Craig Ross v. Ronald Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRAIG ANTHONY ROSS, No. 17-99000

Petitioner-Appellant,

D.C. No.

v. 2:96-cv-02720-

SVW

RONALD DAVIS, Warden, California

State Prison at San Quentin,

Respondent-Appellee. OPINION

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted May 24, 2021

Pasadena, California

Filed March 25, 2022

Before: Mary H. Murguia, Chief Judge, and Kim McLane

Wardlaw and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Wardlaw

2 ROSS V. DAVIS

SUMMARY *

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Craig

Anthony Ross’s habeas corpus petition in a case in which a

jury sentenced Ross to death after convicting him of three

counts of murder, five counts of robbery, and two counts of

rape in concert.

Ross claimed that an erroneous aiding and abetting

instruction allowed the jury to find him guilty of the first-

degree murder counts without making the finding that he had

the intent to kill, and thus the imposition of the death penalty

violated the Eighth Amendment under Enmund v. Florida,

458 U.S. 782 (1982). The panel concluded that the

California Supreme Court on direct appeal reasonably

rejected this claim. The panel wrote that the state court

reasonably concluded that the instructions were adequate for

the jury to make the requisite culpability finding, especially

in light of the exception to the rule of Enmund found in Tison

v. Arizona, 481 U.S. 137 (1987), and Tapia v. Roe, 189 F.3d

1052 (9th Cir. 1999).

Ross also claimed that his trial counsel’s failure to

investigate and present then available mitigation evidence at

the penalty phase was ineffective assistance of counsel in

violation of the Sixth Amendment under Strickland v.

Washington, 466 U.S. 668 (1984). The panel agreed with

the district court that counsel’s performance during the

penalty phase was deficient. But given the entirety of the

*

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

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

ROSS V. DAVIS 3

evidence before the jury, Ross’s disruptive conduct in front

of the jury, and the sure-to-be-admitted rebuttal and

impeachment evidence that would follow introduction of the

mitigation evidence, the panel concluded that the California

Supreme Court reasonably concluded that Ross did not show

a reasonable probability that the result would have been

different but for counsel’s unprofessional errors.

COUNSEL

Norman D. James (argued), Law Office of Norman D.

James, Hamilton, Montana; Jerry L. Newton (argued),

Carmel, California; for Petitioner-Appellant.

Steven E. Mercer (argued) and A. Scott Hayward, Deputy

Attorneys General; James William Bilderback II,

Supervising Deputy Attorney General; Lance E. Winters and

Ronald S. Mathias, Senior Assistant Attorneys General;

Gerald A. Engler, Chief Assistant Attorney General; Rob

Bonta, Attorney General; Office of the Attorney General,

Los Angeles, California; for Defendant-Appellant.

OPINION

WARDLAW, Circuit Judge:

Over forty years ago, Craig Anthony Ross participated

in three brutal gang-involved home invasion robberies in

which three people were murdered. In 1982, a jury

convicted Ross of three counts of murder, five counts of

robbery, two counts of burglary, and one count of rape in

concert. The jury also found that during each offense he was

armed with a firearm, and, as to each count of murder, found

4 ROSS V. DAVIS

special circumstances of robbery-murder, burglary-murder,

and multiple murder. On one of the murder counts, the jury

found a rape-murder special circumstance. At the penalty

phase, the jury returned a verdict of death. Ross now appeals

from the denial of his federal petition for a writ of habeas

corpus.

Two penalty phase claims are before us. First, Ross

claims that an erroneous aiding and abetting instruction

allowed the jury to find him guilty of the first-degree murder

counts without making the finding that he had the intent to

kill, and thus the imposition of the death penalty violated the

Eighth Amendment. See Enmund v. Florida, 458 U.S. 782

(1982). We conclude that the California Supreme Court on

direct appeal reasonably rejected this claim. The state court

reasonably concluded that the instructions were adequate for

the jury to make the requisite culpability finding, especially

in light of the exception to the rule of Enmund found in Tison

v. Arizona, 481 U.S. 137 (1987) and our decision in Tapia v.

Roe, 189 F.3d 1052 (9th Cir. 1999).

Second, Ross claims that his trial counsel’s failure to

investigate and present then available mitigation evidence at

the penalty phase was ineffective assistance of counsel in

violation of the Sixth Amendment under Strickland v.

Washington, 466 U.S. 668 (1984). Though we agree with

the district court that counsel’s failure to perform was

deficient, given the entirety of the evidence before the jury,

Ross’s disruptive conduct in front of the jury and the sure-

to-be-admitted rebuttal and impeachment evidence that

would follow introduction of the mitigation evidence, the

California Supreme Court reasonably concluded that Ross

did not show a reasonable probability that the result would

have been different but for counsel’s unprofessional errors.

ROSS V. DAVIS 5

I.

Throughout his murder trial, Ross was represented by

lead counsel Gerald D. Lenoir, an experienced capital

defense attorney. Lenoir was assisted by co-counsel

H. Elizabeth Harris, who had tried a single prior capital case.

The California Supreme Court in its 1995 opinion in Ross’s

direct appeal, 1 recited the facts related to Ross’s guilt,

People v. Champion, 2 9 Cal. 4th 879 (1995), modified on

denial of reh’g (June 1, 1995), as follows:

1. Murders of Bobby Hassan and His Son,

Eric

On the morning of December 12, 1980,

Mercie Hassan left her home at 849 West

126th Street, Los Angeles, to go to work.

Residing with her were her husband, Bobby

Hassan (an unemployed carpenter who sold

marijuana and sometimes cocaine), and their

four children. Mercie spoke to Bobby on the

telephone between 11:00 and 11:30 that

morning. Bobby normally picked up their

1

Though Ross does not raise any guilt phase claims on appeal, a

summary of the guilt phase evidence is necessary to evaluate Ross’s

penalty phase claims. See Eddings v. Oklahoma, 455 U.S. 104, 112

(1982) (“[T]he Eighth Amendment requires consideration of the

character and record of the individual offender and the circumstances of

the particular offense.”) (internal quotation marks and ellipsis omitted);

Cal. Penal Code § 190.3(a) (stating that a sentencing jury shall take into

consideration, among other relevant factors, “[t]he circumstances of the

crime of which the defendant was convicted . . . and the existence of any

special circumstances”).

2

Ross was jointly tried and convicted for the three murders with his

cousin and fellow gang member Steve Champion.

6 ROSS V. DAVIS

14-year-old son, Eric, from school at noon

and brought him home for lunch.

Sometime around noon, Elizabeth Moncrief,

a nurse working for an elderly woman across

the street from the Hassan residence, saw

Bobby and Eric return home. Half an hour

later, she saw a large gold or cream-colored

Cadillac containing 4 Black males, ages 19–

25, parked in front of the Hassan home.

Moncrief went outside and took a close look

at the car. About five minutes later, she saw

two of the men get out of the car and knock

at the Hassans' door. There was a struggle at

the door, and the two men entered. The other

two men then got out of the car and entered

the house, and someone closed the curtains in

the Hassan residence.

Later, Moncrief saw all four men leave the

house. One was holding a pink pillowcase

with something in it; the others were carrying

paper bags containing unknown items.

Moncrief was able to get a particularly good

look at the last man who left the house, a tall

man with heavy lips, a scar on his face, and

either a chipped tooth or a gap between his

teeth. She paid closer attention to this man

because she had seen him once in Helen

Keller Park, which was just across the street.

Mercie Hassan returned home at about

3:30 p.m. The house had been ransacked.

Part of the lunch she had prepared for Bobby

and Eric was on the floor, along with

ROSS V. DAVIS 7

wrapping paper from the children's

Christmas presents. Several of the presents

were missing, as were some colored

pillowcases and a .357-caliber Ruger

Security Six revolver. Police, called to the

scene, found the bodies of Bobby and Eric

Hassan in the bedroom, lying on the bed.

Each had been shot once in the head. Bobby's

hands were tied behind his back, and three

rings and a necklace he customarily wore

were missing.

Defendant Champion was arrested on

January 9, 1981. When arrested, he was

wearing a yellow metal ring with white

stones and a gold chain necklace that

contained a charm bearing half of a king-of-

hearts playing card. Mercie Hassan

identified the ring and charm as belonging to

her husband, Bobby. Latent fingerprints

lifted from the Christmas wrapping paper and

from a white cardboard box matched

defendant Ross's fingerprints.

[. . .]

A ballistics expert testified that Bobby

Hassan was killed by a .357-caliber bullet

with rifling characteristics; the latter are

produced by the gun that fired the bullet, and

were described by the expert as “six lands and

grooves with a left hand twist.” The expert

also testified that most Colt revolvers

produce these particular characteristics. The

prosecution produced photographs, found in

8 ROSS V. DAVIS

defendant Champion's home, showing each

defendant holding a Colt revolver. [. . .]

2. The Murder of Michael Taylor

During the evening of December 27, 1980,

three men came to the door of Cora Taylor's

apartment at 11810 ½ Vermont Avenue, not

far from the Hassan home. Residing with

Cora were her son Michael (who sold

marijuana) and her daughter Mary. The men,

one of whom Cora identified at trial as

defendant Ross, walked into the living room

and asked to speak to Michael. When

Michael and Mary came out of the next room,

accompanied by William Birdsong, a friend

who was visiting, one of the men, whom Cora

and Mary later identified as Evan Malett,

grabbed Birdsong. A struggle ensued, which

ended when Malett drew a gun and ordered

Cora, Mary, Michael, and Birdsong to sit on

the bed. Malett then demanded money and

drugs. When Mary said they did not have

any, one of the three men hit her in the jaw

with his fist. The men then ordered the

Taylors and Birdsong to lie face down on the

bed, opened Cora's purse, and ransacked the

premises. While the three robbers were

rummaging through the apartment, a fourth

man (apparently a lookout) came to the door

but did not enter.

At Cora's urging, Michael told the robbers

that there was money in a box in the kitchen.

At that point one of the men, whom Mary

ROSS V. DAVIS 9

later identified as defendant Ross, grabbed

Mary by the hair and forced her to go into the

bathroom, where he raped her. He then left

the bathroom, returning moments later to

rape Mary again. Thereafter, Malett entered

the bathroom and unsuccessfully tried to rape

Mary.

The three men then ordered Birdsong and

Cora to join Mary in the bathroom. A short

time later, Cora and Mary heard a shot. After

a few minutes, they left the bathroom and

found Michael in the living room, dead. A

prosecution expert testified that Michael had

died from a single shot from a high-powered

weapon (such as a .357 magnum), fired at

close range. The agent also testified that the

gun used to kill Bobby Hassan could not have

been the murder weapon, but that the bullet

could have been fired by the .357-caliber

Ruger stolen from the Hassan home.

Missing from the Taylor's apartment was an

8-track tape player. Also missing was a

Christmas present—a photo album—which

had been taken out of its wrapping.

Later that night, shortly after midnight, Los

Angeles County Deputy Sheriff Ted Naimy

saw a brown Buick automobile that contained

four Black males and did not have its

headlights turned on in the neighborhood

where Michael Taylor had been murdered.

As the Buick pulled alongside of him, Deputy

Naimy and his partner ordered it to stop.

10 ROSS V. DAVIS

Instead, the car sped away. As the deputies

pursued the Buick, it went out of control,

struck a curb, and came to a halt. Its four

occupants jumped out of the car and ran.

Inside the car, the deputy found the 8-track

tape player stolen from the Taylor apartment

and the .357-caliber Ruger revolver stolen

from the Hassan home. The gun contained

two live rounds and an empty shell casing,

and smelled as if it had recently been fired.

Under the car, Deputy Naimy found the

photograph album stolen from the Taylors.

Police searched the neighborhood for the

occupants of the Buick. They found Evan

Malett hiding in a backyard of a nearby

house, in which defendant Champion was

living.

Natasha Wright, the Taylors' next-door

neighbor, identified defendant Ross at trial as

one of the men she saw arrive at the Taylors'

apartment. Prosecution experts testified that

two latent fingerprints lifted from the bathtub

in the Taylors' apartment belonged to Ross,

and that spermatozoa found on Mary's pants

were consistent with Ross's blood type,

which is shared by roughly 11 percent of the

population. [. . .]

3. Other Prosecution Evidence at the Guilt

Phase

[. . .]

ROSS V. DAVIS 11

The prosecution also offered expert

testimony that both defendants were

members of the Raymond Avenue Crips, a

gang whose territory encompassed the houses

where the murders occurred; that defendant

Ross's nickname in the gang was “Little Evil”

or “Evil;” and that defendant Champion's

gang nickname was “Trecherous,” “Trech,”

or “Mr. Trech,” all standing for treacherous.

[. . .]

In addition, the prosecution introduced a tape

recording of a conversation between

defendants that took place in a bus

transporting them from jail to court.

[. . .]

In the two tape-recorded conversations,

which contained numerous profanities,

defendants fantasized about taking a “stroll”

out of the jail and about “blow [ing] up” the

driver of the transport van and escaping.

They spoke in derogatory terms of a man

named Ishimoto, apparently a guard at the

jail, calling him a “little Jap,” a “Buddha head

motherfucker,” and a “little bastard Buddha

head.” Their conversations also included the

following interchange, in which they talked

about Bobby Hassan, Jr., the son of victim

Bobby Hassan and a “junior member” of

defendants' gang, the Raymond Avenue

Crips. . . . According to the prosecution, in

this interchange defendants discussed

whether Bobby Hassan, Jr., had told the

12 ROSS V. DAVIS

police about defendants' participation in the

murder of his father and brother, and

discussed whether the bed on which victims

Bobby and Eric Hassan were lying when they

were shot was a waterbed:

CHAMPION: “Man, shit. I saw that mother

fucker Bobby Hassan.

ROSS: “Bobby Hassan what you mean?

CHAMPION: “His father—the one that got

killed.

ROSS: “A picture?

CHAMPION: “No, I saw him. He's in the

courtroom.

ROSS: “What you mean? He's dead.

CHAMPION: “No (inaudible) (laughs) the

other (inaudible).

ROSS: “Oh, the Raymond Crip.

CHAMPION: “Yeah.

CHAMPION: “He always be at all the courts,

Cuz.

ROSS: “Yeah?

ROSS V. DAVIS 13

CHAMPION: “(Laughs) Him and his mother

. . . his other brother and shit. I look at him

raw—the mother fucker (laughs).

ROSS: “He's in court (inaudible)?

CHAMPION: “Yeah, he be at all my courts.

I look at him raw, the mother fucker (laughs).

I was sleepy and just woke up . . .

ROSS: “He ain't never said nothing?

CHAMPION: “No, he's a punk ass.

ROSS: “They supposed to be witnesses?

CHAMPION: “No, they just come to see

what's happening with me. (Laughs) See if

I'm going to get convicted and shit.

ROSS: “(Inaudible)

CHAMPION: “(Inaudible)

ROSS: “Was that a waterbed in that room?

CHAMPION: “Uh-uh.”

Defendant Ross offered no evidence at the

guilt phase.

Champion, 9 Cal. 4th at 898–901, 909–10.

After one day of deliberation, the jury found Champion

and Ross guilty of burglarizing the Hassan home and

14 ROSS V. DAVIS

robbing and killing Bobby and Eric Hassan. It also

convicted Ross of burglarizing the Taylor residence, of

robbing Cora, Michael, and Mary Taylor, of raping Mary,

and of murdering Michael. As the verdicts were being read,

Ross and Champion rose and attempted to leave the

courtroom, participating in the following exchange with the

trial court:

THE COURT: Mr. Champion, Mr. Ross,

we’re not finished.

CHAMPION: Not no more to hear.

THE COURT: Have a seat until we finish

reading the verdicts. Mr. Champion, Mr.

Ross—

CHAMPION: What more I gotta hear? I ain’t

got no more to hear.

THE COURT: We have further proceedings.

Mr. Ross, Mr. Champion, have a seat.

CHAMPION: I ain’t sitting down in this

court. Let me go back in there.

THE COURT: Mr. Ross, Mr. Champion,

have a seat.

CHAMPION: I’m not sitting down, your

Honor, simple as that.

THE COURT: All right. Ladies and

gentlemen of the jury, I’m going to excuse

you at this point from the courtroom. Want

ROSS V. DAVIS 15

you to go into the jury room just a few

minutes. Do not discuss this case—

(The defendants resume their seat at counsel

table).

THE COURT: All right. It will not be

necessary at this time. Continue reading the

verdicts.

As the verdicts continued to be read, Ross and Champion

again rose and were escorted out of the courtroom after the

following exchange:

THE COURT: Mr. Champion, Mr. Ross—

CHAMPION: Fuck that, man. Get out this

mother fucker, man.

The California Supreme Court also recited the evidence

presented at the penalty phase:

At the penalty phase of the trial, the

prosecution presented the following evidence

of violent criminal conduct involving

defendant[] Ross.

[. . .]

On July 29, 1977, Mark Howard, a gang

member, was in Helen Keller Park when

Walter Gregory approached and said that

defendant Ross wanted to talk to him.

Howard walked to another part of the park

and spoke to Ross, who was with a group of

16 ROSS V. DAVIS

people. Ross demanded that Howard return

a radio that Howard had taken from Gregory.

Howard said he took the radio because

Gregory owed him money. When Howard

refused to return the radio, Ross produced a

revolver, and said that if Howard did not

return the radio he would blow Howard's

head off. Howard then slapped Ross,

whereupon Ross shot Howard six times in the

stomach and the chest. Howard recovered,

but a bullet remains lodged close to his spine,

and his ability to use his left leg is seriously

impaired. As a result of this incident,

defendant Ross entered a plea of guilty to a

charge of assault with a deadly weapon, and

was sentenced to three years in prison. [. . .]

Champion, 9 Cal. 4th at 901–04.

Though Ross’s defense counsel failed to call any

witnesses in mitigation, they did introduce three pieces of

evidence by stipulation and judicial notice. 3 First, the parties

stipulated that, if called, the prosecution’s gang expert would

have testified that Mark Howard, who had been another

shooting victim of Ross, was previously a “peripheral

member” of two different gangs. This evidence impeached

Howard, who had testified he was never a member of a gang.

Second, the parties stipulated that Ross was twenty-one

years old at the time of the three murders. Finally, at

defendants’ request, the trial court took judicial notice that a

jury had found Evan Malett guilty of eight felonies for his

role in the Taylor home invasion murder, that one of the

3

The California Supreme Court incorrectly stated that “Ross offered

no evidence at the penalty phase.” Champion, 9 Cal. 4th at 904.

ROSS V. DAVIS 17

felonies was first degree murder with the personal use of a

firearm, and that the total sentence Malett received was

46 years to life imprisonment. At the prosecution’s request,

the court also took judicial notice that the jury in Malett’s

case was instructed that personal use of a firearm included

merely displaying the firearm or striking someone with it,

and that the jury found not true the allegation that Malett

personally inflicted great bodily injury on Taylor.

Arguing for the death sentence, the prosecutor asserted

that Ross continued to present a danger to society. The

prosecutor relied not only on Ross’s recorded statements

about committing a violent escape from custody, but also

“the display that was put on . . . when the verdicts were

rendered.” According to the prosecutor, when the verdicts

were being read, “Mr. Ross engaged in a confrontation with

the guards here and almost got into a fight with them.” As a

result, Ross was not “the kind of person from whom we can

protect not only the society outside of prison but society

inside prison by incarcerating him for the rest of his life.”

The prosecutor also emphasized the “brutal and cold-

blooded” nature of the murders and pointed to Ross’s

shooting of Mark Howard as “a[nother] murder where the

victim, fortunately, did not die.” The prosecutor, however,

conceded that “we didn’t prove beyond a reasonable doubt,

I thought, that either of the defendants actually was a shooter

in any of these murders.” Nevertheless, the prosecutor

maintained that the evidence showed that Ross was the

leader because: (1) he had “the nerve” to shoot Howard in

broad daylight; (2) he was the one who previously had spent

time in state prison; (3) he told Mary that he was the leader;

(4) he did most of the talking during the recorded

conversation with Champion; and (5) when the verdicts were

being read, “he was the one who first got up and in mock

18 ROSS V. DAVIS

indignation started to walk toward the lockup, [and]

Mr. Champion followed.”

The prosecutor anticipated the defense’s argument that

Ross deserved a life sentence because Malett’s jury found

him guilty of being the actual shooter, and yet did not impose

the death penalty. The prosecutor first distinguished

Malett’s case from Ross’s because Malett was found guilty

of the Taylor murder only, whereas Ross was found guilty

of the Hassan murders as well. Moreover, unlike in Ross’s

case, the jury in Malett’s case did not find true the special

circumstance allegations. Additionally, based on the jury

instructions, Malett’s conviction for personal use of a

firearm did not necessarily mean that the jury found him

guilty of being the shooter in the Taylor murder; in fact, the

jury actually found untrue the allegation that Malett

personally inflicted great bodily injury on Taylor. Finally,

the prosecutor noted that “it’s not the test for your purposes

as to whether or not this case is more or less aggravated than

some other case.”

For his part, Ross’s counsel Lenoir argued that a

sentence less than death meant that Ross would “die in

prison” because escape from Folsom prison was “an utter

impossibility.” According to Lenoir, the question was

“whether or not [Ross] c[ould] be useful by making license

plates” because “[t]hat’s where they’re made, prison.”

Comparing Ross’s case to Malett’s, Lenoir pointed out

that, unlike Malett, Ross was not charged with the personal

use of a firearm or the infliction of great bodily injury on

Taylor. Yet, while “Malett c[ould] look forward to getting

out of jail and being back on the streets,” Ross “c[ould] never

dream of getting out.”

ROSS V. DAVIS 19

As for Ross’s outburst during the reading of the verdicts,

Lenoir noted, and Champion’s counsel agreed, that

Champion was the one who stood up first. Additionally,

Lenoir claimed that the courtroom bailiff “ha[d] [no]

problems” with Ross until “two persons from the audience,”

who apparently were plainclothes deputies, “ran over

towards” him and Champion as they were walking to the

lock-up area.

Lenoir also attempted to mitigate the assault on Mark

Howard. He explained, “I don’t say that [Howard] deserved

to have been shot, but certainly he instigated it by slapping

Ross.” Moreover, Lenoir noted that, even though Howard

“denied being connected with any gang,” the prosecution

“graciously . . . assisted me in . . . entering into the

stipulation” that Howard in fact had gang affiliations.

Finally, Lenoir argued that there were four specific

mitigating circumstances. First, the jury “c[ould] reasonably

infer that Mr. Ross behaved during the two years he was in

prison” for the Howard shooting because “if there was one

black mark on [his] record[,] . . . it would have been

presented.” Second, because Ross was then only twenty-

three years old, he had “a long time [remaining in his life] to

think about one thing, what I’m in [prison] for.” Third, Ross

told Mary in the bathroom that “he would see [that her]

mother was not hurt, and [her] mother was not hurt.” Lastly,

“it ha[d] been conceded that there [wa]s no evidence that

Ross had a gun at any time during these actions.”

The jury began penalty phase deliberations, and, after

two days, delivered death verdicts against Ross and

Champion.

20 ROSS V. DAVIS

II.

Ross appealed his convictions and his sentence to the

California Supreme Court. The state court affirmed both his

convictions and his sentence but struck as duplicative all but

one of Ross’s multiple murder special circumstances.

Champion, 9 Cal. 4th at 952. The state court also addressed

Ross’s Enmund claim. It held that, although the jury

instructions inadequately described the mens rea for aiding

and abetting, that error was harmless because the

instructions on the special circumstance allegations, found

true by the jury, required that the “defendants shared the

intent of the killers when they aided and abetted the

murders.” Id. at 928–29.

Ross concurrently filed a habeas petition in the

California Supreme Court, in which he raised ineffective

assistance of counsel at the penalty phase. In re Ross,

10 Cal. 4th 184, 187 (1995). The state court issued an order

to show cause and appointed a Los Angeles Superior Court

judge as a Referee to take evidence and make findings as to

whether trial counsel was ineffective in the penalty phase for

failing to present available mitigation evidence. Id. at 189.

Specifically, the state court asked the Referee to make six

findings:

1) What mitigating character and

background evidence could have been,

but was not, presented by petitioner at his

penalty trial?

2) What investigative steps by trial counsel,

if any, would have led to such items of

evidence?

ROSS V. DAVIS 21

3) What investigative steps, if any, did trial

counsel take in an effort to gather

mitigating evidence to be presented at the

penalty phase?

4) What tactical or financial constraints, if

any, weighed against the investigation or

presentation of mitigating character and

background evidence at the penalty

phase?

5) What evidence damaging to petitioner,

but not presented by the prosecution at

the guilt or penalty trials, would likely

have been presented in rebuttal if

petitioner had introduced any such

mitigating character and background

evidence?

6) Did petitioner himself request that either

the investigation or the presentation of

mitigating evidence at the penalty phase

be curtailed in any manner? If so, what

did petitioner request?

Id. at 189–90.

The Referee conducted an evidentiary hearing (known as

a “reference hearing” under California law), took extensive

evidence, answered the six questions asked by the state

court, and then offered his opinion that had counsel

performed adequately and presented the mitigating

evidence, there was a reasonable probability that Ross would

not have been sentenced to death. Id. at 189–201. The

California Supreme Court accepted the Referee’s factual

determination as to the then available mitigation evidence.

22 ROSS V. DAVIS

Id. at 205. It upheld most, but not all, of the Referee’s factual

findings, but disagreed with its legal conclusions, which it

reviewed de novo. The court “accept[ed] for purposes of

discussion that [counsel’s] performance was indeed

deficient,” id. at 201, but did not “decide whether counsel’s

performance was truly deficient, or merely obscured by the

fog of time,” id. at 204, as nine years had elapsed between

the trial and the reference hearing. Noting that it had

deliberately not asked the Referee to opine on the ultimate

question of whether Ross was prejudiced by counsel’s

performance, the court did not find the Referee’s conclusion

as to prejudice persuasive, particularly as the record

reflected that the Referee had not reviewed the trial record

to compare the actual trial with the hypothetical trial that

would have occurred had counsel performed effectively.

The state court concluded that although the mitigating

evidence was substantial, it did not stand alone, but was

“subject to substantial impeachment and potentially

devastating rebuttal.” Id. at 205. “[C]omparing the trial as

it actually occurred with the trial as it would have been with

the mitigating evidence,” the California Supreme Court

determined that Ross was not prejudiced. Id. at 213.

Ross then sought federal habeas relief in the Central

District of California under 28 U.S.C. § 2254. Ross v. Davis,

No. CV 96-2720 SVW, 2017 WL 2374101, at *1 (C.D. Cal.

Apr. 26, 2017). The district court held that the California

Supreme Court reasonably concluded that counsel’s

deficient performance at the penalty phase did not prejudice

Ross and properly denied his Enmund claim in light of the

Tison exception. Id., at *20, 53. The district court then

granted a certificate of appealability as to the Strickland

claim, which we expanded to include the Enmund claim.

ROSS V. DAVIS 23

III.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291,

2253(a). We review a district court’s denial of habeas relief

de novo. Avena v. Chappell, 932 F.3d 1237, 1247 (9th Cir.

2019), cert denied, 140 S. Ct. 1137 (2020); Sanders v.

Cullen, 873 F.3d 778, 793 (9th Cir. 2017).

The Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214,

controls our analysis of Ross’s petition for both his Enmund

claim and his Strickland ineffective assistance of counsel

claim. Under AEDPA, we must defer to the state court’s

decision with respect to any claim adjudicated on the merits

unless the decision was: (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law,

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

or (2) “based on an unreasonable determination of the facts

in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). “This is a ‘difficult to

meet,’ and ‘highly deferential standard for evaluating state-

court rulings, which demands that state-court decisions be

given the benefit of the doubt.’” Cullen v. Pinholster,

563 U.S. 170, 181 (2011) (citations omitted). Our review is

“limited to the record that was before the state court that

adjudicated the claim on the merits.” Id.

For Ross’s ineffective assistance of counsel claim,

“Strickland v. Washington and its progeny constitute the

clearly established federal law.” Andrews v. Davis, 944 F.3d

1092, 1107–08 (9th Cir. 2019) (en banc) (citing Pinholster,

563 U.S. at 189, and Strickland, 466 U.S. at 668). To

establish ineffective assistance of counsel under Strickland,

Ross must demonstrate two elements: first, that defense

counsel’s performance was deficient, and second, that the

deficient performance prejudiced the defense. Prejudice is

24 ROSS V. DAVIS

shown where “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 687,

694. Because AEDPA guides our review, the question

before us is whether the California Supreme Court “applied

Strickland to the facts of [t]his case in an objectively

unreasonable manner.” Bell v. Cone, 535 U.S. 685, 699

(2002). “The standards created by Strickland and § 2254(d)

are both highly deferential, and when the two apply in

tandem, review is doubly so.” Harrington v. Richter,

562 U.S. 86, 105 (2011) (quotations and citations omitted).

In determining whether a state court decision is an

unreasonable application of Strickland, “[w]e consider only

the evidence that was before the state court at the time of its

ruling.” Avena, 932 F.3d at 1247 (quoting Pinholster,

563 U.S. at 182).

IV.

Ross was not charged with or proven to be the actual

killer of either Taylor or the Hassans. 4 He contends that the

State was required to prove he had the specific intent to

commit murder to impose the death penalty. Two Supreme

Court cases decided before the California Supreme Court

affirmed Ross’s convictions and death sentence on direct

appeal clearly establish the law governing when a defendant

who is convicted of felony murder, but who is not the actual

killer, may be given a sentence of death: Enmund v. Florida,

458 U.S. 782 (1982) (decided two months before Ross’s trial

began), and Tison v. Arizona, 481 U.S. 137 (1987).

4

According to the California Supreme Court, Evan Malett was

charged with and convicted of the murder of Michael Taylor. In re Ross,

10 Cal. 4th at 210.

ROSS V. DAVIS 25

In Enmund, the Supreme Court reversed the death

sentence of a Florida man under that state’s felony-murder

rule. Enmund, 458 U.S. at 801. Enmund’s role in the

robbery was to wait in the car by the side of the road, while

two others robbed the elderly victims, and then to drive the

get-away car. Id. at 784. The Court focused on Enmund’s

culpability—not that of the co-defendants who committed

the murders. Because Enmund did not kill, attempt to kill,

or have any intention of participating in or facilitating a

murder, his culpability was “plainly different” from that of

those who committed the murder. Id. at 798. The Court,

therefore, held that imposition of the death sentence was

impermissible under the Eighth Amendment. Id.

Tison presented more egregious facts. There, the three

Tison brothers “helped their father and his cellmate—both

convicted murderers—escape from prison, armed them with

shotguns, helped flag down and kidnap a family on an

isolated road, drove the family [which included a two-year-

old] to a remote site, and then stood by as their father and his

cellmate murdered [them].” Dickens v. Ryan, 740 F.3d

1302, 1311 (9th Cir. 2014) (en banc) (citing Tison, 481 U.S.

at 139–41). The Court distinguished the Tisons’ culpability

from Enmund’s: “their degree of participation in the crimes

was major rather than minor, and the record would support a

finding of the culpable mental state of reckless indifference

to human life.” Tison, 481 U.S. at 151. The Court held that

“major participation in the felony committed, combined with

reckless indifference to human life, is sufficient to satisfy the

Enmund culpability requirement” for imposition of the death

penalty. Id. at 158. 5

5

“[T]he reckless disregard for human life implicit in knowingly

engaging in criminal activities known to carry a grave risk of death

26 ROSS V. DAVIS

Thus, following the Supreme Court’s decisions in

Enmund and Tison, the Eighth Amendment permits

imposition of the death penalty in the case of a “felony

murderer who actually killed, attempted to kill, or intended

to kill.” Id. at 150. It also permits the imposition of the death

penalty in the case of a felony murderer “whose participation

[in the felony] is major and whose mental state is one of

reckless indifference to the value of human life.” Id. at 152.

A.

The State first argues that Ross’s Enmund claim is

procedurally barred. We disagree. The State mistakenly

asserts that Ross’s Enmund claim was raised for the first time

in his successive 1999 state habeas petition, which the

California Supreme Court denied on the merits as untimely

under In re Robbins, 18 Cal. 4th 770, 780–81 (1998), and

barred under In re Dixon, 41 Cal. 2d 756, 759 (1953),

because it was not raised on direct appeal when it could have

been. But Ross challenged his death sentence under Enmund

on direct appeal, arguing in his opening brief that the

instructions permitted his death sentence “without even a

determination that [he] intended to commit a felony, much

less intended to kill,” and referencing Enmund. Ross again

referred to Enmund error in his reply brief on direct appeal,

where he argued that the State had failed to respond to it as

represents a highly culpable mental state, a mental state that may be

taken into account in making a capital sentencing judgment when that

conduct causes its natural, though also not inevitable, lethal result.”

Tison, 481 U.S. at 157–58. This is because the “reckless indifference to

the value of human life may be every bit as shocking to the moral sense

as an ‘intent to kill.’ Indeed it is for this very reason that the common

law and modern criminal codes alike have classified behavior such as

occurred in this case along with intentional murders.” Id. (citations

omitted).

ROSS V. DAVIS 27

an issue. And, in a supplemental brief filed after Tison v.

Arizona was decided, Ross argued that “[s]ince it cannot be

determined from the present record that any finding of intent

to kill was made, reversal is required under Enmund v.

Florida, Tison v. Arizona, and their progeny.” Because a

claim is exhausted for federal habeas purposes when it is

“fairly presented to the state courts,” Picard v. Connor,

404 U.S. 270, 275 (1971), Ross’s repeated challenges to his

death sentence on Enmund grounds in his direct appeal are

sufficient to preserve the claim for habeas relief.

B.

1.

Ross contends that the jury instructions given at his state

trial negated Enmund’s requirement of proof that he killed,

attempted to kill, or intended to kill the Hassans or Michael

Taylor, primarily because Enmund “held that it was a

violation of the Eighth Amendment to impose the death

penalty under the felony murder rule or as an aider and

abettor” in the absence of such proof.” He also argues that

the California Supreme Court’s denial of this claim was

contrary to and an unreasonable application of the Supreme

Court decisions in Enmund, Tison, and Cabana v. Bullock,

474 U.S. 376 (1986). On habeas review, we “must examine

the entire course of the state-court proceedings . . . to

determine whether, at some point in the process, the requisite

factual finding as to the defendant’s culpability has been

made.” Id. at 387. If the requisite finding has been made, it

is presumed correct under 28 U.S.C. § 2254(d), “and unless

the habeas petitioner can bear the heavy burden of

overcoming the presumption,” his Enmund claim fails. Id.

at 388.

28 ROSS V. DAVIS

As the California Supreme Court acknowledged, 6 the

jury instruction on aiding and abetting liability was

inadequate to describe the specific intent required to convict

Ross of aiding and abetting the three killings. Champion,

9 Cal. 4th at 929. The instruction allowed Ross to be

convicted if the murders were “the natural and reasonable or

probable consequences of any act that he knowingly aided

or encouraged,” or “if, with knowledge of the unlawful

purpose of the perpetrator of the crime, he aids, promotes,

encourages, or instigates by act or advice the commission of

such crime.” Id. at 927–28 nn.17–18. This instruction was

given in error because it was “sufficiently ambiguous” to

permit conviction upon the “finding of an intentional act

which aids, without necessarily requiring a finding of an

intent to encourage or facilitate the criminal offense.” Id.

at 928.

Despite the erroneous aider or abettor instruction, the

California Supreme Court determined that the error was

rendered harmless by the special circumstances instruction.

The jury was instructed that it could find the special

circumstances true “if defendant was not the actual killer”

only if it found that he “intentionally aided, abetted,

counseled, commanded, induced, solicited, requested or

assisted the actual killer in the commission of the murder in

the first degree.” Id. at 929. The California Supreme Court

reasoned that the import of this instruction was reinforced by

the prosecutor, who in his closing argument explained, “[i]t

6

The court never once characterized this as an Enmund claim, but

instead relied on analogous state law to discuss the substance of that

claim. Champion, 9 Cal. 4th at 927–29. Under AEDPA, however, “a

state court’s decision need not cite or even be aware of controlling

Supreme Court precedent, so long as it does not contravene those

precedents.” Andrews, 944 F.3d at 1116–17.

ROSS V. DAVIS 29

must therefore be established, before you can convict

defendants of special circumstances, that . . . they share,

along with the trigger man, the intent that these victims

perished in the course of these crimes.” Id. at 928–29.

Therefore, the California Supreme Court concluded, “when

the jury in this case found the special circumstance

allegations true, it also necessarily found that defendants

shared the intent of the killers when they aided and abetted

the murders.” Id. at 929. Thus, the erroneous aiding and

abetting instruction did not prejudice Ross.

This conclusion was neither “contrary to” nor an

“unreasonable application of” Enmund. Enmund’s

culpability requirement for imposition of the death penalty

is proof beyond a reasonable doubt that Ross killed,

attempted to kill, or intended to kill the Hassans and Michael

Taylor. Because the prosecution offered no evidence to

prove Ross was the actual killer, the jury could find true the

special circumstances allegations only if it found Ross had

the intent to assist in killing the victims. And the jury found

true the multiple murder special circumstances, under

instructions that required a finding of a shared intent to kill.

Id.; see also People v. Neely, 6 Cal. 4th 877, 898 (1993)

(holding that a felony-murder special circumstance

instruction “properly required that the jury find that

defendant, if he was only an aider and abettor, had the intent

to kill”); People v. Pinholster, 1 Cal. 4th 865, 954 (1992)

(explaining that a special circumstance instruction requiring

that defendant “intentionally aided, abetted, counseled,

commanded, induced, solicited, requested, or assisted the

actual killer” means the jury forms a determination on

whether the defendant had the intent to kill) (emphasis

omitted); People v. Sanders, 51 Cal. 3d 471, 516–17 (1990)

(same); People v. Warren, 45 Cal. 3d 471, 487 (1988)

(same).

30 ROSS V. DAVIS

The state court’s determination that the special

circumstances instruction included the necessary specific

intent to satisfy Enmund’s culpability requirement was

reasonable. We have previously addressed an inadequate

aiding and abetting instruction in a pre-AEDPA case. In

Tapia v. Roe, the aiding and abetting instruction given to the

jury was erroneous because “it failed to instruct the jury to

find ‘intent to encourage or facilitate the criminal offense.’”

Tapia, 189 F.3d at 1056 (quoting People v. Beeman, 35 Cal.

3d 547, 561 (1984). We found the error harmless under

either the Brecht v. Abrahamson, 507 U.S. 619 (1993) or the

Chapman v. California, 386 U.S. 18 (1967) standards of

review, in light of the jury’s separate determinations that the

defendant was guilty of lying-in-wait and multiple-murder

special circumstances, which necessarily showed that the

jury found the defendant had or shared the specific intent to

kill both of the victims. Tapia, 189 F.3d at 1056–57. This

was the “equivalent” of finding the erroneously omitted

intent element of aiding and abetting. We concluded “if the

jury did find Tapia guilty on an aiding and abetting theory,

rather than as the actual perpetrator, the omission of the

intent element from the aiding and abetting instruction could

not have had an ‘injurious effect or influence in determining

[their] verdict,’ Brecht, 507 U.S. at 637, and was ‘harmless

beyond a reasonable doubt,’ [under] Chapman, 386 U.S. at

24.” Id. at 1057.

This case is distinguishable from the circumstances

presented in Cabana. There, the Court invalidated a death

sentence imposed under a Mississippi law that allowed any

robbery participant to be convicted of capital murder

“notwithstanding the defendant’s own lack of intent that any

killing take place.” Cabana, 474 U.S. at 379. The jury

instructions allowed the conviction based on an intent to rob

without any finding of an intent to kill. Id. at 380. Because

ROSS V. DAVIS 31

“the jury may well have sentenced [the defendant] to death

despite concluding that he had neither killed nor intended to

kill; or it may have reached its decision without ever coming

to any conclusion whatever on those questions,” the Court

found the death sentence constitutionally inadequate under

Enmund. Id. at 384. Here, by contrast, the special

circumstances instruction required the jury to make the

finding satisfying Enmund.

2.

Moreover, to the extent Ross alternatively contends that

there was insufficient evidence from which a jury could find

major participation and reckless indifference under Tison,

we disagree, as Ross was a major participant in the crimes

committed and demonstrated a reckless indifference to

human life.

a.

First, there was ample evidence that Ross was a major

participant in the felonies. Our decision in Dickens is

instructive. There, we rejected an assertion of Enmund error,

reasoning that Dickens’s participation in the two murders

was less like that of Enmund’s passive get-away role and

more like the conduct of the Tison brothers. Dickens,

740 F.3d at 1311. As in Tison, Dickens participated in the

events leading up to the killings of two victims. Dickens

suggested to his co-defendant Amaral, who had a history of

violence, that they plan a robbery, id. at 1306, and then he

drove Amaral to a highway rest site where the robbery was

to take place and waited for three hours until their chosen

victims arrived, id. at 1307. Dickens then watched and

waited while Amaral used Dickens’s gun to rob and murder

the victims. Id. Dickens made no effort to help the victims

but picked up Amaral and drove to Dickens’s brother’s

32 ROSS V. DAVIS

house, where the pair burned the stolen wallet, split the cash,

and went their separate ways. Id. at 1308. “In short, Dickens

was actively involved in every aspect of the deadly crime—

suggesting they undertake the robbery, planning the robbery,

staking out the crime scene, selecting the victims, arming

Amaral with a handgun, watching the murders, aiding

Amaral’s escape, destroying evidence, and helping Amaral

evade capture.” Id. at 1311.

Here, like Dickens, Ross was “present at the murder site

and did not interfere with the murders.” Id. at 1311. In fact,

Ross was even more actively involved in the crimes resulting

in the Taylor and Hassan murders. Ross’s participation in

the Hassan robbery was demonstrated through the

fingerprint evidence found on the wrapping paper inside the

Hassan home, indicating Ross had entered the house and

participated in the robbery while the killings took place.

Champion, 9 Cal. 4th at 898. Days later, after participating

in the Hassan robbery where two victims were shot and

killed, Ross took an active role in the Taylor home-invasion

robbery, raped one of the victims twice, told her that he was

the leader of the group ransacking the house, and assisted in

separating Mark Taylor from the rest of the family just

before Taylor was shot and killed. Id. at 899–901. Ross

“continued the joint venture when he . . . failed to report the

crimes.” Dickens, 740 F.3d at 1311 (quotations omitted).

And Ross could have anticipated the use of deadly force,

even if he never pulled the trigger himself, because he knew

his colleague “had [a] weapon with him for the robberies.”

Id.

As in Dickens, Ross “was actively involved in every

aspect of the deadly crime,” and was thus “clearly a major

participant.” Id. And because “Tison does not illuminate the

precise line where a defendant’s conduct becomes major

ROSS V. DAVIS 33

participation . . . even assuming [Ross’s] conduct falls into a

grey area between Enmund and Tison, we must defer to the

[California] Supreme Court’s conclusion.” Id. at 1312.

b.

Ross also “knowingly engaged” in the home-invasion

robbery, an activity “known to carry a grave risk of death.”

Tison, 481 U.S. at 157. This mental state “may be taken into

account in making a capital sentencing judgment when that

conduct causes its natural, though also not inevitable, lethal

result.” Id. at 157–58.

We have previously rejected the argument that armed

robbery is not a crime known to carry a grave risk of death.

See Dickens, 740 F.3d at 1314. Ross does not attempt to

argue, nor are we aware of any authority, to the contrary.

And the armed robberies in this case posed even graver risk

of death as they were gang-orchestrated home invasion

robberies of small-time drug dealers. Champion, 9 Cal. 4th

at 898–901; see also United States v. VonWillie, 59 F.3d 922,

929 (9th Cir. 1995) (accepting that drug dealers often

possess and use weapons to protect their drugs and

intimidate potential buyers). Ross knew at least one of his

colleagues had a gun. Champion, 9 Cal. 4th at 900. The

purpose of the unlawful entry was to look for drugs and

money associated with drug sales. Id. This is precisely the

type of activity that is known to carry a grave risk of death.

See Dickens, 740 F.3d at 1314 (holding that the defendant

was aware of a grave risk of death when he knew that his

colleague had a violent and explosive temper, a history of

violence, and that he recklessly handled guns, yet proceeded

with participating in the robbery knowing his colleague had

a gun). And after the shootings, Ross chose to “aid those

whom he had placed in the position to kill rather than [aid]

their victims.” Tison, 481 U.S. at 152. The state courts could

34 ROSS V. DAVIS

reasonably have found that Ross demonstrated reckless

disregard to human life.

V.

We next address Ross’s claim that his counsel provided

ineffective assistance in the penalty phase, primarily by

failing to investigate and present readily available mitigating

evidence. To understand what that evidence was and

whether it was then available, the California Supreme Court

referred the matter to a Referee.

A.

The Referee found that fifteen witnesses were available

to testify at the time of Ross’s trial. They would have

testified to Ross’s childhood and family circumstances but

they were never called to testify. These witnesses included

Ross’s mother, Gloria Brown, along with Ross’s siblings and

step-siblings, and several other family members with

personal knowledge of mitigating evidence.

The Referee found that all of the evidence recounted

below was readily available to the defense and was not

presented at trial. In re Ross, 10 Cal. 4th at 195.

1.

a. Violence Inflicted on Mother by Ross’s father, Stafford

Ross’s mother, Gloria Brown, testified that during her

short marriage to Ross’s biological father Stafford, Stafford

beat and stabbed her on multiple occasions. When she was

eight months pregnant with Ross, Stafford pushed her

against a wall and she fell, causing Ross to be born

prematurely the next morning. When Ross was an infant,

ROSS V. DAVIS 35

Gloria left Stafford, but he insisted that she take him back.

When she refused, he stabbed her multiple times, puncturing

her lung, and she was saved only because her police

detective brother was able to fend Stafford off until

additional officers arrived.

b. Abuse by Stepfather Henry Brown

After Stafford went to prison for the stabbing, Gloria

lived alone with Ross and her five other children. She had

difficulty making ends meet. In 1963, when Ross was about

four years old, the family began living with Henry Brown,

Gloria’s future husband. In 1966 or 1967, Brown’s three

sons began living with them as well.

Brown would drink often, and “when he drank, he would

become violent.” He was especially violent after gambling

losses at the horse track. He physically and verbally abused

Gloria, cutting her many times. He once chased her around

the kitchen, causing her to be burned by flaming grease from

a skillet. On another occasion, Brown hoisted a television

set to throw at Gloria, but Gloria’s sister, “grabbed a knife

out of the kitchen drawer and threatened him, so he would

put [the television set] down.” Several times, Brown

threatened to kill Gloria, and Gloria’s police detective

brother had to come to disarm Brown. After these types of

incidents, Brown would apologize to Gloria and buy her

flowers.

Ross and the other children witnessed this abuse and

were also abused themselves. Brown severely “whooped the

kids,” especially Ross, possibly because Ross “would

become very emotional . . . by seeing his mother being beat

up.” Holding the children upside down, Brown would whip

them all over their bodies with “a big wide thick belt,” and

with large switches off the backyard peach tree. As a result,

36 ROSS V. DAVIS

the children, including Ross, suffered welts, bruises, and

cuts.

Brown also abused the children in other ways. He forced

them to kneel in the garage and stare at the wall for long

periods of time ranging from “a couple of hours” to

“sometimes half a day.” He refused to allow Ross to meet

his biological father, Stafford Ross. One day, Brown locked

Ross’s younger sister out of the house, and when she

attempted to enter through the window, he “came at [her]

with [a] butcher knife.” After this incident, the sister, who

was a high school freshman at the time, moved out of the

house. Ross’s older sister also had moved out earlier when

she was fourteen years old due to “the violence that

happened in the house.” The children’s nicknames for

Brown were “monster,” “ski ball head motherfucker,” and

“the devil.”

Around late 1970, when Ross was twelve years old,

Gloria went to an attorney and had Brown removed from the

home. After they were separated, Brown refused to allow

his sons to spend time with Gloria’s sons, but they still

managed to do so in secret. In 1978, while Ross was in

prison for the Howard shooting, Brown apparently

“changed,” and Gloria reunited with him. Gloria and Brown

were living together again at the time of Ross’s trial.

c. Neighborhood Violence

Ross grew up in a “pretty rough” neighborhood. There

were “a lot of gangs” and the children “couldn’t play out in

the streets . . . because [they] would get attacked by the gang

people.” Around the time of Gloria and Brown’s separation,

Ross at age twelve began associating with the gang members

on the street.

ROSS V. DAVIS 37

d. Ross’s Good Character

Ross’s family members also testified to his good

character. When Ross was between the ages of about six and

fourteen, he visited his grandparents’ “large acreage” each

summer. On these trips, Ross was very respectful and did

all the chores he was asked to do.

Ross showed great affection for his siblings and cousins.

He babysat them, watched over them at the local park,

helped teach them how to draw and write, and “always

entertain[ed] them.” He walked his sisters to school and

protected them from bullies. His younger sister recalled: “If

Henry [Brown] would only allow us to have one sandwich,

[Ross] would give me his sandwich. . . . One particular

incident . . . [Ross] stood in front of me and told [Brown]

don’t whoop me, that he’ll take my whooping for me.” And

according to his aunt, Ross “was like a protector of the

children.”

Moreover, Ross’s stepbrother and brother both testified

that Ross helped them turn around their lives. Specifically,

when Ross was twenty-one years old, after the stepbrother’s

young daughter drowned in 1980, he went “on an alcohol

binge,” but Ross “worked with [him] very hard and told

[him] that it wasn’t going to bring [his] baby back, and he

would stick with [him] and made sure [he] didn’t go back

[to] drinking again.” Similarly, around 1977, Ross’s brother

“was into smoking a lot of weed,” but Ross “didn’t like that”

and talked to him and introduced him to bodybuilding. As a

result, Stafford Ross, Jr. “got it together” and went on to win

third place in a “Mr. Los Angeles” bodybuilding

competition.

When asked if, in spite of Ross’s crimes, he would have

testified at Ross’s penalty phase that Ross was a person of

38 ROSS V. DAVIS

good character, Ross’s police detective uncle answered:

“[K]nowing the way that he was abused, misused, hurt,

knowing what he has seen his mother go through, knowing

that the only people that he had contact with were the people

out on the streets, who were gang-members, yes, I would

have said yes.”

e. School and Institutional History

Gloria and one of Ross’s sisters testified about a race-

fueled incident at Ross’s public school. When Ross was in

the fifth or sixth grade, one of his teachers called him the N-

word. Ross was “really upset” and told his mother that “he

hated to go to the class” and “didn’t want to go [back].”

Gloria “went to the school to talk to the teacher, and the

teacher denied it.” Gloria believed Ross, but she did not

“press the issue further.”

In 1970 and 1971, when Ross was twelve and thirteen

respectively, Ross received “an honor award for outstanding

achievement in safety” and “a first place award for the

shotput.” Before Gloria and Brown’s separation, Ross’s

grades were passing, if “not particularly exemplary,” but

afterward he began getting even lower grades. One of

Ross’s aunts also testified that Ross began getting into

trouble after Gloria and Brown’s separation.

By stipulation, the Referee admitted into evidence

Gloria’s statements to Ross’s juvenile probation officers.

According to a 1973 probation report: “[Gloria] stated that

she feels other boys influenced [Ross] negatively. He is very

cooperative at home. [Gloria] asserted that [Ross] needs

male guidance and hopes that he can have a male probation

officer with much supervision. [Ross] has a poor

relationship with the [separated] stepfather.”

ROSS V. DAVIS 39

According to a 1974 report: “[Gloria] state[d] that she

would like to try [Ross] home again. ‘I feel [the California

Youth Authority] would make him only bitter. I don’t think

there is anything wrong with him psychologically. He is

always warm with his family. . . . I never had any problem

with [him] until after Mr. Brown and I separated. There was

no male supervision. . . .” In that report, Gloria also stated:

“[Ross] takes his punishment. He does feel remorse,

although he doesn’t show it. He would write letters to us

stating that he’s done wrong and had to pay for his mistakes.

He wrote ‘It’s time I become a better person’ and said he

would pray for himself.”

In a 1975 report, however, Gloria’s view had changed:

“I am completely unable to control or understand [Ross]. I

have done all I can for him, and out of my six children, he is

by far the worst.” Moreover, she stated that Ross “has a hate

for whites, shows a great deal of resentment towards all

types of people,” and she did not want him released from

juvenile custody.

Finally, one of Ross’s sisters testified to his difficulties

following his release from prison in 1980. Ross “went to the

Urban League with [her] and he wanted a job,” but “he didn’t

know what he was doing with the [applications].” Ross

could write poetry, but he lacked “the technical skills . . . to

get him in a training program” or understand the “jargon” on

the applications.

f. Availability of Witnesses

Ross’s family members who testified at the reference

hearing stated that they would have testified at his penalty

phase and asked the jury to spare his life, but they were never

interviewed by the defense. While attending portions of

Ross’s trial, Gloria “briefly” had conversations with Harris

40 ROSS V. DAVIS

and “one brief conversation with [Lenoir] in the hallway”

during which he told her that Ross “should take a plea

bargain.” “[N]obody approached [her] about testifying.”

Additionally, two of Ross’s aunts and two of his sisters

testified that they came to court, but when they attempted to

speak to Lenoir or Harris, they were either rudely ignored or

“brushed” or “shunned” away. Another aunt testified that,

at Gloria’s direction, she came to court one day because “the

attorney wanted her to have some character witnesses for

[Ross].” As potential witnesses, she and Gloria were

excluded from the courtroom for portions of the proceedings

that day. When the day ended without them testifying,

counsel said, “We’ll call you,” but she “never heard anything

else from them.”

Ross’s post-conviction investigator testified that he

called Gloria in 1986 and arranged a meeting. At the

meeting about two weeks later, Gloria gathered

approximately fifteen family members, and the investigator

spent eleven or twelve hours interviewing them in one day.

2.

Ross also called the members of his trial defense team as

witnesses at the reference hearing. By that time, Lenoir had

retired and was in poor physical health. He could no longer

remember “the specifics” of the case but he could remember

there were “no financial impediments” to investigating.

Additionally, it appears that, after Ross’s trial, Lenoir

directed defense investigator Charles Watson and co-

counsel Harris to hand over their trial files to him.

Subsequently, “appellate counsel repeatedly requested

access to the files over a two-year period and during that

period received no replies. Only when the files were

subpoenaed to a court hearing did [Lenoir] assert that they

ROSS V. DAVIS 41

had been lost.” At the reference hearing, Lenoir testified that

he lost the files when he moved offices.

In an earlier deposition, Lenoir stated that he talked to

Gloria “many times” about the case, and that Ross told him

that he did not want his mother called as a witness.

Champion’s counsel also recalled Lenoir stating that “he

would have liked to call [Ross’s] family members” as

witnesses, but that Ross either did not want him to call his

family members or did not want him to call his mother

specifically.

Investigator Watson “vaguely recall[ed]” that, in

preparation for the penalty phase, he interviewed and

subpoenaed two of Ross’s friends. At Lenoir’s direction,

Watson also telephoned Gloria and asked her and another

family member to appear in court on one specific day during

the penalty phase.

Lenoir placed Harris in charge of preparing for the

penalty phase of the trial. Harris testified she prepared for

the penalty phase by speaking with Ross, Gloria, and several

other members of Ross’s family, including Brown. These

conversations were likely conducted either over the

telephone or in the courthouse hallway. Harris’s impression

from these conversations was that “Ross came from a very

stable supportive middle-class type family environment,”

and she told Lenoir that she thought some of the family

members would make good witnesses.

Harris also testified that “the final decision was that

Mr. Lenoir simply told me that we weren’t going to put on

any evidence.” She and Lenoir never discussed the

possibility that the prosecution might present rebuttal

evidence if the defense presented the testimony of Ross’s

family members. Harris neither obtained Ross’s

42 ROSS V. DAVIS

institutional records nor went or sent an investigator to

Ross’s house to conduct interviews. Additionally, Ross

never told her “not to put any witnesses on to testify in his

behalf.” Harris testified that, in hindsight, she had lacked the

skills to “go deep enough” and “pick up on the[ ] clues” that

Ross may have been abused, such as Ross’s “very emphatic”

statement to her that Brown was not his father, or Gloria’s

“reluctance in talking about the family situation.” Harris

concluded: “I absolutely feel I did not do a competent job at

the penalty phase, . . . and I’m not happy to say that, but

that’s true.”

According to Lenoir’s billing records, Lenoir spent a

total of 114.5 hours preparing for the guilt and penalty

phases in this case. Robert Bryan, an experienced capital

defense attorney, testified that “looking at this billing by

itself . . . certainly raises . . . questions” about Lenoir’s

“performance.” Bryan also testified that “child abuse

evidence . . . can often make a substantial difference” in a

penalty phase, and that it is “very common” for a capital

defendant to ask counsel not to present a mitigation case or

call particular witnesses. In Bryan’s opinion, competent

counsel in 1982 would have conducted interviews of family

members, retained a mental health expert to investigate

issues such as child abuse, and obtained available

institutional records.

3.

At the reference hearing, the State presented evidence

that it would have sought to introduce in rebuttal if Ross had

offered the additional mitigation evidence. This included

evidence of Ross’s juvenile adjudications for three counts of

burglary involving the theft of guns, four counts of robbery,

and one adjudication for brandishing a “barbeque fork” at a

cook while at a probation camp. These juvenile

ROSS V. DAVIS 43

adjudications were excluded from evidence during the

penalty phase of Ross’s trial, but the Referee found that “the

trial court would have permitted the prosecutor to introduce

[evidence of these adjudications] on rebuttal.” In re Ross,

10 Cal. 4th at 199.

In addition, the State presented Ross’s own statements to

his probation officer in 1978 that he had no remorse about

the Howard shooting, felt that he had acted in self-defense,

and was not concerned about going to prison. The State also

relied on Ross’s statements in a psychiatric report “prepared

for Los Angeles County Juvenile Court proceedings in 1974,

when [Ross] was 15.” Id. There, Ross stated that “he had

never been beaten or physically abused by anyone, that he

liked his stepfather, Brown, and had gotten along well with

him, and that he felt better when there was a man at home

fulfilling the role of father. [Ross], who had been held at a

camp, said that he wanted to go home.” Id. at 199–200.

Psychiatrist Michael Coburn, however, testified at the

reference hearing that adolescents “frequently deny that they

have been abused.”

The State also presented evidence of four instances of

misconduct by Ross while at Deuel Vocation Institution in

1978 and 1979, but the Referee “found that the prosecution

probably could not have presented [this] evidence” at the

penalty phase because the witnesses had no memory of the

events. Id. at 199–200, 207. The California Supreme Court

“accept[ed] this finding.” In re Ross, 10 Cal. 4th at 207.

4.

Following the hearing, the Referee filed an eleven-page

report containing his factual findings in response to the six

questions that the California Supreme Court had referred to

him. The Referee first found that Ross’s fifteen family

44 ROSS V. DAVIS

members who testified at the hearing “were sincere,” that

their testimony “inspire[d] confidence, trust, sympathy, and

belief,” and that “they were amicable, willing, and anxious

to testify now and would have been so in 1982.” After

summarizing these witnesses’ testimonies with varying

levels of accuracy, the Referee concluded that the penalty

phase jury would have deemed the evidence of abuse

suffered by Ross “believable” and “significant,” “could

[have] easily believed” the evidence of Ross’s good

character, and could have “infer[red]” and found

“instructive” that Ross “was negatively and severely

affected by the family breakup and enforced isolation from

his stepbrothers.”

Next, the Referee found that the “customary and indeed

mandatory” steps of interviewing family members,

obtaining relevant records, and employing mental health

experts “would have led to all of the evidence adduced at the

reference hearing.” The Referee concluded that, “sad to say,

nothing, absolutely nothing of a competent nature was done

by way of penalty phase preparation by defense counsel in

this case.” There were no tactical or financial reasons for the

“virtually non-existent” penalty phase preparation, including

“no investigation regarding rebuttal.” Further, “[a]lthough

[Ross] indicated some concerns about his mother’s health

and her being called as a witness,” the Referee found “no

substantial evidence to support any reasonable conclusion

that [Ross] requested curtailment of the presentation of

penalty phase evidence.”

With regard to potential rebuttal evidence, the Referee

found that the prosecution would have presented Ross’s

juvenile record and conducted “extensive cross-examination

of [Ross’s] witnesses.” Nevertheless, based on the evidence

adduced during the reference hearing, the Referee opined

ROSS V. DAVIS 45

that “such [rebuttal] evidence would have been outweighed

by [Ross’s] mitigating evidence and that it is reasonably

probable that a more favorable determination would have

resulted in the absence of defense counsel’s failings.”

B.

To establish deficient performance by counsel, Ross

must demonstrate that counsel’s representation “fell below

an objective standard of reasonableness . . . under prevailing

professional norms.” Strickland, 466 U.S. at 688. The

relevant inquiry is not what defense counsel could have

done, but rather whether the choices made by defense

counsel were reasonable. See Babbitt v. Calderon, 151 F.3d

1170, 1173 (9th Cir. 1998). Courts “must indulge a strong

presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered

sound trial strategy.” Strickland, 466 U.S. at 689 (quotations

omitted). This means “strategic choices made after thorough

investigation of law and facts relevant to plausible options

are virtually unchallengeable.” Id. at 690.

However, “counsel has a duty to present and explain all

available mitigating evidence, absent a tactical reason for not

doing so.” Demetrulias v. Davis, 14 F.4th 898, 913 (9th Cir.

2021). After all, “fail[ing] to present important mitigating

evidence in the penalty phase—if there is no risk in doing

so—can be as devastating as a failure to present proof of

innocence in the guilt phase.” Hamilton v. Ayers, 583 F.3d

1100, 1113–14 (9th Cir 2009) (quoting Mak v. Blodgett,

970 F.2d 614, 619 (9th Cir. 1992) (per curiam)). To uncover

mitigating evidence, “counsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.” Strickland, 466 U.S.

46 ROSS V. DAVIS

at 691; see also Wiggins v. Smith, 539 U.S. 510, 523 (2003)

(explaining that in analyzing deficient performance, instead

of focusing on whether counsel should have presented a

mitigation case, the court should instead analyze “whether

the investigation supporting counsel’s decision not to

introduce mitigating evidence . . . was itself reasonable”).

Satisfying this duty requires counsel “to conduct a thorough

investigation of the defendant’s background.” Williams v.

Taylor, 529 U.S. 362, 396 (2000).

According to the Referee’s findings, however, counsel

failed to fulfill that obligation, and thus performed

deficiently. The California Supreme Court accepted for

purposes of discussion the Referee’s finding that defense

counsel’s “performance was indeed deficient.” In re Ross,

10 Cal. 4th at 201, 204. However, the California Supreme

Court also stated that it “need not decide whether counsel’s

performance was truly deficient” and focused its analysis

solely on Strickland’s prejudice prong. Id. at 204. Because

the issue of deficient performance was left unadjudicated by

the California Supreme Court, we review this issue de novo.

Porter v. McCollum, 558 U.S. 30, 39 (2009); see also Avena,

932 F.3d at 1248. Nonetheless, to the extent the California

Supreme Court accepted the Referee’s findings of fact, we

afford them a presumption of correctness under AEDPA.

See 28 U.S.C. § 2254(e)(1) (providing that “a determination

of a factual issue made by a State court shall be presumed to

be correct.”); Avila v. Galaza, 297 F.3d 911, 921 (9th Cir.

2002) (noting that “AEDPA requires us to presume that the

referee’s factual findings are correct” when they have been

adopted by the state court).

The Referee found that the “customary and indeed

mandatory” steps of interviewing family members,

obtaining relevant records, and employing mental health

ROSS V. DAVIS 47

experts “would have led to all of the evidence adduced at the

reference hearing[ ].” According to the Referee, Lenoir “had

delegated responsibility for the preparation of the penalty

phase” to Harris, and “the only penalty phase preparation

performed by her were 2 or 3 perfunctory conversations in

or about the court hallway with family members.” Further,

the Referee found that there were no tactical or financial

justifications for the “virtually non-existent” penalty phase

preparation, there was “no investigation regarding rebuttal,”

and there was “no substantial evidence to support any

reasonable conclusion that [Ross] requested curtailment of

the presentation of penalty phase evidence.” The California

Supreme Court did not reject any of these findings.

Based upon the Referee’s findings, trial counsel could

have investigated and presented the mitigation evidence

presented at the reference hearing, but they did not do so.

The California Supreme Court acknowledged that this

evidence was “substantial” enough that, “[i]f it stood alone,”

it “may well have . . . established prejudice.” In re Ross,

10 Cal. 4th at 205.

On federal habeas review, the district court, reviewing

de novo, held there is “no reason to reject the referee’s

finding” of deficient performance. Ross v. Davis, No. CV

96-2720 SVW, 2017 WL 2374101, at *15 (C.D. Cal. Apr.

26, 2017). The district court explained that after the guilt

phase, “the jurors knew little more about [Ross] than that

they had found him guilty on three counts of first degree

murder, five counts of robbery, two counts of burglary, one

count of rape, and that he was a member of a gang.” Id. “At

the end of the penalty phase, the only additional evidence the

jury had was that petitioner had a prior violent felony

conviction, resulting from his altercation with Mark

Howard, and that Evan Malett had received a life sentence

48 ROSS V. DAVIS

for his role in the Taylor murder.” Id. The district court

emphasized that the standard penalty phase jury instruction

at the time of Ross’s trial “essentially required the jury to

impose the death penalty if the evidence submitted showed

only aggravating circumstances.” Id., at *16. The district

court reasoned that “counsel’s failure to present a penalty

[phase] defense gave the jury little choice but to return a

verdict of death.” Id. This failure was “a gross deviation

from what competent counsel would have done.” Id. The

district court concluded, “[t]here is no adversarial process

when, in the face of three capital convictions, and multiple

accompanying felonies, defense counsel neither thoroughly

investigates nor puts forth mitigating evidence of any

substance.” Id.

Like the district court, we have little difficulty

concluding that defense counsel’s performance was

deficient during the penalty phase. The reference hearing

illuminated a wealth of potential mitigating evidence that

could easily have been discovered by Ross’s counsel.

Indeed, it took the investigator retained by habeas counsel

just fifteen to sixteen hours over less than two weeks to

interview all fifteen potential witnesses. In re Ross, 10 Cal.

4th at 196. Neither Lenoir nor Harris spent time obtaining

records, employing mental health professionals, or looking

into Ross’s background in any meaningful way to uncover

mitigating evidence—steps that competent capital counsel

should have taken. Id. While counsel spoke briefly to a few

family members, there was little (if any) follow up and none

of the mitigating evidence was presented. Id. There is no

suggestion in this record that counsel was aware of the

potential mitigating evidence and made a tactical decision

against presenting it. Cf. Dunn v. Reeves, 141 S. Ct. 2405,

2412 (2021) (refusing to find deficient performance where

the record indicated counsel was aware of the defendant’s

ROSS V. DAVIS 49

mental health records and evaluations but ultimately decided

not to hire a mental health expert because “counsel’s choice

regarding experts involved a strategic decision entitled to a

presumption of reasonableness.”). Here, where counsel

“simply did not know” the mitigating evidence, this utter

failure to investigate meant that “they could not have

intelligently chosen one strategy over another.” Andrews,

944 F.3d at 1112.

C.

To establish prejudice, Ross must demonstrate that there

is a “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. “A

reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. When

examining the penalty phase of a capital case, the standard

requires “a reasonable probability that at least one juror”

would have recommended a sentence of life instead of death.

Wiggins, 539 U.S. at 537. This probability must be

“substantial, not just conceivable.” Richter, 562 U.S. at 112;

Shinn v. Kayer, 141 S. Ct. 517, 523 (2020).

The California Supreme Court rejected the Referee’s

finding of prejudice. In re Ross, 10 Cal. 4th at 205. The

state court noted that it deliberately did not ask the Referee

to make a finding on the ultimate question of whether Ross

was prejudiced by counsel’s performance, because that

question is a mixed question of law and fact. Id. To properly

analyze the prejudice prong requires a reweighing of the

evidence introduced and the mitigating evidence available.

Mayfield v. Woodford, 270 F.3d 915, 928 (9th Cir. 2001).

Here, the “record of the reference hearing indicate[d] the

referee did not review the trial record.” In re Ross, 10 Cal.

4th at 205. The Referee therefore could not have properly

50 ROSS V. DAVIS

assessed prejudice by “compar[ing] the actual trial with the

hypothetical trial that would have taken place had counsel

[performed] competently.” Id.

Instead, the California Supreme Court concluded that it

was not reasonably probable that the outcome of Ross’s

penalty phase trial would have been different had counsel

presented the mitigating evidence. Id. Although

“substantial,” the mitigating evidence was somewhat weaker

than the Referee had found. As the California Supreme

Court described it, the “mitigating evidence consisted of the

testimony of 15 members of petitioner’s family testifying

primarily that they loved petitioner, that he was protective

and caring to other family members, and that he was abused

as a child . . . , that petitioner lived in a violent

neighborhood, that his failure to be rehabilitated was partly

the fault of institutional authorities, and that he expressed

remorse for earlier crimes.” Id. However, this mitigating

evidence “was subject to substantial impeachment and

potentially devastating rebuttal,” which “alters the

equation.” Id.

Specifically, the state court recognized several

significant areas of impeachment weakening the evidence in

mitigation. First, the court found the psychiatric report in

which Ross told the psychiatrist that he had never been

beaten or abused by anyone and that he liked and got along

well with his stepfather, Brown, would have made effective

impeachment because it was in Ross’s own words and was

“more contemporaneous to the alleged incidents than the

later testimony of his relatives.” Id. at 206. Moreover, at the

time of trial, Gloria and Brown had reconciled and had

begun living together. Id. This, too, “would certainly have

weakened the impact of the abuse evidence.” Id. Finally,

Gloria’s statements to the probation officer that Ross was

ROSS V. DAVIS 51

cooperative at home, but that when he was with his peers he

had no control of himself or his behavior, made “long before

the trial, and thus closer in time to the events at issue” would

have “undercut the mitigating evidence relating to [Ross’s]

behavior.” Id.

When discussing the “potentially devastating rebuttal”

evidence, the state court primarily focused on Ross’s

juvenile criminal history. Id. At Ross’s trial, “no evidence

of misconduct by [Ross] before he was 18 years old” was

presented to the jury. Id. However, the Referee found, and

the California Supreme Court accepted, that Ross’s juvenile

convictions for robbery and for brandishing a weapon at

probation camp would have been permitted as rebuttal

evidence. Id. at 207. Additionally, the state court

recognized that Ross’s sustained petitions on juvenile

burglary convictions involving theft of guns would have

been admissible to rebut the character evidence painting

Ross as a “kind, protective, caring person.” Id. The court

reasoned that the potential evidence was “not limited to any

singular incident, personality trait, or aspect of his

background,” so the “breadth and generality of [] good

character evidence warranted rebuttal evidence of the scope

offered.” Id. at 208.

The California Supreme Court also recognized how

almost all of the mitigation evidence was “painfully limited”

to Ross as a young child. Id. The state court then

“question[ed] how effective it would be for the defense to

present a parade of witnesses testifying about [Ross’s] good

qualities up to sometime around the age of 12 years, but

necessarily leaving an obvious gap during his teen years,”

id., when he incurred his series of juvenile convictions and

delinquent acts. This, the court found, opened the door to

52 ROSS V. DAVIS

the rebuttal evidence proffered by the prosecution. Id.

at 208–09.

Next, the California Supreme Court evaluated the

defense actually presented at trial. It concluded that

“counsel gave the penalty jury a reason to spare [Ross’s]

life.” Id. at 209. It found that “[c]ounsel did not simply give

up, but had a specific tactical approach, and presented

evidence and argument to support this approach.” Id.

(quotation and citation omitted). While defense counsel did

not present witnesses, Lenoir did “argue[] mitigating

inferences from the guilt phase evidence presented by the

prosecution” and presented three items of evidence through

stipulation and judicial notice.” Id. at 209–10. While the

court found that this defense was minimal, it still “presented

a coherent case, and avoided the impeachment and rebuttal

the new mitigating evidence would have elicited.” Id.

at 210.

The state court then walked through all the arguments

Ross’s defense counsel actually made in his closing

argument. Lenoir stressed the “harshness” of a life sentence

without the possibility of parole. Id. He compared the fate

of Ross’s accomplice in the Taylor murder, who was found

to have used a firearm in the crime, but who did not receive

a verdict of death. Id. Counsel also argued that the

prosecution “concede[d]” it did not prove Ross used a

firearm during the murders. Id.

Lenoir also introduced evidence that Mark Howard, who

Ross had assaulted, was a gang member. And Lenoir argued

that the jury “can reasonably infer that Mr. Ross behaved

during the two years he was in prison [for the assault of Mark

Howard]. There is nothing to show otherwise.” Id. This

supported Lenoir’s argument that Ross has proven he could

conform in a confined environment. Id. at 211. This

ROSS V. DAVIS 53

argument, “a potentially compelling one” according to the

California Supreme Court, “could not have been made if

counsel had produced the mitigating evidence suggested in

this proceeding and triggered the rebuttal evidence” of

Ross’s nonconforming behavior while in juvenile detention.

Id. Lenoir also argued Ross’s young age was a mitigating

factor and “discussed a mitigating circumstance of the crime,

and mitigating facts of the Howard assault, including the

victim’s gang membership.” Id. The California Supreme

Court found that “[a]ll of these circumstances would have

justified a decision not to use the additional evidence

presented at the reference hearing even after full

investigation, and must be considered in deciding whether it

is reasonably probable the result would have been different

had the evidence been presented.” Id.

The state court acknowledged that there was no direct

evidence, due to Lenoir’s lack of memory, that failing to

present mitigating evidence was based on tactical reasons.

Id. at 213. “But even if we assume[d] counsel would have

presented the evidence,” said the court, “we conclude, after

comparing the trial as it actually occurred with the trial as it

would have been with the mitigating evidence, that there was

no prejudice.” Id. The court then cogently explained its

reasoning:

Petitioner was convicted of three murders on

two separate occasions, including the cold-

blooded killing of a father and fourteen-year-

old son, who were shot while lying on a bed,

one with his hands tied behind his back. He

personally raped the sister of the third murder

victim. Although the additional mitigating

evidence, had it been presented, might have

evoked sympathy, there was no compelling

54 ROSS V. DAVIS

connection between that evidence and the

crimes of this case. The crimes were gang-

conducted robbery murders, not sudden

explosions of angry violence or psychopathic

serial killings. Moreover, the mitigating

evidence would have elicited damaging

impeachment and rebuttal evidence, with an

inevitable adverse effect on the actual

defense strategy at trial. For all these reasons,

we find no reasonable probability the result

would have been different had the mitigating

evidence been presented.

Id. Ross argues that the California Supreme Court’s

rejection of his ineffective assistance of counsel claim was

both contrary to and an unreasonable application of

Strickland. We address these contentions in turn.

1.

The parties agree that once the reviewing court identifies

all the potential mitigating evidence then available to

competent counsel to present to the trial court, Strickland

requires that the court reweigh the “evidence in aggravation

against the totality of available mitigating evidence 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.’” Apelt v. Ryan, 878 F.3d 800, 832

(9th Cir. 2017).

Ross relies on our recent en banc decision in Andrews to

suggest that the California Supreme Court improperly

weighed the mitigating and aggravating circumstances. He

also argues that the similarity of the fact patterns between

Andrews and his case requires us to conclude that the

ROSS V. DAVIS 55

California Supreme Court was unreasonable in its prejudice

determination. As to Ross’s legal argument, our decision in

Andrews lends no support. In contrast to the California

Supreme Court’s careful and meticulous reweighing of the

evidence in light of the potential mitigating evidence

adduced in the reference hearing in Ross, the California

Supreme Court in Andrews failed to separately analyze the

prejudice prong. This resulted in two unreasonable

applications of Strickland’s legal principles.

First, we concluded in Andrews that the California

Supreme Court committed legal error when it improperly

conflated the two Strickland prongs. In denying habeas

relief, the California Supreme Court held that Andrews’s

counsel had not performed deficiently and concluded “[f]or

the same reasons,” it was not probable that Andrews was

prejudiced by the failure to present the potential mitigating

evidence. Andrews, 944 F.3d at 1106. But, as we reasoned

in Andrews, “Strickland’s two prongs serve separate

purposes,” with the deficiency analysis focused on

“counsel’s adherence to reasonable professional standards,

while prejudice looks to the weight of the available evidence

and its effect on the case.” Id. at 1116 (citing Strickland,

466 U.S. at 693–95). In Ross, the California Supreme Court

did not commit this error. It expressly stated it was not

addressing the deficiency prong and instead focused

exclusively on prejudice. In re Ross, 10 Cal. 4th at 205.

Second, in Andrews, “the California Supreme Court

hardly engaged in the reweighing of evidence that

Strickland’s prejudice analysis requires.” Andrews,

944 F.3d at 1116. Indeed, the entirety of the court’s

“reweighing” of the evidence can be found in sixty-two

words in a single sentence. Id. (quoting In re Andrews,

28 Cal. 4th 1234, 1259 (2002)). Thus, we concluded even

56 ROSS V. DAVIS

“giving the California Supreme Court’s analysis all the

deference it is due along with every benefit of the doubt, only

an unreasonable application of Strickland’s principles could

lead to the conclusion that Andrews was not prejudiced by

counsel’s deficient representation at the penalty phase.” Id.

at 1117. The same is not true here. Rather, the California

Supreme Court devoted several pages of its opinion to the

prejudice analysis. The court discussed at length the

aggravating and mitigating evidence actually presented at

trial by the parties along with all the potential mitigation

evidence, and the “inevitable adverse effect” that the

additional rebuttal and impeachment evidence would have

had. In re Ross, 10 Cal. 4th at 205–13. Considering that

“AEDPA demands that ‘state-court decisions be given the

benefit of the doubt,’” Andrews, 944 F.3d at 1116 (quoting

Pinholster, 563 U.S. at 181), the thorough analysis by the

California Supreme Court here cannot fairly be compared to

the brief aside the California Supreme Court gave to its

Strickland prejudice analysis in Andrews.

And as to the facts, although there are some similarities

between the crimes for which Andrews and Ross were

convicted, Andrews involved readily available potential

mitigating evidence of such an order of magnitude that the

failure to investigate and present that evidence, and the

California Supreme Court’s denial of habeas relief under

Strickland, represented “the type of ‘extreme malfunction []’

in the operation of a state’s criminal justice system that

justifies the intervention of a federal habeas court.”

Andrews, 944 F.3d at 1099 (quoting Richter, 562 U.S.

at 102).

Like Ross’s crimes, the “facts of Andrews’s crimes

inspire little sympathy.” Andrews, 944 F.3d at 1100.

Andrews participated in a drug-related robbery that resulted

ROSS V. DAVIS 57

in the murders of three persons. He was convicted of the

first-degree murder of those persons, rape, sodomy, and

robbery, and the jury found four special circumstances to be

true, making him eligible for the death penalty. Id. The jury

sentenced Andrews to death on each of the murder counts.

Id. at 1101.

As in Ross’s case, Andrews’s lead defense counsel, who

was also Gerald Lenoir, made a limited presentation during

the penalty phase. Defense counsel stipulated that Andrews

was twenty-nine at the time of the murders and that Andrews

had previously pleaded guilty in Alabama to armed robbery,

escape, and robbery, stipulations which the prosecutor

introduced into evidence. Id. Defense counsel submitted

sworn affidavits explaining that in connection with

Andrews’s prior murder conviction, it was his co-defendant

who actually used a firearm to kill the victim. Id. No

witnesses for the defense were called. Id.

In both cases, the California Supreme Court affirmed the

convictions on direct review. In both cases, on habeas

review, the court appointed a Los Angeles Superior Court

judge to conduct a reference hearing and to take evidence

and answer a series of questions. And this is where the two

cases diverge in the nature, extent, and gravity of the readily

available mitigating evidence.

The prosecutor in Andrews’s case portrayed him as a

“vicious animal.” Id. at 1099. Defense counsel failed to

employ the “standard investigative techniques” and “simple

persistence” that would have revealed humanizing evidence

that could have allowed the jury to understand how it was

that Andrews came to commit these violent crimes. Id.

at 1101. As eloquently described in Andrews, as a result of

counsel’s deficient performance:

58 ROSS V. DAVIS

The jury . . . did not know—because it was

never told—anything about Andrews’s

upbringing in a segregated and impoverished

area of Mobile, Alabama. Andrews’s

counsel did not tell the jury that Andrews, as

a child, had been confined to the Alabama

Industrial School for Negro Children known

as “Mt. Meigs”—a segregated, state-run

institution that, in the words of one witness,

was a ‘slave camp for children.’ The jury was

not told that, during these formative years,

Andrews was repeatedly subject to brutal

abuse at the hands of his state custodians. It

was not told that, from the age of fourteen,

Andrews was in the custody of Alabama state

institutions so degrading that federal courts

later found the conditions in those institutions

violated the Eighth Amendment’s prohibition

on cruel and unusual punishment. Nor was

the jury told that, in the view of mental health

experts, the severe abuse Andrews suffered

made his subsequent criminal behavior

understandable and predictable.

Id. at 1099.

The mitigating evidence withheld during the penalty

phase in Andrews’s case cannot be understated. A witness

testified, “the children committed to Mt. Meigs in the 1960s

had ‘no chance of rehabilitation’ and ‘came out much worse’

than when they entered. Indeed, the institution was ‘not

designed for rehabilitation.’” Id. at 1102. Children instead

“pick[ed] cotton and tend[ed] vegetables.” Id. And if that

weren’t enough, “[a]t night, there was little supervision,

leading to ‘a lot of sexual abuse of children.’” Id. Thirteen

ROSS V. DAVIS 59

witnesses who had been committed to Mt. Meigs detailed its

abhorrent conditions. One witness recalled a truly disturbing

disciplinary trend:

When a child was disobedient in the fields or

failed to pick his quota of cotton, an overseer

would “poke a hole in the ground and order

him to lie down, to pull down his pants, and

to stick his penis into the hole. The overseer

would then beat the boy’s thighs with a stick,

often until the skin burst open. One witness

remembered seeing [Andrews] beaten in this

manner.”

Id. It was reported that, because of Andrews’s “young age

and slight build,” he was often the target of “substantial

sexual pressure,” particularly from “older, tougher boys,

from whom no protection or separation was provided.” Id.

at 1103. This physical and sexual abuse continued after

Andrews’s incarceration “[j]ust months after his release

from Mt. Meigs”: Andrews’s “counsel presented evidence at

the state court hearing that Andrews was ‘repeatedly raped

in prison.’” Id. And a former inmate described Andrews as

a “little sheep among wolves, a baby among a bunch of

grownups.” Id. Like Mt. Meigs, the prison in which

Andrews was detained had debilitating conditions, and

because it was newly integrated, “many of the [w]hite prison

guards resented the [b]lack prisoners, whom they called

‘things’ and ‘niggers.’” Id.

Andrews’s defense counsel’s closing argument was

extremely limited. Defense counsel “gave a short, rambling

closing statement” that “overwhelmingly focused on

Andrews’s age,” and argued that Andrews’s age alone “can

be sufficient mitigation.” Andrews, 944 F.3d at 1101.

60 ROSS V. DAVIS

Defense counsel “veered from topic to topic,” ineffectively

arguing that Andrews didn’t pull the trigger in his prior

murder conviction, and that his current co-defendant

received a life sentence. Id.

Our en banc court held that “it is unconscionable and

unreasonable to uphold a sentence of death when the jury

never heard readily available mitigating evidence of the

magnitude present here.” Id. We upheld the district court’s

grant of habeas relief on Andrews’s claim of ineffective

assistance of counsel at the penalty phase. Id.

By contrast, here, it was not unreasonable for the

California Supreme Court to conclude that the potential

mitigation evidence—which is limited to Ross as a young

child—was likely insufficient to give the jury a basis to

understand why Ross would engage in such heinous crimes

as an adult. Arguably, it might have swayed one juror to

vote for life upon hearing fifteen relatives ask for mercy, but

it was not unreasonable for the California Supreme Court to

have concluded otherwise. We therefore do not believe

Andrews controls the outcome of this case.

It also bears mentioning that defense counsel’s closing

argument on behalf of Ross was more detailed than on behalf

of Andrews, particularly with respect to mitigating

inferences. As the California Supreme Court reasonably

concluded in Ross, defense counsel “gave the penalty jury a

reason to spare his life.” In re Ross, 10 Cal. 4th at 209. He

“argued mitigating inferences from the guilt phase evidence

presented by the prosecution,” and also that Ross was only

twenty-one at the time of the murders, that Mark Howard

was a gang member, that it was Evan Malett who pulled the

trigger in the Taylor murders, and that Ross had proven he

can behave in a confined environment like prison. Id.

at 209–10.

ROSS V. DAVIS 61

Ross contends that the California Supreme Court’s

consideration of defense counsel’s closing argument while

reweighing the evidence was contrary to Strickland because

it is axiomatic that “argument is not evidence.” But this is

not quite what the California Supreme Court actually did—

it did not consider counsel’s argument in a vacuum. Rather,

the state court considered counsel’s argument to the extent

he argued inferences legitimately drawn from the evidence.

Lenoir “argued mitigating inferences from the guilt phase

evidence presented by the prosecution” as well as mitigating

inferences from the three items of evidence introduced by

stipulation and judicial notice—Malett’s life sentence,

Howards’ gang membership, and Ross’s relative youth and

conformity during confinement. In re Ross, 10 Cal. 4th

at 209–10. Although argument is not evidence, it must be

based on inferences properly drawn from the evidence. And

drawing out those inferences in a way favorable to Ross was

counsel’s duty. Here, unlike in Andrews, the California

Supreme Court reweighed the evidence, including the

reasonable inferences rationally drawn from it, as required

by Strickland.

For example, defense counsel argued, “You can

reasonably infer that Mr. Ross behaved during the two years

he was in prison [for the assault on Mark Howard]. There is

nothing to show otherwise.” Id. at 210 (emphasis added).

And he pointed out that the diligent prosecutor would have

presented evidence to the contrary had it existed. From that,

defense counsel drew the inference he believed the jury

should make: “Some people cannot conform unless they are

in a confined environment, and he has proven that he can do

that.” Id. at 211. The California Supreme Court weighed

that evidence and those inferences against the hypothetical

trial where the potential mitigation evidence had been

introduced: “This argument, a potentially compelling one

62 ROSS V. DAVIS

when the jury must decide whether the defendant should

spend the rest of his natural life in a ‘confined environment,’

could not have been made if counsel had produced the

mitigating evidence suggested in this proceeding and

triggered the rebuttal evidence that petitioner had a sustained

juvenile petition ‘for brandishing a weapon based on

threatening a probation camp cook with a large serving

fork.’” Id.

Moreover, Ross cites no well-established Supreme Court

precedent precluding consideration of closing argument

when a reviewing court conducts the Strickland prejudice

analysis. To the contrary, both the Supreme Court and our

court have addressed defense counsel’s closing argument

when conducting a Strickland prejudice analysis. See, e.g.,

Williams, 529 U.S. at 369 (noting that the bulk of defense

counsel’s closing argument “was devoted to explaining that

it was difficult to find a reason why the jury should spare

[defendant’s] life” and ultimately concluding habeas relief

was warranted); Yarborough v. Gentry, 540 U.S. 1, 4 (2003)

(explaining how “tactical decisions in [counsel’s] closing

presentation [are] particularly important because of the

broad range of legitimate defense strategy at that stage” in

denying habeas relief); Bell, 535 U.S. at 701 (rejecting the

argument that waiving closing argument and “counsel’s

failure to advocate for life in closing necessarily left the jury

with the impression that he deserved to die” in denying

habeas relief); Andrews, 944 F.3d at 1101 (highlighting

counsel’s “short, rambling closing statement” as part of the

minimal mitigation case that warranted granting federal

habeas relief); Avena, 932 F.3d at 1251 (discussing a defense

closing argument that congratulated the jury on reaching the

right decision in convicting their client).

ROSS V. DAVIS 63

Ross next argues for the first time on appeal 7 that the

California Supreme Court acted contrary to Strickland

because it improperly applied a causal nexus test between

the potential mitigation evidence and the home-invasion

robbery murders. See In re Ross, 10 Cal. 4th at 212–13.

After reviewing the strong aggravating factors in this case—

the three cold-blooded murders, including that of a man and

his fourteen-year-old disabled son, hands tied behind one of

their backs, and the rape of the sister of the third murder

victim—the California Supreme Court did note “[a]lthough

the additional mitigating evidence, had it been presented,

might have evoked sympathy, there was no compelling

connection between that evidence and the crimes of this

case.” In re Ross, 10 Cal. 4th at 213. It explained that “[t]he

crimes were gang-conducted robbery murders not sudden

explosions of angry violence or psychopathic killings.” Id.

In Eddings v. Oklahoma, 455 U.S. 104 (1982), the

Supreme Court held that it was an Eighth Amendment

violation to preclude the sentencing entity from considering

mitigation evidence because it was not mitigating as a matter

of law. There, the trial judge stated that, in “following the

law,” he could not “consider the fact of this young man’s

violent background,” meaning the mitigating evidence of

Eddings’s violent physical abuse by his father. Eddings,

7

Although we generally do not consider an issue raised for the first

time on appeal, we may address this issue when either (1) “review is

necessary to prevent a miscarriage of justice or to preserve the integrity

of the judicial process,” (2) “a new issue arises while appeal is pending

because of a change in the law,” or (3) “the issue presented is purely one

of law and either does not depend on the factual record developed below,

or the pertinent record has been fully developed.” Bolker v. C.I.R., 760

F.2d 1039, 1042 (9th Cir. 1985) (citations omitted). We elect to consider

the issue here to preserve the integrity of the judicial process and because

the record is fully developed for our consideration.

64 ROSS V. DAVIS

455 U.S. at 109. But, once again, this is not quite what the

California Supreme Court did here. It did not refuse to

consider the physical abuse of Ross by his stepfather Brown;

it did consider it and concluded Ross’s abuse did evoke

sympathy. In re Ross, 10 Cal. 4th at 195. However, the state

court noted that all of the abuse had ended when Brown left

the family when Ross was age twelve. Id. at 208. And in

stating that there was “no compelling connection between

that evidence” and these crimes, the court was merely stating

that the early childhood abuse Ross had suffered had failed

to sufficiently explain why Ross had committed the heinous

crimes of which the jury had just found him guilty,

especially in light of the potential rebuttal that Ross has an

extensive record consisting of gun-related juvenile offenses.

For example, in Avena v. Chappell, we found that

potential mitigating evidence that defense counsel failed to

present prejudiced the defendant precisely because it

explained to the jury why the brutal crimes were committed.

For Avena, evidence of “habitual PCP use, as well as the

effects the drug had on his demeanor” provided

“considerable potential . . . to argue . . . [its] use contributed

to [Avena’s] violent and erratic behavior on the night of the

carjacking homicides.” Avena, 932 F.3d at 1252. Here, the

potential mitigating evidence of abuse, while indisputably

significant, sheds no light on why Ross would have

committed the three cold-blooded murders and rapes, or why

the jury should not impose the death penalty given the

heinous nature of the crimes. See In re Ross, 10 Cal. 4th

at 212–13. We conclude that the California Supreme

Court’s decision was not contrary to Strickland.

2.

The California Supreme Court’s decision denying

Ross’s claim of ineffective assistance of counsel during the

ROSS V. DAVIS 65

penalty phase for lack of prejudice was a reasonable

application of Strickland. 28 U.S.C. § 2254(d)(1).

To begin, we defer to the California Supreme Court’s

finding that the additional mitigation evidence uncovered at

the reference hearing was “substantial.” Id. at 205. While

growing up, Ross was abused extensively by his stepfather,

and “[e]vidence of abuse inflicted as a child is especially

mitigating.” Andrews, 944 F.3d at 1117; see also Summerlin

v. Schiro, 427 F.3d 623, 635 (9th Cir. 2015) (en banc)

(referring to family history and abuse as “classic mitigation

evidence”). All fifteen available witnesses would have

asked the jury for a life sentence instead of death, a plea for

mercy that the jury should have heard. See Livaditis v.

Davis, 933 F.3d 1036, 1048 (9th Cir. 2019).

The California Supreme Court properly reweighed the

old and new mitigating evidence against the existing

aggravating evidence. “Courts considering additional

evidence in post-conviction proceedings must ‘evaluate the

totality of the available mitigation evidence—both that

adduced at trial, and the evidence adduced in the habeas

proceeding in reweighing it against the evidence in

aggravation.’” Mann v. Ryan, 828 F.3d 1143, 1160 (9th Cir.

2016) (en banc) (quoting Williams, 529 U.S. at 397–98).

When the state habeas record includes new factual

allegations or evidence that the court reasonably finds

subject it to a “potentially devastating rebuttal,” In re Ross,

10 Cal. 4th at 205, the court may reasonably conclude that

the mitigating evidence “is of questionable mitigating

value.” Pinholster, 563 U.S. at 201.

Here, the California Supreme Court recognized that

Ross’s potential classic mitigating evidence—physical

abuse and good character—did not cover Ross’s post-

adolescent period following Gloria’s separation from Brown

66 ROSS V. DAVIS

when Ross was twelve. And while substantial testimony

painted Ross as a kind and nurturing person as a child and

young adolescent, the California Supreme Court found that

there was no evidence of Ross’s continuing good character.

Indeed, the prosecutor introduced evidence that by the time

Ross turned eighteen, he was a gang member who had

already shot Mark Howard six times in the chest and torso

over a dispute about a radio. The California Supreme Court

questioned just how “effective it would be for the defense to

present a parade of witnesses testifying about petitioner’s

good qualities up to sometime around the age of twelve

years, but necessarily leaving an obvious gap during his teen

years.” In re Ross, 10 Cal. 4th at 208. Because the

California Supreme Court recognized that practically all the

mitigating evidence was “painfully limited” to a pre-

adolescent Ross, id., the court reasonably concluded the jury

would not have been swayed by it against imposing the death

penalty in light of the potential rebuttal and impeachment

evidence and the heinous circumstances of the murders.

Had the potential mitigating evidence been admitted at

trial, potentially damaging impeachment and rebuttal

evidence would have been triggered, according to the

California Supreme Court. See id. at 205. This evidence

was particularly devastating because it filled the gap from

the time Brown stopped beating Ross at age twelve to his

gang membership and shooting of Howard at age eighteen.

Between the ages of twelve and eighteen, Ross developed an

extensive juvenile record: four counts of robbery, three

counts of burglary involving the theft of guns, and one count

of brandishing a fork in a threatening manner at a cook while

in custody. Id. at 207. The California Supreme Court

reasonably determined this evidence was admissible “to

rebut evidence portraying [Ross] as a kind, protective, caring

person.” Id.

ROSS V. DAVIS 67

Ross argues that this evidence may not have been

admitted had counsel solely focused on his family

background and the physical abuse he endured at the hands

of Brown. But even assuming that defense counsel had

found the good character evidence, but decided not to

introduce it in mitigation, the California Supreme Court

reasonably determined the testimony about the physical

abuse itself was impeachable in two ways: by Ross’s

mother’s prior statements and by Ross’s own prior

statements. Id. at 206. The state court reasonably found that

the statements Gloria made to Ross’s probation officers

highlighting how Ross’s problems only started after she

separated from Brown and how Ross was “by far the worst”

out of her six children and “show[ed] a great deal of

resentment towards all types of people,” statements made

closer in time to his juvenile crimes, would have undermined

her trial testimony. And the facts that at the time of trial

Gloria had reunited with Brown and that they were living

together would surely have been elicited to question the fact

and extent of any abuse Ross suffered. Ross’s own

statements to a psychiatrist at the age of fifteen that he liked

his stepfather Brown and was not abused at home further

undermined the testimony about the abuse. Id. at 200.

Because this statement was closer in time to the alleged

abuse, the court reasonably determined it carried more

weight than the potential mitigation testimony would have

carried. Id. Considering that these statements and actions

are logically inconsistent with the claimed abuse, the

California Supreme Court reasonably concluded that the

mitigating evidence of abuse would have been weakened in

reweighing the mitigating evidence. 8

8

As the California Supreme Court itself noted, Ross could have

countered this impeachment evidence with argument about how victim

68 ROSS V. DAVIS

The California Supreme Court also found Ross’s

argument that his defense counsel could “parse” the

character evidence into discrete periods failed as a matter of

law. It explained that the purpose of rebuttal at this stage

was to present a “balanced picture of the defendant’s

personality.” Id. at 208. The court elaborated: “Evidence

that petitioner was a good child, but committed various acts

of misconduct as a teenager and then as an adult, presents a

more balanced picture than evidence that petitioner was a

good child, then later committed adult crimes, deleting

accurate evidence of petitioner’s juvenile record.” Id.

at 208–09. It reasonably concluded, “[c]haracter evidence

cannot be parsed so finely.” Id. at 209.

The circumstances of the murders, as well as the murders

themselves, were aggravating factors. Ross “was convicted

of three murders on two separate occasions, including the

cold-blooded killing of a father and his fourteen-year-old

[disabled] son, who were shot while lying on a bed, [the

father] with his hands tied behind his back.” Id. at 213. Ross

personally twice raped the sister of the third murder victim,

Michael Taylor. Id. The state court judges used words such

as “sadistic, unbelievably cruel, senseless,” and “cold-

blooded” to describe the murders. In re Ross, 10 Cal. 4th at

213. Indeed, these facts “inspire little sympathy.” Andrews,

944 F.3d at 1100; see also Cain v. Chappell, 870 F.3d 1003,

1021 (9th Cir. 2017) (“[I]n light of the aggravating

circumstances involving the brutal murders of a couple in

denial and inconsistent forms of behavior are common in abusive

situations. See In re Ross, 10 Cal. 4th at 206. The court nevertheless

reasoned that “petitioner’s own words, more contemporaneous to the

alleged incidents than the later testimony of his relatives, would have

made effective impeachment.” Id. Under AEDPA, we must defer to this

finding.

ROSS V. DAVIS 69

their sixties, the thirteen blows administered to [the

husband], the attempted rape of [the wife], and Cain’s prior

violent acts, the state court’s denial of this claim was not

unreasonable.”).

The jury heard further aggravating evidence of Ross’s

violence. Ross shot Mark Howard six times in the chest in

a dispute over a radio, an act the prosecutor described as

essentially “a[nother] murder where the victim, fortunately,

did not die.” Based on the extent of the aggravating

circumstances here, as well as the rebuttal evidence of

juvenile crime, the California Supreme Court reasonably

concluded that “even if [it assumed that] counsel would have

presented the [mitigating] evidence, . . . after comparing the

trial as it actually occurred with the trial as it would have

been with the mitigating evidence, [] there was no

prejudice.” In re Ross, 10 Cal. 4th at 213; see Shinn, 141 S.

Ct. at 524 (finding that because of the nature of the

aggravating circumstances, “[p]erhaps the most probable

reason for [the state court’s] no-prejudice determination is

simply that the new mitigation evidence . . . did not create a

substantial likelihood of a different sentencing outcome.”);

see also Livaditis, 933 F.3d at 1050–51 (9th Cir. 2019)

(finding the strength of aggravating evidence a factor in

favor of denying the Strickland claim under AEDPA

review).

Ross disputes that the nature of the murders was so

aggravating that the potential mitigation evidence could not

have shifted the balance between life and death in the mind

of at least one juror. But this argument is based on his

rearguing the weight of the evidence as to his presence at the

Hassan murders when the jury found that he was present and

participated in the murders. Ross also argues that the fact he

70 ROSS V. DAVIS

was not the triggerman 9 minimizes his role in the murders.

Yet the jury had just convicted him of the three heinous

murders, robbery, and rape. After carefully considering all

of the mitigating and aggravating evidence introduced at

trial—including Ross’s conduct during the trial, the potential

mitigating evidence, and the potential impeachment and

rebuttal evidence that could have been introduced—the

California Supreme Court concluded that a sentence less

than death was not reasonably probable. We cannot say that

the California Supreme Court’s conclusion was

unreasonable under all the circumstances presented here.

VI.

Certainly we would not find it unreasonable had the

California Supreme Court determined Ross was prejudiced

by counsel’s deficient performance. Even the State agreed

that “the [California Supreme Court] certainly could have

decided the matter differently.” But because the California

Supreme Court’s conclusion “was premised on logic and

reason,” it “cannot be fairly called unreasonable,” and thus

should not be disturbed. On this record, habeas relief cannot

be granted.

For the reasons stated herein, we AFFIRM the decision

of the district court.

9

The record is inconclusive on who actually fired the gun for all

three murders, meaning it is entirely possible that Ross was indeed the

shooter. However, no evidence established that fact and the prosecution

conceded it likely did not prove that Ross was the shooter beyond a

reasonable doubt.