# Belmontes v. Brown > Court of Appeals for the Ninth Circuit · June 12, 2008 URL: https://www.frixlaw.com/law-library/cases/3052176 ## Case - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** June 12, 2008 - **Precedential status:** Published - **Opinion:** Opinion - **Nature of suit:** Habeas - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3052176 ## How later opinions describe it (automated extraction) - 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) - 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 ## Opinion text 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 h [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3052176. Public record. Not legal advice.