of counsel claim, including facts that were

determined during post-conviction proceedings and did not

appear in our earlier opinions.

A. The Crime, Investigation, and Guilt Phase of

Belmontes’s trial

On the morning of Sunday, March 15, 1981, nineteen-year-

old Steacy McConnell telephoned her parents and told them

that she was afraid because several people, including Bel-

montes’s eventual codefendant Domingo Vasquez, had threat-

1

Under California law, a sentencing jury in a death penalty case has

only two choices: life without the possibility of parole or death. See Cal.

Penal Code § 190.2 (West 1978). If, following a reversal of the capital

sentence, the State chooses not to institute further proceedings with

respect to the death penalty, Belmontes will automatically receive a sen-

tence of life without the possibility of parole.

BELMONTES v. AYERS 6741

ened her. When McConnell’s parents arrived at her residence

in Victor, California several hours later, they found her lying

unconscious in a pool of blood. She died shortly thereafter

from cerebral hemorrhaging caused by fifteen to twenty blows

to her head with an iron bar. Her house was ransacked and her

stereo was missing.

On the Tuesday preceding the murder, several people,

including Vasquez and another codefendant, Robert “Bobby”

Bolanos, partied at McConnell’s house. Although Bolanos left

the residence early Wednesday morning, the party continued

until Friday, when Vasquez stole a quantity of “black

beauties”—amphetamine pills—from McConnell. Upon dis-

covering the theft, McConnell threw Vasquez and his friends

out of the house. The group subsequently discussed their dis-

like of McConnell.

The police investigation of the individuals who had been

present at the party led the officers to interrogate Vasquez and

Bolanos. Bolanos eventually admitted that he had been

involved in the events that led to McConnell’s death, and

identified Vasquez and Belmontes as his coadventurers. Bel-

montes, who was nineteen at the time, had not been at the

party, but had visited Bolanos over the weekend of the mur-

der.

Belmontes, Bolanos, and Vasquez were each charged with

first degree murder and special circumstances. However,

Bolanos soon arranged a deal with the prosecution in which

he agreed to testify against Vasquez and Belmontes in

exchange for a guilty plea to second degree burglary and

immunity on the murder charge. At Vasquez’s preliminary

hearing, Bolanos named Belmontes as the main assailant.

After the preliminary hearing, the trial judge dismissed the

special circumstances charge against Vasquez, who pled

guilty to second degree murder. That left Belmontes, who

alone proceeded to trial.

6742 BELMONTES v. AYERS

Bolanos was the State’s principal witness. He testified that

on the morning of Sunday, March 15, he and Belmontes drove

to Vasquez’s residence to hang out. When they arrived,

Vasquez was on the phone with McConnell. When Vasquez

hung up, he informed them that McConnell would not be

home during the latter part of the day. The three were short

of cash, and they agreed to burglarize McConnell’s residence,

steal her stereo, and “clean house.” According to Bolanos, as

the men departed Vasquez’s house through the kitchen, Bel-

montes grabbed from the counter an iron dumb-bell bar that

Vasquez’s wife used for rolling tortillas.

Bolanos told the jury that the three men then drove to

McConnell’s in Bolanos’s car and parked a short distance

from the house where Belmontes stated that he would

approach the house alone, on foot, carrying the metal bar in

case he needed to force entry. Bolanos further testified that

Belmontes said that he would gather McConnell’s valuables

and place them near the door to facilitate a quick getaway,

and that Bolanos and Vasquez should wait for about five min-

utes and then bring the car around to McConnell’s house.

Bolanos next testified that Belmontes walked to McCon-

nell’s residence, and, after about five minutes, Bolanos and

Vasquez drove up and backed into McConnell’s driveway.

Bolanos heard repeated knocking or banging noises coming

from within the house. Vasquez walked to the front door to

assist Belmontes. Shortly thereafter, Belmontes and Vasquez

emerged from the back door of the house carrying stereo com-

ponents. Belmontes was sprinkled with blood and Vasquez

“looked like he had seen a ghost.” According to Bolanos, Bel-

montes stated that he had had to “take out a witness” because

McConnell had been home, and explained that when McCon-

nell heard Vasquez and Bolanos drive up, she looked away

from him and he seized the opportunity to hit her with the bar.

Bolanos finally testified that, after leaving McConnell’s

house, the three drove to the nearby city of Galt, where they

BELMONTES v. AYERS 6743

intended to fence the stereo. En route, Belmontes threw the

bar out of the car window as they crossed a bridge. The trio

eventually sold the stereo for $100.

Detective Holman, the lead investigator on the case, testi-

fied that Belmontes furnished three tape-recorded statements

shortly after his arrest. In the first statement, he denied any

involvement in the crime. In the second, he admitted the bur-

glary but denied hitting McConnell. In the third, he admitted

hitting McConnell, but insisted that he hit her only once, and

then only at Vasquez’s direction. He stated that the single

blow he delivered caused McConnell to fall down, at which

point he dropped the bar and began searching the house for

valuables, leaving Vasquez alone with McConnell. Belmontes

asserted that he did not pay attention to Vasquez’s actions

during this period and did not witness the fifteen to twenty

fatal blows to the head that McConnell suffered. Holman also

testified that a small drop of blood found on the tongue of one

of Belmontes’s shoes tested as “type O”—McConnell’s blood

type.

Dr. Maduros, the pathologist who performed the autopsy on

McConnell, testified that she died from cerebral hemorrhag-

ing caused by fifteen to twenty blows to the back left portion

of her skull. She had a separate contusion on her right temple,

which was caused by a single blow of lesser force that did not

lacerate the skin. However, he informed the jury that this

blow alone would not have caused death and, if it had been

the first, it would likely not have caused unconsciousness.

Injuries to McConnell’s arms, hands, legs, and feet evidenced

a struggle.

Belmontes testified in his own defense. He insisted that,

while he was searching the back part of the house for some-

thing to take, Vasquez struck the fatal blows. Belmontes

stated that prior to the murder, he and Bolanos had gone over

to Vasquez’s house, and that when Vasquez mentioned that

McConnell would not be home, they decided to steal her ste-

6744 BELMONTES v. AYERS

reo. Although they expected McConnell to be away, the plan

was that Belmontes would go to the door in case she turned

out to be home; they thought that because of the confrontation

between Vasquez and McConnell at her party a few days ear-

lier, she would become angry and suspicious if she saw

Vasquez or Bolanos at her door. Although Belmontes had met

McConnell a few times in the past, she did not know that he

was a friend of Vasquez and Bolanos.

Belmontes stated that it was not he who took the metal bar

from Vasquez’s house but that while they were all in the car,

Vasquez gave it to him to use to break a window, and he then

concealed it in his sleeve. Vasquez and Bolanos stayed in the

car while Belmontes walked to McConnell’s front door.

According to Belmontes, he knocked at McConnell’s door

and, to his surprise, she answered. As soon as he found out

that she was home, he abandoned his intent to burglarize her

residence. He told her that he had been hitchhiking and had

stopped by because it was raining. McConnell invited him in.

She noticed a bulge in his sleeve and asked what it was. He

showed her the bar and explained that he had it because he

was hitchhiking.

Belmontes further testified that five minutes after he

entered the house, Bolanos and Vasquez pulled into the drive-

way. McConnell started walking toward the front door. Bel-

montes followed behind her and was placing the bar back up

his sleeve when Vasquez knocked on the door. Vasquez

pushed the door open, saw McConnell, and ordered Bel-

montes to “hit her.” Belmontes followed Vasquez’s directive

and struck McConnell once on the side of the head with the

bar. She fell to the floor. Belmontes dropped the bar, ran to

the back bedroom, searched that room and the kitchen, and

returned to the living room. Upon returning to the front of the

house, he observed Vasquez standing over McConnell and

holding the metal bar. He did not see or hear Vasquez hit

McConnell. He could not explain the presence of defensive

bruises and contusions on McConnell’s hands, arms, and feet.

BELMONTES v. AYERS 6745

The rest of Belmontes’s testimony was, with a few excep-

tions, consistent with Bolanos’s. According to Belmontes, it

was Vasquez who handed him the steel bar after they left

McConnell’s, and it was Vasquez (not Belmontes) who stated

that he had had to take out a witness. Otherwise, his testimony

was as follows. Belmontes and Vasquez gathered the stereo

components and exited from McConnell’s back door. They

loaded the stereo components into the trunk. Vasquez got in

the back seat, Belmontes rode shotgun, and Bolanos drove.

Belmontes wiped blood off the bar and set it down on the

floorboard. It was not his idea to throw the bar out the win-

dow into the river, but Bolanos and Vasquez told him to do

so, and he complied. He concluded his testimony by stating

they then sold the stereo for $100, divided the money, bought

some beer, and drove to the home of an acquaintance.

After three hours of deliberation, the jury convicted Bel-

montes of first degree murder with special circumstances. It

also made special findings that Belmontes was the actual

killer, and that he had the specific intent that death occur.

B. The Penalty Phase

1. Aggravating Evidence

At the penalty phase, the prosecution introduced minimal

aggravating evidence, the sum total of which consumed only

24 pages of the double-spaced transcript.

The detective who oversaw the investigation of the crime

authenticated two autopsy photographs depicting McCon-

nell’s wounds. This was the only evidence relating to the cir-

cumstances of the crime that the State introduced at the

penalty phase.

William Cartwright, manager of a motel in Ontario, Cali-

fornia, testified to an incident in early 1979 in which an indi-

vidual named Rudy met Belmontes at a motel and attempted

6746 BELMONTES v. AYERS

to sell him a .32 caliber automatic handgun that he had

acquired in a burglary. Belmontes reportedly examined the

weapon, cocked it, pointed it at Rudy and said, “I’ve got it

now. Why buy it?” Rudy left the premises and Belmontes

retained the weapon.

Steven Cartwright (the record does not disclose any rela-

tionship with William) testified that he had a conversation

with Belmontes in February 1979 in which Belmontes alluded

to the fact that some people were upset with him. As Bel-

montes talked, he indicated that he had a gun in his belt by

slapping his side, and he stated that he was not concerned

because he had all the protection he needed.

Ron Cutler, a California Youth Authority (“CYA”) coun-

selor, testified that he once observed Belmontes swinging a

chair as if he were about to hit another ward, but Cutler was

able to intervene before a fight ensued. On cross-examination,

he admitted that Belmontes was significantly smaller than the

other youth.

Barbara Murillo, Belmontes’s former girlfriend, testified

about a domestic violence incident that occurred when she

asked Belmontes to move out of their shared apartment and

to give her his keys to the apartment before leaving. Although

Belmontes was willing to leave, he was unwilling to give her

the keys because his belongings were still in the apartment.

When he tried to leave without giving Murillo the keys, she

attempted to restrain him by grabbing his jacket, tearing off

the buttons in the process. During the ensuing fight, Murillo,

who was four months pregnant with Belmontes’s second

child, grabbed a “file” for protection and attempted to phone

the police. Belmontes cut the telephone cord with his knife.

He then pushed her, hit her on the head, and tried to choke

her. At some point during the altercation, he also caused her

to drop their infant daughter. The pair were eventually sepa-

rated by several friends who were present at the time. A

BELMONTES v. AYERS 6747

neighbor summoned the police, who arrived as Belmontes

was leaving the premises.

Finally, the prosecution and defense stipulated to the fact

that Belmontes entered a plea of no contest in April 1979 to

a charge of being an accessory after the fact to voluntary man-

slaughter. The court refused to allow the prosecutor to intro-

duce evidence indicating that Belmontes had actually

murdered the victim, Jerry Howard. Specifically, the court

ruled that

we have the crime of accessory after the fact to vol-

untary manslaughter to which the defendant has

entered a plea of no contest to which thereafter he

was found guilty by the Court pursuant to the plea of

no contest. That matter has been adjudicated. It is res

judicata with reference to any fact that — or conduct

that occurred during the course of the voluntary

manslaughter. . . . [The] Court will allow the prose-

cution to present testimony and evidence that [Bel-

montes] entered a plea of no contest to being

accessory after the fact to voluntary manslaughter.

The Court will not allow testimony with reference to

whether or not the defendant did in fact do the shoot-

ing as alleged, the matter having been adjudicated.

Consequently, the jury was never informed of any of the

details of Howard’s death or of Belmontes’s alleged role in it.2

2

On this appeal, the State does not challenge the propriety of the trial

court’s exclusion of this evidence. Rather, it argues that if Belmontes’s

counsel had attempted to offer expert testimony as to Belmontes’s ability

to conform his conduct to societal standards in a structured environment,

the evidence as to his role in the Howard killing would be admissible by

way of cross-examination. See infra at section II.B.2.c.

6748 BELMONTES v. AYERS

2. Mitigating Evidence

The presentation of mitigating evidence by Belmontes’s

trial counsel, John Schick, was also limited in scope. This evi-

dence primarily provided the jury with a cursory presentation

of some of Belmontes’s family history and his conversion to

Christianity while incarcerated at a Youth Authority facility,

and provided some information regarding his conduct during

that incarceration.

Belmontes’s maternal grandfather, Michael Salvaggio, tes-

tified about his daughter’s unhappy marriage to Belmontes’s

father. Salvaggio stated that his daughter was sixteen when

she ran away from home and married Belmontes’s father, who

was unemployed, refused to support his family, drank to

excess, and beat her. He also stated that the Belmontes family

did not have a stable place to live for extended periods of

time. He lamented the fact that his Italian-American daughter

had married a man of Mexican descent. Salvaggio said that he

was “very close” with Belmontes until he was about thirteen,

but thereafter had little contact with him. Salvaggio did state,

however, that when Belmontes was sixteen and his grand-

mother lay dying in the hospital, he visited her every day. He

also attended her funeral. Salvaggio further testified that he

believed Belmontes was “a victim of circumstance.”

Carol Belmontes confirmed that her marriage to Bel-

montes’s father was unhappy and tumultuous. Fernando Bel-

montes, Sr., was a violent alcoholic who “wouldn’t ever

work” and who regularly beat her, breaking her arm on one

occasion and stabbing her on another. Belmontes was ten

years old when the marriage broke up. Mrs. Belmontes remar-

ried, but her second marriage ended five years later, when

Belmontes was about fifteen. From that age on, Belmontes

was difficult to control. He had not lived with his mother

since he was committed to the CYA two years before McCon-

nell’s murder. He had a younger brother and sister, with

BELMONTES v. AYERS 6749

whom he was “very close.” Mrs. Belmontes’s testimony

ended with the following exchange:

Q. How would you view your relationship with

your son Fern[ando]?

A. My relationship?

Q. Um-hmm (affirmative).

A. Same as it’s always been.

Q. What kind of qualities can you recommend to

this jury as they consider his fa[te]?

A. I don’t believe he should go to the gas chamber.

Q. Just because you’re his mother?

A. No. I don’t believe he did it.

Q. Are you aware of the facts of this case?

A. (Affirmative nod)

I know my son.

Mr. Schick: I have no more questions.

Robert Martinez, a close friend of Belmontes’s since his

early teens, testified that he and Belmontes spent a great deal

of time together, usually working on Martinez’s low-rider car.

Belmontes served as best man at Martinez’s wedding and was

someone he could turn to for advice and support when he

argued with his wife. Martinez also testified that he felt Bel-

montes was not a violent person. However, with defense

counsel’s consent, this testimony was struck following an

objection from the prosecutor, who argued that if the evidence

6750 BELMONTES v. AYERS

was admitted, the prosecution should be allowed to impeach

Martinez with evidence regarding the Jerry Howard killing.

Belmontes again testified on his own behalf. He recounted

that he had a poor relationship with his father, who often

came home drunk and hit his mother. He did not like school

and stopped attending in the ninth grade (some records indi-

cate it was the tenth grade). He wanted to get a job so that he

could help his mother pay the bills. Although he described his

youth as “pretty hard,” he twice stressed that he did not want

to “use it as a crutch.”

With respect to his time at the CYA, Belmontes testified

that he was in the custody of the Youth Authority from early

1979 until November 1980, four months prior to the crime.

While at the CYA, he was employed on the fire crew at the

Pine Grove Camp for one year, during which time he worked

his way up from last man to number two man, a position of

leadership and responsibility. Belmontes also testified that

during his incarceration he became involved in the M-2 Chris-

tian sponsorship program, a program that matched a local

church-going family with a ward. As part of the program, a

ward would be permitted to leave the CYA facility to visit

with the family at specified times each week. Belmontes

admitted that he initially entered the M-2 program in order to

spend time outside of the camp, but after his favorable experi-

ences with his M-2 family, the Haros, he gradually became

curious about their Christian faith and embraced it.

Belmontes further testified that after he was paroled from

the Youth Authority he stayed at a halfway house in Oakland

for two weeks, then went to Southern California for a short

period, and finally returned to the Lodi area to take a job with

the forest service. He testified that he moved to Lodi in part

so that he could be close to the Haros. However, outside of

the Youth Authority he had trouble maintaining his religious

commitment and “started going back to [his] old ways,” in

part due to “pressure on the streets.” At the time of trial, he

BELMONTES v. AYERS 6751

had not abandoned his religious beliefs entirely but felt that

he was no longer “dedicated one hundred percent” to his reli-

gious commitment.

When asked about whether he would be able to contribute

to society if sentenced to life in prison rather than death, he

stated that he “didn’t know.” When asked what he would do

with the next 50 to 60 years of his life if he were sentenced

to life in prison, he said that “it is hard to say. Ain’t too many

opportunities in there, too many things you can do except try

to stay alive. I don’t know. Just try to stay alive.” He was then

asked whether he would be prepared to contribute to society

in any way that he could if sentenced to life in prison, to

which he responded, “[i]f the opportunity is there, yes.”

The Reverend Dale Barrett, chaplain at the Youth Authori-

ty’s Pine Grove Facility, testified that he knew Belmontes

from his participation in the M-2 Christian sponsorship pro-

gram. Barrett explained that Belmontes was matched with

Beverly and Fred Haro and participated in the program for

about a year. In addition, Belmontes was baptized during his

stay in the CYA. Only a small percentage of program partici-

pants who made a serious commitment to Christianity were

baptized. Barrett felt that, unlike the many wards who stayed

in the program only to get out of camp and elicit favors from

the sponsoring families, Belmontes had not “conned” them.

When asked about whether he thought Belmontes should be

sentenced to death, Barrett testified that, although he person-

ally believed in the death penalty, he did not think Belmontes

deserved to die because he thought premeditation was “a

debatable point,” and thought Belmontes was a “salvageable”

person with “a lot of extenuating circumstances in his life.”

Barrett was of the view that Belmontes’s involvement in

“some of the situations in which he found himself”—e.g.

McConnell’s murder—was attributable to “the enormity of

the peer pressure and the kind of sociological circumstances

that were part of his life.” When asked whether he thought

6752 BELMONTES v. AYERS

that Belmontes would be able to contribute something if sen-

tenced to life in prison without parole, he stated that he would

like to think so, based upon the tremendous success

that is being realized by a number of people being

involved in prison ministries. I’d like to feel that we

are having a great deal of success. Perhaps someone

could say with regard to Fern[ando], “Do you feel

you’re a failure?” Obviously, this is not the result we

would like to see. About 80 percent of our young

men in the program do well, stay out of trouble. The

rate of recidivism has been greatly affected by the

M-2 programming. I like to think we make a contri-

bution to their lives and sense of well-being and self-

image, and prison ministries can continue to contrib-

ute that to the lives of young men who have failed.

When asked whether he would be involved in prison ministry

with Belmontes if he were granted life in prison, Barrett said

that he would, “if the issue of proximity would be resolvable.

If not, I would be anxious to direct others to him geographi-

cally on the basis of my associations.”

Don Miller, assistant chaplain at the Youth Authority’s

Preston Facility and the Northern California Director of the

M-2 program, testified that he helped place Belmontes in a

halfway house in Oakland upon his release from the CYA.

Miller stated that, at the time, he felt “a little bit doubtful”

about whether Belmontes should have been released from the

facility because, in Miller’s view, he needed a little bit more

instruction regarding “[a]ccepting authority and being able to

adjust to the community outside.” Miller testified that, after

being released from the CYA, Belmontes stayed at the half-

way house for only two weeks before moving to the Lodi area

to take a job with the forest service. During those two weeks,

however, Belmontes returned to Preston on a few occasions

to speak to wards about what life was like “on the outside.”

Miller described Belmontes, and his message, as well-

BELMONTES v. AYERS 6753

received by the CYA wards, and he believed that if Bel-

montes were committed to prison for life, he would be good

at counseling other prisoners not to make the same mistakes

that he had. Miller was enthusiastic about working with Bel-

montes in this capacity and stated that Belmontes “definitely

would be used in the prison system for this kind of activity”

because he related well to other prisoners, especially those

who shared his ethnic background.

Darlene Martinez, a born-again Christian and the wife of

Belmontes’s friend Robert Martinez, testified that she had

known Belmontes for six or seven years and considered him

a close friend. Darlene recounted that when Belmontes visited

them after his release from the Youth Authority, he told her

that he, too, was a born-again Christian. He also mentioned

his disputatious relationship with his girlfriend, Murillo, and

stated that he was planning to move in with her. During the

conversation, Belmontes expressed concern that Murillo was

not a Christian, and he worried that he would be unable to

maintain his Christian faith on his own.

Beverly and Fred Haro, Belmontes’s M-2 sponsors and

members of Reverend Barrett’s church, testified that Bel-

montes spent Wednesday evenings and weekends with them

for almost a year. They felt that they had a good relationship

with Belmontes, who attended church with them. They treated

him like their own son, and he opened up to them and was a

good influence on their own teenage son. They saw him sev-

eral times after his release from the CYA. Fred Haro stated

that he had “compassion as a son” for Belmontes and that

Belmontes had been genuine in his commitment to the M-2

program and his affection for his sponsors. He also stated that,

although he was “strongly for the death penalty,” he believed

Belmontes was innocent and that, because he was innocent,

he did not deserve to die.

3. Closing Arguments

During closing arguments, the prosecutor described the evi-

dence introduced in aggravation—that Belmontes had once

6754 BELMONTES v. AYERS

swung a chair at another CYA ward, had been involved in the

domestic violence incident with Murillo, had taken a gun

from a person who offered to sell it to him, had once told

someone that he was carrying a gun, had been convicted of

being an accessory after the fact to voluntary manslaughter,

and had murdered McConnell in a calculated manner. Turning

to the mitigating evidence, the prosecutor stated that Bel-

montes’s age was a factor that “goes both ways,” that his reli-

gious beliefs did not really extenuate the gravity of the crime,

and that “the evidence upon which [Belmontes’s] religious

experience rests is somewhat shaky.” Moreover, he noted that

Fred Haro’s and Reverend Barrett’s favorable assessments of

Belmontes’s character and capacity to do well in prison were

not entirely credible because neither witness thought Bel-

montes could commit the crime the jury “knew” he commit-

ted, and thus that these witnesses did not truly know

Belmontes. The prosecutor further argued that there was no

lingering doubt regarding Belmontes’s guilt, and stated that

Belmontes had shown no remorse regarding McConnell’s

murder. He then stated that the evidence in mitigation and in

aggravation were a “wash” or a “draw” until one considered

the circumstances of the crime; taking that factor into account,

the appropriate penalty was, in the view of the prosecutor,

death.

After the prosecutor’s closing statement, the court permit-

ted Belmontes to address the jury personally. He began by

stating that, although his childhood was not “a very good

childhood,” he did not want to use it as a crutch. He further

stated that, after spending time with the Haros and seeing how

they lived,

I wanted to be like that, I wanted to change my life

and see how it was. I tried. Like I said, it’s a lot eas-

ier to do while you’re in jail because you have a lot

less pressures. When I did get out . . . I guess I

couldn’t deal with the pressures out there. Like I say,

it’s a lot different.

BELMONTES v. AYERS 6755

Turning to his religious beliefs, he stated that he was

not coming here and saying right now that I’m a full-

fledged Christian or a born-again. I was born again

and I still feel the same way, but I’m not using that

as a crutch, also. But it is something that I tried and

I really believe in.

As for the verdict right here that you’re going to

deliberate on right now, I myself would like to keep

my life and not really lose it in the gas chamber.

[The prosecutor] has stated that he does not feel I

have remorse. [He] does not know. . . . [He] was not

there that day.

With respect to the crime, Belmontes stated that the prosecu-

tor

has told you that I’m the actual killer. He does not

know. He wasn’t there. He’s only going on what he

thinks happened that day . . .

He says I can’t put my feet in [McConnell’s]

shoes. It’s true, I can’t. I didn’t go through it. I

wasn’t the one who was actually killed. But he

hasn’t had to sit and think about actually getting put

in the gas chamber or life without imprisonment

[sic]. I’m not saying I didn’t do it or wasn’t guilty.

Like I said, I was involved to a certain extent. I have

to pay for what’s happening — what happened, and

I can deal with that. You know, there’s only two

choices right now, life without the possibility or the

death penalty. Both of them ain’t really — isn’t

really any good. There’s always the possibility that

while you are living with life without the possibility

that you will die in there. You can’t really say.

Things happen.

6756 BELMONTES v. AYERS

But there is an opportunity to achieve goals and

try to better yourself. . . . I myself would really like

to have my life and try to improve myself.

[The prosecutor] has said that I stood up there and

hit [McConnell] once and then hit her again. . . .

Again, he wasn’t there. He doesn’t know that I actu-

ally hit her the 20 times like he says I was. This is

his belief. . . . He doesn’t know me. . . . I just ask

that you think about this a lot and give it a lot of

thought as to the verdict on this penalty phase.

That’s it. Thank you.

After Belmontes made this statement, his counsel, John

Schick, argued first that, notwithstanding the jury’s earlier

verdict, there was no evidence that the murder was premedi-

tated. Next, he stated that, although he did not want to suggest

that “the presence of religion in itself is a totally mitigating

factor[,]” religion plays a “very, very vital function . . . in

anybody’s life.” With respect to Belmontes’s childhood,

Schick said only that

while Mr. Belmontes has told you he is not going to

use a crutch for [sic] what happened in the first part

of his life, I’d like to suggest to you until he got to

know Beverly and Fred Haro, . . . he didn’t really

know, he didn’t really have the sense of values that

a human being, a young man about to embark upon

adulthood should have. And that is what his experi-

ence with Reverend Barrett and Beverly and Fred

Haro in the time he was there in their home while he

was in the California Youth Authority meant.

He went on to state that

what I hope the evidence suggests to you is Fer-

nando Belmontes cannot make it on the outside. I

think it is pretty clear from the experience that he

BELMONTES v. AYERS 6757

had inside, the kind of development he undertook,

the kind of experiences he had with the Haros as

compared with his being placed out on his own. . . .

Again, we are not saying this is an excuse, but you

have to understand the problems that people have in

dealing with their lives.

Although Schick argued that Belmontes could not make it “on

the outside,” he did not argue that he could or would make it

“on the inside.” Schick then proceeded to the dominant theme

of his closing argument:

Punishment is one of two choices. Consider, if

you will, a young man who is 21 years old, Mr. Bel-

montes. . . . [L]ets assume he has 50 to 55 years left

of his life. . . . [A] sentence of life without possibility

of parole means that for everyday, 24 hours a day,

seven days a week, 365 days a year he will be with-

out that most precious commodity that we have,

freedom. You will punish him far greater and for a

far more significant impact upon his life by sending

him to prison for the rest of his life.

You’ve probably heard about people in a position

of being on death row asking for execution. You all

remember the Gary Gillmore charade a few years

ago, prisoner in Utah who wanted to be killed. There

are some people who feel that way because they

can’t deal with it. It is easier to die than face that

possibility. It is easier to die than face the possibility

of never, ever having your freedom. If you want to

impose, and I think you need to impose punishment.

This young man needs to be punished. I’m not going

to tell you that isn’t a truth. But if you want to

impose a punishment upon him that has meaning,

that has teeth to it, send him to prison for the rest of

his life, however long that may be. . . . I’m only try-

ing to suggest something because it’s difficult for

6758 BELMONTES v. AYERS

any of us to conceive of such a harsh penalty as life

in prison without ever being released.

And it is harsh. You remember during voir dire

you were asked to compare these two penalties. I

think it was constantly referred to as life without the

possibility as being the more lenient of the two pen-

alties. Well, to the extent that [the prosecutor]

believes Mr. Belmontes should die, I suppose it is

lenient.

Schick also asked the jury to think about why, as a society,

we decide to kill people. We justify it in war. Cer-

tainly nobody has quarrels with that. . . .

But how do we feel? How do we justify it? How

do we justify taking another of God’s creatures by

killing them? We dehumanize the other people. Look

at the Vietnamese war. We weren’t fighting the Viet-

namese. We were fighting Gooks. Look at the Japa-

nese war, we called them Wops and Japs. World

War I we fought the Huns. We made it possible in

our mind to dehumanize these people so we could go

out and kill them and not feel guilty about it.

That is exactly what we must do and what you are

being asked to do in evaluating the life of Fernando

Belmontes. You are being asked to look at him and

say to yourself, this man is not a human being. . . .

You must be able to do that, to go through that pro-

cess of dehumanizing him in order to kill him. And

ladies in gentleman, that is exactly what the evidence

I produced at this penalty trial has shown. . . . [H]e

has not been proven to be dehuman [sic].

At no point did Schick mention any of the traumatic experi-

ences that Belmontes underwent during his childhood or his

BELMONTES v. AYERS 6759

youth.3 As a result, he failed to explain to the jury how those

experiences affected Belmontes; what the relationship was

between the tragic events and Belmontes’s subsequent crimi-

nal conduct; and why the jury should consider those circum-

stances in determining whether Belmontes was an individual

who should be put to death or whose life should be spared.

4. The Jury’s Penalty Deliberations and Verdict

The jury deliberated for a day and a half before reaching a

verdict. On the first day, after several hours of deliberations,

the jury sent the judge a note asking, “What happens if we

cannot reach a verdict?” and “Can the majority rule on life

imprisonment?” The jury was brought back into the court-

room, and the judge reread a portion of the jury instructions,

emphasizing that “all 12 jurors must agree, if you can.”

Thereafter, the following exchange occurred:

JUROR HAILSTONE: If we can’t, Judge, what

happens?

THE COURT: I can’t tell you that.

3

The dissent takes issue with this statement and notes that we “fail[ ] to

give proper emphasis to the fact that several witnesses testified about

those issues.” Dis. Op. at 6828. It is not we who failed to emphasize this

testimony; it is Schick. In fact, he never even mentioned it in his closing

argument. Schick wasted his only opportunity to remind the jury of the

insubstantial and inadequate mitigating testimony that he did manage to

present and to explain to them why that evidence should persuade them

to spare Belmontes’s life. Our cases make clear that in addition to present-

ing witnesses to testify about mitigating circumstances, defense counsel

must also explain the significance of the mitigating testimony in his clos-

ing statement. See Mayfield v. Woodford, 270 F.3d 915, 928 (9th Cir.

2001) (en banc) (finding deficient performance in part because counsel

“failed to explain to the jury the significance of the mitigating evidence

. . . during his closing argument”). For further discussion of this issue, see

supra at section II.B.2.a.

6760 BELMONTES v. AYERS

JUROR WILSON: That is what we wanted to

know.

THE COURT: Okay. I know what will

happen, but I can’t tell you

what will happen.

MR. SCHICK: Maybe we should inquire

whether the jury could

reach a verdict.

THE COURT: Do you think, Mr. Norton,

you will be able to make a

decision in this matter?

JUROR HAILSTONE: Not the way it is going.

JUROR NORTON: That is tough, yes.

THE COURT: Do you think if I allow you

to continue to discuss the

matter and for you to go

over the instructions again

with one another, that the

possibility of making a

decision is there?

JUROR NORTON: I believe there is a possibil-

ity.

After this exchange, the jury continued its deliberations. A lit-

tle more than a day later, the jury reached a verdict and sen-

tenced Belmontes to death. After the verdict, the judge sent a

letter to the jurors thanking them for their service and telling

them that their “decision is acceptable and shall be followed.”

Subsequently, he imposed the judgment and sentence of

death.

BELMONTES v. AYERS 6761

C. State Appeals and Federal Habeas Review

The California Supreme Court affirmed Belmontes’s con-

viction and sentence in 1988, People v. Belmontes, 755 P.2d

310 (Cal. 1988), and the U.S. Supreme Court denied certiorari

in 1989. Belmontes v. California, 488 U.S. 1034 (1989). Bel-

montes then filed a petition for writ of habeas corpus in the

United States District Court for the Eastern District of Cali-

fornia, which the court held in abeyance while Belmontes

exhausted additional claims before the California Supreme

Court.

In 1993, after the California Supreme Court summarily dis-

missed Belmontes’s petition, denying him an evidentiary

hearing on any of his claims, proceedings on the federal writ

resumed before a magistrate judge. In 1996, the magistrate

judge denied Belmontes’s request for an evidentiary hearing

on various claims, but granted his motion to expand the

record to include depositions, declarations, and other docu-

ments submitted by the parties. The magistrate judge and the

district judge thereafter considered all of this material when

making their rulings.

The deposition testimony, declarations, and other evidence

submitted by the parties revealed critical omissions in

Schick’s mitigation investigation and in his preparation for

the penalty phase. These submissions also demonstrated that

there was a substantial amount of additional mitigating evi-

dence that could and should have been investigated, devel-

oped, and presented at the penalty phase of Belmontes’s trial.

Finally, the evidence and the record also revealed that counsel

failed to properly prepare the witnesses for the penalty phase

hearing and failed to explain to the jury the relevance of the

meager evidence he did present.

At the habeas proceeding, Belmontes presented the testi-

mony of two experts on ineffective assistance of counsel who

opined that Schick had not prepared for the penalty phase in

6762 BELMONTES v. AYERS

a reasonably competent manner. The first expert, James Lar-

sen, is the former deputy public defender who represented

Belmontes’s codefendant, Domingo Vasquez, for whom he

negotiated a plea to second degree murder. At the time of Bel-

montes’s trial in 1982, Larsen was one of the most experi-

enced criminal defense attorneys in San Joaquin County, the

county in which Belmontes was tried. Belmontes’s second

expert, Ephraim Margolin, is the former president of the

National Association of Criminal Defense Lawyers, was the

founding president of California Attorneys for Criminal Jus-

tice, and was a lecturer at Boalt Hall School of Law, Santa

Clara Law School, and Hastings Law School for many years.

At the time of his deposition testimony, Margolin had tried

numerous murder cases and had represented scores of crimi-

nal defendants on appeal in jurisdictions across the country.

He had also served as an expert with respect to the compe-

tency of trial counsel in numerous capital habeas proceedings.

In his deposition, Larsen testified that a reasonably compe-

tent trial attorney representing a capital defendant in San Joa-

quin County in 1982 would have known that he had a duty to

conduct a thorough investigation of all potentially mitigating

factors, including the defendant’s background and mental

state. When asked about the basis of that opinion, Larsen

stated that his opinion was based upon the California and U.S.

Supreme Court cases establishing the standards for competent

representation in capital cases, as well as the American Bar

Association standards regarding the duty of defense counsel,

that were in existence prior to 1982.

Margolin likewise testified that any reasonably competent

attorney representing a capital defendant in California in 1982

would have known that investigating both the positive and

negative aspects of a defendant’s mental state was essential.

Such a lawyer would likewise have known that he had a duty

to obtain information about the defendant’s childhood, per-

sonality, history of medical and mental health problems, and

to gather all school and medical records. When put on notice

BELMONTES v. AYERS 6763

that the defendant might be a drug user, such a lawyer would

also have known that he had a duty to investigate the extent

of the defendant’s drug use and its effect on his behavior.

With respect to whether Schick’s mitigation investigation

had been performed in a constitutionally adequate manner,

Larsen testified that, in his view, Schick had “not act[ed] as

a reasonably competent attorney” in conducting his penalty-

phase investigation because he failed to investigate potential

mitigating evidence related to various mitigating factors set

forth in California’s death penalty statute, most notably evi-

dence related to Belmontes’s mental state. Specifically, Lar-

sen noted that there was information in the pre-trial report

prepared by psychiatrist Dr. Cavanaugh, the reports prepared

by Schick’s investigators, and Belmontes’s CYA file that

would have led a reasonably competent attorney to conduct

further investigation with respect to Belmontes’s background

and mental state.

Margolin likewise testified that, in his view, Schick did not

act in a competent manner in preparing for the penalty phase

of Belmontes’s trial. Specifically, he testified that Schick per-

formed incompetently in

fail[ing] to investigate leads which should have been

obvious to him.

Where he did attempt to present evidence, he pre-

sented it in a way which did not link it to anything

that would have been meaningful to the jury. He did

not have a coherent notion of why he [was] present-

ing what he [presented]. . . .

[H]e did not prepare the witnesses for the testi-

mony which he was eliciting, and I think that he . . .

infected the whole [penalty] proceeding . . . with

incompetency.

6764 BELMONTES v. AYERS

1. Schick’s Mitigation Investigation and Penalty-Phase

Preparations

The evidence at the habeas hearing revealed that a month

or two before trial, Schick had an investigator, Jim Ber-

wanger, contact several potential penalty-phase witnesses,

including a few of Belmontes’s friends and family members,

the Haros, and a few CYA staff members. After Berwanger

met with these potential witnesses, he prepared three brief

reports. Schick obtained Belmontes’s CYA file and met once

with Assistant Chaplain Don Miller. Berwanger’s reports and

Belmontes’s CYA file constitute the sum total of the reports

that were prepared and the documents that were gathered in

preparation for the penalty phase. Based on this investigation,

Schick decided that his goals with respect to the penalty phase

would be to (1) humanize Belmontes, (2) show that he would

not be a difficult prisoner and could form good relationships

with people, (3) provide the jury with information about his

background, and (4) raise lingering doubt about whether Bel-

montes was the actual killer.

Although Schick hired a psychiatrist, Dr. Cavanaugh, to

evaluate Belmontes’s mental state for purposes of the guilt

phase, he did not ask Cavanaugh to comment on any issues

relevant to the penalty phase, and did not consult any psychol-

ogists or psychiatrists with respect to any possible mental

defect, impairment, or condition that might be relevant to sen-

tencing as opposed to guilt. Specifically, he did not ask any

expert to evaluate the effect on Belmontes of the mitigating

evidence regarding his troubled childhood or his mental con-

dition. Schick repeatedly testified that he had no strategic rea-

son for failing to consult with Dr. Cavanaugh or any other

psychiatrist or psychologist about the import of such mitigat-

ing evidence or its relationship to Belmontes’s subsequent

behavior. Indeed, even when the State’s attorney asked Schick

questions designed to encourage him to state that he had a tac-

tical reason for this failure, Schick testified that his decision

not to conduct such an investigation was not motivated by

BELMONTES v. AYERS 6765

fear of opening the door to damaging rebuttal evidence or any

other rationale. Schick gave the following account of his men-

tal processes regarding his failure to conduct an investigation

or to present such evidence:

I can’t remember going through a conscious pro-

cess and saying, “Should I develop [mental state mit-

igation evidence]?” And, “Therefore for the such-

and-such tactical reason I’m not going to do it.” It

just wasn’t something I was focused on. . . . I can’t

recall going through the process of saying to myself,

“Should I put on a psychiatrist at this stage?”

And I can’t tell you as I sit here today that there

was some tactical decision. . . .

I can’t recall going through any processes like

that. We had interviewed and focused our penalty

investigation on personal background witnesses that

were called and made reference to, and that’s where

I put my emphasis in the penalty presentation.

What I’m trying to say is that I don’t think I cog-

nitively went through and rejected it for any reason.

In addition to failing to consult a psychologist or psychia-

trist, Schick failed to pursue a host of leads, many of which

would have led to the discovery of additional mitigating evi-

dence and would have humanized Belmontes.

Although Schick was aware, through Belmontes’s CYA file

and other sources, that Belmontes had suffered from rheu-

matic fever and other illnesses as an adolescent, and knew

that these illnesses had been markedly debilitating and that

Belmontes had been repeatedly hospitalized as a result,

Schick never requested or obtained Belmontes’s medical or

hospital records.

6766 BELMONTES v. AYERS

Schick also knew that Belmontes had a history of serious

drug abuse, yet he did not investigate whether mitigating evi-

dence related to Belmontes’s drug use should be presented at

the penalty phase.

Belmontes’s CYA file also put Schick on notice that Bel-

montes had dropped out of school in the tenth grade and sug-

gested that he had experienced some difficulties there, yet

Schick did not obtain any of Belmontes’s school records, nor

did he contact any of Belmontes’s former teachers.

Yet another document in Belmontes’s CYA file noted the

fact that Belmontes had been involved “in the Cadets, scouts

and little league and also involved in school organized groups

and athletics.” Schick did not investigate Belmontes’s

involvement in any of these activities, nor did he obtain or

present to the jury any information about any other aspects of

Belmontes’s childhood that might further humanize him or

show that he possessed a number of positive attributes.

Belmontes’s CYA file also made clear that Dr. Alayne

Yates had performed psychological testing on Belmontes dur-

ing his time in the Youth Authority, the results of which were

easily obtainable. Another document in the file suggested that

Belmontes might be suffering from depression. Despite his

awareness of the psychological testing and the possibility that

Belmontes suffered from depression, Schick did not obtain a

copy of the results of the CYA psychological testing, did not

discuss Dr. Yates’s evaluation of Belmontes with her or with

any other psychiatrist or psychologist, and, as noted above,

did not seek an independent evaluation of Belmontes’s mental

health or personality traits for purposes of the penalty phase.

As Schick testified, he simply did not think about exploring

these matters in connection with his penalty phase defense.

With respect to Belmontes’s temperament and adjustment

to the CYA, the file contained numerous references to the fact

that Belmontes possessed positive qualities. In one report, for

BELMONTES v. AYERS 6767

example, a CYA staff member described Belmontes as some-

one who “relates to all ethnic groups,” is non-delinquent, and

is passive rather than aggressive, exploitive, or assaultive. In

another, a CYA staff person noted that, even after being pres-

sured by other Chicano wards to retaliate against a ward who

had stolen his personal belongings, Belmontes refused to

engage in violence and instead asked CYA officials to trans-

fer him to another facility where he would not face such pres-

sures. Notwithstanding these leads, Schick did not seek to

obtain any additional information about the incidents of posi-

tive conduct described above, nor did he discuss with any

psychologist or psychiatrist or other expert Belmontes’s pros-

pects for positive institutional adjustment.

In addition to failing to investigate numerous leads, Schick

did little to prepare the witnesses he called to testify. With

respect to what had been done in order to prepare Belmontes

to make a statement to the jury at the close of the penalty

phase, for example, Schick testified that he and Belmontes

“probably talked about it a little bit. . . . I’m sure he talked a

little bit about what he was going to say, and I may have

offered advice to him.” If he did offer Belmontes advice, it

was not very good advice. In Belmontes’s penalty phase testi-

mony, he second-guessed the jury’s verdict, he showed little

remorse, he could not articulate any concrete way in which he

would contribute to society if he were sentenced to life in

prison, and he did not explain any of the mitigating evidence

or offer the jury any reasons why they should spare his life.

All in all, the testimony makes plain that Schick failed to ade-

quately and effectively prepare Belmontes for this crucial por-

tion of the trial.

2. Additional Mitigating Evidence That Should Have Been

Presented to the Jury

Belmontes’s habeas counsel’s investigation revealed that

there was a large quantity of mitigating evidence related to

Belmontes’s background and mental state that was never

6768 BELMONTES v. AYERS

uncovered or presented to the jury on account of Schick’s fail-

ure to investigate, to follow up on various leads, and to have

a psychologist or psychiatrist evaluate Belmontes for pur-

poses of the penalty phase.

With respect to Belmontes’s childhood and adolescence,

habeas counsel’s investigation revealed that, in addition to

growing up in a poverty-stricken family in which his father,

a profound alcoholic, beat his mother severely and regularly,

Belmontes dealt with a host of other traumas. When he was

five years old, for example, his 10-month-old sister died of a

brain tumor. After her death, Belmontes exhibited symptoms

of depression and repeatedly visited the cemetery where she

had been buried. In addition to dealing with his father’s alco-

holism, Belmontes also suffered as a result of his maternal

grandmother’s alcoholism and prescription drug addiction,

which, in combination with her manipulative and controlling

behavior, caused constant strife within both his immediate

and extended family.

In spite of the adversity he experienced, Belmontes was a

kind, responsible and likeable child with a very pleasant

demeanor. He was a loving and protective older brother to his

two younger siblings, and was kind and respectful toward his

maternal grandparents notwithstanding the fact that they dis-

approved of him on account of his mixed racial background.

He participated in Little League, the Navy Cadets, team

sports, and had a paper route. In his early years, he kept up

in school, made friends easily, and got along with his teach-

ers.

At age 14, however, Belmontes was beset by rheumatic

fever, a condition for which he was repeatedly hospitalized.

The disease was significantly debilitating and required him to

stop attending school and to terminate his involvement in

sports and other social activities. As a result, he was isolated

from his peers and unable to pursue the means through which

he had formerly escaped his traumatic home life. He was also

BELMONTES v. AYERS 6769

repeatedly told that, as a result of this condition, he would

likely not live past 21 years of age.4 He became depressed,

withdrawn, and lost some of the positive personality traits that

seemed to be developing during his early years.

Shortly thereafter, his mother and stepfather divorced. As

a result, the family was forced to move into a cheap motel in

which Belmontes and four family members lived in “a really

small, one-room shack.” During this time, their lives were dis-

rupted and unstable. His mother’s behavior became erratic.

She engaged in casual sexual relations with a number of men,

and frequently brought the men back to the motel room in

which the family lived.

By the time he was a teen, Belmontes had started using

drugs on a regular basis. Around the time of McConnell’s

murder, he was regularly using marijuana, heroin, LSD, and

PCP.5

4

The dissent argues that Belmontes’s illness was not severe. Dis. Op. at

6829. Regardless of whether or not the disease was actually life-

threatening, Belmontes’s doctors and family behaved as though it were.

The social isolation and physical limitations that they imposed on Bel-

montes, whether or not they were necessary, caused him to suffer signifi-

cant negative psychological effects. Additionally, Belmontes’s belief that

he would die young had a profound psychological effect on him, regard-

less of whether it was medically accurate. The dissent quotes Dr. Yates’s

testimony that although Belmontes’s mother expected Belmontes to die

young, Belmontes never believed that he would. Dis. Op. at 6836. How-

ever, according to Barbara Murillo, Belmontes’s girlfriend and the mother

of his children, Belmontes did believe that he would die by the age of 21,

causing him to take risks that he would not have taken if he believed that

he had a future. Murillo even testified that when she yelled at Belmontes,

he would reply, “You won’t have to put up with me because I won’t be

around long.”

5

The dissent’s claim that Barbara Murillo testified that Belmontes did

not do drugs because it was bad for his illness is puzzling. Dis. Op at 6836

n.20. According to her declaration, when they first started dating, Bel-

montes did not do drugs or alcohol when they went out. Murillo also stated

that Belmontes’s mother did not approve of his drug use because she

believed it was bad for his illness. Moreover, Murillo’s declaration con-

tains multiple references to Belmontes’s drug use, including his use of her-

oin.

6770 BELMONTES v. AYERS

In addition to discovering the evidence described above,

habeas counsel’s investigation made plain that Schick should

have utilized the testimony of a psychologist or psychiatrist to

explain to the jury effectively the impact on his conduct and

on his mental health of the multitude of traumas Belmontes

experienced as a child and adolescent. Specifically, such an

expert could have explained to the jury the psychological

impact on Belmontes of his father’s severe alcoholism; of wit-

nessing severe domestic violence between his parents; of his

family’s poverty; of observing his mother’s profligate sexual

activity; of being severely ill during a critical stage in his

social development and his removal from the normal experi-

ences of teenage life, including social interaction with his

peers; of his symptoms of depression and the repeated predic-

tions that he would die before he reached adulthood; and

finally, of his history of substance abuse. Such an expert also

could have explained the extent to which these problems

caused or contributed to Belmontes’s general behavior and to

his involvement in McConnell’s murder.

The deposition testimony of Dr. James Missett, which Bel-

montes submitted to the district court, reveals the extent to

which such an expert could have explained the significance of

the difficulties that Belmontes experienced, in addition to

explaining the significance of the positive aspects of his early

development. Specifically, Dr. Missett testified that, prior to

the onset of rheumatic fever, Belmontes was functioning in an

exemplary manner vis-a-vis children who faced similar priva-

tion and trauma during their formative years, a fact that sug-

gests Belmontes possesses positive and conforming core

personality traits. However, the combination of the traumas he

experienced early on in life and his struggle with rheumatic

fever caused him to “los[e] ground in comparison with his

peers [both] academically [and] socially” and “intensified

[his] sense of himself as defective, something from which he

never recovered.” According to Dr. Missett, this in turn led to

Belmontes’s substance abuse problems and his eventual

involvement in criminal activity. With respect to the evidence

BELMONTES v. AYERS 6771

regarding Belmontes’s background that was offered at the

penalty phase, Dr. Missett stated that

the critical thing to me . . . was that there was no ref-

erence whatsoever in the penalty phase testimony to

the linkage that exists between these various fac-

tors[,] . . . to the way in which the behavior at one

point in time could be related to the experience that

Mr. Belmontes had earlier in life, or to the way that

the various biological, social, and environmental,

educational, and other factors interrelated in Mr.

Belmontes’[s] life and could be focused as of the

time either of the killing of Ms. McConnell or at the

time of his trial and sentencing.

In other words, conspicuously missing from the penalty phase

of Belmontes’s trial was the testimony of an expert who could

make connections between the various themes in the mitiga-

tion case and explain to the jury how they could have contrib-

uted to Belmontes’s involvement in criminal activity.

With respect to Belmontes’s experience as a ward at the

CYA, habeas counsel uncovered and presented to the district

court considerable additional evidence that could have been

presented to the jury. As noted above, there were many refer-

ences to Belmontes’s positive conduct in the CYA contained

in his file, including his refusal to engage in gang violence.

Other documents in the file stated that Belmontes relates well

to others, is passive, follows directions, and likes working

with young people. Dr. Yates could have testified that she

diagnosed him as a conformist, not a manipulator. Although

there were also negative aspects to Belmontes’s time in the

CYA that were noted in the file—namely that Belmontes

struggled to adjust when transferred from one institution to

another, and that he had, at one point, been involved in the

formation of a Chicano clique—the file revealed that his con-

duct was, on the whole, quite positive.

6772 BELMONTES v. AYERS

On an entirely separate point, Schick could have obtained

evidence from Dr. Yates regarding Belmontes’s prospects for

positive institutional adjustment. Similarly, he could have

obtained evidence in that regard from an expert witness such

as Gerald Enomoto, the former Director of the California

Department of Corrections and current United States Marshal

for the Eastern District of California. Enomoto could have tes-

tified that Belmontes adjusted well to the structured environ-

ment of the CYA and was likely to be able to conform his

conduct to societal norms if confined in a state prison.

Although the State focused on several negative reports in Bel-

montes’s CYA file, Enomoto told the district court that the

reports in the file showed a clear trend of improvement, with

trouble at the beginning but very positive conduct once Bel-

montes had the opportunity to acclimate to the facility. Eno-

moto found the fact that Belmontes had refused to engage in

gang violence to be extremely significant and very positive.6

* * *

The parties filed cross motions for summary judgment. In

2000, after several years of inaction, the district judge with-

drew his referral of the matter from the magistrate judge,

heard oral argument on the ineffective assistance of counsel

claim and subsequently ruled that counsel had been deficient

but that Belmontes did not suffer prejudice as a result. The

district judge’s decision was based on the written evidence

submitted by the parties, in accordance with the magistrate

judge’s previous ruling denying Belmontes’s request for an

evidentiary hearing with live witnesses. In so ruling, the court

noted that “[t]he record here shows that trial counsel pursued

no investigation whatsoever into Belmontes’ mental state for

the penalty phase. Schick acknowledged that after consulting

Dr. Cavanaugh on competency, insanity, and diminished

capacity, he had no further contact with Dr. Cavanaugh, or

6

Whether the evidence regarding institutional adjustment should have

been adduced is a matter we discuss separately. See section II.B.2.c.

BELMONTES v. AYERS 6773

with any other psychiatrist in relation to the penalty phase.”

On that basis, the court held that “[c]ounsel’s failure to inves-

tigate mental state evidence for presentation at the penalty

phase, even where such evidence is unhelpful at the guilt

phase, is not reasonable under Ninth Circuit precedent.”

With respect to prejudice, however, the district court held

that “Schick introduced testimony as to most of the factual

matters” that Belmontes argues should have been introduced,

and that Belmontes “provides no reason to believe that the

jury needed professional help, beyond defense counsel’s argu-

ment, to understand evidence of petitioner’s difficult child-

hood or prospects for institutional adjustment.”7 (emphasis

added). The court then referred Belmontes’s six remaining

claims, which had not yet been briefed, to the magistrate

judge. In January of 2001, the magistrate judge recommended

denying relief with respect to the outstanding claims, and in

May 2001, the district court adopted the magistrate’s findings

and recommendations, denied the petition, and entered judg-

ment against Belmontes.

Belmontes appealed. The subsequent history of this case is

set forth above. We must now resolve Belmontes’s ineffective

assistance of counsel claim, and a few related claims that we

have not previously resolved.

II. DISCUSSION

A. Standard of Review

Belmontes’s federal habeas petition was filed prior to the

enactment of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), and thus, pre-AEDPA standards

7

As noted above contrary to the district court’s statement, defense coun-

sel, in his closing argument made no mention of the pertinent evidence

and did not attempt to explain the relevance of such evidence to Bel-

montes’s personality and future conduct.

6774 BELMONTES v. AYERS

apply to his claims. Douglas v. Woodford, 316 F.3d 1079,

1085 (9th Cir. 2003). This court reviews a district court’s

decision to deny habeas relief de novo. Raley v. Ylst, 470 F.3d

792, 799 (9th Cir. 2006). “Under pre-AEDPA law, we con-

sider a claim alleging ineffective assistance of counsel as a

mixed question of law and fact that we review de novo.” Sum-

merlin v. Schriro, 427 F.3d 623, 628 (9th Cir. 2005) (en banc)

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

“We review for clear error, however, the district court’s find-

ings of fact.” Frierson v. Woodford, 463 F.3d 982, 988 (9th

Cir. 2006). Finally, “[b]ecause this is a pre-AEDPA case, we

do not review the state court’s legal conclusions to determine

whether they are ‘objectively unreasonable;’ rather, we ‘sim-

ply resolve the legal issue on the merits, under the ordinary

rules.’ ” Summerlin, 427 F.3d at 628 (quoting Belmontes II,

414 F.3d at 1101, rev’d on other grounds, Ayers v. Belmontes,

___ U.S. ___, 127 S.Ct. 469).

B. Penalty Phase Ineffective Assistance of Counsel

1. Procedural Default

[1] The State argues that Belmontes’s ineffective assistance

of counsel claim is procedurally defaulted because Belmontes

“never presented or developed the factual bases of . . . [this]

claim[ ] to the state courts” and because the habeas petition in

which he raised this claim before the California courts was

untimely. These arguments fail for several reasons. First, Bel-

montes did present the factual basis for his federal claim to

the California courts. In rejecting this argument, the district

court correctly observed that the State overlooks critical pas-

sages from Belmontes’s filings before the California courts.

Specifically, the district court noted that

[i]n support of the merits of his ineffective assistance

of counsel claim, [Belmontes’s] verified reply [filed

with the California Supreme Court] states that “Trial

counsel acknowledges that he limited his mental

BELMONTES v. AYERS 6775

state investigation to Dr. Cavanaugh’s interview, did

not conduct any comprehensive background investi-

gation regarding petitioner’s physical and mental

conditions during his upbringing, and did not follow

up the unresolved issues emanating from Dr. Cava-

naugh’s examination with psychological testing or

any other means.” Petitioner was unable to further

describe this claim in state court because the Califor-

nia Supreme Court denied his requests for funds to

conduct follow-up investigations and examinations.

Thus, petitioner’s state court claim referred to evi-

dence and potential evidence that now provides the

basis for his federal court claim.

[2] Second, because the California Supreme Court consid-

ered the merits of Belmontes’s claims, rejecting them “on the

merits as well as on procedural grounds,” we may reach the

merits as well. In Harris v. Reed, 489 U.S. 255 (1989), the

Supreme Court held that

procedural default precludes federal habeas review

. . . only if the last state court rendering a judgment

in the case rests its judgment on the procedural

default. . . . [P]rocedural default does not bar consid-

eration of a federal claim on either direct or habeas

review unless the last state court rendering a judg-

ment in the case “ ‘clearly and expressly’ ” states

that its judgment rests on a state procedural bar.

Id. at 262-63. Thus, where, as here, the state court did not

“clearly and expressly” rely solely upon procedural default in

rejecting a petitioner’s claim, this court may address the mer-

its of that claim.

Finally, even if the California Supreme Court had clearly

relied upon a rule of procedural default in rejecting Bel-

montes’s ineffective assistance of counsel claim—namely

6776 BELMONTES v. AYERS

California’s rule regarding untimely habeas petitions—we

would nonetheless reach the merits of that claim. We did not

recognize California’s procedural default rules regarding

untimeliness as independent and adequate state grounds for

rejecting a petitioner’s habeas claim until 1993, if not later,

see Karis v. Calderon, 283 F.3d 1117, 1132 n.8 (9th Cir.

2002); Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir.

1996), well after the California Supreme Court rejected Bel-

montes’s claim. Accordingly, we reject the State’s procedural

default argument and proceed to the merits of Belmontes’s

ineffective assistance of counsel claim.

2. Ineffective Assistance8

“The Sixth Amendment right to counsel in a criminal trial

includes ‘the right to the effective assistance of counsel.’ ”

Summerlin, 427 F.3d at 629 (quoting McMann v. Richardson,

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

critical stages of the criminal process,’ including capital sen-

tencing.” Id. (citations omitted).

8

Belmontes argues that his due process rights were violated when the

magistrate judge denied his motion for an evidentiary hearing on this

claim. We reject this argument for two reasons. First, Belmontes did not

timely object to the denial of his motion for an evidentiary hearing with

oral testimony. Indeed, he waited more than four years after the magistrate

judge’s ruling to raise such an objection with the district judge and did so

only after the judge had rejected his claim on the merits on the basis of

a fully developed record. Second, and more important, under 28 U.S.C.

§ 2246, “[o]n application for a writ of habeas corpus, evidence may be

taken orally or by deposition, or, in the discretion of the judge, by affida-

vit.” Although Belmontes was not afforded the opportunity to submit his

evidence in support of his ineffective assistance of counsel claim through

oral testimony, he was able to expand the record, see Rules Governing

§ 2254 Cases, Rule 7, and submit all of that evidence through deposition

testimony and other documentary evidence. Resolving the claim on the

basis of such evidence was, under the circumstances of this case, not an

abuse of discretion. Belmontes had a fair opportunity to develop the fac-

tual record in support of his claim before the district court. Thus, his con-

stitutional rights were not violated by the magistrate judge’s denial of his

motion for an evidentiary hearing based on oral testimony.

BELMONTES v. AYERS 6777

In order to prevail on a claim of ineffective assistance of

counsel, a petitioner must show that his trial counsel’s perfor-

mance “fell below an objective standard of reasonableness”

and that “there is a reasonable probability that, but for coun-

sel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland v. Washington, 466 U.S. 668,

687-88, 694 (1984).

a. Deficient Performance9

Under Strickland, counsel’s competence is presumed. Thus,

Belmontes must rebut this presumption by demonstrating that

Schick’s performance was unreasonable under prevailing pro-

fessional norms and was not the product of sound trial strat-

egy. See id. at 688-89. Judicial scrutiny of counsel’s

performance is highly deferential, and thus we must evaluate

Schick’s conduct from his perspective at the time it occurred,

without the benefit of hindsight. Id. at 689. “[S]trategic

choices made after thorough investigation of [the relevant]

law and facts relevant to plausible options are virtually

unchallengeable.” Id. at 690. However,

strategic choices made after less than complete

investigation are reasonable precisely to the extent

that reasonable professional judgments support the

limitations on investigation. In other words, counsel

has a duty to make reasonable investigations or to

make a reasonable decision that makes particular

investigations unnecessary. In any ineffectiveness

case, a particular decision not to investigate must be

9

The district court held that Schick’s performance was deficient and the

dissent does not dispute this holding. Instead, our colleague argues that

Belmontes was not prejudiced by Schick’s performance. His dissent notes

that courts need not determine whether counsel’s performance was defi-

cient before deciding whether it prejudiced the defendant. Dis. Op. at

6819. We agree and because all of the dissent’s arguments pertain to the

prejudice section of the ineffective assistance of counsel analysis, we will

address them in that section of the opinion.

6778 BELMONTES v. AYERS

directly assessed for reasonableness in all the cir-

cumstances . . . .

Id. at 690-91; see also Wiggins v. Smith, 539 U.S. 510, 521

(2003) (quoting Strickland, 466 U.S. at 690-91). Similarly, a

decision not to present a particular defense or not to offer par-

ticular mitigating evidence is unreasonable unless counsel has

explored the issue sufficiently to discover the facts that might

be relevant to his making an informed decision. Wiggins, 539

U.S. at 522-23; Stankewitz v. Woodford, 365 F.3d 706, 719

(9th Cir. 2004).

Although the Supreme Court has “declined to articulate

specific guidelines for appropriate attorney conduct and

instead ha[s] emphasized that ‘the proper measure of attorney

performance remains simply reasonableness under prevailing

professional norms,’ ” Wiggins, 539 U.S. at 521 (quoting Str-

ickland, 466 U.S. at 688), “general principles have emerged

regarding the duties of criminal defense attorneys that inform

our view as to the ‘objective standard of reasonableness’ by

which we assess attorney performance, particularly with

respect to the duty to investigate,” Summerlin, 427 F.3d at

629.

[3] Specifically, we have held that “ ‘[t]o perform effec-

tively . . . counsel must conduct sufficient investigation and

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

explain[ ] the significance of all the available [mitigating] evi-

dence.’ ” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.

2005) (citing Mayfield v. Woodford, 270 F.3d 915, 927 (9th

Cir. 2001) (en banc)); see also Summerlin, 427 F.3d at 630.

Indeed, “ ‘it is imperative that all relevant mitigating informa-

tion be unearthed for consideration at the capital sentencing

phase.’ ” Wallace v. Stewart, 184 F.3d 1112, 1117 (9th Cir.

1999) (quoting Caro, 165 F.3d 1223, 1227 (9th Cir. 1999)).

[4] Accordingly, attorneys representing defendants in capi-

tal sentencing proceedings have “an ‘obligation to conduct a

BELMONTES v. AYERS 6779

thorough investigation of [the defendant’s] background.’ ”

Mayfield, 270 F.3d at 927. They also have a “ ‘duty to investi-

gate and present mitigating evidence of mental impairment’

. . . [,] [which] includes examination of mental health

records.” Summerlin, 427 F.3d at 630 (quoting Bean v. Calde-

ron, 163 F.3d 1073, 1080 (9th Cir. 1998) and citing Deutscher

v. Whitley, 884 F.2d 1152, 1161 (9th Cir. 1989)); see also

Caro v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002). Fur-

thermore, “counsel has an affirmative duty to provide mental

health experts with information needed to develop an accurate

profile of the defendant’s mental health.” Caro v. Woodford,

280 F.3d at 1254. “The defendant’s history of drug and alco-

hol abuse should also be investigated.” Summerlin, 427 F.3d

at 630 (citing Jennings v. Woodford, 290 F.3d 1006, 1016-17

(9th Cir. 2002)).

[5] Moreover, “when ‘tantalizing indications in the record’

suggest that certain mitigating evidence may be available,

those leads must be pursued.” Lambright v. Schriro, 490 F.3d

1103, 1117 (9th Cir. 2007) (quoting Stankewitz, 365 F.3d at

719-20); see also Stankewitz, 365 F.3d at 754-55 (finding

ineffective assistance where counsel failed to thoroughly

investigate the defendant’s childhood, history of drug abuse,

and mental health problems notwithstanding the fact that he

was on notice that such an investigation might yield mitigat-

ing evidence); Summerlin, 427 F.3d at 632 (finding ineffec-

tive assistance in a case in which counsel failed to obtain

readily available evidence concerning possible mental state

mitigation where his client’s prior attorney told him there

were indications that the defendant was mentally ill); May-

field, 270 F.3d at 928 (finding ineffective assistance where

counsel did not consult the appropriate medical experts or col-

lect relevant records after “his investigator’s limited efforts

revealed evidence of diabetes and substance abuse,” and

failed to explain to the jury the relevance of the evidence that

was presented).

In Douglas, for example, we held that petitioner’s trial

counsel had been ineffective because he failed to adequately

6780 BELMONTES v. AYERS

investigate and present evidence related to Douglas’s trau-

matic childhood, positive attributes, and mental health prob-

lems, and failed to adequately prepare several lay witnesses

for their testimony at the penalty phase of Douglas’s capital

trial. 316 F.3d at 1088-89. Douglas was convicted of sexually

assaulting, torturing, and brutally murdering two teenage

girls, and the State sought the death penalty. Id. at 1084. At

the penalty phase of his trial, Douglas’s counsel presented the

testimony of Douglas’s wife, his son, a friend, and a neighbor.

Id. at 1084. Two of these witnesses

testified that Douglas had an aversion to the sight of

blood and several testified as to his nonviolent

nature, in an apparent attempt to focus on “lingering

doubt” of whether [a cooperating witness’s] story

was completely true. . . . [Douglas’s] family mem-

bers testified in very general terms that Douglas had

been orphaned and had a difficult childhood, running

away from home at fifteen to join the Marines. They

also indicated that Douglas was very poor growing

up. . . .

Id. at 1087. Evidence presented to the district court at the evi-

dentiary hearing on Douglas’s ineffective assistance of coun-

sel claim demonstrated that, although trial counsel was “on

notice that Douglas had a particularly difficult childhood, . . .

[he made] no attempt to contact persons who might have had

more detailed information about Douglas’s past.” Id. at 1088.

Even though counsel “knew that Douglas had spent a great

deal of time locked in a closet [as a child], a factor which con-

tributed to his severe claustrophobia, [counsel] did not elicit

any testimony regarding this fact from Douglas’s family.” Id.

Moreover, although it was “easy to ascertain that Douglas’s

line of work exposed him to toxic solvents, . . . [counsel] did

not investigate the effects of this exposure or inform the men-

tal health experts who [he hired to evaluate] Douglas of this

fact.” Id. at 1088-89. Finally, counsel “spent virtually no time

preparing [his] witnesses for their testimony at the penalty

BELMONTES v. AYERS 6781

phase.” Id. at 1087. His failure to do so “meant that the testi-

mony that was introduced was less than compelling.” Id. at

1088.

Assessing counsel’s mitigation investigation and prepara-

tion for the penalty phase under the standards set forth above,

this court concluded that

although [counsel] did perform some investigation,

it was constitutionally inadequate. The information

[counsel] did obtain about Douglas’s troubled child-

hood revealed the need to dig deeper, and he did not

adequately prepare the witnesses in order to present

the material he did gather to the jury in a sufficiently

detailed and sympathetic manner. We therefore con-

clude that [counsel’s] investigation and presentation

of social history at the penalty phase was deficient.

Id. at 1089.

The facts of the case at hand and those in Douglas are quite

similar.10 Here, as in Douglas, Schick failed to consult with

experts and adequately investigate obvious leads in the record

that would have led him to mitigating evidence about Bel-

montes’s mental state, humanizing evidence about his trau-

matic childhood, and positive character evidence. Also as in

Douglas, Schick failed to prepare lay witnesses to effectively

present character evidence about Belmontes that would

inform the jury of his positive qualities. Finally, as in

Douglas, Schick failed to present expert witnesses who could

testify about Belmontes’s mental state and explain the signifi-

cance of the mitigating evidence to the jury. Each of these

failures were unreasonable under professional norms and

independently constitute deficient performance.

10

The dissent attempts to distinguish the two cases, but its analysis is

limited to the issue of prejudice. Dis. Op. at 6838-39. In this section, how-

ever, we consider only the issue of deficient performance and the dissent

does not dispute our analysis. We discuss prejudice below.

6782 BELMONTES v. AYERS

First, Schick failed to consult experts and otherwise ade-

quately investigate mitigating evidence for the penalty phase,

notwithstanding the fact that he knew such evidence poten-

tially existed. Although Schick hired a mental health expert,

Dr. Cavanaugh, to evaluate Belmontes for purposes of the

guilt phase, he did not, as the district court found, ask Dr.

Cavanaugh to comment on any issues relevant to the penalty

phase, and did not consult any other psychologist or psychia-

trist with respect to the relevance of, or need for further devel-

opment of the mitigating evidence regarding Belmontes’s

troubled childhood or mental state. Obtaining competency

evaluations from mental health experts for guilt phase pur-

poses does not discharge counsel’s duty to consult such

experts for the penalty phase because the considerations

involved are very different in the two phases. See Summerlin,

427 F.3d at 642. This failure to consult a psychologist or psy-

chiatrist about the significance of the mitigating evidence

would have been unreasonable in any capital case, but was

particularly unreasonable here, given the information Schick

had at the time he made this decision.

First, Dr. Cavanaugh’s report indicated a “lack of early

markers” of anti-social personality disorder. Had Schick both-

ered to ask what this meant, he would have realized that this

finding would strongly support the argument that Belmontes’s

adverse experiences in his early teens changed his life and his

personality from that of a normal, well-behaved young man

to that of a disturbed, depressed, and drug addicted nineteen

year old, an argument that Schick failed to make, but one that,

if properly developed, might well have humanized Belmontes

and elicited the sympathy of members of the jury. Second,

Cavanaugh’s report mentioned that Belmontes had an exten-

sive history of substance abuse, and that his use of drugs and

alcohol negatively affected his impulse control. A reasonable

attorney presented with this information would have con-

sulted with Cavanaugh or another potential expert regarding

whether such a finding, though unhelpful at the guilt phase,

might be useful at the penalty phase either to explain how

BELMONTES v. AYERS 6783

Belmontes’s harmful youthful experiences may have led to

his turning to substance abuse to help him cope with the

trauma in his life or to describe how those experiences when

coupled with the related substance abuse may have contrib-

uted to Belmontes’s criminal conduct.11

In addition to failing to consult a psychologist or psychia-

trist about the availability of mitigating evidence after reading

Cavanaugh’s report, Schick failed to pursue a host of other

obvious leads, many of which would have caused him to dis-

cover significant additional mitigating evidence. Although

Schick knew that Belmontes had participated in Cadets, Little

League, and team sports, and that he had been a well-behaved

and likeable child, Schick did not investigate whether evi-

dence could be presented regarding the positive attributes that

Belmontes possessed, evidence that might have humanized

him in the eyes of the jurors and given them an affirmative

reason to spare his life.

Schick was also aware that Belmontes had suffered from

rheumatic fever and other illnesses as an adolescent, and

knew that these illnesses had been markedly debilitating and

that he had been hospitalized many times, yet he neither

sought nor obtained Belmontes’s medical or hospital records,

nor did he uncover the easily obtainable evidence that Bel-

11

Contrary to the dissent’s suggestion, we do not hold that Schick could

have or should have presented an expert who would testify that substance

abuse led Belmontes to lose control of his impulses and murder McCon-

nell. Rather, we hold that Schick’s failure to investigate Belmontes’s men-

tal state and history of substance abuse constituted deficient performance.

The dissent confuses the failure to investigate evidence with the prejudice

that would follow from failing to introduce it. Here, we simply point out

Schick’s failure to fully investigate Belmontes’s mitigating circumstances.

We discuss below in the prejudice section the effect of Schick’s failure to

conduct the proper investigation and obtain the necessary witnesses. In

that section, we consider what a reasonably competent attorney would

have done with the witnesses and evidence that Schick should have uncov-

ered.

6784 BELMONTES v. AYERS

montes was told repeatedly that he should expect to die before

he reached the age of 21.

Schick knew that Belmontes had dropped out of school in

the tenth grade and that he struggled academically, yet Schick

did not obtain any of Belmontes’s school records or contact

any of Bemontes’s former teachers, and did no other investi-

gation of this issue. He did not, for example, seek to discover

whether Belmontes’s conduct in this regard was a result of

any of the traumatic events he had experienced. Further,

although Schick knew that Belmontes was abusing marijuana,

PCP, heroin, amphetamines, and LSD around the time of the

offense, he did not investigate whether mitigating evidence

related to Belmontes’s drug use existed or should be intro-

duced.

Schick also knew that psychological testing had been per-

formed on Belmontes by Dr. Yates during his time at the

CYA, the results of which were easily obtainable had Schick

requested these records. Despite this knowledge, Schick did

not obtain a copy of results of the psychological testing, did

not discuss Dr. Yates’s evaluation of Belmontes with her or

with any other psychiatrist or psychologist, and did not seek

an independent evaluation of Belmontes’s mental health or

personality traits for purposes of the penalty phase.

Alternatively, Schick was aware that Belmontes’s CYA file

contained numerous references to the those qualities that

made him a good candidate for positive institutional adjust-

ment. Notwithstanding the presence of multiple such leads,

Schick did not attempt to obtain any additional information

about the incidents of positive conduct described in the CYA

file, nor did he discuss with any psychologist or psychiatrist

or other potential expert Belmontes’s prospects for positive

institutional adjustment.

Schick’s failure to pursue these obvious leads, many of

which would have led to the discovery of compelling mitigat-

BELMONTES v. AYERS 6785

ing evidence, was clearly unreasonable and fell below stan-

dards of professional competence extant in 1982. See

Lambright, 490 F.3d at 1119-20; Stankewitz, 365 F.3d at 719-

20; Douglas, 319 F.3d at 1098; Bean, 163 F.3d at 1080. This

is especially true given that Schick conceded that his failure

was not a result of any tactical or strategic decision on his part

and admitted that he simply had not thought of conducting the

most rudimentary of investigations regarding Belmontes’s

mental state.

In addition to failing to investigate adequately, Schick did

not effectively prepare the lay witnesses he called to testify.12

We do not mean to suggest, as the dissent implies, that Schick

should have coached the witnesses. However, he had a duty

to discuss with them the purpose of their testimony, reveal the

type of questions he planned to ask them on the stand, and

instruct them as to what kind of information the jury would

find helpful and what kind of testimony would not be rele-

vant. It is evident from the testimony given at the penalty

phase that Schick did not do this. Several of the witnesses

who knew Belmontes best and clearly could have provided

compelling mitigating evidence did not testify to a single pos-

itive quality he possessed. Instead, witness after witness told

the same jury that had just found Belmontes guilty of first

degree murder beyond a reasonable doubt, that Belmontes

should not receive the death penalty because he was innocent.13

12

Although Schick claimed it was his practice to interview witnesses

before their actual testimony, he could not specifically recall interviewing

the penalty phase witnesses in this case. There were only three entries in

Schick’s time log related to penalty phase witness preparation and those

time intervals were also spent completing other tasks, including trial prep-

aration, that likely took up the bulk of the minimal number of hours he

logged.

13

The dissent makes the untenable claim that the witnesses’ belief that

Belmontes was innocent had a mitigating effect on the jury. All of the wit-

nesses who testified that they believed he was innocent admitted, of their

own volition or at the prodding of the prosecution, that they were not

familiar with the facts of the case. (The only exception to this was Bel-

6786 BELMONTES v. AYERS

Most glaringly, Belmontes’s own mother did not offer a sin-

gle reason not to execute her son, although she obviously

could have done so had she been properly advised regarding

the purpose and nature of the inquiry.14 Belmontes was simi-

larly ill-prepared to testify and to address the jury at the close

of the penalty phase. As a result, he could not name a single

positive, productive thing he would do if given a life sentence,

asked the jury not to rely on the few unconnected pieces of

mitigating evidence that Schick somehow managed to adduce,15

and spent a majority of his closing statement telling the jury

that the prosecutor did not know whether he had murdered

McConnell because “he wasn’t there” and “he doesn’t know

me.”

Schick’s presentation of lay witness testimony at the pen-

alty phase failed to fulfill its purpose of humanizing Bel-

montes or providing the jury with any reason to spare his life.

Competent counsel would have met with the lay witnesses,

discussed their testimony, and elicited the relevant informa-

tion from them on the stand. Schick’s failure to prepare the

lay witnesses and effectively present their testimony consti-

tutes deficient performance. See Douglas, 316 F.3d at 1089.

montes’s mother, but it is not significant or surprising that a mother would

think her own son incapable of killing another human being). It is far more

likely that the jury would interpret the witnesses’ insistence on Bel-

montes’s innocence as evidence of their ignorance, or perhaps loyalty,

than, as the dissenting opinion suggests, as an indication that “Belmontes

was normally not a violent person.” Dis. Op. at 6841.

14

The dissent notes that Belmontes’s mother “told the jury that Bel-

montes had a close relationship with his sister.” Dis. Op. at 6840. This

trivial observation was the only positive attribute that Schick managed to

extract from the defendant’s own mother in the course of her otherwise

damaging testimony. Likewise, the rest of the positive testimony from

other witnesses that the dissent cites, Dis. Op. at 6840-41, was cursory and

overshadowed by the witnesses’ repeated and unhelpful insistence that

Belmontes was innocent.

15

In his address to the jury, Belmontes insisted that he did not want to

use his traumatic childhood experiences as a crutch.

BELMONTES v. AYERS 6787

Additionally, Schick failed to call an expert witness who

could have synthesized the various elements of the informa-

tion about Belmontes and explained the factors that led to

Belmontes’s criminal activity. Such an expert could have

explained to the jury that Belmontes was a well-adjusted, like-

able child who showed great promise despite his family’s

instability and poverty. The death of his sister at an early age

and subsequent struggle with rheumatic fever, plus the social

isolation and depression that accompanied it, however, had

profound psychological and social effects on him. An expert

could have explained to the jury how such experiences could

have led an individual to abuse drugs and alcohol and become

involved in criminal activity.

The absence of such an expert was particularly damaging

given Schick’s failure to explain the significance of the miti-

gating evidence in his closing statement at the end of the pen-

alty phase. He did not, as noted earlier, even mention any of

the evidence that might have humanized Belmontes. He did

not refer to any of the traumatic events that helped shape Bel-

montes’s personality and were responsible for transforming

him from a peaceful, likeable child to the disturbed person

who murdered Steacy McConnell, and did not attempt to

explain the connection between the two. Nor of course did he

explain the relevance of the evidence relating to Belmontes’s

youth and childhood, including his serious illness, to the

jury’s task of determining whether Belmontes was deserving

of a life sentence rather than execution. Although Schick

stated in his deposition that one of his four themes at the pen-

alty phase was Belmontes’s capacity to adjust well to prison,

he failed to argue that such was the import of the testimony

of any of the witnesses he had called to testify. Cf. Mayfield,

270 F.3d at 928 (finding ineffective assistance in part based

on counsel’s “fail[ure] to explain to the jury the significance

of the mitigating evidence presented”). Instead he said only

that Belmontes was ill-equipped to make it outside of prison.

Perhaps as detrimental as these glaring omissions were the

arguments that Schick did make to the jury. Indeed, the main

6788 BELMONTES v. AYERS

thrust of his closing was the perverse argument that, if the

jurors really despised his client, they should sentence him to

life in prison rather than death because death would be the

more “lenient” punishment.

[6] In sum, the record makes plain that Schick’s presenta-

tion of evidence at the penalty phase did not take place after

“ ‘all relevant mitigation information [was] unearthed for con-

sideration,’ ” Douglas, 316 F.3d at 1088 (quoting Caro, 165

F.3d at 1227). Instead, Schick ignored “tantalizing indications

in the record . . . that ‘would [have] le[ ]d a reasonable attor-

ney to investigate further.’ ” Stankewitz, 365 F.3d at 720

(quoting Wiggins, 539 U.S. at 527). As a result, substantial

evidence in mitigation that might have humanized Belmontes

and affected the outcome of the penalty phase proceeding was

not provided to the jury. Compounding his failure to investi-

gate, Schick then failed to adequately prepare his witnesses to

testify with the result that their testimony was unhelpful and

possibly even damaging. Furthermore, he failed to present an

expert to explain the relevance of the available mitigating evi-

dence to the jury. Remarkably, he also failed to explain to the

jury in his closing argument the relevance of the small quan-

tum of mitigating evidence he did introduce, and failed to

make any of the critical humanizing arguments that might

influence a jury in the case of a nineteen-year-old youth.

Instead, he relied principally on the unsympathetic and not

very credible argument that a life sentence is harsher punish-

ment than execution. Cf. Douglas, 316 F.3d at 1088-89; May-

field, 270 F.3d at 928. Such representation falls far below that

which a reasonably competent attorney would provide in a

capital case. Accordingly, we affirm the district court’s hold-

ing that Schick’s representation at the penalty phase of Bel-

montes’s trial was deficient.

BELMONTES v. AYERS 6789

Volume 2 of 2

6790 BELMONTES v. AYERS

b. Prejudice

i. Legal framework

To establish prejudice, Belmontes must demonstrate that

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. A reasonable

probability is one “ ‘sufficient to undermine confidence in the

outcome,’ ” but is “less than the preponderance more-likely-

than-not standard.” Summerlin, 427 F.3d at 640, 643 (quoting

and citing Strickland, 466 U.S. at 693-94). Accordingly, “[i]n

establishing prejudice under Strickland, it is not necessary for

the habeas petitioner to demonstrate that the newly presented

mitigation evidence would necessarily overcome the aggra-

vating circumstances.” Correll v. Ryan, 465 F.3d 1006, 1018

(9th Cir. 2006) (citing Williams v. Taylor, 529 U.S. 362, 398

(2000)); see also Rompilla v. Beard, 545 U.S. 374, 393 (2005)

(“[A]lthough we suppose it is possible that [the sentencer]

could have heard it all and still have decided on the death pen-

alty, that is not the test.”). Instead, in evaluating prejudice, we

must “compare the evidence that actually was presented to the

jury with the evidence that might have been presented had

counsel acted differently,” Bonin v. Calderon, 59 F.3d 815,

834 (9th Cir. 1995), and evaluate whether the difference

between what was presented and what could have been pre-

sented is sufficient to “undermine confidence in the outcome”

of the proceeding. Strickland, 466 U.S. at 694. Prejudice is

established if “there is a reasonable probability that at least

one juror would have struck a different balance” between life

and death. Wiggins, 539 U.S. at 537.

[7] Applying these standards, we have held that counsel’s

failure to investigate and present available evidence regarding

a capital defendant’s troubled childhood, physical illness,

mental state, and drug use is sufficient to undermine confi-

dence in the result of a sentencing proceeding, and thereby to

render counsel’s performance prejudicial. See, e.g., Douglas,

BELMONTES v. AYERS 6791

316 F.3d at 1089; Mayfield, 270 F.3d at 932; Ainsworth v.

Woodford, 268 F.3d 868, 878 (9th Cir. 2001); Smith v. Stew-

art, 140 F.3d 1263, 1271 (9th Cir. 1998). We have likewise

found prejudice based on counsel’s failure to adequately pre-

pare and present the mitigating evidence that he introduces,

and to adequately explain to the jury the relevance of that mit-

igating evidence. See Lambright, 490 F.3d at 1122-23; Doug-

las, 316 F.3d at 1088-89; Mayfield, 270 F.3d at 928.

ii. Lay witnesses

[8] As a result of Schick’s deficient performance, the jury

never heard much of the available lay witness testimony about

significant mitigating circumstances of Belmontes’s life

including his difficult childhood, serious physical illness, drug

abuse, and positive attributes. Specifically, in addition to pre-

senting evidence demonstrating that Belmontes was born to a

teenage mother and grew up in a poverty-stricken family in

which his father, an alcoholic, beat his mother severely and

regularly, Schick could have introduced substantial additional

mitigating evidence. He could have established through the

testimony of lay witnesses that Belmontes had to deal with a

host of other traumas and adversity during his childhood and

adolescence. Such mitigating evidence serves to humanize the

defendant and is critical in the determination of whether a jury

should spare the defendant’s life. See Penry v. Lynaugh, 492

U.S. 302, 319 (1989) (holding that the purpose of mitigating

evidence is to ensure that the jury “treat[s] the defendant as

a ‘uniquely individual human bein[g]’ and has made a reliable

determination that death is the appropriate sentence” (quoting

Woodson v. North Carolina, 428 U.S. 280, 304 (1976)) over-

ruled on other grounds by Atkins v. Virginia, 536 U.S. 304

(2002)); Mak v. Blodgett, 970 F.2d 614, 619 (9th Cir. 1992)

(“The sentencing hearing is defense counsel’s chance to show

the jury that the defendant, despite the crime, is worth saving

as a human being.”).

6792 BELMONTES v. AYERS

Schick failed to call witnesses to testify that when Bel-

montes was five years old, his 10-month-old sister died of a

brain tumor. After her death, Belmontes exhibited symptoms

of depression and would repeatedly visit the cemetery where

his sister had been buried. Belmontes also suffered as a result

of his maternal grandmother’s alcoholism and prescription

drug addiction, which, in combination with her manipulative

and controlling behavior, caused constant strife within both

his immediate and extended family. Schick could also have

introduced testimony about Belmontes’s positive attributes

and strong character as a child in the face of adversity; he was

a kind, responsible, and likeable child who got along well

with his siblings, was respectful towards his grandparents

despite their disapproval of his mixed racial background, par-

ticipated in community activities, kept up in school and got

along with his teachers before his illness, and made friends easi-

ly.16

Other humanizing evidence that lay witnesses could have

presented includes Belmontes’s debilitating struggle with

rheumatic fever that left him isolated from his peers and

depressed and his family’s period of wholly inadequate living

conditions—a single room in a cheap motel where his mother

16

The dissent suggests that such positive testimony about Belmontes’s

character as a child would not be forthcoming and points to old reports in

which police and probation officers made negative comments about Bel-

montes in his late teens after he became involved in criminal conduct. Dis.

Op. at 6836 n.21. We first note that those officials came into contact with

Belmontes long after the psychological and social effects of his illness and

family trauma manifested themselves. The positive character evidence to

which we refer is the testimony of those who knew Belmontes as a child

and could speak to his promising character in the face of poverty and fam-

ily violence. Second, it is unlikely that police and probation officers would

be the best source for positive reports about an individual who came to

their attention after committing a crime—no matter how minor. In short,

it makes little sense to contend that negative evidence of Belmontes’s

character found in police interviews and probation officer reports some-

how undermines testimony about Belmontes’s strong character as a child

long before he became involved with the criminal justice system.

BELMONTES v. AYERS 6793

frequently had sex with various men.17 Additionally, Schick

could have presented testimony about how these tragic cir-

cumstances led him to engage in regular drug use beginning

when he was in his early teens. By the time of McConnell’s

murder—indeed earlier than then—he was regularly using

17

The dissent attempts to downplay the severity of Belmontes’s illness,

family trauma, and living conditions. In response to overwhelming evi-

dence of an unstable and unhappy family life, the dissent attempts to show

that there were “positive aspects of Belmontes’s family relationships.”

Dis. Op. at 6832. The only “positive aspect” of his family life that the dis-

sent can actually point to, however, is the account given by Belmontes’s

surviving sister, who did not testify at trial, of the Sundays that the Bel-

montes children would spend with their father after their parents’ separa-

tion. Id. Despite the dissent’s characterization of her memory of these days

as “positive,” her testimony is neutral at best. The relevant portion of her

declaration states: “My father drank a lot and had a very strong personal-

ity. I was about five years old when my parents separated. My father came

to pick us up on Sundays, and he took us for rides or to our paternal grand-

mother’s house. We spent the whole day together, but we never did much

because he never had any money.”

The dissent also downplays the effect of Belmontes’s illness by quoting

Belmontes’s sister’s declaration in which she states that she did not “no-

tice or understand emotional changes in him” due to rheumatic fever. Dis.

Op. at 6833. Conveniently absent from the dissent is Belmontes’s sister’s

explanation of why she did not “notice or understand” the changes in

Belmontes—she was very young when he became ill. Belmontes’s sister’s

childhood recollection of her brother’s behavior after his bout with rheu-

matic fever, which she qualified with a reference to her young age, hardly

undermines the rest of the strong evidence in the record that the illness had

a profound effect on Belmontes.

Finally, the dissent claims that Belmontes did not stay at the motel very

often in an attempt to minimize the evidence about Belmontes’s wretched

living conditions. Dis. Op. at 6833. If anything, this statement casts Bel-

montes’s living situation in a more sympathetic light. The only place that

Belmontes could call home during his teenage years was one motel room

shared by five people so he was forced to sacrifice a stable home life and

find shelter in other places. Additionally, the record reflects that one rea-

son that Belmontes did not stay at the motel was that his own mother used

to lock him out of the room, probably while she was engaged in sexual

encounters with strangers.

6794 BELMONTES v. AYERS

marijuana, heroin, LSD, PCP and other drugs, to help cope

with the unpleasant circumstances of his life.18

Of all the available mitigating evidence described above,

the jury heard only that Belmontes’s father was a violent alco-

holic, that the family was poor, that Belmontes became a

born-again Christian while incarcerated, and that at the same

time he went from last man to number two man in the Pine

Grove fire brigade. The jury never heard testimony about the

traumas that Belmontes faced as a youth; it never heard that

he possessed many positive attributes, and it never heard that

he had struggled with substance abuse since his early teens.

In Mayfield, this court held that if the jury had heard the testi-

mony “of available friends and family members relating addi-

tional humanizing stories,” about the defendant’s good

character and the difficulties he faced as a youth, which

changed his personality and led him to substance abuse and

18

We do not suggest that Belmontes was under the influence of drugs

during the commission of the murder. Nor do we suggest, as the dissent

claims, that Schick should have presented expert mental state evidence

that Belmontes was less culpable for the McConnell killing because he

was under the influence of drugs when he killed her. Our point is only that

evidence of Belmontes’s drug use should have been presented to humanize

him by showing how the tragic circumstances he experienced while grow-

ing up adversely affected him. Just as Belmontes’s criminal activity was

a manifestation of the trauma he suffered during his difficult childhood,

so too was his drug use. For example, Murillo, Belmontes’s ex-girlfriend,

could have testified that Belmontes engaged in risky behavior such as drug

use out of hopelessness because he thought that he was going to die

young. The mitigating evidence need not have any connection whatsoever

to the crime in order to be relevant and humanizing. See Tennard v.

Dretke, 542 U.S. 274, 287-88 (2004); Smith v. Stewart, 140 F.3d 1263,

1271 (9th Cir. 1998). Although the district court held that if Belmontes

had attempted to present expert testimony that drugs influenced his behav-

ior at the time of the crime, the rebuttal evidence about Belmontes’s role

in the murder of another individual, Jerry Howard, would have been

admissible to prove that he was capable of committing murder when he

was sober, the district court did not hold that humanizing evidence about

Belmontes’s history of substance abuse before the crime would likewise

open the door to additional aggravating evidence.

BELMONTES v. AYERS 6795

crime, “there is a reasonable probability that the omitted evi-

dence would have changed the conclusion.” 270 F.3d at 932

(quoting Strickland, 466 U.S. at 700) (internal quotation

marks omitted). Likewise, if the jury had considered the addi-

tional humanizing evidence that Schick could and should have

presented through lay witness testimony in this case, there is

a reasonable probability that the jury would have come to a

different conclusion about Belmontes’s sentence.

Accordingly, the district court’s conclusion that Belmontes

was not prejudiced by counsel’s performance because “Schick

introduced testimony as to most of the factual matters” that

Belmontes argues should have been presented is clearly erro-

neous; it is also inconsistent with our law. Indeed, as noted

above, the jury heard testimony as to only a few of the numer-

ous adverse experiences that Belmontes had suffered as a

youth, heard nothing about their effect on him, and heard

almost nothing about his positive attributes.

As we have often noted, the fact that a capital jury was

presented with a cursory or incomplete presentation of the

mitigating circumstances that should have been more thor-

oughly and fully presented does not obviate a finding of prej-

udice. See, e.g., Lambright, 490 F.3d at 1125-26 (finding

deficient performance and prejudice notwithstanding the fact

that some information about various mitigating factors was

before the sentencing court); Correll, 465 F.3d at 1015, n.5

(finding deficient performance and prejudice in spite of the

fact that “the bare facts of [petitioner]’s troubled past were . . .

presented to the court”); Stankewitz, 365 F.3d at 1090 (finding

deficient performance and prejudice when counsel presented

some mitigating evidence but “a more complete presentation,

including even a fraction of the details [defendant] now

alleges, could have made a difference”); Douglas, 316 F.3d at

1088 (finding deficient performance and prejudice where

counsel “introduce[d] some of [the petitioner’s] social history,

[but] did so in a cursory manner that was not particularly use-

ful or compelling”). To the contrary, only where counsel suf-

6796 BELMONTES v. AYERS

ficiently presents available mitigating evidence, or where he

has a reasonable strategic reason for not doing so, can we

have confidence in the outcome of a jury’s penalty delibera-

tions. Neither is the case here. If the jury had heard even a

portion of the available humanizing lay testimony, it is likely

that at least one juror would have chosen to spare Belmontes’s

life.

[9] In addition to being prejudiced by Schick’s failure to

present readily available and compelling mitigating evidence

through lay witness testimony, Belmontes was also prejudiced

by Schick’s failure to adequately prepare the witnesses who

offered the minimal evidence that he did introduce. As noted

above, Schick’s failure to prepare his lay witnesses resulted

in a conspicuous absence of testimony both about the difficul-

ties Belmontes encountered as a child and about his positive

qualities—even from witnesses who knew him best, including

his mother. Instead, the witnesses Schick produced insisted

that Belmontes was innocent to the same jury that had just

found him guilty of first degree murder beyond a reasonable

doubt. Similarly, because Belmontes was not adequately pre-

pared to address the jury, he could not name a single positive

or productive thing he would do in prison if given a life sen-

tence, and spent the majority of his closing statement telling

the jury that the prosecutor did not know whether he had mur-

dered McConnell because “he wasn’t there” and “he doesn’t

know me.” He also asked the jury to disregard the few miti-

gating pieces of evidence that Schick somehow managed to

introduce into evidence. At the habeas hearing, Mr. Larsen

and Mr. Margolin asserted that these sorts of blunders

severely undermined the force of the mitigating witnesses’

testimony, and may have even created a negative backlash

amongst the jurors. Specifically, they concluded that the fact

that several witnesses explicitly rejected the jury’s guilty ver-

dict may have antagonized it, and the fact that even Bel-

montes’s own family members could not speak to his

redeeming qualities may have led the jurors to believe that

there was nothing positive to say about him. Thus, Schick’s

BELMONTES v. AYERS 6797

failure to adequately prepare Belmontes and the witnesses

appearing on his behalf resulted in testimony that was unhelp-

ful, and likely even harmful. This also undermines our confi-

dence in the outcome of the jury’s penalty deliberations.

Moreover, in the absence of expert testimony, it is espe-

cially important that counsel explain adequately to the jurors

the significance of the mitigating evidence in his closing argu-

ment. Indeed, this court has held that “[t]o perform effectively

in the penalty phase of a capital case, counsel must . . . engage

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

explain[ ] the significance of all the available mitigating evi-

dence.’ ” Allen, 395 F.3d at 1000 (citing Mayfield, 270 F.3d

at 927 (en banc)) (emphasis added). Schick did not explain

the mitigating evidence to the jury in his closing argument at

all. He did not even mention the relevant mitigating circum-

stances, let alone suggest any connection between the trau-

matic events that occurred in Belmontes’s childhood and his

later behavior. Without expert testimony to make that connec-

tion for the jurors, Schick had an even greater obligation to do

so himself. Defense counsel’s failure to give a thorough and

persuasive closing argument can prejudice the defendant,

especially when, as here, the closing argument is the only

opportunity for counsel to compensate for deficiencies in the

presentation of evidence. See Pizzuto v. Arave, 385 F.3d 1247,

1259-61 (9th Cir. 2004) (holding that counsel’s failure to

remind the jury of relevant evidence from the guilt phase in

his penalty phase closing arguments prejudiced the defen-

dant). Schick squandered his closing argument. Instead of

explaining why the jury should vote for a life sentence rather

than capital punishment, he argued that a life sentence consti-

tuted harsher punishment than the sentence of death. The dis-

trict court simply “misremembered” the facts or

misunderstood the law when it concluded that the jury did not

need professional help “beyond defense counsel’s argument”

to understand Belmontes’s mitigating evidence. There was no

such argument, notwithstanding counsel’s obligation to pre-

sent it.

6798 BELMONTES v. AYERS

[10] On the basis of Schick’s failure to prepare and present

available lay witness testimony humanizing Belmontes and

his failure to explain the significance of the little humanizing

evidence he actually presented to the jury, we conclude that

Belmontes was prejudiced by his counsel’s deficient perfor-

mance, that our confidence in the verdict is undermined and

that, accordingly, his death sentence must be set aside.

iii. Expert Witnesses

[11] In addition, although the failure here is not essential to

our conclusion, Belmontes argues and we agree that Schick

failed to provide the jury with expert testimony that would

have explained the significance of, and elaborated upon, both

the lay testimony that was presented and the lay testimony

that should have been presented. Specifically, in addition to

presenting the evidence described above, Schick should have

offered the testimony of a psychologist or psychiatrist in order

effectively to explain to the jury in day-to-day terms the prac-

tical impact on an individual of the kind of traumas that Bel-

montes experienced as a child and adolescent. Such an expert

could have explained to the jury the psychological impact on

a child of his father’s serious alcoholism, of witnessing severe

domestic violence between his parents, of his family’s pov-

erty, of his mother’s humiliating sexual performances, of

being severely ill during a critical stage in his social develop-

ment, of his depressive reactions to being told he would not

live past 21, and of his history of substance abuse. Such an

expert also could have explained the extent to which these

problems can cause or contribute to a change in individuals

that can lead to subsequent criminal conduct.

The deposition testimony of Dr. Missett, which Belmontes

submitted to the district court, reveals that expert testimony

likely would have provided an additional reason to conclude

that he received ineffective assistance of counsel. Dr. Missett

testified that, prior to the onset of rheumatic fever, Belmontes

was functioning well compared to children with similar histo-

BELMONTES v. AYERS 6799

ries, a fact that suggests that Belmontes possesses positive and

conforming core personality traits. Dr. Missett further testi-

fied that, “had [Belmontes] been able to continue to capitalize

on [these] assets . . . the expectation is that would have had

a rather good prognosis for his life.” However, his rheumatic

fever and the resulting social isolation “intensified [his] sense

of himself as defective, something from which he never

recovered . . . after that.” According to Dr. Missett, this in

turn led to Belmontes’s depression, susceptibility to peer pres-

sure, substance abuse problems,19 and his eventual involve-

ment in criminal activity.

A lay juror is not trained to identify the specific psycholog-

ical and behavioral consequences of the traumas that Bel-

montes experienced. This is particularly true with respect to

the consequences of Belmontes’s bout with rheumatic fever

and his subsequent history of substance abuse. Accordingly,

expert testimony should have been presented with respect to

these issues. See Mayfield, 270 F.3d at 932 (finding prejudice

in part based on the fact that the jury did not have the oppor-

tunity to “consider[ ] the testimony of experts in endocrinol-

ogy and toxicology” who could have explained the impact of

the defendant’s struggle with diabetes and use of drugs);

Douglas, 316 F.3d at 1090 (finding prejudice in part based on

the fact that counsel’s argument that petitioner’s troubled past

19

The dissent agrees that evidence of Belmontes’s pattern of self-

medication through drug use following his illness and social isolation

would have elicited sympathy from the jury. Dis. Op. at 6830. The dissent

contends, however, that such testimony would open the door to rebuttal

evidence that Belmontes was actually a drug dealer. Id. However, the slim

evidence that the dissent references would not have undermined the jury’s

sympathy. According to the police report that the dissent cites, an infor-

mant approached the Ontario police and stated that he could get Bel-

montes to buy heroin for him. The police gave the informant $24 and

surveilled the transaction. The informant gave Belmontes the money and

Belmontes brought him to a residence where he knew that heroin could be

procured, purchased a small amount of heroin, and gave it to the infor-

mant. Although this transaction technically constituted a sale of drugs, it

hardly qualifies Belmontes as a drug dealer.

6800 BELMONTES v. AYERS

had “created a ‘demon’ within him lacked force without some

expert testimony to back it up.”); Caro, 280 F.3d at 1258

(finding prejudice in part based on the fact that “the jury was

not afforded the benefit of expert testimony explaining the

effects that Caro’s physiological defects would have on his

behavior”).

The jury never heard a credible expert like Dr. Missett tes-

tify about the impact on an individual of the kind of childhood

traumas that Belmontes suffered or explain that involvement

in criminal activity can sometimes be explained by the hard-

ships an individual experienced as a youth. Even if such testi-

mony would not have diminished Belmontes’s culpability as

a legal matter, it would have humanized him in the eyes of the

jurors and allowed them to view him as an individual deserv-

ing of sympathy and mercy. Thus, Belmontes was also preju-

diced as a result of Schick’s failure to present expert

testimony at the penalty phase, and such failure provides an

independent ground for setting aside the death penalty.20

20

The State does not assert on appeal that the type of expert testimony

discussed in this section would open the door to the aggravating evidence

of Belmontes’s prior alleged criminal conduct, specifically that Belmontes

committed an act of murder with regard to Jerry Howard. It argues only

that the expert testimony about Belmontes’s potential for institutional

adjustment could lead to the admission of such evidence. (We deal with

the separate issue of institutional adjustment in section II.B.2.c. infra.) The

dissent, unlike the State, argues, however, that evidence regarding How-

ard’s death would be admissible to test the basis for any expert opinion

regarding Belmontes, including testimony as to the effect of childhood

traumas upon future behaviors. Dis. Op. at 6823-24. We need not reach

that question, however, a) because the State does not raise it on appeal,

and b) because Schick’s failure to present mitigating evidence from lay

witnesses and to explain the relevance of such evidence to the jury pro-

vides a sufficient basis for reversal of his capital sentence. Even were we

to reach the question whether the calling of an expert regarding childhood

traumas and their effect would open the door to evidence regarding How-

ard, we would conclude that it would not. Obviously, the expert would

know about the instant murder, and thus understand the gravity of Bel-

montes’s criminal conduct. However, an expert’s opinion as to whether a

BELMONTES v. AYERS 6801

set of circumstances during an individual’s period of emotional develop-

ment could lead to serious criminal conduct is in no way dependent on

whether the defendant committed one or two murders or even on whether

he committed any. The critical testimony from an expert is that as a matter

of psychological experience and knowledge, certain childhood traumas

can result in a person’s becoming likely to engage in subsequent criminal

conduct, not that they always do and not that they necessarily did in the

particular case before the jury. There would be no basis for suggesting that

such a professional opinion would be any different if the expert were

informed that Belmontes committed two murders rather than one.

Further, if the prosecutor had argued that he would be entitled to offer

into evidence his version of the Jerry Howard murder in connection with

the expert testimony that Schick intended to present, that argument would

most likely have been rejected by the court. Any decision to admit such

evidence would have been at the discretion of the trial judge, who had

found the Howard testimony generally inadmissible. Had there been any

doubt, Schick could have determined the answer in advance by means of

a motion in limine, and then decided whether or not to introduce the expert

testimony, which would not in any event have been essential to Bel-

montes’s defense had Schick presented sufficient lay testimony humaniz-

ing him.

The dissent also argues that a more effective mitigation presentation

would also have opened the door to evidence that Belmontes was involved

in a gang. The evidence of this alleged gang affiliation is slim at best. The

only relevant portion of the record that the dissent can cite is a CYA docu-

ment discussing an interview with detectives at the Ontario Police Depart-

ment in which they stated that there were “rumors” that Belmontes was in

the Black Angels gang. Also reported in that document but not mentioned

by the dissent, however, is Belmontes’s denial of any gang involvement

and his mother’s claim that Belmontes knew members of the Black Angels

gang because they lived in the area, but that he was not a member of the

gang. According to Belmontes’s childhood friend, Belmontes was part of

a “junior gang” loosely affiliated with the Black Angels, but this “gang’s”

activities did not amount to anything more than harmless pranks. As the

dissent acknowledges, Belmontes’s “gang affiliation” likely can be

explained by peer pressure combined with his sense of inferiority and

social isolation in his mostly white school, not by a criminal personality.

See Dis. Op. at 6831-32.

6802 BELMONTES v. AYERS

iv. Other relevant considerations

Other considerations also make plain that Belmontes was

prejudiced by Schick’s deficient performance. The jury was

required to weigh the aggravating evidence against the miti-

gating evidence and it could impose a sentence of death only

if the aggravating evidence outweighed the mitigating evi-

dence. The State conceded at oral argument that the evidence

in aggravation introduced at Belmontes’s trial was “scant.”21

This acknowledgment is consistent with our previous obser-

vation that the aggravating evidence presented by the prosecu-

tion was “minimal.” Belmontes II, 414 F.3d at 1106. The

district court also held that “the aggravating evidence actually

presented to the jury did not make this a clear-cut case for

application of the death penalty.” With such minimal aggra-

vating evidence, the presentation of more substantial mitigat-

ing evidence clearly could have tipped the balance and

changed the result of the jury’s penalty deliberations.

The dissent repeatedly quotes the California Supreme

Court’s characterization of the aggravating evidence in this

case as “overwhelming.”22 Dis. Op. at 6819, 6826, 6833.

21

The dissent accuses us of taking this word out of context and claims

that the State used the word “scant” to describe the aggravating factors

“other than the circumstances of the crime.” Dis. Op. at 6834. Our learned

colleague is not correct. In the thirty-fourth minute of oral argument, the

State declared that “we know here that the jury did in fact find death to

be an appropriate punishment based on the scant aggravation that they

were given here.” It did not distinguish between the circumstances of the

crime and the other aggravating evidence. Indeed, it went on to contrast

the totality of the “scant” aggravating evidence that the jury actually heard

with the aggravating evidence they would have heard if the evidence

about Belmontes’s involvement in the Jerry Howard murder had been

admitted. Of course the State argued that “the death penalty was appropri-

ate,” as the dissent claims, Dis. Op. at 6834, but that does not change the

fact that it characterized the aggravating evidence, including the circum-

stances of the crime, as “scant.”

22

The dissent’s quotation of the California Supreme Court’s decision is

slightly misleading. The court described the circumstances of the crime as

BELMONTES v. AYERS 6803

Under the State’s own argument, however, the only conceiv-

ably significant aggravating factor is the circumstances of the

murder itself. While all murders are heinous to some degree,

Belmontes’s crime was not such as ordinarily leads to the

imposition of capital punishment, at least where there are sig-

nificant mitigating circumstances. The crime here did not

involve multiple victims, torture, sexual sadism, or needless

suffering on the part of the victim. When compared with the

murders in many of the cases in which we have held that the

defendant was prejudiced by his counsel’s failure to ade-

quately investigate and present mitigating evidence at the pen-

alty phase, the circumstances of the crime in this case can

hardly be characterized as “simply overwhelming.” See, e.g.,

Correll, 465 F.3d at 1015 (finding counsel’s failure to suffi-

ciently investigate and present mitigating evidence prejudi-

cial, even though the crime involved three murders and one

attempted murder); Ainsworth, 268 F.3d at 870-71, 878 (find-

ing such conduct by counsel prejudicial even though the

defendant shot a woman in the hip, raped her as she bled from

the gunshot wound, and confined her in her car, at times in the

trunk, for 24 hours until she bled to death); Wallace, 184 F.3d

at 1113, 1118 (9th Cir. 1999) (finding such conduct by coun-

sel could be prejudicial even though the defendant stalked and

killed two people and shot without killing two others the same

night); Bean, 163 F.3d at 1075-76, 1081, (finding such con-

duct by counsel prejudicial even though the defendant beat to

death one middle-aged and one elderly woman in order to rob

“overwhelming” when it was analyzing whether Belmontes was preju-

diced by the erroneous admission of aggravating evidence that on one

occasion he slapped his side to indicate that he was carrying a gun. People

v. Belmontes, 755 P.2d 310, 348 (Cal. 1988). Commission of a murder is

certainly “overwhelming” when compared to the incident described above,

but that does not mean that the circumstances of the murder that Bel-

montes committed were “overwhelming” when compared to the circum-

stances of other capital murders, if only those in which the imposition of

the death penalty has been reversed by this court for similar deficient per-

formance on the part of counsel. See text following note.

6804 BELMONTES v. AYERS

them); Hendricks v. Calderon, 70 F.3d 1032, 1035, 1045 (9th

Cir. 1995) (finding such conduct by counsel prejudicial even

though defendant was convicted of shooting two men who

paid him to have sex with them and, as the jury heard in

rebuttal testimony during the penalty phase, was never

charged with murdering three others).23 Thus, given the cir-

cumstances of Belmontes’s crime and the almost total absence

of any other evidence in aggravation, counsel’s failure to pro-

duce the significant additional mitigating evidence we have

set forth above was without question prejudicial.

The prejudicial nature of Schick’s deficient representation

becomes clear beyond any doubt when one considers the fact

that, even when presented with an incomplete, inadequate,

and uncompelling presentation of the potential mitigating evi-

dence, at least some members of the jury, perhaps a majority,

had serious doubts during the deliberations as to the correct

result. Specifically, the jury took a substantial amount of time

to deliberate, and asked questions in the midst of its delibera-

tions that suggested that some jurors were leaning toward a

verdict of life without the possibility of parole.24 Indeed, the

23

The circumstances of Belmontes’s crime certainly do not come close

to the heinous murders in Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.

1987), which the dissent claims is analogous to the present case and on

which it principally relies. Campbell forced a woman to engage in acts of

sodomy by holding a knife to the throat of her one-year-old daughter.

Campbell, 829 F.2d at 1456. He was convicted of first degree assault and

sodomy after his victim and her neighbor testified against him. Id. Years

later, when he was on work release, he returned to the victim’s home and

beat her, strangled her and slashed her throat and the throats of her daugh-

ter and the neighbor who testified against him. Id. All three bled to death.

Id. In contrast to the vengeful, premeditated, and sexually violent crimes

involving multiple victims at issue in Campbell, Belmontes’s crime

involved only one victim who was killed because she surprised Belmontes

and his confederates during a robbery.

24

The jury’s deliberations also call into question the dissent’s character-

ization of the aggravating evidence as “overwhelming.” If the jury had

found the evidence to be so “overwhelming,” surely the paltry mitigation

case that Schick presented would not have stood in the way of a swift

deliberation and imposition of a death sentence.

BELMONTES v. AYERS 6805

jury’s question, “Can the majority rule on life imprisonment?”

suggests that at that point in the deliberation, a number of

jurors were leaning toward life imprisonment. (emphasis

added). Had counsel better prepared the witnesses to testify,

had the jury been presented with the additional mitigating evi-

dence that should have been introduced, and had the signifi-

cance of that evidence been explained to the jury, there is a

reasonable probability that at least some jurors, if not all,

would have been persuaded that life without the possibility of

parole, rather than death, was the appropriate penalty in this

case. Cf. Mayfield, 270 F.3d at 932 (finding prejudice in part

based on the fact that (1) the jury deliberated for approxi-

mately the same amount of time as Belmontes’s jury and (2)

it questioned the judge regarding unanimity in a similar way

to Belmontes’s jury). Given the facts regarding deficient per-

formance and the district court’s findings in that regard, the

nature of the jury’s question alone is sufficient to undermine

our confidence in the outcome.

On the whole, this case is remarkably similar to Mayfield.

As in Mayfield, there are two independent bases on which we

can find ineffective counsel at the penalty phase—the failure

to present sufficient mitigating evidence through lay testi-

mony and the failure to provide adequate expert testimony.

The evidence that counsel failed to introduce in Mayfield is

very similar to that which Belmontes’s counsel failed to intro-

duce. Additionally, the nature of the jury deliberations in

Mayfield, as in this case, undermine our confidence in the

penalty phase verdict.

In Mayfield, the only witness that counsel presented at the

penalty phase was Dr. Craig Rath. Id. at 928. Although we

noted that the mitigation evidence that was presented was

“substantial,” we held that there was additional evidence that

could and should have been offered to humanize Mayfield.

Mayfield struggled with diabetes as a child and when he was

seventeen his grandmother died, his mother moved the family,

and his diabetes-related hospitalizations increased. Id. at 931.

6806 BELMONTES v. AYERS

These “stressors” led him to abuse drugs and alcohol and

associate with the wrong crowd. According to the testimony

of his family and friends at the evidentiary hearing, Mayfield

was once a supportive, generous, cooperative person, but his

personality changed as a result of his substance abuse and

medical problems. Id. at 931-32. We held that if the jury

could have heard this humanizing testimony, there is a reason-

able probability that it would have come to a different conclu-

sion with respect to Mayfield’s sentence. Id. at 932. Like

Mayfield, Belmontes was a sweet, agreeable child, but his

medical problems, social isolation, and substance abuse

changed him and eventually led him into criminal activity.

Counsel’s failure to present lay witness testimony to this

effect prejudiced Belmontes just as it prejudiced Mayfield.

Another independent basis for our holding in Mayfield was

counsel’s failure to present expert testimony. At the evidenti-

ary hearing, an endocrinologist testified about the difficulties

that diabetics face monitoring and treating their illness as well

as the side effects that Mayfield suffered. Id. at 930. Addition-

ally, a psychiatrist testified about the psychological effects of

Mayfield’s difficult childhood and the increasing stress that

he faced that eventually led him to lose control of himself and

become involved in drugs and crime. Id. at 931. Finally, a

toxicologist testified about the effects of PCP—a drug that

Mayfield used regularly leading up to the crime. Id. We found

that if the jury had heard the testimony of these experts, it

might have decided to give Mayfield a life sentence rather

than the death penalty. Id. at 932. As in Mayfield, counsel in

this case could have presented expert testimony about the

effect of childhood traumas on an individual and the way that

those traumas can lead to subsequent substance abuse and

criminal behavior. As in Mayfield, Belmontes was prejudiced

by counsel’s failure to present such expert testimony.

Moreover, the nature of the jury deliberations in Mayfield

and in this case reveal the tenuousness of the verdicts. In

Mayfield, after deliberating for four hours, the jury sent a

BELMONTES v. AYERS 6807

written question to the judge, which read, “Must all 12 jurors

agree for the sentence of life without parole?” Id. The judge

responded: “All jurors must agree if either verdict is reached.”

Id. The jury deliberated for an additional day before it reached

a verdict. Id. This is similar to the question that the jurors

posed to the judge in this case, although in the present case

the jurors asked “Can the majority rule on life imprison-

ment?” As in Mayfield, the jury’s question during delibera-

tions undermines our confidence in the verdict. Id.

Although the facts in Mayfield are very similar to those in

the present case, the case for a finding of prejudice in this

case is even more compelling. In Mayfield, we described the

aggravating evidence as “strong.” Here, it is, in our words

“minimal,” or as the State puts it, “scant.” In Mayfield, the

defendant committed premeditated double homicide, going to

the victim’s house for the sole purpose of confronting and

killing her and then killing a witness to the first murder as a

cover-up. Here, by contrast, Belmontes went to the victim’s

house with the intention of burglarizing her home in the belief

that no one was there rather than with the intent to kill.25 The

25

Indeed, the aggravating evidence in Mayfield was stronger than all of

the possible aggravating evidence that the State could have put on against

Belmontes, including the Jerry Howard murder. In Mayfield, there was

strong evidence that the murders were planned in advance, coolly carried

out, and motivated by vengeance. In the present case there was evidence

of advance planning of the robbery, but the murder happened unexpect-

edly after the victim surprised Belmontes and his confederates. Belmontes

had no advance motive to kill McConnell. Mayfield was convicted of kill-

ing two people. Belmontes was convicted of killing one person and

alleged to have killed a second in an unrelated incident. Mayfield commit-

ted his crime without confederates, whereas Belmontes’s culpability is

diminished by the presence and influence of his accomplices. Although we

hold that there was sufficient mitigating evidence that should have been

introduced that, standing alone, would warrant a finding of prejudice,

without the introduction of any evidence that could, under any theory,

plausible or implausible, serve to open the door to the introduction of the

Jerry Howard murder evidence, Mayfield would, like a number of other

cases cited supra in the text, compel a finding of prejudice even if the

Jerry Howard evidence were admitted.

6808 BELMONTES v. AYERS

other aggravating circumstances present in Mayfield—that the

defendant once carried and fired a gun at the home of one ex-

girlfriend, and that he had previously physically abused

another ex-girlfriend—are not significantly different than the

other aggravating circumstances present here. Additionally, in

Mayfield we found the mitigating evidence that counsel had

actually introduced to be “substantial.” Here, by contrast, the

mitigating evidence Schick presented at trial was insubstan-

tial. Accordingly, we conclude that Mayfield is controlling

and that under its reasoning, Belmontes is entitled to relief on

his ineffective assistance of counsel claim.

v. Summary

[12] Because the substantial mitigating evidence that coun-

sel failed to uncover and present to the jury would have been

highly beneficial to Belmontes, because counsel’s failure to

adequately prepare the witnesses who did testify rendered

their testimony of little value and sometimes counter-

productive, because counsel failed in his closing argument to

explain to the jury the pertinence of the minimal mitigating

evidence that was adduced and instead urged the jurors to

return a verdict of life in prison for the reason that it was a

harsher punishment than a death sentence, because the aggra-

vating evidence introduced at sentencing was “scant,” because

the circumstances of Belmontes’s crime (the only aggravating

factor the State even contends to be substantial) were far less

egregious than those in a number of cases in which we have

held that deficient performances by counsel prejudiced defen-

dants, because the evidence counsel failed to present would

have humanized Belmontes in the eyes of the jury, and

because the duration of the jury’s deliberations and the ques-

tions it asked the judge make plain that in the minds of at least

some of the jurors this was a close case in which their verdict

was uncertain during a portion of the deliberations, we con-

clude that Belmontes has established far more than is required

to “undermine[ ] . . . confidence in the outcome” of the pen-

alty phase verdict. See Strickland, 466 U.S. at 694. Accord-

BELMONTES v. AYERS 6809

ingly, we hold that the district court erred in finding that

Belmontes was not prejudiced by counsel’s deficient perfor-

mance.

c. Additional Basis for Prejudice

Belmontes argues that there is an additional reason he was

prejudiced by Schick’s deficient performance: Schick’s fail-

ure to offer expert testimony with respect to Belmontes’s

prospects for institutional adjustment. Specifically, Belmontes

asserts that Schick could have introduced the testimony of Dr.

Yates, who would have testified that “in a situation of high

structure and reasonable support”—i.e. prison—Belmontes

“would be a low risk for violent behavior.” Belmontes also

asserts that Schick could have elicited similar, and perhaps

even more powerful testimony from a witness such as Gerald

Enomoto, the former Director of the California Department of

Corrections and current United States Marshal for the Eastern

District of California. Enomoto’s deposition states that he

would have testified that, despite the presence of some nega-

tive reports from CYA staff members, as a whole the reports

in Belmontes’s CYA file show a clear trend of improvement

and positive adjustment. Dr. Missett could also have testified

that, in his opinion, Belmontes “would have an extraordinarily

high likelihood of a good institutional and nonviolent adjust-

ment to a prison setting.”

It is to this point that the State’s brief is primarily

addressed. The State’s argument with respect to why the fail-

ure to offer this type of expert testimony was not prejudicial

is that, had Schick presented such evidence, he would have

opened the door for the prosecution to introduce evidence that

Belmontes actually committed a deliberate murder of Jerry

Howard rather than acted as an accessory after the fact to vol-

untary manslaughter. The State asserts that had the Howard

evidence been introduced, the aggravating factors would have

gone from “scant” to “overwhelming.” The State does not

contest the trial court’s ruling that the Howard evidence was

6810 BELMONTES v. AYERS

barred as a general matter (except for the bare fact of Bel-

montes’s conviction of “accessory after the fact” to voluntary

manslaughter), but argues only that it would be free to intro-

duce the full facts regarding his actual role in the crime in

connection with its cross-examination of any of the expert

witnesses who testified that he had a non-violent character. It

contends specifically that if any experts testified regarding

Belmontes’s favorable prospects for behaving in a non-violent

manner in a structured environment, the prosecution would

have had the right to attempt to show that Belmontes was

guilty of murdering Jerry Howard and was a more violent per-

son than the witnesses may have thought.26 Because we have

held above that a) Belmontes has demonstrated that he was

prejudiced by Schick’s deficient performance because of the

failure to call lay witnesses and that he is entitled to have his

sentence set aside on that basis alone and b) he is also entitled

to a reversal of his sentence because of his counsel’s failure

to call expert witnesses to testify as to the effect that the vari-

ous childhood traumas he experienced would have had upon

an otherwise normal child, we need not consider whether

expert testimony as to Belmontes’s ability to adjust to a struc-

tured environment would, in fact, have opened the door to the

Howard evidence. Nor need we consider what his counsel

might or might not have done with respect to the introduction

of such testimony had the trial judge indicated that such

would be his ruling.27

26

The dissent seems certain that the prosecution would have been able

to prove that Belmontes actually killed Howard. Dis. Op. at 6820. Addi-

tionally, after thoroughly describing the evidence that the prosecution

proffered, the dissent curiously declares that “Belmontes does not deny the

truth of this evidence.” Dis. Op. at 6820 Belmontes has had no occasion

to admit or deny the truth of this evidence because, despite the State’s

repeated attempts, the evidence was never held to be admissible.

27

We do not concede, as the dissent claims, that the additional evidence

of Belmontes’s violent past would have been admissible if Belmontes had

presented evidence of institutional adjustment. Dis. Op. at 6822. It is far

from clear that the trial judge would have issued any such ruling or that

if he had done so, Belmontes’s attorney would have proceeded to intro-

duce the additional evidence. See discussion at n.20 supra.

BELMONTES v. AYERS 6811

We believe, however, that even if the Howard evidence

were admitted, Belmontes would still have been prejudiced by

Schick’s deficient representation at the penalty phase of his

trial. The aggravating evidence, even with the addition of evi-

dence that Belmontes murdered Howard, is not strong

enough, in light of the mitigating evidence that could have

been adduced, to rule out a sentence of life in prison. Many

of our cases in which capital petitioners claimed ineffective

assistance of counsel involved multiple murders and we nev-

ertheless found prejudice because of counsel’s failure to pre-

sent sufficient mitigating evidence. See, e.g., Correll, 465

F.3d at 1015 (involving three murders and one failed

attempted murder); Mayfield, 270 F.3d at 920-21, 932

(involving two murders and one attempted murder); Wallace,

184 F.3d at 1113, 1118 (involving two murders and two

attempted murders); Bean, 163 F.3d at 1075-76, 1081 (involv-

ing two murders); Hendricks, 70 F.3d at 1035, 1045 (9th Cir.

1995) (involving two murders and rebuttal evidence of three

additional murders). Had the jury heard the expert testimony

regarding the childhood traumas that turned Belmontes from

a good-natured child into a troubled, drug-using individual

engaged in criminal conduct, the humanizing evidence and

the explanation for his change in personality might well have

persuaded at least one juror to vote for life in prison whether

he had committed one murder or two. We have already held

that counsel’s deficient performance was prejudicial where

the jurors knew of only one murder: We cannot presume that

it would be rendered non-prejudicial simply because they

were informed of a second.

Our colleague devotes a substantial portion of his dissent to

the issue of the Howard murder evidence, as did the State on

appeal. However, because we base our decision on Schick’s

failure to effectively present humanizing lay witness testi-

mony, and it is undisputed that such testimony would not

open the door to the Howard murder evidence, the dissent’s

arguments are irrelevant to our holding. Moreover, the State

does not argue that the introduction of expert testimony

6812 BELMONTES v. AYERS

regarding the relationship between the traumas that Bel-

montes experienced as a child and his subsequent criminal

conduct would have opened the door to the introduction of

evidence regarding the Howard matter (and as we have

explained, it would not). Thus, the Howard evidence is irrele-

vant as well to our holding that the failure to introduce expert

testimony regarding the nature and effect of Belmontes’s

childhood traumas is separately and independently prejudi-

cial. Finally, we believe, although we need not so determine,

that even if counsel had decided to introduce evidence of Bel-

montes’s prospects for institutional adjustment in the face of

a court ruling that such evidence would allow the prosecution

to introduce the Howard murder evidence, the structured envi-

ronment evidence along with the other mitigating evidence

that counsel should have introduced, might well have per-

suaded at least one juror to vote in favor of life without

parole, notwithstanding the introduction of the Howard evi-

dence.

C. Evidence of Prior Criminal Misconduct

Belmontes argues that he “was deprived of due process by

the introduction of aggravating evidence at the penalty phase,

which suggested criminal activity, but which has never previ-

ously been adjudicated.” We have previously held that con-

sideration of unadjudicated criminal conduct for purposes of

sentencing does not violate defendant’s constitutional due

process rights. See United States v. Ibarra, 737 F.2d 825, 827

(9th Cir. 1984).

In his supplemental brief, Belmontes argues that he is now

entitled to relief under Cunningham v. California, ___ U.S.

___, 127 S.Ct. 856 (2007). This argument likewise fails. In

Cunningham, the Court held that a sentencing court may not

impose a sentence above the statutory maximum based on

facts that were not found by a jury or admitted by the defen-

dant. See id. at 860. Here, the maximum sentence authorized

by the jury’s guilt phase verdict was death.

BELMONTES v. AYERS 6813

[13] We recognize that capital sentencing is unlike the

imposition of all other punishment, and the ordinary rules do

not always apply. Gregg v. Georgia, 428 U.S. 153, 188

(1976) (“[T]he penalty of death is different in kind from any

other punishment imposed under our system of criminal jus-

tice. Because of the uniqueness of the death penalty . . . it

[can]not be imposed under sentencing procedures that

create[ ] a substantial risk that it would be inflicted in an arbi-

trary and capricious manner.”). We need not decide, however,

whether the rule regarding the admission of unadjudicated

criminal conduct applies to capital cases because Belmontes

was not prejudiced by the State’s presentation of the compara-

tively minor occurrences at the penalty phase of his trial.

Accordingly, we affirm the district court’s denial of relief

with respect to this claim.

D. Failure to Instruct the Jury on the Consequences of

a Non-Unanimous Verdict

Se

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