Tracy Cain v. Kevin Chappell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRACY DEARL CAIN, No. 13-99008

Petitioner-Appellant,

D.C. No.

v. 2:96-cv-02584-ABC

KEVIN CHAPPELL, Warden,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and Submitted August 2, 2016

Pasadena, California

Filed September 13, 2017

Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Rawlinson

2 CAIN V. CHAPPELL

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of a habeas

corpus petition in a death penalty case.

The petitioner was convicted after a jury trial and

sentenced to death for two counts of first-degree murder,

burglary, and robbery. Distinguishing Gautt v. Lewis, 489

F.3d 993 (9th Cir. 2007), the panel held that the petitioner

was not denied procedural due process through inadequate

notice of an attempted rape special circumstance, and his

constitutional rights were not violated when the prosecutor

presented this special circumstance to the jury.

The panel expanded the certificate of appealability to

include additional claims but held that these claims lacked

merit. The panel held that the petitioner did not establish

guilt-phase ineffective assistance of counsel in his attorney’s

concession of guilt on the burglary counts, failure to object to

the attempted rape special circumstance, or failure to

investigate and present voluntary intoxication and mental

health defenses.

The panel held that the petitioner did not establish

penalty-phase ineffective assistance in counsel’s failure to

investigate and present mitigating evidence based on the

petitioner’s substance abuse, neurological and psychological

problems, and family background. The panel concluded that

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CAIN V. CHAPPELL 3

the petitioner did not establish an Eighth Amendment claim

based on intellectual disability under Atkins v. Virginia.

COUNSEL

Jonathan C. Aminoff (argued) and Mark R. Drozdowski,

Deputy Federal Public Defenders; Hilary Potashner, Federal

Public Defender; Office of the Federal Public Defender, Los

Angeles, California; for Petitioner-Appellant.

Kim Aarons (argued) and A. Scott Hayward, Deputy

Attorneys General; Lance E. Winters, Senior Assistant

Attorney General; Gerald A. Engler, Chief Assistant Attorney

General; Office of the Attorney General, Los Angeles,

California; for Respondent-Appellee.

OPINION

RAWLINSON, Circuit Judge:

In this death penalty case, Petitioner Tracy Cain (Cain)

challenges the district court’s denial of his federal habeas

petition. Cain was convicted and sentenced to death for the

murder of a couple, William and Modena Galloway, who

resided in a home next to Cain’s father. The district court

denied Cain’s habeas petition, but granted a certificate of

appealability (COA) on Cain’s claim that he did not receive

adequate notice of the attempted rape special circumstance.

We affirm the district court’s denial of Cain’s habeas petition.

4 CAIN V. CHAPPELL

I. BACKGROUND

In a criminal complaint, Cain was charged with the first-

degree murders of the Galloways. The complaint further

alleged special circumstances premised on multiple murder,

rape or attempted rape, robbery or attempted robbery, and

burglary in connection with Mrs. Galloway’s murder. With

respect to the rape special circumstance, Special Allegation

No. 4 provided:

It is further alleged that the murder of Modena

Shores Galloway was committed by

defendant, Tracy Dearl Cain, while the

defendant was engaged in the commission or

attempted commission of the crime of rape, in

violation of Penal Code section 261, within

the meaning of Penal Code section

190.2(a)(17).

The complaint also alleged special circumstances based on

multiple murder, burglary, and robbery or attempted robbery

associated with Mr. Galloway’s murder. Cain was also

separately charged with the offenses of rape, burglary, and

robbery.

A second amended information alleged the same basic

offenses and special circumstances, albeit with some

additional details. Unlike the original criminal complaint, the

amended information did not specifically allege attempted

rape as a special circumstance. Instead, Special Allegation 6

stated:

It is further alleged that the murder of Modena

Shores Galloway was committed by

CAIN V. CHAPPELL 5

defendant, Tracy D. Cain, while the defendant

was engaged in the commission of rape in

violation of Penal Code Section 261, within

the meaning of Penal Code Section

190.2(a)(17).

Cain did not raise any pre-trial objections to the allegations in

the amended information addressing the attempted rape

special circumstance. See People v. Cain, 892 P.2d 1224,

1248 (Cal. 1995) (In Bank) (explaining that, after the

prosecution’s rebuttal, “the trial court raised the issue of

whether the information had provided defendant with

sufficient notice of the attempted rape basis of the special

circumstance”) (emphasis added).

The evidence at trial established that the Galloways lived

next door to Cain’s father. See id. at 1233. Mr. Galloway,

who was sixty-three years old, suffered from poor health and

a back injury, and “had a habit of keeping large amounts of

cash in his house.” Id.

During the relevant period, Cain’s father went on a trip,

leaving Cain and his younger brother, Val, at the residence.

See id. at 1234. On the night of the Galloways’ murders,

Cain and Val had a party at their father’s house. See id.

Ulysses Anthony Mendoza (Mendoza), Floyd Clements

(Clements), David Cerda (Cerda), Rick Albis (Albis), and

Kevin Walker (Walker) attended the party. See id.

Mendoza testified that Cain was agitated and upset during

the party. Cain threatened Mendoza and others when he was

unable to find ten dollars that was missing, and kicked a hole

in a door because he was angry with his brother.

6 CAIN V. CHAPPELL

Mendoza related that, at approximately 11:00 pm, Cain

asked Mendoza to accompany him to the 7-Eleven to

purchase beer. As they were walking to the 7-Eleven, Cain

asked Mendoza if he “wanted to help him burglarize or rob

that house next door to his house.” According to Mendoza,

Cain stated that he wanted to burglarize the residence “so he

can get thousands.” Mendoza refused because he “[d]idn’t

have the nerve.”

At the 7-Eleven, Mendoza and Cain met Richard Willis

(Willis) and Willis’ friend, Shawn. Cain asked them if they

had any cocaine. While riding in Shawn’s vehicle, Cain

made a “strangling motion” to Mendoza, after which

Mendoza asked to be dropped off for fear that “something

foolish would happen.” Mendoza returned to the Cain

residence.

When Cain arrived at the residence, he “called [Mendoza]

a pussy . . . [b]ecause [Mendoza] wouldn’t help him.”

Mendoza then saw Cain and Cerda leave the residence.

Cerda returned to the Cain residence alone. At some point,

Val asked Cerda to check on his brother. After a few seconds

or minutes, Cerda returned without Cain. When Cain

eventually returned to the residence, he “had blood on his hat,

inner part of his hat, on his cheek, on his right foot, [and] on

his pant leg.” Cain stated that “he had thousands” and

Mendoza recalled that Cain had “a lot of money in his left

palm.” Cain also remarked that he “blipped somebody.”

The next morning, Mendoza observed Cain sleeping in a

recliner in the living room. Mendoza noticed that Cain had

$500 next to him on a table. Mendoza also observed that

Cain’s “knuckles were torn up.” Later in the day, Mendoza

and Cain went shopping. Cain paid cash for new basketball

CAIN V. CHAPPELL 7

shoes, a hat, and a car stereo. According to Mendoza, Val

asked Cain if he had killed someone and Cain responded,

“That’s on them. . . .”

The following day, Mendoza attended a barbecue at the

Cain residence. During the barbecue, Cain threatened

Mendoza if he refused to let Cain use his truck. Mendoza

noticed that Cain had placed a box in the truck containing

rags, sticks, and wires. Cain subsequently disposed of the

box near the beach.

Dr. Frederick Lovell, Chief Medical Examiner for

Ventura County, performed an autopsy on Mr. Galloway’s

body. Dr. Lovell observed numerous bruises on Mr.

Galloway’s body and “hemorrhage over the entire left side of

[his] head from front to back on bone, and . . . hemorrhage in

and around the brain underneath.” Dr. Lovell stated that there

was a minimum of thirteen separate blows on Mr. Galloway’s

body and that Mr. Galloway died from trauma to his brain.1

Dr. Ronald O’Halloran, Assistant Medical Examiner for

Ventura County, examined Mrs. Galloway’s body. Dr.

O’Halloran observed “multiple injuries on [Mrs. Galloway’s]

face.” Mrs. Galloway suffered “a baselar skull fracture” and

“a hemorrhage in the space around the brain.” Dr.

O’Halloran determined that Mrs. Galloway died from

“traumatic head injuries.”

1

The evidence reflected that “[a] broken child’s rocking chair,

splattered with blood and missing a rocker and an armrest support, was

found next to Mr. Galloway’s body in the hallway.” Cain, 892 P.2d at

1236.

8 CAIN V. CHAPPELL

Dr. O’Halloran observed Mrs. Galloway “lying on her

back on the bed . . . with her feet and legs extending over the

side of the bed.” According to Dr. O’Halloran, Mrs.

Galloway’s “legs were spread wide apart, exposing her

genital area; and she was nude from the waist down.” There

was also “a pillow lying over her head” and “blood splatters

on the wall.” “There was moist fluid coming out of her

vaginal area, and . . . a streak of brownish-red material that

appeared to be blood coming from or coming from close to

her vaginal area.”

During Mrs. Galloway’s autopsy, Dr. O’Halloran

“surgically removed the vagina and examined it” for injuries.

Dr. O’Halloran discovered “a one centimeter long tear . . .

inside the vaginal opening. . . .” Due to the lack of

hemorrhage, Dr. O’Halloran opined that he may have caused

the tear during his examination. Dr. O’Halloran also noted

that the absence of injuries did not preclude a finding that

Mrs. Galloway was raped.

Edwin Jones (Jones), a criminalist, testified as a hair

expert. Jones determined that fifteen hairs found in Mrs.

Galloway’s panties, pajama bottom, slipper socks, and

pajama top were microscopically similar to Cain’s hair

samples. Jones eliminated Mendoza, Cerda, and Clements as

sources of the pubic hairs found on Mrs. Galloway’s body.

Jones also performed a chemical analysis of enzymes in the

hair samples and determined that he could not eliminate Cain.

Dr. Bruce Woodling testified as an expert on sexual

assault. Dr. Woodling related that he had examined

approximately 2,000 sexual assault victims. After examining

Mrs. Galloway, Dr. Woodling concluded that Dr.

O’Hallaron’s testimony that he may have caused the vaginal

CAIN V. CHAPPELL 9

tear was not a “likely explanation.” Dr. Woodling related that

he had never observed a similar tear during removal and

examination of the vagina in the rape cases in which he

participated. Dr. Woodling opined that the laceration was “a

classic injury of a forced penile-type penetration . . .”

Detective Billy Tatum of the Oxnard Police Department

testified that he investigated the Galloway homicides.

Detective Tatum spoke with Mendoza and did not observe

any injuries on Mendoza’s hands. Detective Tatum

subsequently obtained an arrest warrant for Cain and

interviewed Cain at the police station. The tape recorded

interview was played to the jury.

During the taped interview, Cain initially stated that he

remained at his residence on the night of the Galloways’

murders, except to go to the store, and “stayed at home” the

following day. Cain related that he found out about the

Galloways’ murders on the following Monday, when he

returned home from work. Cain explained that the bruise on

his shoulder was from his girlfriend and the cuts on his

fingers were from playing with his dog.

Cain eventually admitted that he went into the Galloways’

residence, but denied committing the murders. After

inquiring if the police had any evidence that Cain “killed

them,” Cain admitted that he and other individuals entered the

residence on Saturday to “wipe[ ] away the fingerprints.”

Cain also eventually acknowledged that he was in the

Galloways’ residence during the murders, and he asserted that

Albis placed a pillow cover over Mrs. Galloway’s face. Cain

mentioned that Cerda and Mendoza hit Mr. Galloway and

Mendoza struck Mr. Galloway with a chair. According to

Cain, his fingerprints may have been on the chair because he

10 CAIN V. CHAPPELL

“picked it up and . . . moved it.” Cain conveyed that he did

not know who raped Mrs. Galloway, but that Albis struck her

in the hallway and placed her on the bed.

Detective Tatum testified that there was a malfunction in

the audio tape during the interview, and the tape “just stopped

playing . . . on Side 1.” During the malfunction, Cain

admitted to stealing $500 from the Galloways’ residence.

Prior to jury deliberations, the trial court expressed

concern about the attempted rape special circumstance.

Specifically, the trial court observed that the information did

not specifically charge attempted rape, although the

information charged attempted robbery. Cain’s counsel

responded:

But to be quite candid about it, I’ve read

Section 190.2 numerous times. I’m aware it

says commission or attempted commission. I

can’t in good conscience say that I am

surprised at this late date. I think it’s clear the

entire thrust of the testimony from all the

doctors was an actual rape . . . I’m aware of

the section. I’m aware how it is plead, and

I’m aware of these jury instructions. And I’m

not going to sit here and pretend that I’m

surprised and I’m going to holler foul at the

D.A. at this late time. . . . I was aware and I

heard [the prosecutor] and I could have

objected but I didn’t because I think that he’s

entitled to argue under Section 190.2

commission or attempted commission. . . . But

I don’t think Tracy Cain and the defense is

[sic] prejudiced. . . .

CAIN V. CHAPPELL 11

Based on counsel’s statement, the trial court did not pursue

the issue further.

The trial court instructed the jury that it could find the

special circumstance if “the murder was committed while the

defendant was engaged in or was an accomplice in the

commission or attempted commission of a burglary[,] a

robbery or a rape” and that “the defendant intended to kill a

human being or intended to aid another in the killing of a

human being[.]” The trial court also instructed the jury that

“the special circumstance referred to in these instructions is

not established if the burglary, robbery or rape was merely

incidental to the commission of the murder.”

The jury found Cain guilty of first-degree murder,

burglary, and robbery, but acquitted Cain on the rape charge.

The jury determined that Cain murdered Mr. Galloway during

the commission or attempted commission of burglary and

robbery. The jury also concluded that Cain murdered Mrs.

Galloway during the commission or attempted commission of

rape, burglary, and robbery.

During the penalty phase, Anita Parker (Parker) testified

that she was assaulted by Cain. According to Parker, Cain

struck her in the head with a tire iron and kicked her during

an altercation.

Nicholas Perez (Perez), a juvenile detention officer,

related that Cain hit him with his fist as Perez was escorting

Cain. According to Perez, his nose was broken and he

required six stitches above his left eye.

David Wheat (Wheat), a state prison supervisor, testified

on Cain’s behalf. Wheat informed the jury that, when Cain

12 CAIN V. CHAPPELL

was incarcerated, he was permitted to work on a fence crew,

a position reserved for inmates with no discipline problems.

In his reports, Wheat rated Cain with the “highest number”

available due to Cain’s good “work habits.”

Reynaldo Duran (Duran), a training specialist with the

Arizona State Department of Corrections, supervised a

ground crew to which Cain was assigned. Duran reported that

Cain was rated highly for his cooperation, effort, and

responsibility.

Wilma Cain (Wilma), Cain’s stepmother, testified that

Cain was one of eleven children and that Cain’s mother died

during the Jonestown massacre. Wilma described Cain as a

“typical boy” growing up. Wilma conveyed that she was

shocked that Cain was convicted of the Galloways’ murders

because “it didn’t sound like Tracy[.]” Wilma related that

Cain “got along with everybody.”

Persey Cain (Persey), Cain’s father, also testified that

Cain’s mother died at Jonestown. Persey described Cain as

“a good kid” and a “typical . . . boy” during his youth. Persey

was shocked by the crime because “it didn’t sound like Tracy

Cain[.]” Persey related that Cain had “never been in any kind

of problem other than . . . car theft.”

In his penalty-phase closing argument, Cain’s counsel

emphasized that the prosecution never demonstrated that Cain

premeditated or planned to murder the Galloways and that

there was “no deliberate killing.” Defense counsel also

argued that Cain was severely impaired due to his drug use

before the murders. His counsel maintained that “[w]e know

he was intoxicated. Witness after witness came in and

testified. . . . He was using crack. . . . [T]he truth is he was

CAIN V. CHAPPELL 13

impaired.” Cain’s counsel contrasted the Galloways’ murders

with specific cases of brutal, premeditated homicides. He

asserted that, in contrast to those cases, Cain was “drug-

impaired” and “act[ed] in a rage reaction” without any

premeditation. He argued that Cain’s mother died when Cain

was young; that Cain failed to finish school; and that Cain

lacked many advantages described by the prosecution. In

addition, defense counsel focused on positive reports Cain

received while incarcerated.

Defense counsel emphasized that Mendoza was never

arrested and that Cerda did not face the death penalty or “life

without parole.” Defense counsel remarked that Cain was

“the only one that’s going to end up in jail for the rest of his

life, whether he gets the gas chamber in jail or whether he

dies in jail.” Cain’s counsel argued that life in prison was the

proper punishment given the circumstances of life in prison.

Finally, Cain’s counsel argued that:

[a]n unplanned, drug-impaired act with no

foreseen consequences has cost Tracy Cain

his life. But . . . there still is value in his life.

He proved it in prison before. He proved it

with his prison records, and he can prove it

again if you give him the chance.

The jury sentenced Cain to death based on his first-degree

murder of Mrs. Galloway and the multiple murder, attempted

rape, burglary, and robbery special circumstances. The jury

also sentenced Cain to death for the first-degree murder of

Mr. Galloway and special circumstances involving robbery

and burglary.

14 CAIN V. CHAPPELL

On direct appeal, the California Supreme Court affirmed

Cain’s convictions and sentence. See Cain, 892 P.2d at 1276.

Relevant to this appeal, the Court rejected Cain’s claim that

he received inadequate notice of the attempted rape special

circumstance. See id. at 1248–49. The Court held:

We find no statutory error in the language

used to allege the rape special circumstance.

Although consistency in the form of charging

special circumstances is preferable, the rape

special circumstance as alleged satisfactorily

charged defendant and was not misleading.

Under the statute, the rape special

circumstance specifically includes that the

crime was committed during the attempted

commission of a rape. The information

specifically referred to the statute defining the

special circumstance. Under these

circumstances, the rape special-circumstance

allegation provided the express notice of the

charges against defendant required under state

law in a capital case.

Id. at 1249 (citations and internal quotation marks omitted).

The Court emphasized Cain’s counsel’s acknowledgment that

he was not surprised by the prosecution’s arguments and the

jury instructions premised on attempted rape. See id. The

Court observed:

since the information was sufficient to

provide the required notice, and defendant’s

counsel stated defendant was neither surprised

nor prejudiced by the argument and

instructions relating to attempted rape as the

CAIN V. CHAPPELL 15

basis of the rape special circumstance,

defendant’s constitutional right to notice of

the charges against him was not

compromised.

Id. (citations omitted). The Court rejected Cain’s related

arguments that the information was constructively amended

to include attempted rape, and that his counsel was ineffective

in failing to object to the attempted rape special circumstance.

See id. at 1249 n.17.

Cain subsequently sought federal habeas relief. In Claim

1(6) of his third amended habeas petition, Cain asserted that

he did not receive constitutionally adequate notice of the

attempted rape special circumstance and that the prosecution

engaged in prosecutorial misconduct when it argued the

special circumstance to the jury. In Claim 3(7), Cain

contended that his constitutional rights were violated when

the state trial court instructed the jury on the attempted rape

special circumstance.

The district court denied Cain’s claims, but granted a

certificate of appealability “as to Claims 1(6) and 3(7)

regarding the constitutional adequacy of Petitioner’s notice of

the attempted rape special circumstance charge.”

Cain filed a timely amended notice of appeal.

II. STANDARDS OF REVIEW

“We review de novo the district court’s denial of [Cain’s]

petition for a writ of habeas corpus and review its factual

findings for clear error. . . .” Smith v. Ryan, 823 F.3d 1270,

1278 (9th Cir. 2016), cert. denied, 137 S. Ct. 1283 (2017)

16 CAIN V. CHAPPELL

(citation omitted). Because Cain filed his federal habeas

petition after April 24, 1996, the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) applies. See Mann v.

Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016) (en banc). Under

the AEDPA, habeas relief is warranted if the state court’s

adjudication of Cain’s claims “was contrary to or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254. We may also grant relief if the state

court’s decision “was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” Id.

“An adjudication is contrary to clearly established

Supreme Court precedent if the state court arrives at a

conclusion opposite to that reached by the Supreme Court on

a question of law or if the state court decides a case

differently than the Supreme Court has on a set of materially

indistinguishable facts.” Mann, 828 F.3d at 1151 (citation,

alterations, and internal quotation marks omitted). “It is an

unreasonable application of clearly established Supreme

Court precedent if the state court identifies the correct

governing legal principle from the Supreme Court’s decisions

but unreasonably applies that principle to the facts of the

prisoner’s case.” Id. (citation and internal quotation marks

omitted). “An unreasonable application of federal law is

different from an incorrect application of federal law.” Id.

(citation and alteration omitted) (emphases in the original).

“The federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that

the relevant state-court decision applied clearly established

federal law erroneously or incorrectly.” Id. (citation and

internal quotation marks omitted). “A state court’s

adjudication is unreasonable only if the federal habeas court

CAIN V. CHAPPELL 17

concludes that no fairminded jurist could conclude that the

adjudication was consistent with established Supreme Court

precedent. . . .” Id. at 1151–52 (citation omitted).

III. DISCUSSION

A. Certified Issue—Adequate Notice of the

Attempted Rape Special Circumstance

Cain contends that habeas relief is warranted because he

did not receive adequate notice of the attempted rape special

circumstance and the prosecutor improperly relied on an

attempted rape special circumstance that was not charged in

the information.

The Supreme Court has clearly established that a

defendant must receive adequate notice of the charges against

him. “No principle of procedural due process is more clearly

established than that notice of the specific charge, and a

chance to be heard in a trial of the issues raised by that

charge, if desired, are among the constitutional rights of every

accused in a criminal proceeding in all courts, state or

federal. . . .” Cole v. Arkansas, 333 U.S. 196, 201 (1948)

(citation omitted).2

2

Citing Lopez v. Smith, 135 S. Ct. 1 (2014), the State contends that

Supreme Court precedent has not clearly established the requirement of

adequate notice of the specific theory under which a felony-murder special

circumstance would be proved. In Lopez, the Supreme Court reversed our

grant of habeas relief premised on failure to provide adequate notice of an

aiding-and-abetting theory at trial. See id. at 3. The Supreme Court

faulted us for granting relief because the prosecutor focused on another

theory at trial, although the defendant previously received notice of

potential liability on an aiding-and-abetting theory. See id. The Supreme

Court observed that it was not disputed that the defendant “received

18 CAIN V. CHAPPELL

Relying on Gautt v. Lewis, 489 F.3d 993 (9th Cir. 2007),

Cain maintains that he was not properly informed of the

attempted rape special circumstance in the second amended

information. However, Cain’s reliance on Gautt is entirely

misplaced. In Gautt, we granted habeas relief because the

information failed to inform the petitioner that he was

charged with a specific sentencing enhancement that

significantly increased his potential sentence. See id. at 998.

We emphasized that “the pivotal fact” in that case was the

complete omission of any mention of the specific statute in

the information. Id. at 999. We observed that the charged

and uncharged conduct were dramatically different in that the

charged statute required “only that the defendant personally

used a firearm,” while the uncharged statute required that “the

defendant personally discharged a firearm.” Id. (emphases

and internal quotation marks omitted). Moreover, the

charged offense was punishable by a ten-year sentencing

enhancement and the uncharged offense was governed by a

“twenty-five-year-to-life . . . enhancement.” Id.

Further compounding the error in Gautt, “the trial court

confused the two statutes when time came to instruct the

jury” and erroneously informed the jury about the additional

elements unique to the uncharged offense. Id. The parties

did not object to the trial court’s instruction and the

prosecution relied on the instruction in its closing argument.

See id. at 999 n.5, 1000. Additionally, “[t]he pattern of

adequate notice of the possibility of conviction on an aiding-and-abetting

theory.” Id. Therefore, Lopez is distinguishable and does not show that

the requirement of adequate notice is not clearly established. However,

we need not—and do not—decide whether the requirement of notice of

the prosecution’s theory of a felony-murder special circumstance is

otherwise clearly established, as we conclude that such notice was

provided here.

CAIN V. CHAPPELL 19

statutory confusion and conflation that began with the trial

judge’s instructions to the jury repeated itself when the jury

completed its verdict form. . . .” Id. at 1000. Specifically, the

verdict form cited the charged statute, but listed elements

unique to the uncharged statute. See id. at 1001. Finally, the

abstract of judgment “listed . . . the ten-year enhancement . . .

as the basis for a sentence enhancement,” but “also stated that

[the petitioner’s] sentence was to be enhanced twenty-five

years to life-the applicable enhancement under” the

uncharged statute. Id.

In concluding that the state appellate court unreasonably

determined that the petitioner received adequate notice, we

emphasized:

This is not a situation . . . in which the

numerical citation was incorrect but the verbal

description of the crime corresponded to the

crime of which the defendant was convicted.

Nor is this a situation in which citation to one

statute necessarily encompassed another

lesser-included offense, thus sufficiently

putting the defendant on notice of the need to

defend against both statutes. . . .

Id. at 1007 (citation omitted). We criticized the state

appellate court because it “never actually scrutinized the

information to see if it contained any factual allegations that

would have sufficiently informed [the petitioner]” of the

uncharged conduct. Id. at 1005. The state appellate court

also never explained “how exactly this triumvirate-the

evidence, the jury instructions, and the closing argument-

provided [the petitioner] with sufficient notice.” Id. (footnote

reference omitted). Additionally, the state appellate court

20 CAIN V. CHAPPELL

“did not acknowledge the multiple discrepancies that existed

between the information, the jury instructions, the verdict

form, and the ultimate sentence.” Id. at 1006. Based on the

state appellate court’s “critical oversight,” we opined that the

petitioner’s “constitutional right to be informed of the charges

against him was violated by this stark discrepancy between

the crime charged and the crime of conviction. . . .” Id. at

1008.

Although we eschewed express reliance on other sources,

such as trial evidence, jury instructions, and closing

arguments, to assess whether the petitioner received adequate

notice of the charges, see id. at 1008–09, we nonetheless

“assume[d]-without deciding-that such sources can be parsed

for evidence of notice to the defendant.” Id. at 1010.

Nevertheless, we concluded that, even considering these

sources, the petitioner received constitutionally inadequate

notice. See id. We observed that the trial evidence did not

focus on the petitioner’s intent as required under the

uncharged statute; the jury instructions were muddled and

provided minimal indication that the uncharged offense was

at issue; and the prosecution’s closing argument was too

flawed regarding the intent required for the uncharged offense

to provide adequate notice of the uncharged offense. See id.

at 1011–13.

Unlike in Gautt, the California Supreme Court in this case

did not unreasonably conclude that Cain received

constitutionally adequate notice of the attempted rape special

circumstance. The second amended information did not

explicitly charge Cain with an attempted rape special

circumstance, but alleged that Cain “engaged in the

commission of rape in violation of Penal Code Section 261,

within the meaning of Penal Code Section 190.2(a)(17).”

CAIN V. CHAPPELL 21

The provisions of Cal. Penal Code § 190.2(a)(17) in effect at

the time of Cain’s trial specified that a special circumstance

may be based on the defendant’s attempted commission of

rape:

The penalty for a defendant found guilty of

murder in the first degree shall be death or

confinement in state prison for a term of life

without the possibility of parole in any case in

which one or more of the following special

circumstances has been charged and specially

found . . . to be true: The murder was

committed while the defendant was engaged

in or was an accomplice in the commission of,

attempted commission of, or the immediate

flight after committing or attempting to

commit . . . Rape in violation of Section 261.

Cal. Penal Code § 190.2(a)(17)(iii)(West 1987). Thus, the

allegations premised on Cal. Penal Code § 190.2(a)(17)

sufficiently apprised Cain that the special circumstance

explicitly applied to rape and to attempted rape. See Gautt,

489 F.3d at 1003–04 (explaining that “the charging document

need not contain a citation to the specific statute at issue; the

substance of the information, however, must in some

appreciable way apprise the defendant of the charges against

him so that he may prepare a defense accordingly”) (footnote

reference omitted). Moreover, as described in Gautt, Cain’s

case is “a situation in which citation to one statute necessarily

encompassed another lesser-included offense,” thereby

providing additional notice to Cain of the attempted rape

special circumstance. Id. at 1007 (citation omitted); see also

People v. Atkins, 25 Cal. 4th 76, 88 (2001) (noting that

attempted rape is a lesser included offense of rape under

22 CAIN V. CHAPPELL

California law). Importantly, Cain’s counsel fully

acknowledged that he was not surprised by the prosecution’s

reliance on attempted rape as a special circumstance, and did

not argue that Cain was prejudiced by the prosecution’s

reliance on attempted rape as a special circumstance.

The California Supreme Court reasonably concluded that

Cain received adequate notice of the special circumstance.

Thus, Cain is not entitled to habeas relief on his claim that he

failed to receive adequate notice of the special circumstance

or his claim that the prosecutor improperly presented the

special circumstance to the jury. Cf. Gautt, 489 F.3d at

1007.3

B. Uncertified Claims

“To expand the certificate of appealability, [Cain] must

make a substantial showing of the denial of a constitutional

3

Any error in failing to provide Cain adequate notice of the attempted

rape special circumstance was likely harmless. See Gautt, 489 F.3d at

1016–17 (applying harmless error review). Cain does not challenge the

jury’s verdict that he was death-eligible based on the multiple murder,

burglary, and robbery special circumstances. Due to the weight of the

aggravating circumstances and the unchallenged special circumstances,

“we are not left with grave doubt about whether the jury’s consideration

of the [allegedly] invalid special circumstance[] had a substantial and

injurious effect on the jury’s verdict,” particularly as “the presentation of

evidence and argument during the penalty phase would not have been

materially different.” Beardslee v. Brown, 393 F.3d 1032, 1044 (9th Cir.

2004). The jury independently considered the special circumstances

applicable to Mr. Galloway’s murder, which did not implicate the

attempted rape special circumstance. See Brown v. Sanders, 546 U.S.

212, 223–25 (2006) (upholding capital sentence against a constitutional

challenge where a California jury considered four special circumstances

findings, two of which were later invalidated).

CAIN V. CHAPPELL 23

right, accomplished by demonstrating that jurists of reason

could disagree with the district court’s resolution of his

constitutional claims . . .” Turner v. McEwen, 819 F.3d 1171,

1178 n.2 (9th Cir. 2016) (citation and internal quotation

marks omitted). Although we conclude that Cain has met that

standard for the claims discussed below, we deny each of the

claims on the merits.

1. Guilt-Phase Ineffective Assistance of Counsel

“Ineffective assistance of counsel claims are evaluated

according to the familiar standard set forth in Strickland.”4

Mann, 828 F.3d at 1152. “To receive relief under this

standard, first, the defendant must show that counsel’s

performance was deficient.” Id. (citation, alteration, and

internal quotation marks omitted). “Second, the defendant

must show that the deficient performance prejudiced the

defense.” Id. (citation omitted). “Unless a defendant makes

both showings, it cannot be said that the conviction or death

sentence resulted from a breakdown in the adversary process

that renders the result unreliable.” Id. (citation omitted).

“Judicial scrutiny of counsel’s performance must be highly

deferential, and a court must indulge a strong presumption

that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. (citation and internal

quotation marks omitted).

a. Counsel’s Concession of Cain’s Guilt

Cain contends that he was deprived of effective assistance

of counsel because his counsel conceded at trial that Cain had

the specific intent to commit burglary. Cain maintains that

4

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

24 CAIN V. CHAPPELL

his counsel pursued an ill-informed strategy in admitting

Cain’s guilt on the burglary counts because Cain never

confessed to burglary.

The California Supreme Court denied this claim on direct

review. See Cain, 892 P.2d at 1241. The Court concluded:

Defendant also appears to argue his counsel’s

concessions were an incompetent tactical

choice. We disagree. Defendant admitted to

the police on tape he was inside the victims’

residence when they were murdered and he

entered the residence with the intent to steal

money. His taped statement was played to the

jury. Defendant’s admission that he entered

the residence for the purpose of stealing

money proved his specific intent to commit

burglary. Under the felony-murder rule, his

commission of burglary, together with the

killing of the victims in the commission of the

burglary, made him liable for murder. Under

these circumstances, we cannot conclude

counsel was ineffective for candidly admitting

defendant’s guilt on these counts while

vigorously arguing against defendant’s guilt

of the special circumstances.

Id. (citations omitted).

“In assessing adequacy of representation, we are required

not simply to give the attorneys the benefit of the doubt, but

to affirmatively entertain the range of possible reasons

defense counsel may have had for proceeding as he did. . . .”

Gallegos v. Ryan, 820 F.3d 1013, 1030 (9th Cir. 2016) (citing

CAIN V. CHAPPELL 25

Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011)

(alterations, and internal quotation marks omitted). At trial,

Cain’s counsel “was confronted with an exceedingly difficult

task in formulating a defense” given Cain’s admissions

during his taped confession and the evidence against him. Id.

at 1018. We have recognized that:

As a strategic matter, disputing [the

petitioner’s] involvement in the crime would

have been unpersuasive given the evidence,

and [counsel’s] acknowledgment of his

client’s guilt in the killing could reasonably

have been intended to establish credibility

with the jury in the face of horrendous

facts. . . .

Id. at 1027 (citations omitted). In light of the evidence

against Cain and his admissions of guilt, Cain “suggests no

alternate theory, let alone one more likely to succeed than the

one chosen” by his counsel. Id. at 1029. Indeed, the inability

of Cain’s counsel “to avoid a conviction of a predicate

offense was unrelated to any allegedly deficient conduct” and

convincing the jury that Cain was not guilty of felony murder

“would have been an exceedingly difficult task for even the

most skilled attorney.” Id. at 1035. Rather, Cain’s counsel

focused on Cain’s defense theory that, although involved in

the crimes, he never participated in the actual killings of the

Galloways and lacked the intent to kill required for the jury

to find any of the alleged special circumstances to be true.

Relying on this theory, Cain’s counsel could have made a

reasonable strategic calculation not to contest the strong

evidence of Cain’s guilt for felony murder, but instead, to

focus on avoiding a capital sentence for Cain. See Florida v.

Nixon, 543 U.S. 175, 190–92 (2004). Thus, “[a]bsent any

26 CAIN V. CHAPPELL

defense that could have promised a greater chance of success,

we cannot conclude that [Cain’s counsel] was deficient for

choosing the one he did. The choice to pursue a bad strategy

makes no comment on an attorney’s judgment where no

better choice exists.” Gallegos, 820 F.3d at 1029 (citation

and internal quotation marks omitted).

Cain also asserts that the California Supreme Court’s

determination that Cain admitted entering the Galloways’

residence with intent to commit burglary was unreasonable.

According to Cain, he never admitted that he entered the

Galloways’ home to steal money. However, even if the

California Supreme Court was wrong that the tape recordings

of Cain’s police interview include an explicit admission that

he went into the Galloway’s home with an intent to steal on

the night of the killings, there remains sufficient evidence for

the court to have concluded that Cain harbored such an intent.

Indeed, on the tape Cain admitted that he did want to steal

from the Galloways the next morning, and testimony was

offered that he did (and did intend to) steal from them the

night before as well. “[Section] 2254(d)(2) requires that we

accord the state trial court substantial deference.” Brumfield

v. Cain, 135 S. Ct. 2269, 2277 (2015) “If reasonable minds

reviewing the record might disagree about the finding in

question, on habeas review that does not suffice to supersede

the [state] court’s determination. . . .” Id. (citation, alteration,

and internal quotation marks omitted). The record reflects

that Cain admitted to being inside the Galloways’ residence

during the murders. The trial testimony also reflected that

Cain suggested to Mendoza that they burglarize the Galloway

residence so that he could “get thousands,” and that he

possessed a large sum of money after the murders. The state

court’s denial of this claim was not contrary to, nor did it

involve an unreasonable interpretation of Strickland. See

CAIN V. CHAPPELL 27

Strickland, 466 U.S. at 690 (clarifying that counsel’s tactical

decisions are “virtually unchallengeable”).

b. Failure To Object To Attempted Rape

Special Circumstance

Cain contends that his counsel was ineffective because he

did not object to the attempted rape special circumstance.

Rejecting Cain’s claim on direct review, the California

Supreme Court concluded:

We doubt, moreover, whether the principal

error alleged, i.e., counsel’s failure to claim

surprise and prejudice where there was none,

could be considered constitutionally deficient

performance even if prejudicial. Effective

assistance does not require counsel to refrain

from frankness and honesty in his or her

dealings with the court. . . .

Cain, 892 P.2d at 1249 n.17 (citations and internal quotation

marks omitted). The district court ruled that the state court

“was not unreasonable in holding that [Cain] had adequate

notice” of the attempted rape special circumstance, or in

finding counsel’s performance to be adequate. We agree

because counsel’s performance did not fall below an

objective standard of reasonableness in acknowledging the

portent of the state statutory provisions. See United States v.

Cronic, 466 U.S. 648, 656 n.19 (1984) (observing that “the

Sixth Amendment does not require that counsel do what is

impossible or unethical. If there is no bona fide defense to

the charge, counsel cannot create one and may disserve the

28 CAIN V. CHAPPELL

interests of his client by attempting a useless charade.”)

(citation omitted).

c. Failure To Investigate and Present

Voluntary Intoxication and Mental Health

Defenses

Cain describes his counsel as ineffective because he failed

to investigate and present a voluntary intoxication defense

during the guilt phase of the trial, premised on Cain’s cocaine

use and neurological deficits.

On direct review, the California Supreme Court observed:

Defendant further contends trial counsel did

not present even a minimally effective

argument on the undisputed use of alcohol

and drugs on the night in question. Counsel

did briefly argue there was no intent to kill

because defendant was obviously under the

influence of alcohol and drugs. Belaboring

this point would have risked appearing to

concede defendant was the killer, which

would have conflicted with and detracted

from counsel’s primary argument, that

(consistent with his police statement)

defendant had not killed anyone, planned to

kill anyone or assisted in killing anyone in the

burglary. In addition, almost no evidence was

presented regarding the quantity and effects of

the drugs consumed by defendant on the night

of the murders or the effect consumption had

on defendant. Defendant thus cannot

demonstrate either deficient performance or

CAIN V. CHAPPELL 29

prejudice in his counsel’s argument relating to

this subject.

Cain, 892 P.2d at 1255 (internal quotation marks omitted).

The California Supreme Court summarily denied Cain’s more

developed ineffective assistance of counsel claim on habeas

review, that was not limited to diminished capacity on the

night of the murders.5

The district court held that the California Supreme

Court’s summary denial of Cain’s claim was not

unreasonable because “[t]he court may have reasonably

concluded on habeas review that counsel reasonably relied on

expert opinion in not presenting an intoxication or diminished

capacity defense.”

Cain’s counsel was provided a psychological evaluation

from Dr. Theodore Donaldson prior to trial. According to Dr.

Donaldson, Cain “denied the use of illegal drugs or alcohol.”

Additionally, the district court referenced a report from Dr.

Ronald Siegel concerning tests of Cain’s hair for “the

5

Cain maintains that the district court erred in basing its denial of

habeas relief on the California Supreme Court’s summary denial. Cain

asserts that the California Supreme Court’s decision on direct appeal is the

operative decision under the AEDPA. However, the district court only

referenced the summary denial for claims not addressed by the Supreme

Court on direct review. We agree with the district court that the operative

decision is the California Supreme Court’s summary denial because its

decision on direct review did not address Cain’s more fully developed

claim asserting ineffective assistance for failure to propose intoxication

defense instructions for the special circumstance allegations. See Cain,

892 P.2d at 1255; see also Ayala v. Chappell, 829 F.3d 1081, 1094–95

(9th Cir. 2016).

30 CAIN V. CHAPPELL

presence of controlled substances.” As the district court

articulated:

Dr. Siegel’s report, dated May 9, 1988, states

that he interviewed and examined [Cain] on

April 17, 1988. Trial counsel delivered his

guilt-phase closing argument on April 20,

1988. Dr. Siegel’s report states, “Prior to the

events of October 1986, [Cain] reported to me

that he was high on beer and marijuana, but

denied recent use of other substances. The

analyses of hair samples indicated no

detectable amounts of marijuana, cocaine, or

other substances for the past 2.5 years . . .”

(internal quotation marks omitted). Thus, it appears that

Cain’s counsel did consult experts to investigate the efficacy

of intoxication and mental health defenses. And it is not

ineffective for counsel to refrain from pursuing jury

instructions that have no basis in the evidence. See

Clabourne v. Lewis, 64 F.3d 1373, 1381–82 (9th Cir. 1995).

Accordingly, this claim fails on the merits. See Strickland,

466 U.S. at 689 (noting “the wide latitude counsel must have

in making tactical decisions”).

2. Penalty-Phase Ineffective Assistance of

Counsel

Cain asserts that his counsel was ineffective in failing to

investigate and present mitigating evidence based on Cain’s

substance abuse, neurological and psychological problems,

and family background.

CAIN V. CHAPPELL 31

“[B]ecause the state court summarily denied [Cain’s]

penalty phase ineffective assistance claims, we must

determine what arguments or theories could have supported

the state court’s decision; and then we must ask whether it is

possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a

prior decision of the Supreme Court.” Gallegos, 820 F.3d at

1037 (citation, alterations, and internal quotation marks

omitted). In the context of penalty-phase ineffective

assistance of counsel, we have acknowledged that “the

standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is

doubly so.” Cummings v. Martel, 796 F.3d 1135, 1148 (9th

Cir. 2015) (citation and alteration omitted). “The multiple

layers of deference create a standard that is difficult to meet,

and even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable. . . .” Id.

(citation and internal quotation marks omitted).

“The first step in determining whether counsel’s deficient

performance prejudiced the defendant at the penalty phase is

evaluating the totality of the available mitigation

evidence. . . .” Andrews v. Davis, Nos. 09-99012, 09-99013,

— F.3d —, 2017 WL 3255161, at *16 (9th Cir. Aug. 1, 2017)

(citation and internal quotation marks omitted). After the

mitigating evidence is identified, a court weighs the strength

of the mitigating evidence “by assessing its likely impact on

a jury. This weighing process includes evaluating whether its

impact on the jury might be aggravating rather than

mitigating.” Id. at *17. Courts may “consider the fact that

mitigation may be in the eye of the beholder, and juries may

find that some evidence offered as mitigation cuts the other

way.” Id. (citation and internal quotation marks omitted).

We have also noted the Supreme Court’s observation that “on

32 CAIN V. CHAPPELL

one hand, a jury could react with sympathy over the tragic

childhood of the defendant, while on the other hand, the same

testimony could establish the defendant’s unpredictable

propensity for violence that resulted in murder.” Id. (citation,

alteration, and internal quotation marks omitted). “Similarly,

evidence of mental and emotional problems might suggest an

increased likelihood that a defendant would be dangerous in

the future. . . .” Id. (citation omitted).

“The second step in determining whether counsel’s

deficient performance prejudiced the defendant at the penalty

phase is evaluating the weight of the aggravating evidence

and any rebuttal evidence that the government could have

adduced had the mitigating evidence been introduced.” Id.

(citations omitted). “Aggravating evidence may include

evidence relating to the circumstances of the crime. Thus in

Strickland, the Court found the aggravating evidence to be

overwhelming where the defendant had repeatedly stabbed

the three murder victims during a robbery. . . .” Id. (citation

and internal quotation marks omitted). “Rebuttal evidence

may also directly undermine the value of the mitigation

evidence.” Id. at *18. “For example, the Supreme Court

[has] noted . . . . that it would be of questionable mitigating

value for defense counsel to introduce expert testimony

diagnosing a defendant with bipolar mood disorder and

seizure disorders, because such evidence would invite rebuttal

by a state expert, who could reject the diagnosis of bipolar

disorder and offer a different diagnosis of antisocial

personality disorder.” Id. (quoting Pinholster, 131 S. Ct. at

1410) (internal quotation marks omitted).

The third and final step in assessing prejudice at the

penalty phase “is to reweigh the evidence in aggravation

against the totality of available mitigating evidence, in order

CAIN V. CHAPPELL 33

to determine whether there is a reasonable probability that,

absent the errors, the sentencer would have concluded that the

balance of aggravating and mitigating circumstances did not

warrant death.” Id. (citations, alteration, and internal

quotation marks omitted). “A reasonable probability is a

level of probability that undermines confidence in the

outcome. . . .” Id. (citation, alteration, and internal quotation

marks omitted). “The likelihood of a different outcome must

be substantial, not just conceivable.” Id. (citation and

alteration omitted). “The Court has found a reasonable

probability of a different outcome when scant and weak

aggravating evidence could have been presented in rebuttal to

strongly mitigating evidence.” Id. (citation omitted). “By

contrast, the Court has found no prejudice when the

aggravating evidence is overwhelming, even though the

mitigating evidence is strong.” Id. (citation omitted).

Prior to trial, defense counsel retained Dr. Donaldson to

conduct a psychological evaluation. Dr. Donaldson observed

that “there were no indications of a thought disorder.” Dr.

Donaldson conveyed that:

For the most part, results of psychological

testing were highly consistent among tests and

with the clinical impression. There were no

indications of significant psychopathology nor

indications of significant ego deficits or

inadequacies in reality testing. The tests are

most remarkable in a general lack of

indications of serious psychological problems.

Testing did indicate the existence of

significant situational stress . . . Mr. Cain

appears as an emotionally unstable personality

34 CAIN V. CHAPPELL

characterized by poorly controlled anger and

a tendency to temper outburst.

Dr. Donaldson concluded:

Mr. Cain displays many of the features of

sociopathy, although that is too simple a

diagnosis, and there are also hysteroid and

narcissistic features as well. His antisocial

acting out appears to have not started until he

was in his late teens, but indications are that

this acting out has increased in frequency and

severity at a rapid rate. This suggested the

possibility of central nervous system

dysfunction, but none was found in this

evaluation, although that part of the

evaluation was somewhat limited.

Nonetheless, there were certainly no

indications of gross brain disorder. Mr. Cain

seems predisposed to episodic and violent

acting out, and there are no indications in this

evaluation that such episodes are the result of

dissociation or psychosis.

Based on Dr. Donaldson’s evaluation, Cain’s counsel may

have seen limited utility in presenting a defense premised on

Cain’s mental state. Dr. Donaldson referred to Cain’s

“sociopathy” and predisposition to “episodic and violent

acting out” that were not the result of any “gross brain

disorder” or psychosis. It would not have been unreasonable

for the California Supreme Court to determine that Cain’s

counsel did perform an investigation and relied on Dr.

Donaldson’s evaluation in deciding to emphasize Cain’s

positive conduct during past incarcerations and his lack of

CAIN V. CHAPPELL 35

premeditation rather than Cain’s troubled background and

psychological impairments.

Cain argues that his counsel also unreasonably failed to

follow up on certain “red flags” raised in Dr. Donaldson’s

report that “suggested the possibility of central nervous

dysfunction,” even though “none was found in [Dr.

Donaldson’s] evaluation” and Dr. Donaldson concluded that

there were “certainly no indications of gross brain disorder.”

In support, Cain submitted a declaration from Dr. Donaldson

more than a decade later stating that he “recall[ed] advising

[Cain’s counsel] that he might want to have Mr. Cain

examined by a neuropsychologist.” Given Dr. Donaldson’s

general difficulty remembering the details of his interactions

with Cain’s counsel, it would be reasonable to doubt whether

that recommendation was ever made. But even if Dr.

Donaldson’s assertion is accepted as true, the state court

could reasonably conclude that not all competent attorneys

would pursue additional expert testing based on Dr.

Donaldson’s mere suggestion that certain dysfunctions “may”

or “might” exist, especially where Dr. Donaldson’s own

report found no evidence of such dysfunctions. See, e.g.,

Leavitt v. Arave, 646 F.3d 605, 609–10 (9th Cir. 2011)

(concluding that an attorney was not required to pursue “red

flags” in a medical report that could only be ruled out through

further testing, given the other conclusions in the report that

other causes were more likely); see also West v. Ryan,

608 F.3d 477, 488–89 (9th Cir. 2010) (same); Pinholster, 131

S. Ct. at 1406–07 (acknowledging that defense counsel may

reasonably determine that a particular investigation is

unnecessary).

Admittedly, the social and psychological evaluations

conducted after Cain’s conviction indicate that Cain was not

36 CAIN V. CHAPPELL

a typical child. For example, a social history and evaluation

conducted by Dr. Stanley Huey reflects the troubled criminal

and psychological history of Cain’s mother who died at

Jonestown, the difficulties that Cain’s stepmother had in

taking care of the family’s numerous children; the severe

beatings and punishment meted out by his stepmother; Cain’s

untreated head injury in his childhood; and Cain’s learning

disabilities. Although Cain’s social and psychological

histories may have provided potential mitigating

circumstances, the additional background information is not

sufficiently compelling to warrant habeas relief. See

Cummings, 796 F.3d at 1148–50. Additionally, Cain’s social

and psychological histories could have “opened the door to

inflammatory and prejudicial aggravating evidence.” Id. at

1150. Moreover, in light of the aggravating circumstances

involving the brutal murders of a couple in their sixties, the

thirteen blows administered to Mr. Galloway, the attempted

rape of Mrs. Galloway, and Cain’s prior violent acts, the state

court’s denial of this claim was not unreasonable. See

Andrews, 2017 WL 3255161, at *18 (observing that “the

likelihood of a different result must be substantial, not just

conceivable” to establish prejudice) (citation and alteration

omitted); see also Strickland, 466 U.S. at 687 (clarifying that

to establish prejudice a defendant must show that he was

deprived of a fair trial). For the same reason, Cain’s

intoxication and substance abuse mitigation claims lack

merit.6

6

Cain also contends that the district court erroneously denied his

request for an evidentiary hearing because Cain demonstrated a prima

facie case that the state court unreasonably rejected his ineffective

assistance of counsel claim. However, “so long as we are reviewing a

petitioner’s claim under AEDPA, our review is limited to the facts before

the state court and the petitioner is not entitled to an evidentiary hearing

CAIN V. CHAPPELL 37

3. Atkins7 Claim

Cain asserts that the California Superior Court

unreasonably denied his Atkins claim because Cain

demonstrated that he was intellectually disabled based on an

IQ of 71 when considering Cain’s adaptive deficits and the

Flynn effect.8

The California Supreme Court issued an order to show

cause why Cain’s death sentence should not be vacated under

Atkins. In the subsequent Superior Court hearing on the order

to show cause, two psychologists testified concerning Cain’s

alleged intellectual disability—Dr. Ricardo Weinstein and Dr.

Efrain Beliz, Jr. Dr. Weinstein had evaluated approximately

thirty-five individuals to determine if they were intellectually

disabled. After administering several tests to Cain, Dr.

Weinstein determined that Cain had a full scale IQ score of

71. Dr. Weinstein also relied on a prior test from another

psychologist reflecting that Cain had a full scale IQ score of

75. Based on his consideration of the Flynn effect, Dr.

Weinstein deducted points from Cain’s IQ score and

in federal court.” Murray v. Schriro, 746 F.3d 418, 441 (9th Cir. 2014)

(citation omitted).

7

Atkins v. Virginia, 536 U.S. 304 (2002).

8

“The basic premise of the Flynn effect is that because average IQ

scores increase over time, a person who takes an IQ test that has not

recently been normed against a representative sample of the population

will receive an artificially inflated IQ score.” Smith v. Ryan, 813 F.3d

1175, 1184 (9th Cir. 2016), as corrected (citation omitted) (emphasis in

the original). “This is because IQ scores are based on a normal

distribution curve, and thus an individual’s score is meaningful only in

relation to the scores of the other people who took the same test. . . .” Id.

(citation omitted).

38 CAIN V. CHAPPELL

determined that Cain was “mildly mentally retarded.” Dr.

Weinstein also relied on Cain’s school records in assessing

Cain’s adaptive behavioral deficits. The records reflected

that Cain had several learning disabilities, particularly in the

areas of verbal abilities, reasoning, and mathematics. Dr.

Weinstein opined that:

from childhood through the time of his current

incarceration, Mr. Cain qualified for a

diagnosis of mild Mental Retardation. IQ

scores fell at or below the 70 to 75 range,

which meets the AAMR [American

Association on Mental Retardation] definition

of intellectual functioning two standard

deviations or more below normal. Moreover,

Mr. Cain’s adaptive functioning met the

AAMR standards for mental retardation.

Dr. Beliz had evaluated approximately 6,000 individuals

to determine if they were intellectually disabled. Dr. Beliz

observed that Cain “has never been diagnosed in the past with

fetal alcohol syndrome or affect, alcohol or drug dependency,

or significant brain damage.” According to Dr. Beliz, in

1977, Cain was administered the Peabody Picture Vocabulary

Test and received “a standard score of 85, which is the low

average range”; a Culture Fair Scale II test with a score of 75;

and a Wechsler Intelligence Scale for Children with a “full

scale score” of 78 and a “performance IQ score of 93.” Dr.

Beliz opined that “the performance IQ score of 93 is

significant because one could not be mentally retarded and

achieve this score on this part of this test.” Dr. Beliz also

noted that Cain received an IQ score of 64 on one test

administered in April, 1977.

CAIN V. CHAPPELL 39

Dr. Beliz observed that, in 1980, Cain received a score of

73 on the Peabody Picture Vocabulary Test and a score of 87

on the Culture Fair Scale II Test. The records indicated that

there was “no evidence of organic brain problems or

impairments in cerebral functioning,” although Cain suffered

from learning disabilities. Dr. Beliz related that Cain “was

never determined to be mentally retarded” in his school

testing.

Dr. Beliz determined that Cain “expresses himself well

and is able to carry on adult conversation. [Cain] was able to

follow instructions, listen attentively for at least 30 minutes,

and carry out instructions.” Cain also “speaks in full

sentences, asks appropriate questions about his environment,

uses regular past tense verbs, modulates his tone of voice

appropriately and provides complex directions to others.”

During Dr. Beliz’s interviews, Cain “did not become

confused, frustrated, or bewildered by test demands” and

Cain “was well oriented with his attention and [his]

concentration [was] not significantly impaired.”

Dr. Beliz administered seven psychological tests to Cain

during his evaluation and he did not adjust Cain’s scores for

the Flynn effect. Dr. Beliz concluded:

Mr. Cain is not mentally retarded. There is

no evidence to suggest that Mr. Cain

has significant cognitive and adaptive

limitations. . . . While test scores on particular

instruments might yield extremely low scores

suggestive of mental retardation, the scores

can only be considered valid if the individual

evaluated is a good fit with test scores. . . . In

Mr. Cain’s case, the fact that he scores low on

40 CAIN V. CHAPPELL

certain tests or that he exhibits soft

neurological findings does not automatically

translate into a diagnosis of mental

retardation, particularly when he does not

exhibit behaviors indicative of significant

cognitive and adaptive limitations or

neurological impairment.

In conclusion, there is absolutely no evidence

for mental retardation. Mr. Cain is able to

survey, organize, and integrate stimuli in a

meaningful manner. Mr. Cain walks, talks,

problem solves, socializes, thinks, reasons and

interacts with others and his environment

without significant difficulty. Cognitive and

adaptive skills are adequately developed and

free from significant impairment. . . .

The California Superior Court determined that Dr.

Weinstein’s testimony “suffer[ed] from a number of

infirmities.” According to the court, Dr. Weinstein relied on

a prior psychological evaluation to support his conclusions,

without acknowledging that the prior evaluation provided that

Cain’s “performance score suggests that he has the

potentiality of operating within the average range of

intellectual abilities” or that Cain’s “low test scores reflected

a possible learning disability,” not an intellectual disability.

Dr. Weinstein also failed to mention that Cain received a

score of 85 on tests administered by the same psychologist.

The California Superior Court observed that Dr.

Weinstein’s application of the Flynn effect was unpersuasive

in Cain’s case because “the observation that there is a trend

in a population toward rising IQ scores, even if credible (an

CAIN V. CHAPPELL 41

assertion which was not proven in this action), does not

support the practice of applying a point correction to the IQ

scores of individual persons.” The court also opined that Dr.

Weinstein applied the AAMR “recommended correction of

5 points twice.”

The California Superior Court articulated that Dr.

Weinstein lacked “significant experience in making

determinations of whether persons are or are not”

intellectually disabled. “More importantly, [Dr. Weinstein]

committed himself to the opinion that the petitioner is

mentally retarded early on in his work on this case, on skimpy

information. Dr. Weinstein’s subsequent work has been

aimed at bolstering that initial opinion instead of objectively

assessing [Cain].” The court concluded that Dr. Weinstein

acted as “an advocate in this case,” and that “Dr. Beliz

provided the only credible expert opinion in this matter.”

The California Superior Court noted that Cain’s interview

with a news reporter after the murders was included in the

record. At the time of the interview, the reporter was

interviewing neighbors of the slain couple, unaware that Cain

was the murderer. The court observed that Cain “understood

the nature of the interview and interacted normally with the

interviewer. [Cain] clearly understood that it was in his best

interests to feign ignorance of the crimes and that he should

minimize his contact with the victims.” According to the

court, there was “no deficit in [Cain’s] mental functioning

observable from this evidence, which was fortuitously

recorded very shortly after the murders.” The court observed

that Cain exhibited the same behavior during his police

interview.

42 CAIN V. CHAPPELL

“[T]he Eighth and Fourteenth Amendments to the

Constitution forbid the execution of persons with intellectual

disability. . . .” Hall v. Florida, 134 S. Ct. 1986, 1990 (2014)

(citation omitted). In order to demonstrate that a defendant

is intellectually disabled “an IQ between 70 and 75 or lower

is typically considered the cutoff IQ score for the intellectual

function prong.” Brumfield, 135 S. Ct. at 2278 (citation and

alteration omitted). The Supreme Court has articulated that

“the medical community defines intellectual disability

according to three criteria: significantly subaverage

intellectual functioning, deficits in adaptive functioning (the

inability to learn basic skills and adjust behavior to changing

circumstances), and onset of these deficits during the

developmental period.” Hall, 134 S. Ct. at 1994 (citations

omitted). The Supreme Court has furthered concluded that

“when a defendant’s IQ test score falls within the test’s

acknowledged and inherent margin of error, the defendant

must be able to present additional evidence of intellectual

disability, including testimony regarding adaptive deficits.”

Id. at 2001. Our general assessment of Cain’s Atkins claim

leads us to conclude that Cain is not entitled to habeas relief.

See Hall, 134 S. Ct. at 2001 (articulating the standard for

determining intellectual disability).9

Cain’s claim turns essentially on a battle of experts

between Drs. Beliz and Weinstein. The state court reviewed

the expert testimony for both in detail, and gave numerous

9

Cain contends that the Supreme Court’s recent decision in Moore v.

Texas, 137 S. Ct. 1039 (2017) suggests that he is entitled to relief on this

claim. However, Moore is not an AEDPA case and thus does not address

the difficult burden Cain bears to prove his entitlement to relief under

AEDPA standards. Morever, having been decided just this spring, Moore

itself cannot serve as “clearly established” law at the time the state court

decided Cain’s claim. See Greene v. Fisher, 565 U.S. 34, 44 (2011).

CAIN V. CHAPPELL 43

specific reasons to support its determination that Dr. Beliz

was more credible. At most, Cain’s arguments might show

that there could have been reasons to credit Dr. Weinstein’s

findings. But this does not overcome his much more difficult

burden under AEDPA to show that the state court acted

unreasonably in concluding that Dr. Beliz’s report was more

credible. See Wood v. Allen, 558 U.S. 290, 301 (2010);

Jamerson v. Runnels, 713 F.3d 1218, 1224 (9th Cir. 2013).

4. Cumulative Error

Cain asserts that he is entitled to habeas relief due to

cumulative error based on a litany of trial errors and

ineffective assistance of counsel. However, Cain is not

entitled to relief on a theory of cumulative error because he

was not “denied . . . a trial in accord with traditional and

fundamental standards of due process.” Chambers v.

Mississippi, 410 U.S. 284, 302 (1973).

IV. CONCLUSION

The California Supreme Court’s determination that Cain

received adequate notice of the attempted rape special

circumstance was not unreasonable. The amended

information specifically alleged a special circumstance

premised on Cal. Penal Code § 190.2(a)(17), which

encompassed attempted rape. Cain’s counsel also

acknowledged that Cain received adequate notice of the

special circumstance and that Cain was not prejudiced by the

prosecution’s arguments premised on attempted rape. Thus,

Cain received constitutionally adequate notice of the special

circumstance. In any event, Cain does not challenge the

jury’s verdict that he was eligible for the death penalty based

on the first-degree murder of Mr. Galloway and the

44 CAIN V. CHAPPELL

associated special circumstances that were entirely unrelated

to attempted rape.

After expanding the certificate of appealability to include

previously uncertified claims, we conclude that, upon further

consideration, these claims lack merit.

AFFIRMED.