Edwards v. Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THOMAS FRANCIS EDWARDS, 

Petitioner-Appellant,

No. 05-99001

v.

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

CV-93-07151-CJC

California State Prison at San

OPINION

Quentin,

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted

September 26, 2007—Portland, Oregon

Filed September 9, 2008

Before: Mary M. Schroeder, Barry G. Silverman, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Schroeder

*Pursuant to Fed. R. App. P. 43(c)(2), Robert L. Ayers, Jr., the current

custodian, is substituted for Jill Brown as Warden of the California State

Prison at San Quentin.

12477

12482 EDWARDS v. AYERS

COUNSEL

Joseph Schlesinger, Sacramento, California, for the petitioner-

appellant.

Garrett Beaumont, San Diego, California, for the respondent-

appellee.

EDWARDS v. AYERS 12483

OPINION

SCHROEDER, Circuit Judge:

Overview

This is a death penalty appeal by California state prisoner,

and crack marksman, Thomas Francis Edwards. Edwards’

disturbed behavior and mental problems were apparent from

early childhood. Expelled from numerous residential schools,

he was committed to Maryland’s Patuxent Institution For

Defective Delinquents at the age of nineteen and was con-

fined there for fourteen years. More than a decade of psycho-

logical treatment at the Patuxent Institution failed to help him.

Although Patuxent staff believed Edwards still to be danger-

ous, Maryland changed its indeterminate sentencing laws and

released Edwards in 1977.

In 1981, Edwards spotted two 12-year old girls heading out

of a California campground alone for a picnic; he followed

them in his truck, waited until they reached a remote spot,

drove up alongside them, stopped his truck, called “Girls,”

and shot each of them in the head, killing one and seriously

injuring the other. He was convicted in 1983 of first degree

murder, with the special circumstance of “lying in wait,” that

qualified him for the death penalty. He was sentenced to death

by a penalty phase jury in 1986 after two penalty phase mis-

trials. Neither at the guilt phase nor at the penalty phase was

the jury informed of Edwards’ pre-1977 history.

At the penalty modification hearing, his counsel sought

reduction of the penalty by the trial judge on the basis of

Edwards’ pre-1977 history, specifically Edwards’ lifelong

history of mental problems and disturbed behavior dating

from early childhood. Counsel explained he had not presented

this evidence to the jury because, to use counsel’s description,

it was too “bizarre.” The trial court declined to modify the

penalty, noting that even if it had the power to reduce the pen-

12484 EDWARDS v. AYERS

alty on the basis of evidence that was not before the jury, it

would not do so because the evidence was even more damag-

ing than the evidence that the jury had heard.

The case wended its way through direct appeal and state

collateral proceedings, then languished in the district court

pending approval of investigatory funding that preceded an

extensive evidentiary hearing. In denying the petition in 2005,

the district judge who had inherited the case observed that in

his opinion the crime was “horrible” and the “procedural his-

tory of this case is one of ‘extended delay reminiscent of that

described in Charles Dickens’s Bleak House.’ ”

Edwards’ appeal essentially boils down to four issues: 1,

whether the “lying in wait” special circumstance instruction

was overbroad in failing adequately to distinguish Edwards’

case from non-death eligible first degree murders; 2, whether

Edwards was prejudiced by the prosecution’s failure to dis-

close the complete Patuxent file, see Brady v. Maryland, 373

U.S. 83 (1963); 3, whether trial counsel was ineffective in not

presenting a diminished capacity defense at the guilt phase;

and 4, whether trial counsel was ineffective in not presenting

Edwards’ lifelong history of mental problems and disturbed

behavior as mitigating evidence at the penalty phase. We

affirm the district court’s denial as to each issue.

The claimed instructional error is not materially distin-

guishable from the one we rejected in Morales v. Woodford,

388 F.3d 1159, 1173-78 (9th Cir. 2004), certiorari denied,

Morales v. Brown, 546 U.S. 935 (2005). We are bound by that

decision.

The prosecution did not disclose the complete Patuxent file,

but sufficient Patuxent records were already in defense coun-

sel’s possession for him to know the nature of the file’s con-

tents. We agree with the district court that there is no

reasonable probability of a different result at guilt or at pen-

alty if the prosecution had disclosed to defense counsel the

EDWARDS v. AYERS 12485

entire Patuxent file. Indeed, defense counsel had moved to

exclude any reference to Edwards’ fourteen-year confinement

at Patuxent because he knew the content of the records from

those years was so damaging. The district court agreed with

that assessment, as do we.

Trial counsel fully investigated Edwards’ history and had

Edwards evaluated by at least four mental health experts who

found no support for a mental defense. Trial counsel was not

ineffective for failing to present a diminished capacity defense

that was not supported by his experts and was negated by the

circumstances of the crime.

Nor was trial counsel ineffective for failing to present

Edwards’ lifelong history of mental problems and disturbed

behavior as mitigating evidence at the penalty phase.

Edwards’ history of disturbed behavior, his lack of response

to treatment, and his escalating rage against women — as

documented in the Patuxent file — is highly aggravating in its

own right. In addition, it would open the door to even more

damaging evidence of Edwards’ bizarre behavior, specifically

his longstanding hair and neck fetish and his violent and

sadistic sexual fantasies, all of which suggest “some sort of

sexual object to these shootings” as the trial judge stated when

denying Edwards’ motion to modify the penalty.

Factual Background

A. The Crime

On September 19, 1981, at approximately 2 p.m., Vanessa

Iberri and Kelly Cartier, two 12-year old girls, were inside

Blue Jay Campground walking towards the entrance/exit on

their way to a picnic site that they had chosen earlier that day.

Kelly saw a red truck with a white camper shell enter the

campground. (Another camper saw a red truck with a white

camper shell in the campground three hours earlier that day.)

The man in the truck looked in the direction of Vanessa and

12486 EDWARDS v. AYERS

Kelly and then drove past them. The girls walked out of the

campground. Two to three minutes after the girls left, another

camper saw the red truck leave the campground.

After the girls had walked about a quarter of a mile, Kelly

heard a vehicle behind them and told Vanessa to move to the

side of the road. A truck approached. Kelly could see that it

was the same red truck, driven by the same man, that she had

seen in the campground. The truck drove up alongside the

girls. The man inside the truck called “Girls,” the girls turned

their heads, and the man fired two shots. The first shot struck

Vanessa between her eyes. Kelly turned her head away and

the second shot grazed the side of her skull. Vanessa and

Kelly both fell to the ground. Kelly saw the man run to the

back of his truck, heard a slam, and then saw the man run to

the front of his truck, jump in, and take off.

At that point other campers, Charles Vaughn and his party,

were leaving the Blue Jay campground just after 2 p.m. to col-

lect firewood. Larry Ellis was driving and Vaughn was in the

passenger seat. Vaughn’s brother-in-law, Terrell Livezey, was

following behind them in another truck. From across a

meadow, Vaughn noticed a man running from the front to the

back of a red truck. Vaughn radioed to Livezey that he

thought the man was poaching deer and told Ellis to drive in

that direction.

When they drove around a curve, Vaughn and Ellis saw the

man jump into his red truck and take off, and they saw the

girls down on the side of the road. Thinking there had been

a hit and run, Vaughn and Ellis chased after the red truck

while Livezey stopped to help the girls. Vaughn and Ellis got

close enough to the truck to record its license plate number,

1BJX675, but after a high speed chase, the man in the red

truck got away. The truck with that license plate number was

registered to Edwards but an extensive manhunt, over many

days, failed to locate him.

EDWARDS v. AYERS 12487

Vanessa died two days after life support was removed; the

doctor who performed the autopsy and retrieved the bullet

from Vanessa’s brain testified there was no chance of a per-

son surviving such a wound. Kelly survived.

On September 28, 1981, Edwards was arrested in Mary-

land. Bus tickets dating from September 24 to September 27,

with destinations from Los Angeles to Washington D.C., were

found in his motel room. Edwards’ truck was found in a park-

ing lot near a bus station in Los Angeles. The camper portion

of the truck contained six firearms (two handguns, two shot-

guns, and two pistols), none of them loaded, and two to three

thousand rounds of ammunition, including .22 caliber bullets.

Three additional weapons (two rifles and a revolver) were

found in Edwards’ locked storage area at the South Coast Gun

Club where Edwards worked and lived. Edwards was an

excellent marksman; he could repeatedly hit a target the size

of a chicken from fifty yards.

Edwards had visited the Blue Jay Campground often and

was very familiar with the area. The scene of the shooting was

relatively isolated, approximately halfway between the Blue

Jay campground and a neighboring campground. More than a

quarter of a mile separated the spot where Edwards passed the

girls the first time and the spot where he shot them.

Two .22 caliber casings were found at the scene of the

crime. None of the weapons found in Edwards’ truck fired the

fatal shot. Bobby Pamplin, a South Coast Gun Club member,

testified that two or three weeks before September 19, 1981,

he sold Edwards a .22 caliber Ruger semiautomatic pistol.

The parties stipulated that the .22 bullet shell casings found

at the scene of the crime could have been fired from a .22

Ruger semiautomatic pistol.

At trial, deputy sheriff Greg Allen testified that just before

Edwards’ 1983 trial began, Edwards told him: “Off the

record, I’m guilty. I don’t know why I shot those two little

12488 EDWARDS v. AYERS

girls. I’m guilty as sin. I’m depressed for what I put their fam-

ilies through.” Kelly recovered from surgery to alleviate a

hematoma that developed under her skull. She testified at trial

that Edwards was the shooter.

B. Trial

At trial, Edwards did not dispute that he had shot the girls.

The defense maintained that Edwards had not premeditated

the shootings. The parties stipulated that Edwards’ divorce

became final on August 11, 1981. The shootings occurred on

September 19, 1981. Lay witnesses testified that Edwards was

depressed due to his recent divorce, but no mental health

expert testified on Edwards’ behalf. The jury convicted

Edwards of one count of first degree murder and one count of

attempted murder and found true the special circumstance that

Edwards committed the murder while lying in wait.

At the penalty phase, counsel presented an aberrant act

defense. Twenty-five witnesses testified that they were

shocked that Edwards could have committed such a crime, as

he was a reliable and likable friend or co-worker whom they

trusted with their children and who had never expressed any

hostility toward children. Sheriff’s deputies called by the

defense testified that Edwards was a good prisoner who never

caused any trouble. Apart from lay witnesses who testified

that Edwards was depressed due to his divorce and his lack

of a home, no troubled life history or mental health evidence

was presented at the penalty phase. Edwards’ first penalty

jury hung with three jurors voting for life without the possibil-

ity of parole. Edwards represented himself at the second pen-

alty trial, and the jury returned a verdict of death. That

verdict, however, was vacated when a counseled motion for

a new penalty trial was granted; Edwards’ counsel success-

fully argued that the trial court had erred at the second penalty

trial in admitting the testimony of Charlotte Tibljas. She had

visited Edwards in jail and received a note from him concern-

ing his strange, violent sexual fantasies. Because of her men-

EDWARDS v. AYERS 12489

tal condition, the court deemed her testimony about jail

conversations to have been unreliable.

At the third penalty trial in 1986, Edwards’ counsel suc-

cessfully moved to bar the prosecutor in his case-in-chief

from referring to Edwards’ fourteen-year confinement at

Patuxent. After three days of deliberations, the jury returned

a verdict of death.

At the penalty phase modification hearing in 1986,

Edwards’ counsel presented to the trial court extensive evi-

dence of Edwards’ mental health history and troubled back-

ground dating from early childhood, including his fourteen-

year confinement at Patuxent. Counsel explained to the court

that he had not presented this evidence to the jury because the

evidence was too “bizarre.” Counsel argued for reduction of

Edwards’ death sentence to life imprisonment without parole

due to his lifelong history of mental problems and disturbed

behavior. Counsel urged the court to reduce Edwards’ sen-

tence on the ground that “this killing is an outgrowth of a

mental illness . . . observed since day one” and death is not

the right punishment for someone “who has been sick from

the day he was born, who help was sought for and help can’t

be provided.”

The trial court ruled it had no power to consider evidence

not presented to the jury, but even if it had, it would not set

aside the jury’s verdict of death because the evidence was

more damaging than mitigating. The court described the evi-

dence as suggesting there was “some sort of sexual object to

these shootings.”

C. Procedural History: Appeal and Post-Conviction

Petitions

The California Supreme Court on direct appeal rejected

Edwards’ claim that the lying in wait special circumstance

instruction was unconstitutional. It affirmed Edwards’ convic-

12490 EDWARDS v. AYERS

tion, upheld the death sentence, and agreed that the trial court,

when ruling on the motion to modify the sentence, had no

power to consider evidence not presented to the jury. See Peo-

ple v. Edwards, 819 P.2d 436 (Cal. 1991).

In habeas proceedings, habeas counsel discovered that one

week before the conclusion of Edwards’ third penalty trial,

the Orange County Sheriff’s Department had obtained from

Maryland authorities Edwards’ complete 448-page file from

the Patuxent Institution, but the prosecution never disclosed

that file to the defense. Edwards’ constitutional claim was

denied in state habeas proceedings. The California Supreme

Court eventually denied habeas relief on all of Edwards’

claims. See In re Thomas Francis Edwards, No. S030742,

Sept. 15, 1993 Order; see also In re Thomas Francis

Edwards, No. S092074, Nov. 15, 2000 Order.

After extensive evidentiary hearings conducted first by

Judge Hupp and later, after Judge Hupp’s death, by Judge

Carney, the federal district court denied relief in a thorough,

138-page order by Judge Carney. The district court granted a

certificate of appealability only as to the claim of “lying in

wait” instructional error. This court additionally certified the

Brady claim and the two ineffective assistance of counsel

claims before us. Briefing has been extensive.

On appeal, Edwards argues that the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) should not apply to

the merits of his claims because AEDPA was enacted while

his investigative funding requests were pending in the district

court and, but for district court delay, Edwards would have

filed a pre-AEDPA petition not governed by AEDPA’s higher

standards of review. See, e.g., 28 U.S.C. § 2254(d) (prohibit-

ing federal relief unless state court decision was contrary to,

or objectively unreasonable application of, clearly established

Supreme Court law). We do not need to decide this issue.

Each of Edwards’ claims fails on its merits under either stan-

dard.

EDWARDS v. AYERS 12491

Analysis

A. Instructional Error

At issue is the “lying in wait” special circumstance instruc-

tion given to Edwards’ jury at the guilt phase. The jury found

that special circumstance true, which rendered Edwards

“death eligible.” Edwards’s jury was instructed as follows:

The term ‘lying in wait’ is defined as waiting and

watching the victim for an opportune time to act,

together with the concealment by ambush or some

other secret design to take the victim by surprise.

The lying in wait need not continue for any particu-

lar period of time, provided that its duration is suffi-

cient to establish beyond a reasonable doubt (1) the

elements of waiting, watching and concealment or

other secret design to take the victim unawares and

by surprise, and (2) that during the period of lying in

wait the defendant had the intention to kill the victim

or cause her great bodily harm.

If a murder is done suddenly, without a period of

waiting, watching and concealment, the special cir-

cumstance of lying in wait is not present.

The term ‘lying in wait’ does not require a show-

ing that the defendant was in a position of lying

down. He may be shown to be sitting or standing,

and he may be stationary or in motion. The require-

ment of concealment does not require that the defen-

dant be not visible to the victim, nor that the victim

be totally unaware of the physical presence of the

defendant. Concealment may be shown by either an

ambush or by the defendant’s intentional creation of

a situation where the victim is taken unawares and

by surprise, even though the victim sees the defen-

dant.

12492 EDWARDS v. AYERS

In order to find the special circumstance of lying

in wait to be true, you must also find beyond a rea-

sonable doubt that the lying in wait continued up to

the moment of the killing, without interruption of

time between lying in wait and the act of killing.

The trial court re-instructed the jury during deliberations and

corrected the first paragraph of the instruction to strike the

phrase “or cause her great bodily harm.” At the request of the

defense, the trial court also added:

Before you may find that a murder was committed

while lying in wait, the prosecution is required to

prove something more than just . . . first degree mur-

der.

See Edwards, 819 P.2d at 457-58.

[1] It is a constitutional requirement of capital sentencing

schemes that they “perform a narrowing function with respect

to the class of persons eligible for the death penalty.” See

Jones v. United States, 527 U.S. 373, 381 (1999). An instruc-

tion similar to this one has been challenged unsuccessfully in

state and federal court for failing to carve out a significant set

of death-eligible cases from the entire class of first degree

murders. See People v. Morales, 770 P.2d 244, 258-61 (Cal.

1989); Morales, 388 F.3d at 1173-78; see also People v. Web-

ster, 814 P.2d 1273, 1293-94 (Cal. 1991); Webster v. Wood-

ford, 369 F.3d 1062, 1073-75 (9th Cir. 2004).

[2] To survive a facial challenge under the Eighth Amend-

ment, a special circumstance that makes a defendant eligible

for the death penalty must meet two requirements: (1) the cir-

cumstance must apply only to a sub-class of defendants con-

victed of murder, not to every defendant convicted of murder;

and (2) the circumstance may not be unconstitutionally vague.

See Morales, 388 F.3d at 1174, citing Tuilaepa v. California,

512 U.S. 967, 972 (1994). In order for “death-penalty eligibil-

EDWARDS v. AYERS 12493

ity standards to satisfy the Eighth Amendment’s non-

vagueness requirement, such eligibility criteria must provide

‘a meaningful basis for distinguishing the few cases in which

the penalty is imposed from the many cases in which it is

not.’ ” See id., quoting Godfrey v. Georgia, 446 U.S. 420, 427

(1980).

[3] This court has upheld the California instruction. We

held in Morales that California’s lying in wait special circum-

stance instruction as interpreted by the California Supreme

Court does sufficiently narrow the class of first degree mur-

ders to satisfy the Eighth Amendment. See Morales, 388 F.3d

at 1173-78. In Webster, we had earlier held that the California

Supreme Court did not unforeseeably expand the lying in wait

special circumstance when it held that actual physical con-

cealment is not required. See Webster, 369 F.3d at 1073-75.

Edwards acknowledges that Morales and Webster are bind-

ing. He attempts to differentiate his case from Morales by

contending the instruction given at his trial was unconstitu-

tional as applied to his case.

The instruction approved in Morales defined lying in wait

as requiring: (1) a substantial period of waiting and watching

for an opportune time to act; (2) concealment of purpose; and

(3) immediately thereafter a surprise attack on an unsuspect-

ing victim from a position of advantage. See Morales, 388

F.3d at 1175. Edwards maintains the lying in wait instruction

given at his trial did not require a “substantial period” of wait-

ing and watching, nor a concealing “act,” nor “a position of

advantage.” Thus, according to Edwards, he was found death

eligible under a definition of lying in wait that Edwards con-

tends is so broad and encompasses such a large class of first

degree murders that it fails to survive Eighth Amendment

scrutiny because it would include surprise attack murder.

We can see no meaningful difference between the instruc-

tion given at Edwards’ trial and the instruction approved in

12494 EDWARDS v. AYERS

Morales. A surprise attack murder would not satisfy the lying

in wait instruction given at Edwards’ trial or in Morales.

Edwards is correct that the lying in wait instruction given at

his trial did not include the words “a substantial period” of

waiting and watching. As the California Supreme Court

noted, this is not surprising as Edwards’ trial pre-dated the

Morales opinion. See Edwards, 819 P.2d at 458. Edwards’

jury was instructed, however, that the period of waiting and

watching had to be of sufficient duration to prove beyond a

reasonable doubt the elements of waiting, watching, and con-

cealment, and that the defendant intended to kill the victim

during the period of lying in wait. In addition, the jury was

expressly instructed that a “sudden murder” was not a lying

in wait murder. We agree with the California Supreme Court

that these requirements necessarily conveyed a “substantial

temporal element.” See Edwards, 819 P.2d at 458 (noting that

“a certain minimum period of time” for waiting and watching

had never been required, only a period of time “not insubstan-

tial”).

Edwards maintains that the instruction failed to require a

concealing act by Edwards that created the surprise but

instead permitted lying in wait to be premised on the sole fact

that the victim was surprised. We disagree. The instruction

clearly required an act by the defendant. The instruction stated

that concealment may be shown by either an ambush “or by

the defendant’s intentional creation” of a situation where the

victim is taken unawares and by surprise.

The lying in wait instruction approved in Morales required

a surprise attack on an unsuspecting victim “from a position

of advantage.” Although Edwards is correct that the “position

of advantage” wording was omitted from the instruction given

at his trial, the omission is of no consequence. As the Califor-

nia Supreme Court concluded, the instruction given at

Edwards’ trial required either an ambush or a situation where

the victim is taken unawares and by surprise, combined with

EDWARDS v. AYERS 12495

an intent to kill that “necessarily places the intended killer in

a position of advantage.” See Edwards, 819 P.2d at 458.

[4] The differences in the words used in the lying in wait

instruction approved in Morales and the instruction given at

Edwards’ trial are not meaningful because the essential ele-

ments are the same. The special circumstance instruction

given at Edwards’ trial did not permit a finding of lying in

wait merely because the victim was surprised. The special cir-

cumstance instruction required the jury to find that Edwards

waited and watched for an opportune time to act, with the

intent to kill the victim, together with concealment by either

ambush or his intentional creation of a situation where the

victim was taken unawares and by surprise. The jury was

properly instructed on lying in wait.

Although Edwards argues that the instruction does not

carve out a sufficiently significant set of first degree murders,

many first degree murders come immediately to mind which

would not be encompassed by this instruction. Examples

include murder by poison, murder in the course of a burglary,

murder during a bar-room fight, or murder decided upon after

a sexual assault, to name but a few. Moreover, as Edwards

concedes, we are bound in any event by Morales, which

rejected the claim that California’s lying in wait special cir-

cumstance is so broad that it violates the Eighth Amendment.

B. The Brady Claim

[5] Suppression by the prosecution, whether willful or inad-

vertent, of evidence favorable to the accused and material to

either guilt or punishment violates the Constitution. See

Brady, 373 U.S. at 87. Evidence is material to guilt or punish-

ment, however, only if there is a reasonable probability, had

the evidence been disclosed to the defense, that the result of

the proceeding would have been different. See Strickler v.

Greene, 527 U.S. 263, 280 (1999). The material allegedly

wrongfully withheld in this case was the complete file that the

12496 EDWARDS v. AYERS

Patuxent Institution compiled on Edwards over the fourteen-

year period that he was confined there from 1963 to 1977.

At the third penalty trial in 1986, defense counsel success-

fully moved to bar the prosecutor in his case in chief from

referring to Edwards’ confinement at Patuxent. Both the pros-

ecution and defense previously had relied upon representa-

tions by the Maryland State Attorney’s Office and the Circuit

Court of Montgomery County, Maryland that Edwards’

Patuxent file could not be located and apparently had been

purged.

One week before the end of the third penalty trial in 1986,

Maryland authorities sent the complete Patuxent file to the

Orange County Sheriff’s Office. The prosecution did not dis-

close the file to Edwards’ counsel. Edwards did not know

about it until years after trial, when investigation by habeas

counsel uncovered what had occurred.

Edwards now contends that had trial counsel received the

complete Patuxent file, trial counsel would have successfully

moved for a new guilt phase trial and presented a diminished

capacity defense at guilt and a mental health mitigation case

at penalty. Edwards insists a reasonable probability of a dif-

ferent result exists at both phases.

The complete Patuxent file included reports and summaries

written about Edwards dating from nursery school through his

fourteen-year commitment at Patuxent, including psychologi-

cal and medical reports, progress and incident reports, and

Edwards’ judicial records. In briefing before this Court, how-

ever, Edwards did not clearly identify what records in the

complete Patuxent file had not already been independently

obtained by, or were not already known to, trial counsel. Fur-

thermore, Edwards has not identified a single significant fact

contained in the medical records that counsel did not know

and that might have assisted Edwards’ experts.

EDWARDS v. AYERS 12497

The district court conducted an extensive evidentiary hear-

ing and carefully considered all the evidence that Edwards

presented to show that disclosure of the complete file would

have been helpful to his defense. The district court concluded

in its 138-page order that although the prosecution had failed

to disclose the file, far from being helpful to Edwards’ case,

the Patuxent file would have made a bad situation even worse.

As the district court observed, the evidence Edwards contends

“should have been presented at trial provides an extremely

mixed picture of Mr. Edwards’ background and character

which, at best, is insufficient to outweigh the heinousness of

the crime, and merely reinforces the long history of problems,

aggressive behavior, repressed rage and lack of response to

treatment which the trial judge found the testimony at the

[penalty modification] hearing presented.”

Edwards nevertheless contends the Patuxent records would

have been invaluable to explain how Edwards’ early brain

dysfunctions evolved and how they related to his offense.

According to Edwards, a neurologist reading the Patuxent

records would see they are consistent with Edwards being a

classic ventromedial prefrontal lobe patient. According to

Edwards’ habeas experts, Edwards’ impulsivity, his hair

fetish, and his hyposexuality are consistent with prefrontal

lobe dysfunction, and persons with such dysfunction cannot

control their impulses under stress. Had this been explained

to the jury, Edwards insists there is a reasonable probability

that the jury would have returned different verdicts at both the

guilt and penalty phases.

As the district court acknowledged, a history of mental

problems and disturbed behavior dating from early childhood

is evidence of the kind that could engender sympathy in a

jury. See Penry v. Lynaugh, 492 U.S. 302, 319 (1989)

(“ ‘evidence about the defendant’s background and character

is relevant because of the belief, long held by this society, that

defendants who commit criminal acts that are attributable to

a disadvantaged background, or to emotional and mental

12498 EDWARDS v. AYERS

problems, may be less culpable than defendants who have no

such excuse’ ”), quoting California v. Brown, 479 U.S. 538,

545 (1987) (O’Connor, J., concurring); see also Correll v.

Ryan, ___ F.3d ___, 2008 WL 2039074 *22-26 (9th Cir. May

14, 2008).

[6] In this case, however, as the district court found,

Edwards’ Patuxent file is double-edged. The Patuxent records

are “replete with references to Mr. Edwards’ ‘confused sexual

identity’ and anger towards women and his mother.” Psycho-

logical reports in the file describe Edwards as emotionally

labile, sexually confused, destructive, and dangerous. Patux-

ent staff reports note that Edwards has “tremendous rage

towards women going back many, many years.” The Patuxent

file also shows that Patuxent staff strongly recommended that

Edwards be recommitted and confined indefinitely because

Edwards continued to be dangerous. Maryland’s indetermi-

nate sentencing laws, however, changed and Edwards was

released in July 1977. We agree with the district court that the

complete Patuxent file contained extremely damaging infor-

mation that on the whole was far more likely to aggravate

Edwards’ crime in the eyes of the jury.

[7] Moreover, if Edwards presented expert testimony to the

effect that the shootings were impulsive and attributable to

dysfunction of the frontal lobes of his brain as allegedly indi-

cated in Edwards’ Patuxent file, thereby using aspects of his

history that might engender sympathy, that testimony would

open the door to even more damaging evidence. See People

v. Boyd, 700 P.2d 782, 792 (Cal. 1985) (if defendant offers

mitigating evidence, then prosecution rebuttal evidence may

be admitted to disprove any fact that is of consequence to the

determination of the action). If Edwards were to try to present

his troubled background in a sympathetic way, Edwards’

experts on cross-examination could be asked if the shootings

were related to Edwards’ fetish for women’s hair, that was

amply documented in the complete Patuxent file. Records in

that file show that Edwards at about the age of 18 was

EDWARDS v. AYERS 12499

arrested for assault after he slashed open a tent where four or

five neighborhood girls were sleeping and cut off a girl’s

ponytail. Edwards was disciplined at Patuxent for making a

collage of hair and photos of female staff interspersed with

scenes of violence. Police reports indicate that Edwards at the

time of his arrest wore a lock of hair around his neck and had

plastic baggies of hair in his room. Indeed, at the penalty

modification hearing, Edwards’ experts agreed that Edwards’

interest in women’s hair was abnormal, that Edwards had a

female neck fetish, and that it was significant that Edwards

had wigs and pieces of hair in his room as a child and, when

arrested, wore a lock of hair around his neck and kept baggies

of hair in his room.

[8] Expert testimony regarding Edwards’ alleged brain dys-

function would also open the door to questioning his experts

regarding whether the shootings had any relationship to

Edwards’ violent and sadistic sexual fantasies. (Indeed,

Edwards’ experts were questioned at the penalty modification

hearing about his sadistic sexual fantasies.) Before trial,

Edwards’ former wife spoke with Orange County Sheriff’s

officers. She had married Edwards in 1978, one year after his

release from Patuxent. She was then eighteen; he was fifteen

years older. She told Orange County Sheriff’s officers that

Edwards liked long hair and liked women’s necks. She

explained she voluntarily participated in Edwards’ elaborate

sexual fantasy rituals. She would kneel down and put her head

on a wooden chopping block made by Edwards. He would

bring a knife down pretending he “was really going to strike

[her neck] hard but then he would stop just as [the knife]

barely touched the back of [her] neck.” Or he would hold an

ice pick at the base of her neck and “talk about slowly push-

ing it up into [her] brain.” Other times Edwards pretended to

hold a gun to the back of her head or to her temple. Edwards

would talk about “taking a knife and stabbing a girl or slitting

her throat or chopping the head off;” “watching the girl’s face

when this was happening;” “holding a gun to the back of the

head;” “threatening to pull the trigger;” “the scared look;”

12500 EDWARDS v. AYERS

“the panic;” and he would talk about when “he’d start to stab

the girl, how the blood just started . . . flowing.” According

to Edwards’ wife, it was the act of killing in the fantasy ritual

that aroused Edwards sexually.

Although Edwards argues that the sexual fantasies he com-

municated to his then wife would be barred at trial by the con-

fidential marital communications privilege, the California

Supreme Court in 1993 ruled as a matter of state law that

Edwards had waived the privilege by his own repeated selec-

tive disclosures of confidential marital communications or by

his consent to such disclosures and by injecting his relation-

ship with his former wife into this case. See In re Thomas

Francis Edwards, No. S030742, Sept. 15, 1993 Order at 2.

[9] Expert testimony regarding brain dysfunction would

also open the door to questioning Edwards’ experts as to

whether the shootings were related to Edwards’ violent fanta-

sies of beheading and scalping women. Before the end of the

second penalty trial, Edwards discussed this fantasy in a note

to Charlotte Tibljas, a woman who visited him daily in the

Orange County jail. Edwards wrote:

You are my princess. . . . It will be [my former

wife’s] head you will hold and [her mother’s] scalp

to [sic]. Don’t think it is all a messy thing. It will be

beautiful to [sic] like any other religion. There is a

lot of good to some pain. . . . I still want [my former

wife’s] head and [her mother’s] scalp bad. You will

learn much more as time goes on.

Although a mistrial was granted after the second penalty trial,

when the court ruled that Charlotte’s testimony about

Edwards was not reliable, the note written by Edwards would

be admissible. Indeed, the trial court ruled that in the third

penalty trial the prosecutor could use Charlotte’s testimony to

authenticate the note, but could not introduce her testimony

EDWARDS v. AYERS 12501

regarding the note’s meaning or her conversations with

Edwards.

After Edwards presented his expert witnesses at the penalty

modification hearing, the prosecutor argued as follows:

Why did [Edwards] shoot the girls close up? Why

did he stay there after he shot them? Why did he go

to the rear of the truck? If you’re going to kill some-

one, why stick around? The most logical reason for

the shooting of the two little girls was a sexual one.

If Edwards presented expert testimony that the shootings were

attributable to dysfunction of the frontal lobes of Edwards’

brain, nothing would prevent the prosecutor from arguing that

Edwards shot the girls and prepared to load them in his truck,

not due to an explosion of impulsivity caused by brain dys-

function, but as part of his premeditated plan to act out his

sexually sadistic rituals. At the penalty modification hearing,

one of Edwards’ experts even agreed that Edwards may have

been intending to load the girls into his truck after shooting

them.

[10] Because the complete Patuxent file included evidence

that was more damaging than helpful, we agree fully with the

district court’s conclusion that Edwards was not prejudiced by

the prosecution’s failure to disclose the complete Patuxent

file. It would not have been favorable to the defense. That

conclusion is compelled by Supreme Court decisions consid-

ering such prejudice in the context of a claim of ineffective

assistance of counsel. See Wiggins v. Smith, 539 U.S. 510,

525, 535 (2003) (counsel may reasonably decide not to pre-

sent mitigating evidence which is double-edged), citing Bur-

ger v. Kemp, 483 U.S. 776 (1987) and Darden v. Wainwright,

477 U.S. 168 (1986); cf. Gerlaugh v. Stewart, 129 F.3d 1027,

1035 (9th Cir. 1997) (counsel is not ineffective in failing to

present psychological evidence which in “its best possible

12502 EDWARDS v. AYERS

light . . . is a basket of cobras”). There was no prejudicial

Brady error.

C. Ineffective Assistance of Counsel Claims

Edwards contends his counsel was ineffective in failing to

present a defense that his mental state precluded a finding of

premeditation at the guilt phase, and in failing to argue mental

state mitigation at the penalty phase.

1. Applicable Standards

[11] In order to establish ineffective assistance of counsel,

a petitioner must show both that counsel’s performance was

deficient and that the deficient performance prejudiced the

defense. See Strickland v. Washington, 466 U.S. 668, 687

(1984). “A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s chal-

lenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Id. at 689. “Thus, a court deciding

an actual ineffectiveness claim must judge the reasonableness

of counsel’s challenged conduct on the facts of the particular

case, viewed as of the time of counsel’s conduct.” Id. at 690.

[12] When counsel have failed to fulfill their obligation to

conduct a thorough investigation of the defendant’s back-

ground, a failure to uncover and present voluminous mitigat-

ing evidence may be unreasonable. See Wiggins, 539 U.S. at

522-25. The “principal concern” is “not whether counsel

should have presented a mitigation case.” See id. at 522-23.

“Rather, we focus on whether the investigation supporting

counsel’s decision not to introduce mitigating evidence of

[defendant’s] background was itself reasonable.” Id. at 523

(emphasis in original).

[13] Failure to present mitigating evidence may be ineffec-

tive when counsel “uncovered no evidence in their investiga-

EDWARDS v. AYERS 12503

tion to suggest that a mitigation case, in its own right, would

have been counterproductive.” Id. at 525. However, when

counsel’s investigation discovers little that is helpful and

much that is harmful, counsel may reasonably decide to

forego presenting evidence of the defendant’s background.

See id.; see also id. at 535, citing Burger, 483 U.S. at 776, and

Darden, 477 U.S. at 168.

2. The Investigation

Although Edwards attempts to minimize the investigation

his trial counsel conducted into his mental health history,

there was no failure to investigate. District Judge Hupp found

that trial counsel thoroughly investigated Edwards’ mental

health and his social and mental history before deciding not

to present a mental state defense. Our review of the record

supports that conclusion.

Trial counsel consulted with at least four mental health

experts. Before trial, counsel hired Dr. Walsh, a clinical

neuropsychologist, to assess Edwards and the question of

diminished capacity. Dr. Walsh gave Edwards the Golden bat-

tery of neuropsychology tests which she then stated was more

than ninety percent accurate in discriminating between brain-

damaged and normal subjects. She reported that Edwards

tested normal and that a personality test indicated that

Edwards was more likely psychiatrically disturbed than cere-

brally impaired. Counsel also hired Dr. Starr, an M.D. with

special certifications in neurology and psychology at Univer-

sity of California Irvine’s neurology department, to assess

whether Edwards had a neurological disorder. Dr. Starr,

whose interests at that time included distinguishing between

psychiatric disorders and organic neurological disorders, eval-

uated Edwards for neurological abnormalities such as epi-

lepsy or other brain deficits that might provide a defense to,

or mitigate, the crime. Dr. Starr knew Edwards had been con-

fined at the Maryland Training School for Unruly Children as

well as at Patuxent. Before Dr. Starr conducted his exam, he

12504 EDWARDS v. AYERS

took a history from Edwards. Dr. Starr concluded that

Edwards’ neurological examination results were normal, but

that Edwards and his “mental status” were not. Starr recom-

mended a CAT scan, which was done and showed normal

results.

Trial counsel hired Dr. Sharma, a psychiatrist, to assess

Edwards and the question of his state of mind at the time of

the crime. Dr. Sharma knew of Edwards’ Patuxent commit-

ment. Dr. Sharma was unable to fit Edwards into any category

of the Diagnostic and Statistical Manual of Mental Disorders

III (“DSM III”). Although Edwards was disturbed, Edwards’

mental illness did not reach the threshold of a mental or psy-

chiatric defense to the crime. Dr. Sharma found no reason to

believe that Edwards suffered from a brain disorder.

Trial counsel hired Dr. Klatte, a forensic psychiatrist board

certified in both neurology and psychiatry. Counsel gave Dr.

Klatte extensive historical information about Edwards, from

his early childhood through his commitment at Patuxent,

including his history of headaches. Many of the background

documents Dr. Klatte received were from Patuxent. Dr. Klatte

believed Edwards was mentally ill, but his mental illness was

not to a definable level and therefore would not provide a

defense to the shooting. Dr. Klatte suspected Edwards’ prob-

lems were physiologically caused, but tests were run and no

physiological basis could be found. Dr. Klatte opined that in

ten years “you might understand him more on an organic

basis.”

[14] Edwards’ counsel at the time of trial thus relied upon

qualified experts who found no evidence of diminished capac-

ity or organic brain damage. There was no violation of coun-

sel’s duty to investigate.

3. Claim of Ineffective Assistance at Guilt Phase

Edwards insists that there is a reasonable probability of a

different result at guilt had counsel presented a diminished

EDWARDS v. AYERS 12505

capacity defense based on frontal lobe dysfunction. Edwards

maintains that if experts had explained to the jury that

Edwards’ lifelong history of mental problems and disturbed

behavior indicated dysfunction of the prefrontal lobes of

Edwards’ brain, which rendered him unable to control his

impulses, a reasonable probability exists that the jury would

not have convicted Edwards of first degree premeditated mur-

der. District Judge Carney, after considering all of the evi-

dence in support of Edwards’ claim, flatly disagreed:

[T]he shootings of Vanessa and Kelly were not

crimes of impulse, but, given the surrounding cir-

cumstances and manner in which Mr. Edwards com-

mitted them, necessarily involved the premeditation

and deliberation needed to establish first degree mur-

der. Mr. Edwards’ expert opinions to the contrary are

not credible and likely would not sway a jury.

...

[T]he clear weight of the evidence shows that the

nature of the crime itself contradicts and fatally

undermines this proposed defense. The victims were

two 12-year old girls walking innocently to a picnic

lunch. The little girls did not know Mr. Edwards,

they posed no threat to him, and they never said or

did anything to him. In contrast, Mr. Edwards was a

large adult man driving in a truck. He was an expert

marksman who had a loaded handgun in the cab of

his truck. Before shooting Vanessa between the eyes

and Kelly in the head, he first drove past the two

girls, looked at them, and then turned around and

followed them. A few moments later, he caught up

to them in a remote spot, where he could most effec-

tively kill and escape. He drove alongside the girls,

stopped, and said ‘girls’ to get their attention. Then,

while Vanessa was looking straight at him and was

thus a simple and easy target, he shot her between

12506 EDWARDS v. AYERS

the eyes, and while Kelly had a brief moment to turn

her head away and was thus a moving and more dif-

ficult target, he took aim and shot her in the head.

Kelly’s turning of her head was what saved her life.

While the girls lay on the ground, Mr. Edwards had

the mental fortitude to get out of his truck, run to the

back, and open its rear gate, perhaps to load their

bodies in the bed of his truck. As a camper

approached in another truck, Mr. Edwards was able

to slam the rear gate of his truck shut, return to the

cab and speed away. The camper in the truck took

pursuit, but, after a high speed chase, Mr. Edwards

was able to get away. He then had the presence of

mind to elude an extensive manhunt by law enforce-

ment that lasted several days. This was no crime of

impulse. It was a crime of planning, premeditation

and deliberation. . . .

Mr. Edwards . . . plotted and planned to execute two

innocent little girls by approaching them in a remote

location which would maximize his chances of com-

pleting the crime and escaping, and then by getting

them into such close range and position that he

would not miss when the time came to aim and pull

the trigger.

...

Notwithstanding his mental disorders and recent

divorce, and notwithstanding the opinions of Mr.

Edwards’ experts more than ten years after the fact,

there is no substantial evidence that, at the actual

time of the crimes, Mr. Edwards was acting impul-

sively or lacked the ability to control his actions or

to premeditate.

The California Supreme Court on direct appeal had simi-

larly found the evidence of planning “extremely strong” and

EDWARDS v. AYERS 12507

the “inference of cool, calculated premeditation . . . inescap-

able.” See Edwards, 819 P.2d at 452 (Edwards carried a

loaded handgun in the cab of his truck; before the shooting,

he drove past the girls as they were leaving the campground,

looked at them, and then turned around and followed them to

a remote spot, where he could most effectively kill and

escape; he drove alongside his victims, stopped, said “Girls”

to get their attention, and, while Vanessa was looking straight

at him and was thus an excellent target, shot and killed her;

the manner of killing was exact — a single bullet between the

eyes by an expert marksman — strongly implying a precon-

ceived design to kill in precisely that fashion); see also People

v. Bloyd, 729 P.2d 802, 810 (Cal. 1987) (premeditation and

deliberation can occur in a very short period of time).

[15] We agree with the district court and the California

Supreme Court that the circumstances of the crime negate

diminished capacity. Following the girls for more than a quar-

ter of a mile and not shooting them until they had reached

“the place of maximum vulnerability,” a remote spot approxi-

mately halfway between two campgrounds in an area which

Edwards knew well, see Edwards, 819 P.2d at 447, 460, indi-

cates that Edwards planned, deliberated, and decided where

and when he would shoot his victims. Trial counsel was not

ineffective for failing to present a defense that was supported

neither by his experts nor by the circumstances of the crime.

4. Claim of Ineffective Assistance at Penalty Phase

Edwards contends counsel was ineffective in failing to

present Edwards’ lifelong history of mental problems and dis-

turbed behavior as mitigating evidence at penalty. This claim

is similarly without support.

After thoroughly investigating Edwards’ background and

consulting with at least four mental health experts who found

no evidence of brain damage, counsel decided not to present

Edwards’ troubled history to the penalty jury. Counsel chose

12508 EDWARDS v. AYERS

instead to present an aberrant act defense. Twenty-five wit-

nesses testified they were shocked that Edwards could commit

such a crime as he was a likable friend or co-worker whom

they trusted with their children. A prison guard testified that

Edwards caused no trouble as a prisoner. Despite the heinous-

ness of the crime, counsel’s aberrant act defense was persua-

sive enough to hang the first penalty jury and require three

days of deliberations before the third penalty jury returned a

verdict of death. Although the second penalty jury returned a

death verdict, Edwards represented himself at that trial.

[16] As we have seen in relation to Edwards’ Brady claim,

Edwards’ history of mental problems and disturbed behavior

is, on the whole, highly aggravating in its own right and

would open the door to even more damaging evidence. Coun-

sel’s decision not to present evidence of Edwards’ troubled

background to the penalty jury was a reasonable strategic

decision. See Wiggins, 539 U.S. at 525, 535 (counsel may rea-

sonably decide to forego presentation of mitigating history

that is double-edged).

Comparison of counsel’s informed and reasonable strategic

decision in this case with the conduct of counsel in two of our

recent decisions illustrates the point. In Correll v. Ryan, ___

F.3d at ___, 2008 WL at 2039074 (9th Cir. May 14, 2008),

unless there was mitigation, the death penalty was required by

Arizona law so long as the trial judge found at least one

aggravator. There was an aggravator. Thus, if no mitigation

case was presented the death penalty was inevitable. Correll’s

counsel, however, believed the trial judge would react unfa-

vorably to double-edged evidence offered in mitigation, and

so he presented no mitigation case, even though by its

absence death was almost certain, and even though Arizona

law required the appellate court to conduct an independent

review. In short, Correll’s counsel had everything to gain and

nothing to lose by putting on a mitigation case, yet he did

nothing.

EDWARDS v. AYERS 12509

[17] In Belmontes v. Ayers, ___ F.3d ___, 2008 WL

2390140 (9th Cir. June 13, 2008), we granted relief where

trial counsel failed to consult with mental health experts at all

regarding the possibility of a mental defect defense for the

penalty phase. In that case, the record contained information

about the defendant’s background that might well have per-

suaded the jury against imposing the death penalty, yet coun-

sel made no investigation and hence no informed decision on

the issue. In contrast, Edwards’ counsel did all the investiga-

tion he could reasonably do and made the reasonable strategic

decision that the evidence of Edwards’ troubled history would

give rise to prejudicial rebuttal evidence of fetishes, violent

fantasies, sexual hangups and other behavior his counsel

accurately described as “bizarre.”

Two prior mistrials at the penalty phase demonstrate that

this was a close death penalty case. There was a judgment to

be made; Edwards’ counsel made an informed one, and the

trial judge made the same assessment at the penalty modifica-

tion hearing. Recent scholarship tends to support the judg-

ment. See John M. Fabian, Death Penalty Mitigation and the

Role of the Forensic Psychologist, 27 Law & Psychol. Rev.

73, 90 (2003) (evidence of mental illness may backfire

because jurors may view it as aggravating; “in some cases,

presenting evidence of . . . mental disorders to create empathy

in the jury might actually cause them worry and concern that

the defendant is an ‘irreparable monster’ ”); Ronald J. Tabak,

Executing People With Mental Disabilities: How We Can Mit-

igate An Aggravating Situation, 25 St. Louis U. Pub. L. Rev.

283, 288-89 (2006) (juries often view severe mental illness as

more aggravating than mitigating; “because of fear that juries

will act in this manner, many defense attorneys decide not to

present evidence of severe mental illness” at sentencing and

counsel “who act in this manner are frequently held not to

have been ineffective”).

[18] In sum, Edwards’ counsel was not ineffective when

after a thorough investigation he decided not to present to the

12510 EDWARDS v. AYERS

jury evidence of Edwards’ troubled background, evidence

which in “its best possible light” was a “basket of cobras.”

See Gerlaugh, 129 F.3d at 1035.

Conclusion

Edwards had the assistance of competent counsel in both

the state and federal courts, and the thoughtful attention of

two able federal district court judges who, after extensive evi-

dentiary hearings, rejected his claims. Edwards has acknowl-

edged his commission of a terrible crime, and he has not

established that he received anything other than a fair trial.

The lying in wait special circumstance that the jury found as

supporting imposition of the death penalty is in accord with

the law of this Circuit. There is no reasonable probability of

a different result at the guilt phase or at the penalty phase had

the prosecution disclosed Edwards’ complete Patuxent file to

the defense. Trial counsel reasonably decided not to present

Edwards’ lifelong history of mental problems and disturbed

behavior at guilt or at penalty. The judgment of the district

court denying the petition is AFFIRMED.