Detrich v. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID SCOTT DETRICH, 

Petitioner-Appellant, No. 08-99001

v.

 D.C. No.

4:03-cv-00229-DCB

CHARLES L. RYAN,* OF ARIZONA

DEPARTMENT OF CORRECTIONS, OPINION

Respondent-Appellee.



On Remand From The United States Supreme Court

Filed May 2, 2012

Before: Harry Pregerson, M. Margaret McKeown, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez;

Dissent by Judge McKeown

*Charles L. Ryan is substituted for his predecessor Dora B. Schriro as

Director of the Arizona Department of Corrections. Fed. R. App. P.

43(c)(2).

4543

DETRICH v. RYAN 4549

COUNSEL

Jennifer S. Bedier (argued), Arizona Capital Representation

Project, and Gregory J. Kuykendall, Kuykendall & Asso-

ciates, Tucson, Arizona, for petitioner-appellant David Scott

Detrich.

Terry Goddard, Attorney General; Kent E. Cattani (argued),

Chief Counsel; and Donna J. Lam, Assistant Attorney Gen-

eral, Tucson, Arizona, for respondent-appellee Charles Ryan.

OPINION

PAEZ, Circuit Judge:

An Arizona judge sentenced David Scott Detrich to death

after a jury convicted him of murder, kidnapping, and sexual

abuse. After exhausting his state remedies, Detrich filed a

petition for a writ of habeas corpus in federal district court

alleging, among other things, that his trial counsel was uncon-

stitutionally ineffective at the penalty phase for failing to

investigate and present substantial mitigating evidence and for

failing to rebut the state’s arguments that aggravating circum-

stances warranted a death sentence.1 Applying the standards

1

Detrich also raised claims relating to the guilt phase of his trial. We

addressed those claims in a memorandum disposition that we filed simul-

taneously with our prior opinion. When the Supreme Court granted certio-

rari in this case, it did not disturb our separate memorandum.

4550 DETRICH v. RYAN

of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, the district

court denied relief.

In our opinion reported at 619 F.3d 1038 (9th Cir. 2010),

we reversed the district court’s denial of Detrich’s habeas

petition. We concluded that the state court’s decision that Det-

rich’s counsel, Harold Higgins, performed competently

involved an unreasonable application of federal law, as deter-

mined by the Supreme Court. We next held that the state

court’s decision that Detrich was not prejudiced by Higgins’s

errors resulted from an unreasonable determination of the

facts. Finally, considering the prejudice inquiry de novo, we

concluded that there was a reasonable probability that Detrich

would have received a sentence less than death but for Hig-

gins’s deficient representation.

The United States Supreme Court granted certiorari,

vacated our judgment, and remanded this case for further con-

sideration in light of Cullen v. Pinholster, 563 U.S. ___, 131

S. Ct. 1388 (2011). See Ryan v. Detrich, 131 S. Ct. 2449

(2011) (Mem.). Having reconsidered the facts and issues of

this case in light of Pinholster, see discussion infra at p. 4584,

we again conclude that Detrich is entitled to habeas relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Crime

As recounted in the Arizona Supreme Court’s opinion on

direct appeal, Detrich and a co-worker, Alan Charlton, left

work on November 4, 1989, and went to a local bar in Ben-

son, Arizona, where the two consumed between 12 and 24

beers each, according to Charlton’s estimate. State v. Detrich

(Detrich II), 932 P.2d 1328, 1331 (Ariz. 1997). The men then

drove to Tucson, where they drank more beer at more bars.

Id. Later that night, they picked up Elizabeth Souter, the even-

tual victim, who was walking along the road. Id. At Detrich’s

DETRICH v. RYAN 4551

request, Souter directed him to a “roadhouse” where he could

buy cocaine. Id. The two men and Souter then drove to Sou-

ter’s home, where Detrich attempted to cook the cocaine in a

spoon so that it could be injected. Id. When the syringe would

not pick up the cocaine, Detrich began screaming that “the

needle wasn’t any good, or the cocaine wasn’t any good” and

told Souter that she would have to pay for the bad drugs by

having sex with him. Id. Three witnesses—Charlton and two

others—reported that Detrich was holding a knife against

Souter’s throat. Id.

Detrich then told Souter they were going for a ride, and

Detrich, Charlton, and Souter left in Charlton’s car. Id. Charl-

ton drove, Detrich sat in the middle, and Souter sat on the pas-

senger side, against the door. Id. Charlton testified that, while

stopped at a red light, he saw Detrich “humping” Souter and

asking her how she liked it. Id. Soon thereafter, Charlton

looked again and saw that Souter’s throat was slit. Id. Charl-

ton further testified that Detrich then hit Souter and asked her

who gave her the drugs, and that Souter only gurgled in

response. Id. at 1331-32. Detrich asked twice more, and Sou-

ter again responded with only a gurgle. Id. at 1332. Charlton

claims that he never saw Detrich actually stab Souter, but that

he himself was poked in the arm with a knife several times.

Id. A pathologist established that Souter was stabbed forty

times. Id.

Charlton testified that, at this point, Detrich said to him,

“It’s dead but it’s warm. Do you want a shot at it?” Id. Charl-

ton declined. Id. The two pulled over in a remote area approx-

imately fifteen minutes from Souter’s home, and Detrich

dragged Souter’s body into the desert. Id. The two men then

drove to a friend’s house in Tucson. Id. The friend testified

that the men showed up at his house at 4 a.m., that Detrich

was covered in blood, and that Charlton had blood only on his

right side. Id. About an hour later, Detrich told the friend that

he had killed a girl by slitting her throat because she had

given them bad drugs. Id.

4552 DETRICH v. RYAN

Several days later, the friend called in an anonymous tip to

the police. Id. Based on the tip, the police arrested Charlton,

who confessed to his involvement in the crime. Id. Several

days later, Detrich was arrested in New Mexico with a folding

knife in his possession. Id. Although Charlton admitted the

knife was his, he explained that it often fell out of his pants,

and that Detrich had the knife on the night of the murder and

the next morning, when it was covered in blood. Id.

Charlton entered into a plea bargain under which he

pleaded guilty to kidnapping and agreed to testify against Det-

rich in exchange for the prosecution dropping the capital mur-

der charge against him. Charlton was sentenced to ten and a

half years’ imprisonment.

B. 1990-1991 Trial, Sentencing, and Appeal

Detrich was charged with first-degree murder, kidnapping,

and sexual assault. State v. Detrich (Detrich I), 873 P.2d

1302, 1304 (Ariz. 1994). Detrich’s first trial ended in a mis-

trial when a prosecution witness mentioned that Detrich had

invoked his right to remain silent at one point during the

investigation. Id. After a retrial, the jury convicted Detrich of

first-degree murder and kidnapping, acquitted him of sexual

assault, and convicted him of the lesser-included offense of

sexual abuse. Id. The state sought the death penalty. See id.

at 1303.

Pursuant to Arizona law, the sentencing judge held a hear-

ing to determine whether aggravating and mitigating circum-

stances were present. See Ariz. Rev. Stat. § 13-703(B) (1995),

invalidated by Ring v. Arizona, 536 U.S. 584 (2002).2 Under

Arizona law at the time, if the sentencing judge found one or

more of ten enumerated aggravating circumstances, he had to

impose the death penalty unless mitigating circumstances out-

2

Unless otherwise indicated, all citations to Arizona Revised Statutes

§ 13-703 are to the 1995 version of the law.

DETRICH v. RYAN 4553

weighed the aggravating factors. Id. § 13-703(E). At the sen-

tencing hearing, the prosecution urged the court to find as an

aggravating circumstance that the crime was “especially cruel,

heinous, or depraved.”

In response, defense counsel noted that a doctor had testi-

fied that he could not tell whether the victim had actually

experienced conscious, physical pain and suffering and urged

the court to find several mitigating circumstances. First, coun-

sel argued that Detrich did not have the capacity to appreciate

the wrongfulness of his acts or to conform his conduct to the

law due to his extreme intoxication, and possible black-out, at

the time of the murder. In support of this argument, counsel

noted that Detrich had no known pattern of aggressive behav-

ior and that Detrich’s problems with alcohol had existed since

he was nine years old. Further, defense counsel urged the

court to find as mitigating circumstances Detrich’s co-

defendant’s mere ten-and-a-half-year sentence and Detrich’s

remorse.

Three days after this hearing, the trial judge sentenced Det-

rich to death, concluding that the murder had been committed

in an “especially cruel, heinous, and depraved” manner, and

that no mitigating circumstances were proven.

Detrich appealed his conviction and sentence to the Ari-

zona Supreme Court. See Detrich I, 873 P.2d at 1303. That

court reversed his kidnapping and murder convictions because

of a defective jury instruction and remanded for a new trial on

those charges. Id. at 1306 07.

C. 1994-1995 Trial, Sentencing, and Appeal

New counsel, Harold Higgins, was appointed for Detrich’s

retrial. The jury convicted Detrich of kidnapping and first-

degree murder, but did not unanimously agree on a single the-

ory of first-degree murder: nine jurors found premeditation;

eleven found felony murder; and eight found both.

4554 DETRICH v. RYAN

The prosecution sought the death penalty and filed a sen-

tencing memorandum alleging as an aggravating circumstance

that the crime was especially cruel, heinous, and depraved,

and arguing that this aggravating factor outweighed the miti-

gating factors. In response, Detrich’s counsel filed a three-

page sentencing memorandum that did not challenge the

state’s aggravation case, and instead argued that the court

should not impose the death penalty because the jury’s lack

of unanimity about whether Detrich had committed premedi-

tated murder or just felony murder indicated that the jury was

not convinced that Detrich actually committed the murder. In

addition, the memorandum pointed to new evidence presented

at the second trial that suggested that Charlton, not Detrich,

may actually have killed Souter.

The sentencing memorandum also listed five mitigating

factors, with little elaboration or argument: Detrich’s dimin-

ished capacity due to voluntary intoxication, his “abusive

background,” his lack of previous convictions involving seri-

ous injury or threat thereof, his remorse, and the minimal sen-

tence received by his co-defendant. The only elaboration on

any of these factors was a note that Detrich’s “abusive back-

ground” was “[f]ully detailed in” an October 18, 1994, letter

from Detrich’s sister, and an explanation that “[t]he evidence

was clear that Defendant Detrich was highly intoxicated due

to alcohol at the time of the incident, and perhaps had also

ingested cocaine. In addition, [the sister’s letter] makes it

clear Defendant has a lengthy history of alcohol abuse and

was encouraged into same by his parent-figures.”

Higgins did little to bolster these arguments. He did not

employ a mitigation investigator, nor did he ask his investiga-

tor, James Williams, to investigate mitigating evidence. In

any event, Williams was not qualified to do a life history

investigation. At most, Williams made phone calls to family

members, but no one responded. According to Detrich’s sis-

ter, Diana Jo Stevens, someone from the defense team con-

tacted her shortly before the sentencing hearing and asked her

DETRICH v. RYAN 4555

to write a letter “about David.” She wrote the letters not

knowing what to include or for what purpose they would be

used. In all, Higgins spent only ten and a half hours on the

penalty phase of Detrich’s trial, including the time spent at the

penalty-phase hearings themselves.

In February 1995, the court held an aggravation/mitigation

hearing. At the beginning of the hearing, Higgins gave the

sentencing judge two more letters, totaling ten hand-written

pages, from Detrich’s sister, Diana Jo Stevens. One letter pro-

vided information about Detrich’s abusive childhood, and the

other letter simply made a plea for mercy. To give himself

time to consider these newly submitted letters, the trial judge

scheduled the sentencing for two days later.

At the aggravation/mitigation hearing, the prosecution

argued that the crime was “especially cruel, heinous, [and]

depraved,” an aggravating circumstance that could authorize

a death sentence under Arizona Revised Statutes § 13-

703(F)(6). The prosecution argued that the crime was “espe-

cially cruel” because Souter suffered a slit throat and forty-

five knife injuries, some of which were defensive; because

she was conscious during some of the attack, as indicated by

her gurgling attempts to respond to Detrich’s questions; and

because she suffered mentally when she was held at

knifepoint and threatened with sexual assault. In addition, the

prosecution argued that the crime was “especially heinous or

depraved” because it involved gratuitous violence, “well

beyond that required to accomplish the killing”; because Det-

rich apparently relished the murder, as evidenced by his ask-

ing Charlton if he “want[ed] a shot” at the dead body and his

telling a friend the next morning that he slit her throat because

she had gotten him bad drugs; because the killing was sense-

less; and because the victim was helpless.

Higgins responded with three arguments: (1) Detrich was

not death-eligible under Tison v. Arizona, 481 U.S. 137

(1987), because he did not actually commit the murder, (2)

4556 DETRICH v. RYAN

the crime was not especially cruel, heinous, or depraved, and

(3) mitigating circumstances called for leniency. First, Hig-

gins argued that Detrich was not death-eligible under Tison v.

Arizona, given the “many uncertainties that now exist as to

what specifically happened, and as to who did what.” In sup-

port of this argument, Higgins pointed to new evidence pre-

sented in Detrich’s second trial suggesting that Detrich may

not actually have committed the murder. Higgins argued that

the jurors’ failure to reach unanimous agreement that Detrich

had committed premeditated murder reflected their doubt

about Charlton’s testimony that Detrich had murdered the vic-

tim. According to Higgins, if Detrich was not the perpetrator,

he was not death-eligible under Tison.

Second, to rebut the prosecution’s aggravation case, Hig-

gins argued that the uncertainty about who actually committed

the murder prevented finding that Detrich had acted in a cruel,

heinous, or depraved manner. In addition, Higgins argued that

many of the knife wounds were “minor”; that it was unclear

whether Souter lived, and suffered, after the first of the most

serious wounds was inflicted; and that Charlton’s statement

that Detrich had asked him if he “want[ed] a shot at” the dead

body was of questionable credibility.

Third, Higgins argued that mitigating circumstances war-

ranted leniency. In support of his mitigation case, Higgins cal-

led no witnesses, introduced as evidence only the three letters

from Detrich’s sister, Diana Jo Stevens, and made a short

argument spanning only five transcript pages.

In his mitigation argument, Higgins first contended that

Detrich’s intoxication at the time of the crime diminished his

capacity to appreciate the wrongfulness of his conduct. Hig-

gins explained that Detrich had a longstanding problem with

alcohol, as he had been “encouraged by a parent at a very,

very early age to engage in this type of alcohol abuse,” and

that, given this history, Detrich’s intoxication should not be

considered fully “voluntary.” As the pre-sentence report

DETRICH v. RYAN 4557

(“PSR”) and letters from Detrich’s sister reported, Detrich

had begun using alcohol at age eight or nine at the encourage-

ment of his step-father, Skip. When Skip and Detrich’s

mother would fight, Skip would take Detrich and leave, and

the two would stay out drinking all night long. When Detrich

was about fifteen years old, he could guzzle a half-pint of

whiskey in one drink for Skip’s friends. Once, Skip and Det-

rich went on a week-long drinking spree and ended up three

hundred miles away.

Higgins next briefly pointed to abuse Detrich suffered as a

child as a mitigating factor. According to the letters from Det-

rich’s sister, Detrich had suffered physical and mental abuse

and had been introduced to drinking by his parents. Although

Higgins did not present any live witnesses or other evidence

that would compellingly portray Detrich’s abusive childhood,

the sentencing judge was aware of the basic facts of Detrich’s

upbringing from the PSR, psychological reports (none of

which Higgins had provided the court), and the letters from

Detrich’s sister.

In particular, the sentencing judge knew that Detrich was

born with a cleft palate that was surgically corrected, that his

parents divorced when he was young, and that he and his sib-

lings began living with their father after their father and step-

mother refused to let them return to their mother’s home after

a two-week visit. The sentencing judge also knew that Detrich

was “severely mistreated and frequently physically abused”

by his step-mother, Jean, who frequently told the children

how much she hated them and did not want them around,

once held Detrich underwater in the bathtub, and once tied

him to a post outside, telling him he was no better than a dog.

Detrich sometimes wet the bed at night, and Jean would spank

him with a belt, make him wash the sheets before school, and

publicly humiliate him about it. Once, Jean pushed Detrich’s

brother, Danny, down the basement steps and then put a pistol

to Danny’s head, screaming that she would kill the kids if

they told their father what happened. After five years with

4558 DETRICH v. RYAN

their father, Detrich and his siblings moved back with their

mother and Skip. Skip was verbally and physically abusive to

Detrich’s mother, who abused drugs and was “just there.” As

a child, Detrich would sometimes leave for two or three

weeks, and his mother would never ask him where he had

been.

At the aggravation/mitigation hearing, Higgins next pointed

out that Detrich had no prior criminal record involving vio-

lence and that he had exhibited remorse about having been

involved in the crime. Additionally, Higgins suggested that

the short sentence given to Charlton should constitute a miti-

gating circumstance. Finally, Higgins urged the court to con-

sider as mitigation the fact that Detrich had a ten-year-old

son, “who ought to have some contact with some fatherly

influence.”

The prosecutor then rebutted defense counsel’s arguments

that there was residual doubt about who actually committed

the murder and that mitigating circumstances warranted a sen-

tence less than death. The prosecutor dismissed the evidence

of Detrich’s abusive childhood because “there has to be some

kind of causal connection between the abuse or the dysfunc-

tional family background and the conduct.” Higgins did not

respond to this, or any other, argument.

Two days later, the court sentenced Detrich to death. The

court found that Detrich was death-eligible under Tison and

that the prosecution had proved the statutory aggravating cir-

cumstance that the crime was especially cruel, heinous, and

depraved.

The court also found five mitigating circumstances to be

present, but ascribed them little weight. Specifically, the court

found as mitigating circumstances the fact that Detrich’s

intoxication significantly impaired his capacity to appreciate

the wrongfulness of his conduct or to conform his conduct to

the law, his abusive background, his remorse, his lack of prior

DETRICH v. RYAN 4559

convictions involving violence, and the fact that his intoxica-

tion on the night of the murder stemmed from a longstanding

history of alcohol and substance abuse. The court found that

these mitigating factors were “not sufficiently substantial to

outweigh the aggravating circumstances [sic] of having com-

mitted this offense in an especially cruel, heinous or depraved

manner” and accordingly sentenced Detrich to death.

Detrich again appealed his conviction and sentence to the

Arizona Supreme Court. See Detrich II, 932 P.2d at 1331. The

Supreme Court affirmed Detrich’s sentence and convictions.

Id. at 1340.

D. State Petition for Post-Conviction Relief

Detrich filed a petition for post-conviction relief in state

court, alleging, among other things, that his trial counsel was

ineffective for failing to present mitigating evidence and for

failing to present an expert witness to rebut the state’s aggra-

vation case. Detrich’s post-conviction counsel repeatedly

requested funding for an investigator to assist in preparing

Detrich’s petition for post-conviction relief or, in the alterna-

tive, an evidentiary hearing on this request. The court denied

the requests and ultimately ruled on the petition without

appointing an investigator or holding an evidentiary hearing.

The post-conviction court, however, did grant funding for

a neuropsychological expert, Dr. Robert Briggs, who pro-

duced a report on Detrich’s neuropsychological functioning.

The report concluded that Detrich’s decision-making, espe-

cially when compromised by alcohol, “was not based on any

consequence-driven thought process, but rather a leaned [sic]

behavior that bypassed right or wrong.” According to Dr.

Briggs, Detrich’s abuse led him to develop a “mindset . . . in

which instinct took over and reason could not be accessed.”

On neuropsychological testing, Detrich performed “in the nor-

mal range of psychological function,” earning a score of 25

on a scale for which scores between 0 and 26 were normal.

4560 DETRICH v. RYAN

Dr. Briggs’s report explained, however, that this represented

“a recovered picture,” and that “improvement in function

occurs as time (and sobriety) from the incidents [of head inju-

ries and drug use] increase.” Dr. Briggs further opined that an

interaction between Detrich’s emotional status and mild

neuropsychological deficits likely caused a greater overall

impairment in function. Finally, the report concluded, among

other things, that, as would be expected given his abusive

childhood, Detrich was immature, alienated, self-indulgent,

aggressive, impulsive, hostile, resentful, and irritable; that his

abusive childhood could have taught him to use violence; and

that he may have antisocial or paranoid personality or para-

noid disorder. Detrich’s post-conviction counsel requested an

evidentiary hearing on the neuropsychological findings,

explaining that Dr. Briggs could testify that Detrich was brain

damaged and impulsive, and that his impulsiveness, combined

with the effects of alcohol, constituted mitigating circum-

stances. The state court denied the request.

This report supplemented other new evidence that counsel

presented to the state post-conviction court. As exhibits to the

petition for relief, counsel attached statements by Detrich’s

mother, sister, and step-father that provided additional details

about the abuse Detrich suffered as a child, the custody battle

between his mother and father, his history of drinking alcohol

with his step-father beginning at a young age, and car and

motorcycle accidents that he had when he was younger.

In his petition for post-conviction relief, Detrich also con-

tended that his trial counsel was ineffective for failing to pre-

sent expert pathologist testimony that would have rebutted the

state’s argument that the crime was especially cruel, heinous,

or depraved by showing that Souter did not actually suffer.

After considering Detrich’s arguments and the new mitigat-

ing evidence, the court summarily denied all of Detrich’s

claims. The state moved for reconsideration to clarify the

court’s findings in order to “insulate [them] from unwarranted

DETRICH v. RYAN 4561

federal review.” The state submitted a proposed order, which

the court adopted as its ruling on the petition for post-

conviction relief. The order—the last and only reasoned state-

court judgment—dismissed in one paragraph Detrich’s claim

of ineffective assistance of counsel for failure to present miti-

gating evidence at the sentencing phase:

Petitioner has not presented a colorable claim that

trial counsel was ineffective at the sentencing stage

of the proceedings for failing to have Dr. Briggs, a

neuropsychologist, testify on Petitioner’s behalf, or

to present additional evidence of Petitioner’s abusive

background. After considering the initial psychologi-

cal report, the presentence report, a sentencing mem-

orandum, and written statements from Petitioner’s

sister citing multiple examples of both physical and

mental abuse suffered by Petitioner as a child, this

Court found statutory and non-statutory mitigating

circumstances. Dr. Briggs’ report was not signifi-

cantly different from the report considered by this

Court. Indeed Dr. Briggs found that Petitioner’s gen-

eral neuropsychological functioning was normal and

showed an absence of cognitive dysfunction. There-

fore, there is no reasonable probability that this testi-

mony would have compelled this Court to impose a

sentence less than death. Moreover, additional evi-

dence of Petitioner’s dysfunctional childhood would

have been merely cumulative and was not “newly

discovered.” This claim is summarily dismissed.

The court similarly dismissed, in one short paragraph, Det-

rich’s claim that his counsel was ineffective for failing to

rebut the state’s aggravation case:

Petitioner failed to present a colorable claim that his

trial counsel was ineffective in failing to retain an

expert to rebut the State pathologist’s testimony that

the victim could have made “gurgling” sounds in

4562 DETRICH v. RYAN

response to questioning by Petitioner, after sustain-

ing knife wounds to her throat. Contrary to an affida-

vit submitted by Petitioner, there was no testimony

that the victim “engaged in conversation” or was

conscious for a long period of time. The victim sus-

tained four serious wounds to the neck, and it is

merely speculative to assume that the victim’s

attempt to respond occurred after the most serious

wound. No prejudice accrued to Petitioner, in any

event, because evidence other than Charlton’s testi-

mony regarding the “gurgling” sounds independently

supported a finding of cruelty at sentencing. Petition-

er’s claim that expert rebuttal testimony would have

discredited Charlton’s credibility is unavailing,

where overwhelming evidence apart from Charlton’s

testimony supported the finding that Petitioner com-

mitted the murder. This claim is summarily dis-

missed.

In its conclusion, the court further clarified that “the Court

finds that neither prong of the Strickland v. Washington test

has been met as to any claims of ineffective assistance of

counsel.” Detrich appealed, but the Arizona Supreme Court

denied review.

E. Federal Habeas Petition

Detrich filed a habeas petition in federal district court on

April 29, 2003. The district court dismissed most of Detrich’s

claims without an evidentiary hearing, including his claim

that his counsel was unconstitutionally ineffective at sentenc-

ing for failing to present expert evidence to rebut the state’s

aggravation case. The district court did, however, hold a four-

day evidentiary hearing on Detrich’s claim of ineffective

assistance of counsel at sentencing for failure to investigate

and present mitigating evidence. At the hearing, Detrich’s

new counsel presented eighty-seven exhibits and called six

witnesses.

DETRICH v. RYAN 4563

The district court concluded that Detrich’s counsel per-

formed deficiently by failing to investigate and present miti-

gating evidence. The court nonetheless denied relief because

it found that Detrich suffered no prejudice from his trial coun-

sel’s deficient performance. According to the district court,

“despite extensive additional investigation into [Detrich’s]

background and mental health, [Detrich] has not discovered

significant new or more weighty mitigation than was consid-

ered by the sentencing judge.” Detrich appealed, and the dis-

trict court granted a certificate of appealability on his claim

that trial counsel was ineffective for failing to investigate and

present mitigating evidence. We later also granted a certifi-

cate of appealability on his claim that trial counsel was inef-

fective for failing to rebut the state’s aggravation case and on

the two guilt-phase claims that we addressed in our previously

filed memorandum disposition. See 392 F.App’x 580 (9th Cir.

2010).

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 2253. We review

de novo the district court’s denial of Detrich’s petition for

habeas corpus, and we review the district court’s findings of

fact for clear error. Brown v. Ornoski, 503 F.3d 1006, 1010

(9th Cir. 2007). Because Detrich filed his federal habeas peti-

tion after 1996, the AEDPA governs his action. Id.

The AEDPA requires that we defer to the last reasoned

state court decision. Id. Specifically, 28 U.S.C. § 2254 pro-

vides that a federal court may grant a state prisoner’s habeas

petition with respect to a claim that was “adjudicated on the

merits in State court proceedings” only if the state court’s

adjudication: (1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the

United States; or (2) resulted in a decision that was based on

an unreasonable determination of the facts in light of the evi-

4564 DETRICH v. RYAN

dence presented in the State court proceeding. 28 U.S.C.

§ 2254(d).

For purposes of § 2254(d)(1), “clearly established Federal

law” consists only of the holdings, and not the dicta, of

Supreme Court opinions as of the time of the state court adju-

dication on the merits. Terry Williams v. Taylor, 529 U.S.

362, 412 (2000); Greene v. Fisher, 132 S. Ct. 38, 44-45

(2011). However, we can also consider circuit precedent in

assessing what constitutes “clearly established” Supreme

Court law and whether the state court applied that law unrea-

sonably. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.

2003), overruled on other grounds by Lockyer v. Andrade,

538 U.S. 63 (2003). Our analysis under § 2254(d)(1) “is lim-

ited to the record that was before the state court that adjudi-

cated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct.

1388, 1398 (2011).3

A state court decision is “contrary to” federal law under

§ 2254(d)(1) if it applies a rule that contradicts the governing

law set forth in Supreme Court cases or if it “confronts a set

of facts that are materially indistinguishable from a decision

of [the Supreme Court] and nevertheless arrives at a result dif-

ferent from [Supreme Court] precedent.” Terry Williams, 529

U.S. at 405-06.

A state court decision involves an “unreasonable applica-

tion” of federal law under § 2254(d)(1) if “the state court

identifies the correct governing legal rule from this Court’s

cases but unreasonably applies it to the facts of the particular

3

Detrich argues for the first time in his supplemental briefing that

because the state court ruled on his post-conviction claims without holding

an evidentiary hearing, the state court decision necessarily was based on

an “unreasonable determination of the facts” under § 2254(d)(2). Because

we conclude—using only the state court record—that the state court’s

decision involved an unreasonable application of federal law and an unrea-

sonable determination of the facts, we do not consider the merits of this

argument or whether it was waived.

DETRICH v. RYAN 4565

state prisoner’s case” or if it “either unreasonably extends a

legal principle from [Supreme Court] precedent to a new con-

text where it should not apply or unreasonably refuses to

extend that principle to a new context where it should apply.”

Id. at 407. The Supreme Court need not have applied a spe-

cific legal rule to a closely analogous fact pattern for the state

court’s decision to constitute an unreasonable application of

clearly established federal law because “even a general stan-

dard may be applied in an unreasonable manner.” Panetti v.

Quarterman, 551 U.S. 930, 953 (2007). A state court decision

will involve an “unreasonable application” of clearly estab-

lished federal law, however, only if the state court’s decision

was “objectively unreasonable,” and not merely incorrect.

Terry Williams, 529 U.S. at 409-10.

Finally, a state court’s determination of the facts is “unrea-

sonable” under § 2254(d)(2) only if we are “convinced that an

appellate panel, applying the normal standards of appellate

review, could not reasonably conclude that the finding is sup-

ported by the record [before the state court].” Taylor v. Mad-

dox, 366 F.3d 992, 1000 (9th Cir. 2004).

In certain circumstances a federal court may also consider

new evidence presented for the first time in the federal pro-

ceeding. See 28 U.S.C. § 2254(e)(2).4 As we explain below,

4

Section 2254(e)(2) provides:

If the applicant has failed to develop the factual basis of a claim

in State court proceedings, the court shall not hold an evidentiary

hearing on the claim unless the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previ-

ously unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional error,

no reasonable factfinder would have found the applicant guilty of

the underlying offense.

4566 DETRICH v. RYAN

if we make an antecedent determination—relying solely on

evidence before the state court—that the state court’s adjudi-

cation “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal

law,” id. § 2254(d)(1), or that the state court’s decision “was

based on an unreasonable determination of the facts,” id.

§ 2254(d)(2), we proceed to evaluate the petitioner’s claim de

novo and may then consider evidence that was properly pre-

sented for the first time in federal court. Cf. Pinholster, 131

S. Ct. at 1401 (“Section 2254(e)(2) continues to have force

where § 2254(d)(1) does not bar federal habeas relief.”).

III. DISCUSSION

Detrich contends that his trial counsel was ineffective

because he failed to investigate and present mitigating evi-

dence including social background and expert neuropsy-

chological testimony at the penalty phase.5 In reviewing this

claim, we apply the “clearly established” standard for analyz-

ing ineffective assistance claims that the Supreme Court set

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

Terry Williams, 529 U.S. at 391 (“It is past question that the

rule set forth in Strickland qualifies as ‘clearly established

Federal law, as determined by the Supreme Court of the

United States.’ ”). Under Strickland, to prevail on his ineffec-

tive assistance of counsel claim, Detrich must show (1) “that

counsel’s performance was deficient,” and (2) “that the defi-

cient performance prejudiced the defense.” Strickland, 466

U.S. at 687.

As the Supreme Court recently explained in Richter v. Har-

5

Detrich also contends that his counsel was unconstitutionally ineffec-

tive because he failed to offer expert forensic testimony to rebut the state’s

argument that the crime was especially cruel, heinous, and depraved.

Because we conclude that Detrich is entitled to relief based on his coun-

sel’s failure to investigate and present mitigating evidence, we do not

reach this second claim of ineffective assistance.

DETRICH v. RYAN 4567

rington, 131 S. Ct. 770 (2011), however, when a habeas court

reviews an ineffective assistance of counsel claim under the

AEDPA, the “state court must be granted a deference and lati-

tude that are not in operation when the case involves review

under the Strickland standard itself.” Id. at 785. “The pivotal

question is whether the state court’s application of the Strick-

land standard was unreasonable. This is different from asking

whether defense counsel’s performance fell below Strick-

land’s standard.” Id. at 786. Accordingly, “[u]nder § 2254(d),

a habeas court must determine what arguments or theories

supported . . . the state court’s decision; and then it must ask

whether it is possible fairminded jurists could disagree that

those arguments or theories are inconsistent with the holding

in a prior decision of this Court.” Id. At the second step, “a

state prisoner must show that the state court’s ruling on the

claim being presented in federal court was so lacking in justi-

fication that there was an error well understood and compre-

hended in existing law beyond any possibility for fairminded

disagreement.” Id. at 786-87.

A. Deficient Performance

We first consider whether the state court unreasonably

applied Strickland when it concluded that Detrich’s counsel

did not perform deficiently by failing to investigate and pre-

sent mitigating evidence at sentencing.6 Under Strickland,

counsel’s performance is deficient if, considering all the cir-

cumstances, it “fell below an objective standard of reason-

ableness . . . under prevailing professional norms.” Id. at 788.

In evaluating counsel’s performance as compared to these

“prevailing professional norms,” we may refer to American

6

Although the state court provided no reasoning to support its conclu-

sion that Detrich failed to establish deficient performance under Strick-

land, its decision nonetheless is entitled to AEDPA deference. See Richter,

131 S. Ct. at 784; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003)

(applying AEDPA deference to a state court decision issued without

explanation).

4568 DETRICH v. RYAN

Bar Association (“ABA”) guidelines in effect at the time of

the representation “as evidence of what reasonably diligent

attorneys would do.” Bobby v. Van Hook, 130 S. Ct. 13, 17

(2009); see also Strickland, 466 U.S. at 688.7 Our review of

counsel’s representation is “highly deferential,” as we apply

“a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance” and that

counsel’s challenged omission “might be considered sound

trial strategy.” Strickland, 466 U.S. at 689. To “satisfy the

‘unreasonable application’ prong of § 2254(d)(1),” Detrich

must “show[ ] that there was no reasonable basis for the [state

court’s] decision.” Pinholster, 131 S. Ct. at 1402 (quoting

Richter, 131 S. Ct. at 784) (internal quotation marks omitted).

[1] Strickland establishes that, although counsel enjoys

“wide latitude . . . in making tactical decisions,” counsel also

“has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations

unnecessary.” Id. at 689, 691. The Supreme Court has since

made clear that this duty includes an obligation to “conduct

a thorough investigation of the defendant’s background.”

Terry Williams, 529 U.S. at 396; see also Porter v. McCol-

lum, 130 S. Ct. 447, 452 (2009) (per curiam) (finding it “un-

questioned” that counsel had this duty “under the prevailing

professional norms” in 1989). Detrich’s trial counsel, Harold

Higgins, made no such reasonable investigation here, nor did

he make any reasonable strategic decision that made a thor-

ough investigation unnecessary. Indeed, applying AEDPA

deference, the Supreme Court has found deficient perfor-

mance in cases where sentencing counsel did more than Hig-

gins. We accordingly conclude that the Arizona post-

7

The Supreme Court has consistently recognized the utility of consider-

ing ABA Guidelines in evaluating the reasonableness of attorney perfor-

mance in ineffective assistance claims. See, e.g., Rompilla v. Beard, 545

U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 524 (2003) (charac-

terizing ABA Guidelines as “well-defined norms” and “standards to which

we long have referred as ‘guides to determining what is reasonable’ ”)

(quoting Strickland, 466 U.S. at 688); Terry Williams, 529 U.S. at 396.

DETRICH v. RYAN 4569

conviction court unreasonably applied the clearly established

federal law of Strickland when it concluded that Detrich’s

sentencing counsel’s performance was not deficient.

1. No reasonable investigation

Detrich contends that Higgins devoted unreasonably little

time to penalty phase preparations, failed to seek reasonably

available mitigating evidence, and unreasonably failed to

enlist the assistance of a mental health expert. We agree.

[2] Higgins did not begin work on Detrich’s penalty phase

until after the jury’s guilty verdict and two weeks before the

sentencing hearing. Higgins thus began preparing for the pen-

alty phase even later than the counsel whom the Supreme

Court found ineffective in Terry Williams v. Taylor, who had

delayed penalty phase preparations until a week before trial.

Terry Williams, 529 U.S. at 395. And Higgins’s delayed initi-

ation of penalty-phase preparations fell even further below the

standards reflected in the ABA guidelines in place at the time,

which provided that counsel should begin conducting an

investigation relating to the penalty phase of a capital trial

immediately upon taking the case. Am. Bar. Ass’n, Guide-

lines for the Appointment and Performance of Defense Coun-

sel in Death Penalty Cases 11.4.1 (1989), available at http://

www.americanbar.org/content/dam/aba/uncategorized/Death_

Penalty_Representation/Standards/National/1989Guidelines

.authcheckdam.pdf [hereinafter 1989 ABA Guidelines]. With

preparations delayed for so long, Higgins then spent only ten

and a half total hours on the penalty phase of Detrich’s case.

[3] Higgins also did not employ a mitigation investigator,

nor did he ask his investigator, who in any event was not

qualified to do a life history investigation, to investigate miti-

gating evidence. At most, the investigator made phone calls

to family members, with no response. According to Detrich’s

sister, Diana Jo Stevens, someone from the defense team con-

tacted her shortly before the sentencing hearing and asked her

4570 DETRICH v. RYAN

simply to write a letter “about David.” This fell below the pre-

vailing professional standards as reflected in the 1989 ABA

guidelines, which provided that the penalty-phase investiga-

tion for a capital trial should “comprise efforts to discover all

reasonably available mitigating evidence,” by drawing on

sources including an interview with the accused, interviews

with potential witnesses familiar with the defendant’s life his-

tory, and expert assistance. 1989 ABA Guidelines at

11.4.1(C), (D).

[4] Higgins’s minimal investigation cannot be justified by

any reasonable reliance on the previous investigation con-

ducted by Detrich’s counsel at his first sentencing in 1991

because the first trial counsel’s mitigation presentation had

proven decidedly ineffective. After considering the minimal

mitigating evidence that Detrich’s first trial counsel presented,

the trial judge found no mitigating factors to be present and

accordingly sentenced Detrich to death.

[5] Higgins’s extremely limited mitigation investigation

was all the more unreasonable in light of the indications in the

PSR, letters from Detrich’s sister, and 1985 and 1991 psycho-

logical reports—all of which Higgins had seen8—that Det-

rich’s past likely contained many mitigating circumstances.

These documents put Higgins on notice that Detrich had an

extremely troubled childhood involving abuse by his step-

mother, alcohol abuse encouraged by his step-father starting

at a very young age, a prolonged custody battle between his

parents, drug abuse by his mother, and frequent absences

from school. Despite this evidence that Detrich’s background

contained many mitigating circumstances, Higgins did not

investigate further.

[6] In this way, Higgins’s performance was indistinguish-

8

The 1985 psychological report was attached to the PSR, and Higgins

acknowledged at the sentencing hearing that he had seen the 1991 psycho-

logical report.

DETRICH v. RYAN 4571

able from the counsel’s performance that the Supreme Court

found deficient in Wiggins v. Smith. In Wiggins, the capital

defendant’s attorneys had failed to investigate thoroughly

their client’s background, even though their limited investiga-

tion had revealed that the defendant’s mother was an alco-

holic, that the defendant was shuttled from foster home to

foster home as a child, that the defendant frequently missed

school, and that, at least once, his mother had left him and his

siblings alone for days without food. 539 U.S. at 525. Apply-

ing AEDPA deference, the Supreme Court held that the state

court unreasonably applied Strickland in finding counsel’s

performance adequate. Id. at 528-29. According to the

Supreme Court, “any reasonably competent attorney would

have realized that pursuing these leads was necessary to mak-

ing an informed choice among possible defenses.” Id. at 525.

Similarly, here, “any reasonably competent attorney” would

have pursued an investigation into Detrich’s childhood and

the effects his childhood traumas had on him. Higgins’s fail-

ure to do so fell below professional standards under any rea-

sonable application of Strickland.

[7] Compounding this deficiency, Higgins’s failure to con-

sult a mental health expert also fell below professional stan-

dards. The 1989 ABA guidelines provided that an attorney

“should secure the assistance of experts where it is necessary

or appropriate for . . . presentation of mitigation.” 1989 ABA

Guidelines at 11.4.1(D)(7)(D). According to the 1989 guide-

lines, counsel should consider enlisting experts “to provide

medical, psychological, sociological or other explanations for

the offense(s) for which the client is being sentenced [and] to

give a favorable opinion as to the client’s capacity for rehabil-

itation.” Id. at 11.8.3(F)(2). In addition, counsel should con-

sider presenting expert testimony concerning the defendant’s

medical, family, and social history “and the resulting impact

on the client, relating to the offense.” Id. at 11.8.6(B)(8).

[8] Higgins did not provide any expert mental health eval-

uations to the court, much less use them to bolster his mitiga-

4572 DETRICH v. RYAN

tion case; he presented no live testimony by any mental health

expert, court-appointed or otherwise; and he admits that he

did not enlist the assistance of any mental health professional.

Indeed, the only expert mental health reports before the sen-

tencing judge were two 1985 evaluations by a state psycholo-

gist and psychiatrist that were attached to the PSR and a 1991

court clinic psychologist’s evaluation that the state had pro-

vided the court.9 In other words, Detrich’s counsel presented

no expert mental health evidence at all. The fact that the sen-

tencing judge had the 1985 and 1991 reports to consider did

not excuse this failure; Higgins could not reasonably rely on

these reports because they were not conducted by partisan

experts. Lambright v. Schriro, 490 F.3d 1103, 1120-21 (9th

Cir. 2007) (“Counsel may not rely for the development and

presentation of mitigating evidence on the probation officer

and a court appointed psychologist. . . . The responsibility to

afford effective representation is not delegable to parties who

have no obligation to protect or further the interests of the

defendant.”). What is more, those reports were not based on

a full account of Detrich’s background and thus could not pro-

vide an “accurate profile of the defendant’s mental health.”

Caro v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002) (not-

ing that counsel have “an affirmative duty” to provide back-

ground information to mental health experts).

[9] Detrich’s counsel’s performance thus was strikingly

similar to, or even worse than, the performances found defi-

cient even after applying AEDPA deference in Terry Williams

and Wiggins.10 We are mindful of the considerable deference

9

The 1985 reports had been produced in connection with Detrich’s ear-

lier incarceration for writing worthless checks. The 1991 report was pro-

duced by a psychologist at a state-run clinic at the request of the attorney

who represented Detrich in his first trial for Souter’s murder.

10

Higgins’s performance was also considerably worse than the perfor-

mance found competent in Pinholster. Unlike Higgins, Pinholster’s attor-

ney “investigated mitigating evidence . . . [l]ong before the guilty verdict”

and employed a mitigation investigator who “researched epilepsy and also

DETRICH v. RYAN 4573

that we must apply to the state court’s decision that Detrich’s

counsel performed adequately. On the other hand, however,

we can not ignore the Supreme Court’s holdings in Terry Wil-

liams and Wiggins. In light of this precedent, we must con-

clude that Detrich’s counsel’s failure to conduct a more

thorough mitigation investigation and to enlist the assistance

of a mental health expert constituted deficient performance

under Strickland, and that the state court decision to the con-

trary constituted “an error well understood and comprehended

in existing law beyond any possibility for fairminded dis-

agreement,” Richter, 131 S. Ct. at 786-87, unless special con-

siderations made a thorough mitigation investigation

unnecessary in this particular case.

2. No reasonable decision that made a thorough

investigation unnecessary

[10] In some circumstances, a less-than-thorough mitiga-

tion investigation can nonetheless satisfy constitutional

requirements if it is based on “a reasonable decision that

makes particular investigations unnecessary.” Strickland, 466

U.S. at 691. The state contends that Higgins reasonably

decided not to pursue a mitigation investigation here (1)

because Detrich did not want to involve his family, and (2)

because Higgins reasonably chose to pursue a residual doubt

strategy that did not require a thorough mitigation investiga-

tion. We conclude that neither of these considerations justi-

fied limiting the mitigation investigation.

interviewed Pinholster’s mother [and] prepar[ed] Pinholster’s brother . . .

who provided some mitigation testimony during the guilt phase.” 131 S.

Ct. at 1404-05 (footnotes omitted). Moreover, Pinholster’s attorney’s

timesheets indicated that—unlike Higgins—Pinholster’s attorney worked

consistently for several months prior to the penalty phase. Finally, unlike

Higgins, Pinholster’s attorney obtained a psychiatric expert to testify on

Pinholster’s behalf. Id. at 1405.

4574 DETRICH v. RYAN

a

[11] Detrich’s purported desire not to involve his family,

and his family’s alleged unavailability, did not justify limiting

the mitigation investigation for three reasons. First, the record

does not show that Detrich in fact discouraged Higgins from

contacting his family. While the PSR and a letter from Det-

rich’s sister indicate that Detrich did not want to involve his

family in the first sentencing, nothing indicates that Detrich

felt the same way during his second sentencing, after having

received one death sentence.

Second, even if Detrich did not want to involve his family,

or if his family was uncooperative, that would not excuse

Higgins’s failure to seek expert assistance to explain the miti-

gating evidence that was known or his failure to seek evi-

dence from other sources, such as medical records and records

from Detrich’s parents’ custody battle. Indeed, even where a

defendant is “actively obstructive,” counsel must investigate

available records. See Rompilla, 545 U.S. at 381, 383, 389

(holding that the state court’s conclusion that counsel did not

perform deficiently was “objectively unreasonable” under the

AEDPA).

Third, even if Detrich’s desire not to involve his family in

his first sentencing could reasonably be understood as an

instruction not to present any mitigation case at all—which

we doubt it could—such an instruction would not excuse

counsel from conducting a thorough mitigation investigation.

“A defendant’s insistence that counsel not call witnesses at

the penalty phase does not eliminate counsel’s duty to investi-

gate mitigating evidence or to advise the defendant of the

potential consequences of failing to introduce mitigating evi-

dence, thereby assuring that the defendant’s decision regard-

ing such evidence is informed and knowing.” Williams v.

Woodford, 384 F.3d 567, 622 (9th Cir. 2004). Although a

defendant’s informed wishes can justify failing to present mit-

igating evidence, it cannot justify failing to investigate such

DETRICH v. RYAN 4575

evidence because counsel retains a duty to inform his client

about the risks and potential benefits of presenting a mitiga-

tion case. See id.

b

[12] Detrich’s counsel’s sentencing-phase strategy of

emphasizing residual doubt about whether Detrich had actu-

ally committed the murder likewise did not make a thorough

mitigation investigation unnecessary. First, the record reveals

that Higgins made no strategic choice to emphasize residual

doubt to the exclusion of a classic mitigation presentation

here. The fact that Higgins presented a limited mitigation case

to the sentencing court corroborates this claim. See Wiggins,

539 U.S. at 526 (reasoning that counsel’s presentation of a

“halfhearted mitigation case” demonstrated that the failure to

put on a stronger mitigation case was not a strategic choice).

Second, even if Higgins had made such a strategic choice,

that choice would not have been reasonable. The Supreme

Court has made clear that the investigation supporting a deci-

sion not to introduce mitigating evidence must be reasonable

because a thorough investigation is necessary to make “a fully

informed decision with respect to sentencing strategy.” Wig-

gins, 539 U.S. at 523, 527. Where a strategic choice is made

“ ‘after less than complete investigation,’ ” a court must defer

to that choice “only to the extent that ‘reasonable professional

judgments support the limitations on investigation.’ ” Id. at

533 (quoting Strickland, 466 U.S. at 690-91). As explained

above, Higgins did not reasonably limit the investigation here

because the information that Higgins knew about Detrich’s

past would have led “any reasonably competent attorney” to

pursue further investigation. See id. at 525. Because it would

not have been supported by a reasonable investigation, a strat-

egy focusing on residual doubt to the exclusion of a classic

mitigation defense would not have been reasonable.

4576 DETRICH v. RYAN

[13] Moreover, we doubt that such a strategy would have

been reasonable here, even if supported by an adequate inves-

tigation. Where a judge is likely to find an aggravating factor

that would make the death penalty mandatory in the absence

of sufficient counterbalancing mitigating evidence, counsel’s

failure to make a strong mitigation case falls short of profes-

sional standards. Summerlin v. Schriro, 427 F.3d 623, 640

(9th Cir. 2005). Here, in light of the fact that the previous sen-

tencing judge had found that the crime was especially hei-

nous, cruel, or depraved, it was likely that the sentencing

judge would find such an aggravating factor. And under Ari-

zona law at the time, the presence of this factor required

imposition of the death penalty unless the sentencing court

found mitigating circumstances substantial enough to out-

weigh it. Ariz. Rev. Stat. § 13-703. Under Summerlin, profes-

sional standards therefore required Higgins to present a strong

mitigation case. He did not. Indeed, he did little to supplement

the mitigation case from Detrich’s first sentencing that had

led the first sentencing judge to find no mitigating factors,

much less sufficiently weighty ones. The only new evidence

Higgins offered in support of leniency were the three letters

from Detrich’s sister.11

[14] For these reasons, no special consideration justified

Higgins’s failure to pursue a thorough mitigation investiga-

tion here. Neither Detrich’s purported wish not to involve his

family nor his counsel’s purported strategic choice to pursue

a residual doubt strategy at sentencing made a thorough miti-

gation investigation unnecessary. Higgins’s performance was

11

The state argues that Higgins’s performance was adequate because

“[t]he main thrust of Higgins’s mitigation strategy . . . was residual

doubt.” We disagree. Even assuming that Higgins employed a reasonable

strategy in focusing his sentencing argument on residual doubt, it was

clearly established in Strickland that Higgins was nonetheless required to

make a reasonable mitigation investigation or to make the determination

that such an investigation was unnecessary. Pinholster, 131 S. Ct. at 1407

(quoting Strickland, 466 U.S. at 691).

DETRICH v. RYAN 4577

therefore deficient under Strickland, and the state court’s

decision to the contrary was objectively unreasonable.

B. Prejudice

[15] Having concluded that the state court unreasonably

held that Detrich’s counsel did not perform deficiently, we

must next determine whether the deficient performance preju-

diced Detrich’s defense. See Strickland, 466 U.S. at 687.

Under Strickland, counsel’s performance is prejudicial if

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

unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. A “reasonable probability” of prej-

udice exists “even if the errors of counsel cannot be shown by

a preponderance of the evidence to have determined the out-

come”; indeed, a “reasonable probability” need only be “a

probability sufficient to undermine confidence in the out-

come.” Id. In other words, Detrich suffered prejudice if “there

is a reasonable probability that, absent the errors, the sen-

tencer . . . would have concluded that the balance of aggravat-

ing and mitigating circumstances did not warrant death.” Id.

at 695. In assessing that probability, we “consider ‘the totality

of the available mitigation evidence . . .’ and ‘reweig[h] it

against the evidence in aggravation.’ ” Porter, 130 S. Ct. at

453-54 (quoting Terry Williams, 529 U.S. at 397-98). In so

doing, we do not consider the “idiosyncracies of the particular

decisionmaker, such as unusual propensities toward harshness

or leniency.” Strickland, 466 U.S. at 695.

Though “[s]urmounting Strickland’s high bar is never an

easy task, . . . [e]stablishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the more

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

are both highly deferential, and when the two apply in tan-

dem, review is doubly so.” Richter, 131 S. Ct. at 788 (internal

quotation marks and citations omitted). A federal habeas court

must therefore determine that “[t]he likelihood of a different

4578 DETRICH v. RYAN

result [is] substantial, not just conceivable.” Id. at 792 (citing

Strickland, 466 U.S. at 693).

Detrich presented volumes of new evidence of his

extremely abusive childhood and new expert assessments of

his brain damage and neuropsychological deficits for the first

time in federal district court. Without considering this com-

pelling new evidence, however, we first conclude that the

state court’s determination that Detrich was not prejudiced by

Higgins’s deficient performance resulted from an unreason-

able determination of the facts. We next conduct a de novo

prejudice assessment and conclude that there is a reasonable

probability that the sentencing judge would have imposed a

sentence less than death had Detrich’s counsel obtained and

presented an expert evaluation of Detrich’s neuropsychologi-

cal functioning.

1. State Court Decision

[16] The only evidence of Detrich’s mental health before

the sentencing judge was a 1991 psychological evaluation by

a court clinic psychologist conducted at the request of Det-

rich’s first counsel and two 1985 reports, one by a state psy-

chologist and the other by a state psychiatrist, from when

Detrich was incarcerated for writing worthless checks. These

reports provided only a snapshot of Detrich’s psychological

profile. The 1985 reports mentioned in passing that Detrich

was impulsive, noting that he was “an impulsive individual”

and that he had “occasional impulsive responses,” while the

1991 report indicated to the contrary that a test that could

reflect impulsivity was “not elevated.” The reports concluded

that he had above-average intelligence, with cognitive func-

tioning largely intact. The 1985 reports contradictorily noted

that he had poor judgment and that his judgment was “grossly

intact.” They noted that he externalized problems, was sensi-

tive to rejection, had an impaired ability to relate to others,

and had a low tolerance for frustration. The 1991 report con-

cluded that he exhibited antisocial attitudes, beliefs, and

DETRICH v. RYAN 4579

behaviors, and that he had probable antisocial personality dis-

order.

Had Detrich’s trial counsel enlisted the assistance of a

neuropsychological expert, he would have been able to offer

an evaluation with much greater mitigating weight. The eval-

uation by neuropsychologist Dr. Briggs that Detrich presented

to the state post-conviction court indicated that Detrich suf-

fered neuropsychological deficits and opined that his crime

was driven by instinct that grew out of his abusive childhood,

not by consequence-driven thought or reason.

[17] The state post-conviction court concluded that there

was no “reasonable probability” that this neuropsychological

evaluation “would have compelled this Court to impose a sen-

tence less than death.” In support of this conclusion, the state

court reasoned, “Dr. Briggs’ report was not significantly dif-

ferent from the report considered by this Court. Indeed, Dr.

Briggs found that Petitioner’s general neuropsychological

functioning was normal and showed an absence of cognitive

dysfunction.”

[18] This conclusion was “based on an unreasonable deter-

mination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(2). To be sure,

Dr. Briggs’s report did state that Detrich earned scores on two

neuropsychological tests that were “in the normal range of

neuropsychological functioning.” These results, however, in

isolation, do not represent Dr. Briggs’s medical opinion of

Detrich’s overall psychological presentation.

To the contrary, the report indicates that Detrich’s “normal

. . . performance” reflected a “recovered picture,” as “im-

provement in function occurs as time (and sobriety) from the

incidents [of head injuries and drug use] increase.” Signifi-

cantly, the report indicated that Detrich scored 25 on the Gen-

eral Neuropsychological Deficit Scale (GNDS), a

psychological measure used to differentiate brain-damaged

4580 DETRICH v. RYAN

from normal subjects. The GNDS produces a summary score

based on 42 variables that identify the major areas of neurop-

sychological functioning. Zero to 25 represents “normal”

neuropsychological functioning, while a score of 26-40 repre-

sents mild impairment. See Deborah Wolfson & Ralph M.

Reitan, Cross-Validation of the General Neuropsychological

Deficit Scale (GNDS), 10 Archives Clinical Neuropsychol.

125, 125-26 (1995). In other words, more than ten years after

the crime, at the time of these tests, Detrich’s neuropsy-

chological functioning was just one point shy of abnormal.

Thus, considering Dr. Briggs’s finding of “normal” function-

ing in context, along with his statement that this represented

a “recovered picture,” the only reasonable inference is that

Detrich’s neuropsychological functioning was not normal at

the time of the crime. Moreover, the report states that Det-

rich’s “mild neuropsychological deficits” represent a “very

significant psychological factor” that, when combined with

his “emotional status,” and when impaired by the effects of

alcohol, would cause an “overall greater impairment in func-

tion” than Detrich’s testing results would indicate.

Dr. Briggs described Detrich’s emotional status as the

“most significant factor” in his psychological presentation,

and noted that his childhood history of abuse and “being

taught to fear and hate . . . create[d] an atmosphere where the

problem solving process is more ‘take advantage of the per-

son before the person does it to me.’ ” Dr. Briggs commented

that “this stance makes perfect sense in the world where

adults have and teach no boundaries and no respect, much less

sympathy and feelings other than inappropriate touch and

abuse.”

Dr. Briggs described Detrich’s profile as “a natural pro-

gression of undersocialized abilities, fear, and action based on

instinct.” He concluded that, “[g]iven the history,” Detrich’s

“decision-making, especially when compromised by alcohol,

was not based on any consequence-driven thought process,

DETRICH v. RYAN 4581

but rather a learned behavior that bypassed right or wrong.

. . . [T]he mindset was developed in which instinct took over

and reason could not be accessed.”

[19] As the foregoing reveals, the state court’s failure to

acknowledge all but an isolated statement in Dr. Briggs’s

report, and its failure to assess the overall significance of Dr.

Briggs’s medical opinion, resulted in an unreasonable deter-

mination of the facts. We have previously made clear that a

state court unreasonably determines the facts when it “over-

look[s] or ignore[s] evidence [that is] highly probative and

central to petitioner’s claim.” Taylor, 366 F.3d at 1001. Evi-

dence is sufficiently “probative” and “central” if it is “suffi-

cient to support petitioner’s claim when considered in the

context of the full record bearing on the issue presented in the

habeas petition.” Id. Dr. Briggs’s conclusion that Detrich was

functioning within a “mindset” that “bypassed right or wrong”

and “in which instinct took over and reason could not be

accessed” is central to Detrich’s claim. As we explain at

length below, if an expert would have testified about such

abnormality at the sentencing, there is a reasonable probabil-

ity that Detrich would not have received the death penalty.

The “state court’s failure to consider, or even acknowledge”

this highly probative evidence therefore “casts serious doubt

on the state-court fact-finding process and compels the con-

clusion that the state-court decision[ ] [was] based on an

unreasonable determination of the facts.” Id. at 1005.12

12

The dissent suggests that since the state habeas court “stated that it

considered the Briggs report . . . we should accept that representation at

face value.” Dissent at 4612. We disagree. As we have discussed at length,

Dr. Briggs’s report was qualitatively different than the psychological evi-

dence before the trial court, and indicated that Detrich suffered from

neuropsychological deficits that contributed to his crime. In endorsing the

state habeas court’s conclusion that Dr. Briggs’s report was cumulative,

the dissent commits the same fatal error as that court: it seizes on an iso-

lated statement to justify its conclusion. While we would not, as the dis-

sent suggests, require state habeas courts to list every piece of evidence

present in the record, we do expect that, where conflicting material evi-

dence is present, state habeas courts will not ignore such evidence entirely.

We believe that our conclusion is consistent with our duty to defer to our

state court colleagues. See Richter, 131 S. Ct. at 786-88.

4582 DETRICH v. RYAN

2. De Novo Prejudice Assessment

[20] We proceed to consider whether there is a reasonable

probability that Detrich’s sentencing counsel’s failure to seek

and introduce expert neuropsychological evidence prejudiced

Detrich’s defense. As an initial matter, we must first deter-

mine whether we must continue to apply AEDPA deference

after having concluded that the state court’s decision was

“based on an unreasonable determination of the facts” under

§ 2254(d)(2). We conclude that the AEDPA imposes no such

requirement.

The Supreme Court has made clear that “[w]hen a state

court’s adjudication of a claim is dependent on an antecedent

unreasonable application of federal law, the requirement set

forth in § 2254(d)(1) is satisfied[, and a] federal court must

then resolve the claim without the deference AEDPA other-

wise requires.” Panetti, 551 U.S. at 953. In Panetti, the

Supreme Court considered a post-AEDPA habeas petition by

a prisoner alleging that he was incompetent to be executed. Id.

at 934-35. In reviewing this claim, the Court first concluded

that the state court had unreasonably applied clearly estab-

lished law in implicitly concluding that it had offered consti-

tutionally adequate procedures to resolve the prisoner’s claim

of incompetence. Id. at 952-53. Because the state court’s

determination of the merits of the prisoner’s competency

claim depended on those clearly inadequate procedures, the

Supreme Court did not defer to that determination, but rather

considered the merits de novo. See id. at 954.

We see no reason why our approach should differ where a

state court’s adjudication of a claim is dependent on an ante-

cedent unreasonable determination of fact. Under § 2254(d),

the unreasonable determination of fact alone authorizes a fed-

eral court to grant habeas relief—provided, of course, that the

petitioner’s constitutional rights were in fact violated. Section

2254(d) is phrased in the disjunctive: we may grant relief only

if the state court decision was contrary to or involved an

DETRICH v. RYAN 4583

unreasonable application of clearly established Supreme

Court law or if the state court decision was based on an unrea-

sonable determination of fact. See 28 U.S.C. § 2254(d). Sec-

tion 2254(d)’s plain language therefore does not require that

a state court decision involve both an unreasonable determina-

tion of fact and an unreasonable application of law before we

may grant relief.

[21] We therefore hold that, when a state court adjudica-

tion is based on an antecedent unreasonable determination of

fact, the requirement set forth in § 2254(d) is satisfied, and we

may proceed to consider the petitioner’s claim de novo. The

Eleventh Circuit, in a recent en banc decision with only one

judge dissenting on an unrelated issue, agrees, and we have

found no case from any other circuit that holds otherwise. See

Jones v. Walker, 540 F.3d 1277, 1288 & n.5 (11th Cir. 2008)

(en banc); Cooper v. Secretary, Dept. of Corrections, 646

F.3d 1328, 1352-53 (11th Cir. 2011) (“When a state court

unreasonably determines the facts relevant to a claim, we do

not owe the state court’s findings deference under AEDPA,

and we apply the pre–AEDPA de novo standard of review to

the habeas claim.”) (citing Jones, 540 F.3d at 1288 n. 5)

(internal quotation marks omitted); Green v. Nelson, 595 F.3d

1245, 1251 (11th Cir. 2010) (finding that state court unrea-

sonably determined the facts under § 2254(d)(2) and applying

de novo review).

This understanding is consistent with the principle of defer-

ence. Because we do not know what the state court would

have decided had it applied the law to the correct facts, there

is no actual decision to which we can defer. Continuing to

apply AEDPA deference even after concluding that the state

court had unreasonably determined the facts to which it

applied the law would therefore require us to assess the rea-

sonableness of a decision that the state court never actually

reached. Yet it is beyond question that the AEDPA does not

require us to defer to such hypothetical decisions. For

instance, on several occasions, the Supreme Court has consid-

4584 DETRICH v. RYAN

ered ineffective assistance of counsel claims under the

AEDPA in cases where the relevant state courts had not

reached one of the two Strickland prongs. See Porter, 130 S.

Ct. at 452; Rompilla, 545 U.S. at 390. In those cases, the

Supreme Court did not ask whether it would have been objec-

tively unreasonable for the state court to decide the unreached

Strickland prong adversely to the habeas petitioner, but rather

reviewed that prong de novo, as there was no actual state

court decision to which it could defer. Porter, 130 S. Ct. at

452; Rompilla, 545 U.S. at 390. Like the state courts that

never reached one of the Strickland prongs in those cases, the

state court here similarly never considered whether Detrich’s

defense was prejudiced by his counsel’s failure to present

expert evidence of Detrich’s abnormal neuropsychological

functioning. We therefore likewise examine this question de

novo.

As another threshold matter, we must determine whether

we may consider evidence that Detrich presented for the first

time in federal court in analyzing whether Higgins’s deficient

performance prejudiced the defense. The Supreme Court has

explained that 28 U.S.C. § 2254(e)(2), which constrains the

federal courts’ discretion to conduct evidentiary hearings on

habeas claims, “continues to have force where § 2254(d)(1)

does not bar federal habeas relief.” Pinholster, 131 S. Ct. at

1401, 1400 n.5 (“[Section] 2254(e)(2) should be interpreted in

a way that does not preclude a state prisoner, who was dili-

gent in state habeas court and who can satisfy § 2254(d), from

receiving an evidentiary hearing.”). We see no reason to take

a different approach where, as here, § 2254(d)(2) does not bar

federal habeas relief. We therefore conduct our prejudice

inquiry by considering all of the evidence that was properly

before the district court.

[22] Evaluating Detrich’s claim of prejudice de novo, we

conclude that, had his trial counsel presented expert neuropsy-

chological evidence, there is a “reasonable probability” that

Detrich would have received a sentence less than death, par-

DETRICH v. RYAN 4585

ticularly in light of the sentencing scheme in effect at the

time. Under Arizona law at the time of Detrich’s sentencing,

the sentencing judge had to “weigh the mitigating circum-

stances against the aggravating circumstances to determine if

leniency is required.” State v. Gretzler, 659 P.2d 1, 13 (Ariz.

1983) (internal quotation marks and citation omitted). The

law enumerated ten aggravating factors whose presence

would require imposition of the death penalty unless the judge

also found “mitigating circumstances sufficiently substantial

to call for leniency.”13 Ariz. Rev. Stat. § 13-703(E), (F). In

weighing the aggravating and mitigating factors, “the number

of aggravating and mitigating circumstances is not disposi-

tive, but rather their gravity.” Gretzler, 659 P.2d at 13. In Det-

rich’s case, expert evidence demonstrating that he suffered

from neuropsychological dysfunctions would have affected

the “gravity” of the circumstances on both sides of the bal-

ance: it would have not only strengthened the mitigating cir-

cumstances, but also weakened the aggravating factor—that

the crime was especially cruel, heinous, and depraved—that

authorized Detrich’s death sentence. We are therefore con-

vinced that there is a reasonable probability that Detrich

would have received a more lenient sentence had his trial

counsel presented such evidence.

a

In analyzing Detrich’s claim of prejudice, we may rely on

Dr. Briggs’s report—which was presented as part of Detrich’s

state post-conviction record—as well as any new evidence

that Detrich properly presented for the first time in federal

court. In particular, we may consider new evidence so long as

13

The statute enumerated five mitigating circumstances, but also autho-

rized sentencing judges to consider other, non-statutory mitigating factors.

Ariz. Rev. Stat. § 13-703(G); accord State v. Castaneda, 724 P.2d 1, 12

(Ariz. 1986) (“[The statute] lists some mitigating circumstances though

the court is not limited to those listed but must set forth any mitigating fac-

tor which might call for leniency.”).

4586 DETRICH v. RYAN

two conditions are met: First, Detrich must have been “dili-

gent in his efforts” to develop the evidence in state court.

Michael Williams v. Taylor, 529 U.S. 420, 435 (2000); accord

Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam)

(holding that new evidence can be considered so long as the

petitioner “was not at fault in failing to develop that evidence

in state court”). Second, the new evidence must not so “funda-

mentally alter the legal claim already considered by the state

courts” as to render it unexhausted. Vasquez v. Hillery, 474

U.S. 254, 260 (1986).

Here, Detrich exercised diligence by presenting the state

court with evidence of neuropsychological impairment and

requesting a hearing to develop that evidence further. See

Michael Williams, 529 U.S. at 437 (“Diligence will require in

the usual case that the prisoner, at a minimum, seek an evi-

dentiary hearing in state court in the manner prescribed by

state law.”). He is not to blame for the state court’s denial of

that request.

Nor does the new evidence render Detrich’s ineffective

assistance of counsel claim unexhausted. “[N]ew factual alle-

gations do not render a claim unexhausted unless they ‘funda-

mentally alter the legal claim already considered by the state

courts.’ ” Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.

1999) (internal quotation marks and citation omitted). The

new evidence that Detrich presents does not. Detrich provided

the state court with a neuropsychological expert’s initial anal-

ysis indicating that his neuropsychological deficits, emotional

state, and substance abuse resulted in a mindset where instinct

controlled his actions and reason could not be accessed.

Moreover, his post-conviction counsel specifically informed

the state court that “complete” testing could show a biological

cause of Detrich’s impairments, and requested a hearing at

which evidence of Detrich’s brain damage could be devel-

oped. The new evidence presented in federal court simply

offers details about Detrich’s brain damage, the biological

causes of his impairments, and his impaired ability to func-

DETRICH v. RYAN 4587

tion. The new evidence thus does not “fundamentally alter”

Detrich’s claims, and the state court had “a meaningful oppor-

tunity to consider” them. Vasquez, 474 U.S. at 257. Particu-

larly because the failure to present the new evidence to the

state court “stemmed from the state courts’ refusal to grant

[the petitioner] an evidentiary hearing on the matter, rather

than from any failure of diligence on his part,” the new evi-

dence does not render Detrich’s claim unexhausted. Weaver,

197 F.3d at 364.

We therefore consider, in addition to Dr. Briggs’s report,

the new evidence that Detrich presented in the district court,

which included eighty-seven exhibits and the testimony of six

witnesses.

b

As discussed at length above, Dr. Briggs’s report provided

qualitatively new information that the sentencing judge did

not consider. That evidence indicated for the first time that the

crime may have been driven by an instinctive, learned behav-

ior that stemmed from Detrich’s abusive past and neuropsy-

chological deficits. This expert evidence would have added

significant mitigating weight. As noted, Dr. Briggs explained

that Detrich’s abusive background, neuropsychological defi-

cits, and substance abuse caused him to develop a mindset “in

which instinct took over and reason could not be accessed.”

Dr. Briggs’s analysis thus explains both the mindset that led

Detrich to commit this crime and the cause of that mindset.

By suggesting a “causal nexus” between Detrich’s abusive

childhood and the crime, this expert analysis could “impact

‘the quality and strength of the mitigation evidence.’ ” State

v. Tucker, 160 P.3d 177, 201 (Ariz. 2007) (quoting State v.

Newell, 132 P.3d 833, 849 (Ariz. 2006)). We have repeatedly

noted that expert testimony like this can offer a powerful

explanation of a defendant’s crimes, and that the failure to

introduce such evidence can therefore prejudice a defendant.

4588 DETRICH v. RYAN

In Douglas v. Woodford, we held that counsel’s failure to

present expert testimony explaining the possible causal link

between the defendant’s childhood and his crime was prejudi-

cial. Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir.

2003). Although counsel had argued that the defendant’s dis-

advantaged childhood had created a “demon” within him that

had contributed to the crimes, that argument “lacked force

without some expert testimony to back it up.” Id. Similarly,

in Caro v. Calderon, we held that counsel may have preju-

diced the defendant where he failed to present expert testi-

mony “to explain the ramifications” of the defendant’s life

experiences on his behavior. Caro v. Calderon, 165 F.3d

1223, 1227 (9th Cir. 1999). There is a reasonable probability

that Detrich’s counsel’s failure to provide available expert tes-

timony about how Detrich’s abusive childhood influenced his

psychological development and contributed to his crime like-

wise prejudiced Detrich’s defense.

Second, Dr. Briggs’s report not only offers an expert expla-

nation of the causal link between Detrich’s horrific childhood

and his crime, but also indicates that his neuropsychological

deficits contributed to the crime. In addition to revealing that

Detrich’s neuropsychological functioning was almost cer-

tainly deficient at the time of the crime, Dr. Briggs’s report

also explains that Detrich’s neuropsychological deficits inter-

acted with his emotional status to cause “a greater overall

impairment in function” and that being under the influence of

drugs and alcohol further inhibited Detrich’s abilities. These

findings underscored Dr. Briggs’s conclusion that Detrich’s

mindset was such that his actions were instinctual, not rea-

soned. The neuropsychological deficits Dr. Briggs described

would likely have had greater mitigating weight than the diag-

noses reflected in the psychological reports that the sentenc-

ing judge considered, which reached conflicting conclusions

about Detrich’s impulsivity. See State v. Walton, 769 P.2d

1017, 1034 (Ariz. 1989) (explaining that “some types of

[mental] impairments clearly bear more weight than others,”

and that “personality disorders have not sufficed to tilt the

DETRICH v. RYAN 4589

balance in favor of leniency”). There is therefore a reasonable

probability that the failure to introduce such expert evidence

prejudiced Detrich’s defense.14

[23] Moreover, expert analyses presented to the federal

district court confirm that Detrich’s neuropsychological defi-

cits may have contributed to Detrich’s crime in this way. The

expert testimony that Detrich presented to the federal district

court provides significant new details about Detrich’s neurop-

sychological deficits, their behavioral effects, and their

causes. Particularly considering this new evidence, we are left

with no doubt that, had Detrich’s trial counsel enlisted the

assistance of a mental health expert, there is a reasonable

probability that Detrich would have received a sentence less

than death.

[24] In the district court, Detrich presented the expert opin-

ion of neuropsychiatrist Dr. Amezcua-Patiño, who diagnosed

Detrich with cognitive disorder secondary to congenital defi-

cits and concluded that Detrich has “severe Neuro Psychiatric

conditions that he acquired at birth, most likely as a result of

Congenital malformations, worsened by significant abuse and

neglect, and eventually further deteriorated by the use of

drugs and alcohol.” Dr. Amezcua-Patiño opined that Detrich’s

abnormal cognitive functioning “directly affected [his] ability

to problem solve and control his actions . . . , including during

14

The dissent suggests that we have attempted to shoehorn Detrich’s

claim into § 2254(d)(2) to avoid the doubly deferential review we must

apply under § 2254(d)(1). See Richter, 131 S. Ct. at 788. Not so. The dis-

sent concedes that “had the state court mischaracterized [Dr. Briggs’s]

report or fatally misinterpreted it . . . it would have been unreasonable.”

Dissent at 4609-10. This is precisely what the state habeas court did in this

case. Dr. Briggs’s report was qualitatively different than the psychological

reports before the trial court. The report stated, in no uncertain terms, that

Detrich “could not” form reasoned decisions at the time he committed his

crime. There is no escaping the fact that the state habeas court’s utter dis-

regard for all but an isolated statement in Dr. Briggs’s report therefore

resulted in an unreasonable determination of fact.

4590 DETRICH v. RYAN

the commission of [his] crimes,” and “affected his ability to

appreciate the wrongfulness of his actions.” Another doctor,

Dr. Froming, similarly noted damage in the frontal-

subcortical areas of functioning, which resulted in impul-

sivity, impulsive errors, and problems in self-monitoring. Dr.

Froming also described Detrich as “very fast responding with

an inability to stop once he had started on something.” Dr.

Cuniff, a medical geneticist, similarly noted that when Detrich

attempted a difficult task, he often would not abandon an inef-

fective strategy. According to Dr. Froming, when “[u]nder the

influence of alcohol and other drugs, Mr. Detrich’s ability to

inhibit, plan ahead, make decisions, and perform in an error-

free fashion would be significantly reduced, especially given

his neurological damage.” Dr. Froming even remarked that

Detrich’s behavior during the testing “was so extraordinary

that I have not witnessed it in any of my previous evaluations

since 1979.” Finally, she opined that Detrich’s functioning

would have improved over time as he remained sober, indicat-

ing that Detrich’s functioning would have been even more

impaired at the time of the crime.

[25] All of these expert analyses indicate how Detrich’s

deficits could have affected his behavior in a way that could

explain his crime: cognitive deficits caused him to act impul-

sively and impaired his ability to control his actions. Such an

explanation could have significant mitigating weight. As the

Supreme Court has recognized, evidence that a defendant’s

“violent behavior was a compulsive reaction rather than the

product of cold-blooded premeditation” could alter the selec-

tion of a penalty. Terry Williams, 529 U.S. at 398. Evidence

that such a compulsive reaction stemmed from neuropsy-

chological deficits would have even greater mitigating force.

Cf. Caro, 280 F.3d at 1258 (holding that the failure to intro-

duce evidence of physiological defects that can cause “im-

pulse discontrol” can prejudice a defendant because such

evidence could reduce a defendant’s “moral culpability”).

Dr. Amezcua-Patiño also offered more detail on how Det-

rich’s abusive childhood could have led to his neuropsy-

DETRICH v. RYAN 4591

chological deficits. The development of the prefrontal cortex

—which controls reasoning, problem solving, motivation, and

response flexibility—is “vitally dependent on reciprocal inter-

actions with an emotionally attuned caregiver.” Abuse

impedes the normal development of the brain and likely leads

to an underdeveloped cortex and a hyperactive response to

stress. Extreme stress interferes with the functioning of the

thinking part of the brain that is “particularly important in

inhibiting the stress response.” By establishing another causal

link between Detrich’s abusive childhood and his crime, this

evidence would have increased the mitigating weight of Det-

rich’s horrific childhood. See Tucker, 160 P.3d at 201.

In sum, had Detrich’s sentencing counsel consulted a men-

tal health expert to assist in the penalty phase of Detrich’s

second trial, he would have been able to present expert analy-

ses showing how both neuropsychological deficits and Det-

rich’s abusive childhood contributed to his crime. Had the

sentencing judge heard such testimony, there is a reasonable

probability that he would have afforded more weight to the

mitigating circumstances.

The fact that the state has presented experts who disagree

with Detrich’s experts’ analyses does not alter our conclusion.

As the Supreme Court recently recognized, even where state

experts identify problems with the tests and conclusions of

defense experts, “it [is] not reasonable to discount entirely the

effect that [the expert’s] testimony might have had on the jury

or the sentencing judge.” Porter, 130 S. Ct. at 455.

Further, this is not a case where expert testimony is unnec-

essary because laypeople can easily understand the mitigating

evidence without assistance. Recently, in Wong v. Belmontes,

the Supreme Court held that a defendant did not suffer preju-

dice from his attorney’s failure to introduce expert testimony

about how the defendant’s childhood could have contributed

to his crimes because “the body of mitigating evidence . . .

was neither complex nor technical. It required only that the

4592 DETRICH v. RYAN

jury make logical connections of the kind a layperson is well

equipped to make.” Wong v. Belmontes, 130 S. Ct. 383, 388

(2009). In Belmontes, however, the mitigating evidence was

not about brain development and cognitive impairments, but

rather about how traumas the defendant experienced as a child

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

[both] academically [and] socially’ and ‘intensified [his]

sense of himself as defective, something from which he never

recovered.’ ” See Belmontes v. Ayers, 529 F.3d 834, 853 (9th

Cir. 2008), rev’d, 130 S. Ct. 383. Whereas a jury can use “its

common sense or own sense of mercy,” Belmontes, 130 S. Ct.

at 588, to understand the psychological impact of an abusive

childhood, a sentencer would likely need expert testimony to

understand how a traumatic childhood could shape brain

development in a way that would lead to impulsive behavior.

Because expert testimony would provide additional explana-

tions beyond a layperson’s understanding of Detrich’s inabil-

ity to curb his impulses, there is a reasonable probability that

this testimony would have increased the weight of the mitigat-

ing evidence.

c

[26] In addition to strengthening the mitigating evidence,

the expert evidence of Detrich’s neuropsychological dysfunc-

tions would have weakened the statutory aggravating factor

that the sentencing court found to authorize imposition of the

death penalty, i.e., that Detrich’s crime was especially cruel,

heinous, and depraved. Under Arizona law, “cruelty involves

the pain and distress visited upon the victims, and . . . heinous

and depraved go to the mental state and attitude of the perpe-

trator as reflected in his words and actions.” Gretzler, 659

P.2d at 10. Based on the evidence before it, the sentencing

court found that the number and severity of wounds, some of

which were defensive, showed that the crime was especially

cruel, and that Detrich’s words and actions at the time of the

crime evidenced a heinous and depraved state of mind. For

the reasons we explain below, evidence of Detrich’s neurop-

DETRICH v. RYAN 4593

sychological deficits could have provided an alternative

explanation of Detrich’s words and actions and accordingly

could have decreased the weight of the “especially cruel, hei-

nous, and depraved” aggravating factor.

To be sure, evidence of Detrich’s neuropsychological dys-

functions would not bear on the cruelty of the crime, which

focuses on the victim’s suffering. See id. at 10. Because there

is therefore no reasonable probability that this expert evidence

would have led the sentencing court to find no aggravating

circumstances whatsoever, the death penalty would have

remained an option. See Ariz. Rev. Stat. § 13-703(E), (F).

Nonetheless, under Arizona law, sentencing judges look not

only to whether an aggravating circumstance is present, but

also to the weight of that aggravating circumstance. See State

v. Canez, 42 P.3d 564, 596 (Ariz. 2002) (assessing the weight

of the (F)(6) aggravating circumstance after reversing the

finding of heinousness and depravity but upholding the find-

ing of cruelty); State v. Gulbrandson, 906 P.2d 579, 604

(Ariz. 1995) (noting that “[t]he (F)(6) aggravating circum-

stance would have even more weight if defendant had relished

the murder”). Thus, even assuming that Detrich could not suc-

cessfully rebut the state’s argument that the murder was espe-

cially cruel, the neuropsychological evidence could diminish

the weight of the aggravating factor by showing that the crime

was not especially heinous and depraved.

Contrary to the district court’s understanding, the hei-

nous/depraved inquiry turns on the defendant’s subjective

state of mind, not on his mere words and acts. The Arizona

Supreme Court has made clear that, to determine whether a

crime was committed in an especially heinous or depraved

manner, a court must consider “the killer’s state of mind at the

time of the offense,” which “may be shown by his behavior.”

State v. Lujan, 604 P.2d 629, 636 (Ariz. 1979); accord State

v. Fulminante, 778 P.2d 602, 620 (Ariz. 1988) (“The terms

‘heinous’ and ‘depraved’ focus upon a defendant’s state of

mind at the time of the offense, as reflected by his words and

4594 DETRICH v. RYAN

acts.”); State v. Martinez-Villareal, 702 P.2d 670, 680 (Ariz.

1985) (“In order to determine depravity the court must focus

on defendant’s state of mind. Defendant’s state of mind may

be inferred from behavior at or near the time of the offense.”

(citation omitted)). Because this factor focuses on a defen-

dant’s subjective state of mind, expert psychiatric evidence

can demonstrate that a defendant’s crime was not especially

heinous or depraved. See Summerlin, 427 F.3d at 641-42

(holding that counsel’s failure to present psychiatric evidence

of a defendant’s “lack of impulse and emotional control and

organic brain dysfunction” prejudiced the defendant because

that evidence “could directly counter . . . that the crime had

been committed in a ‘heinous, cruel, or depraved manner’ ”).

The Arizona Supreme Court has identified five factors that

can lead to a finding of heinousness or depravity: the defen-

dant’s relishing of the murder, infliction of gratuitous vio-

lence, mutilation of the victim, senselessness of the crime, and

helplessness of the victim. Gretzler, 659 P.2d at 11. In Det-

rich’s case, the sentencing judge found that four of the five

factors—all but mutilation—were present. According to the

sentencing judge, Detrich’s asking Charlton if he wanted “a

shot” at the “dead” but “warm” body indicated that Detrich

relished the crime. The forty wounds evidenced gratuitous

violence. And the crime was senseless in that the victim posed

no threat to Detrich, and the victim was helpless. These fac-

tors led the sentencing judge to conclude that the crime was

especially heinous and depraved.

[27] Expert testimony could have rebutted the finding that

the gratuitous violence and Detrich’s apparent relishing of the

crime evidenced a heinous and depraved state of mind. First,

expert testimony that Detrich exhibited an “inability to stop

once he had started on something,” and that his “ability to

inhibit, plan ahead, [and] make decisions . . . would be signifi-

cantly reduced, especially given his neurological damage,”

could have provided the sentencing judge with a different

understanding of the victim’s forty wounds. Rather than evi-

DETRICH v. RYAN 4595

dencing a “shockingly evil state of mind,” Gretzler, 659 P.2d

at 11, the sheer number of wounds reflected Detrich’s impul-

sive and persistent behavior, which was caused by his neuro-

logical deficits. The state argues that Detrich’s brain

dysfunctions do not explain the gratuitous violence because

there is no evidence that he was out of control, as Detrich

apparently directed Charlton to drive out of town, told him to

pull over, and later lied that he had been in a fight when his

friend asked why he was covered in blood. That Detrich may

have regained control after committing the murder, however,

does not indicate that he also had control over his impulses

while inflicting the wounds.

Second, given the neuropsychological evidence, there is a

reasonable probability that the sentencing judge would have

concluded that Detrich’s comment offering Charlton “a shot”

at the dead body evidenced impulsivity and immaturity, not

relishing of the killing. Indeed, the Arizona Supreme Court

has acknowledged that “post-murder statements suggesting

indifference, callousness, or a lack of remorse constitute ‘rel-

ishing,’ only when they indicate, beyond a reasonable doubt,

that the killer savored or enjoyed the murder at or near the

time of the murder.” State v. Greene, 967 P.2d 106, 115-16

(Ariz. 1998). The Arizona Supreme Court has, for example,

found that a defendant’s statement that he had “clubbed” a

“faggot,” while callous, did not establish relishing. Id. at 115.

Similarly, that court rejected a finding of relishing where a

defendant bragged that his victim had “squealed like a rabbit.”

State v. Graham, 660 P.2d 460, 463 (Ariz. 1983). In that case,

the court attributed the defendant’s statement not to his savor-

ing of the crime, but to his immaturity and need to impress his

peers, which a psychological report had noted. Id. Similarly,

here, expert analyses would have reported that Detrich was

“very immature” and impulsive. These neuropsychological

characteristics, explained in part by Detrich’s brain develop-

ment and abusive childhood, could have provided an alterna-

tive explanation of Detrich’s callous statement to Charlton:

4596 DETRICH v. RYAN

his statement reflected immaturity and impulsivity, not his

enjoyment of the act of killing Souter.

Thus, expert testimony about Detrich’s neuropsychological

dysfunctions could have shed a different light on Detrich’s

words and actions at the time of the crime. Had the sentencing

judge heard expert testimony about Detrich’s impulsivity,

inability to change a course of action once started, and imma-

turity, there is a reasonable probability that he would have

concluded that the callous statement to Charlton and the num-

ber of wounds reflected these neuropsychological characteris-

tics, not relishing or knowing infliction of gratuitous violence

that reflected a heinous and depraved state of mind. And there

is more than a reasonable probability that this expert evidence

would have at least precluded the sentencing judge from find-

ing beyond a reasonable doubt that Detrich’s actions reflected

a heinous and depraved state of mind. See State v. Jordan,

614 P.2d 825, 828 (Ariz. 1980) (holding that aggravating cir-

cumstances must be proven beyond a reasonable doubt).

Moreover, had the sentencing judge not found gratuitous vio-

lence or relishing, he almost certainly would not have found

the crime to have been especially heinous or depraved,

because the other two factors urged by the state—

senselessness of the crime and helplessness of the victim—

rarely support a finding of heinousness and depravity on their

own. See State v. Hyde, 921 P.2d 655, 684 (Ariz. 1996).

[28] There is therefore a reasonable probability that expert

evidence of Detrich’s neuropsychological deficits would have

changed the aggravation side of the sentencing balance.

Because there is a reasonable probability that the sentencing

judge would not have found Detrich’s crime to be especially

heinous and depraved, there is a reasonable probability that he

would have afforded less weight to the aggravating factor that

authorized imposition of the death penalty here. If the aggra-

vator had less weight, it would of course take less mitigating

evidence to outweigh it.

DETRICH v. RYAN 4597

d

Had Detrich’s trial counsel presented expert evidence of

Detrich’s neuropsychological dysfunction, there is a reason-

able probability that the sentencing judge would have ascribed

more weight to the mitigating circumstances and less weight

to the aggravating circumstance that the crime was especially

heinous, cruel, or depraved. Critically, there is a reasonable

probability that these changes in weights on both sides of the

sentencing balance would have resulted in a sentence less

than death.

[29] This is not a case where the aggravating factors are so

overwhelming that a death sentence was all but assured. First,

even for very gruesome crimes, the death penalty is not neces-

sarily unavoidable. Douglas, 316 F.3d at 1091. Second, we

have found that aggravating circumstances are so significant

as to preclude a finding of prejudice only where the aggravat-

ing circumstances were worse, and the omitted mitigating evi-

dence weaker, than those here. For example, in Bible v. Ryan,

we held that the severity of the aggravating factors precluded

a finding of prejudice where the defendant had kidnaped,

stripped, molested, tied up, and murdered a nine-year-old girl,

and where the omitted mitigating evidence showed only that

the defendant had high fevers as a child that theoretically

could have resulted in organic brain damage. Bible v. Ryan,

571 F.3d 860, 863-64, 870 (9th Cir. 2009). Here, not only are

the aggravating circumstances of Detrich’s crime less egre-

gious, but he has offered evidence that he actually suffers

organic brain damage that could help explain his crime. Cf.

Bible, 571 F.3d at 871 (emphasizing that the defendant did not

contend that he actually had organic brain damage in conclud-

ing that the failure to introduce this evidence did not prejudice

him). The aggravating factors similarly far outweighed the

omitted mitigating evidence in Woodford v. Visciotti, where

the Supreme Court held that the state court was not objec-

tively unreasonable in finding no prejudice where a defen-

dant, who had previously knifed a man and stabbed a

4598 DETRICH v. RYAN

pregnant woman, had committed a pre-planned armed robbery

that involved an execution-style killing and another attempted

killing. Woodford v. Visciotti, 537 U.S. 19, 26-27 (2002).

There, the mitigating evidence that counsel failed to present

was far weaker than that here: the defendant had been berated

as a child, had no self-esteem, moved twenty times growing

up, was born with club feet, and suffered from depression,

feelings of inadequacy and incompetence, and a possible sei-

zure disorder. Id. at 26. Similarly, in Cox v. Ayers, we

recently found no prejudice where the “weight of the aggra-

vating factors was staggering,” as the petitioner had “set out

to kill everyone in [a] house, including children sleeping in

their beds, . . . for money.” Cox v. Ayers, 613 F.3d 883, 900

(9th Cir. 2010). Balanced against these “staggering” aggravat-

ing factors was “mostly cumulative” evidence of the petition-

er’s abusive childhood, but no evidence, new or otherwise, of

any neuropsychological deficiencies that could explain the

crime. Id.

[30] Because the mitigating evidence that Detrich’s coun-

sel failed to present is powerful, and because the aggravating

circumstances surrounding Detrich’s crime are not so severe

as practically to preclude a finding of prejudice, there is a rea-

sonable probability that the new evidence of Detrich’s

neuropsychological dysfunctions would have led the sentenc-

ing judge to conclude that the mitigating circumstances out-

weighed the aggravating circumstances and accordingly to

impose a sentence less than death.15

[31] In sum, Detrich’s trial counsel’s failure to conduct an

adequate penalty phase investigation, and the resulting failure

to present powerful available mitigating evidence, deprived

15

Because we conclude that the failure to introduce such expert mental

health evidence alone prejudiced Detrich’s defense, we need not decide

whether Detrich’s counsel’s additional failure to introduce evidence of

Detrich’s abusive childhood, his successful adaptation to prison, or the

impact that his execution would have on his family also prejudiced him.

DETRICH v. RYAN 4599

Detrich of his Sixth Amendment right to the effective assis-

tance of counsel. The state court unreasonably applied Strick-

land in concluding that counsel’s performance was not

deficient. Moreover, the state court’s conclusion that Det-

rich’s counsel’s performance did not prejudice Detrich’s

penalty-phase defense was based on an unreasonable determi-

nation that Dr. Briggs’s report indicated that Detrich’s

neuropsychological functioning was normal. Because avail-

able expert neuropsychological evidence that Higgins failed

to obtain and present would have provided a powerful expla-

nation of Detrich’s crime, we conclude that there is a reason-

able probability that Detrich would have received a sentence

less than death if Higgins had provided adequate representa-

tion.16 We therefore hold that Detrich is entitled to habeas

relief on his penalty phase ineffective assistance of counsel

claim.

IV. CONCLUSION

For the reasons explained above, we reverse the district

court’s denial of habeas relief on Detrich’s penalty phase inef-

fective assistance of counsel claim. The case is remanded for

16

We reach this conclusion mindful of the Supreme Court’s recent deci-

sion in Richter. In that case, the Court found that the petitioner had not

suffered prejudice where he offered expert evidence that “established

nothing more than a theoretical possibility” that his version of events was

more plausible than the government’s, and “offered no evidence directly

challenging” conclusions reached by the government’s experts. 131 S. Ct.

at 792. Detrich, by contrast, offers expert evidence regarding the nature

and extent of his neuropsychological impairments which goes far beyond

suggesting a mere theoretical possibility that his impairments contributed

to his crime. He also, as we have noted, offers evidence that directly con-

tradicts psychological assessments presented by the government’s experts.

In short, Detrich presents a markedly different case than Richter, and we

do not believe that the same result must inhere. Thus, bearing in mind

Richter’s strong rebuke of our prior failure to give insufficient deference

to our state court colleagues, we remain firm in our conviction that it is

reasonably likely that Detrich would have received a sentence less than

death had he received adequate representation.

4600 DETRICH v. RYAN

the district court to issue a writ of habeas corpus vacating

Detrich’s death sentence unless the state re-sentences Detrich

within a reasonable time set by the district court. If the state

chooses not to re-sentence, Detrich’s sentence will automati-

cally be converted to life in prison in accordance with Arizona

law.

REVERSED and REMANDED.

McKEOWN, Circuit Judge, Dissenting:

I respectfully dissent. I join the majority’s conclusion in

§ III.A that trial counsel was ineffective because he failed to

investigate and present sufficient mitigation evidence. I dis-

agree with the majority that Detrich was prejudiced by this

failure and that the state court made an unreasonable factual

determination. In my view, this case should be analyzed under

the legal prong of the Antiterrorism and Effective Death Pen-

alty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1), rather than

§ 2254(d)(2), the factual prong. Either way, Detrich cannot

overcome the prejudice bar in Strickland v. Washington, 466

U.S. 668, 687 (1984). And, even if Detrich could pass through

§ 2254(d)’s strict requirements, and we were permitted to

consider the expansive new evidence, he nonetheless fails to

establish prejudice.

Detrich’s appeal focuses on the state post-conviction

court’s alleged under-weighing of the mitigation evidence that

was before that court. This opportunity for another review has

caused me to reevaluate our prior conclusion. Upon reconsid-

eration of the facts and in the face of recent Supreme Court

decisions, I conclude that the state post-conviction court’s

prejudice evaluation was not contrary to established federal

law. The court appropriately concluded that Detrich could not

overcome the aggravating circumstance through his claims of

impulsivity, drug and alcohol abuse, and a dysfunctional

DETRICH v. RYAN 4601

childhood. Although his mitigation evidence was presented to

the state court, now he wants a “do over” with more extensive

psychological and familial evidence. Though in no way do I

discount the problems Detrich experienced, they are insuffi-

cient in the face of an extraordinarily cruel and heinous mur-

der to establish a reasonable probability that the outcome

would have been different had counsel effectively represented

Detrich.

The Supreme Court’s recent decisions in Cullen v. Pinhol-

ster, 131 S. Ct. 1388 (2011), and Harrington v. Richter, 131

S. Ct. 770 (2011), both decided after our initial opinion was

issued, provide the framework for our analysis. With respect

to new evidence and evidentiary hearings in federal habeas

petitions challenging state court convictions, Pinholster dra-

matically changed the landscape. The central premise of Pin-

holster is that our review of Detrich’s claims under § 2254(d)

is circumscribed by the state court record—review “is limited

to the record that was before the state court that adjudicated

the claim on the merits.” 131 S. Ct. at 1398; see also id. at

1413 (Sotomayor, J., dissenting) (“New evidence adduced at

a federal evidentiary hearing is now irrelevant to determining

whether a petitioner has satisfied § 2254(d)(1).”). Since Pin-

holster, courts have grappled with defining the circumstances

in which new evidence may be considered. For example, our

court reviewed post-Pinholster the admissibility of new evi-

dence that was previously unavailable, such as when prosecu-

tors withhold vital information in violation of their

obligations under Brady v. Maryland, 373 U.S. 83 (1963).

See, e.g., Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011)

(remanding petitioner’s Brady claim to the district court with

instructions to stay the proceedings so that petitioner could

return to state court because, despite petitioner’s diligence,

some exculpatory evidence was not turned over until the fed-

eral habeas proceeding).

To be sure, the Supreme Court did not completely close the

door on new evidence or evidentiary hearings under 28 U.S.C.

§ 2254(e)(2). As I wrote in Stokley v. Ryan:

4602 DETRICH v. RYAN

Pinholster leaves open the question of how to distin-

guish between a claim that was exhausted in state

court and a claim that is transformed by new evi-

dence into a different and novel contention presented

for the first time in federal court. The Court in Pin-

holster also had no occasion to speak to the role that

new evidence plays in federal habeas proceedings on

those rare occasions when an evidentiary hearing is

proper.

659 F.3d 802, 808 (9th Cir. 2011). See also Pinholster, 131

S. Ct. at 1411 n.20 (noting that because Pinholster did not

meet § 2254(d)(1) on the state court record alone, “we need

not decide whether § 2254(e)(2) prohibited the District Court

from holding the evidentiary hearing or whether a district

court may ever choose to hold an evidentiary hearing before

it determines that § 2254(d) has been satisfied.”)

Regardless of the fissures left open after Pinholster, the

Court made abundantly clear that our review under § 2254(d)

is limited to the record before the state court. On the state

court record, Detrich fails to show that he can surmount the

barriers imposed by § 2254(d).

Recognizing that Pinholster requires initial review on the

basis of the state court record alone, the majority concludes,

under § 2254(d)(2), that the state court’s prejudice analysis

rested on an unreasonable determination of the facts. Maj. Op.

at 4577-81. With that conclusion on the table, the majority

then goes on to incorporate into its analysis the “volumes” of

new evidence offered in the federal habeas proceeding.

I part ways with the majority at this initial juncture. Unlike

the majority, I view Detrich’s claim as most properly falling

within the purview of § 2254(d)(1), and, even if it is viewed

as a factual misstep under § 2254(d)(2), Detrich cannot satisfy

the prejudice standard. Although restricting itself to the state

court record in its analysis of Detrich’s claims under

DETRICH v. RYAN 4603

§ 2254(d), the majority inordinately focuses on Dr. Briggs’s

neuropsychological report. Detrich’s appellate counsel

obtained funding for the report and, before the state court,

advanced the argument that Detrich’s impulsivity, coupled

with his abusive childhood and substance abuse, were mitigat-

ing factors that should have changed the trial judge’s mind on

sentencing. But the post-conviction court, which was the same

judge as the trial court, flatly rejected this argument: “[T]here

is no reasonable probability that this testimony [regarding

neuropsychological functioning] would have compelled this

Court to impose a sentence less than death.” The additional

evidence of a dysfunctional childhood was deemed cumula-

tive.

In the end, this case mirrors Pinholster: As the Court wrote,

“There is no reasonable probability that the additional evi-

dence Pinholster presented in his state habeas proceedings

would have changed the jury’s verdict. The ‘new’ evidence

largely duplicated the mitigation evidence at trial.” Pinhol-

ster, 131 S. Ct. at 1409. Substitute Detrich for Pinholster and

the result is the same. This conclusion is compelled by the

Court’s opinion in Harrington. As to prejudice, the Court

explained: “In assessing prejudice under Strickland, the ques-

tion is not whether a court can be certain counsel’s perfor-

mance had no effect on the outcome or whether it is possible

a reasonable doubt might have been established if counsel

acted differently.” Harrington, 131 S. Ct. at 791. The Court

went on to reiterate its clear standard, explaining that

“[i]nstead, Strickland asks whether it is ‘reasonably likely’ the

result would have been different.” Id. at 792 (citation omit-

ted). Finally, because Detrich cannot overcome the § 2254(d)

bar, the circumstances of this case do not permit the extensive

new evidence taken into account by the majority.

A. NO UNREASONABLE APPLICATION OF CLEARLY

ESTABLISHED FEDERAL LAW UNDER § 2254(D)(1)

Detrich has consistently argued that he is entitled to habeas

relief because the state post-conviction court unreasonably

4604 DETRICH v. RYAN

applied the Strickland standard. Given the fact-intensive

nature of the Strickland inquiry, it is understandable that the

majority desires to fit its analysis under § 2254(d)(2)—the

“unreasonable determination of the facts” prong of the

AEDPA. On reflection and careful review of the record, how-

ever, I conclude that this case simply does not present the sit-

uation where the state court’s factual finding was unsupported

by sufficient evidence, where the process employed by the

state court was defective, or where the state court made no

factual finding at all. Taylor v. Maddox, 366 F.3d 992, 999

(9th Cir. 2004). Rather, the post-conviction court’s decision

turns on the “application of” the prejudice prong of Strick-

land, which constitutes “clearly established Federal law, as

determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1).

The majority’s ultimate conclusion rests on its disagree-

ment with the state court’s determination that Detrich was not

prejudiced by his counsel’s ineffective assistance. To prevail

on his ineffective assistance of counsel claim, Detrich must

show both (1) “that counsel’s performance was deficient,”

and (2) “that the deficient performance prejudiced the

defense.” Strickland, 466 U.S. at 687. Under the prejudice

analysis, there must be “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. Further, our review is

“doubly deferential” under the AEDPA, and Detrich must

show that it was necessarily unreasonable for the state court

to conclude that: (1) he had not overcome the strong presump-

tion of competence; and (2) he had failed to undermine confi-

dence in the outcome of the state court proceeding.

Pinholster, 131 S. Ct. at 1403 (citation omitted). Detrich

makes no such showing.

Our debate centers on the second prong of Strickland. Ulti-

mately, I read the majority’s position to be that, given the

information before the state post-conviction court, the major-

ity would have reached a different outcome. But that is not the

DETRICH v. RYAN 4605

standard imposed by the AEDPA. Even if we disagree with

the state court and might have reached a different conclusion

as an initial matter, the state post-conviction court’s conclu-

sion that Detrich did not establish prejudice was not an unrea-

sonable application of Strickland. See Harrington, 131 S. Ct.

at 786 (reiterating that “even a strong case for relief does not

mean the state court’s contrary conclusion was unreason-

able”).

In assessing the prejudice to Detrich, we reweigh the evi-

dence in aggravation against the totality of the available miti-

gation evidence. Wiggins v. Smith, 539 U.S. 510, 534 (2003).

The sole aggravating circumstance of the murder—that it was

“especially heinous, cruel, or depraved” under Arizona

Revised Statute § 13-703(F)(6)—is entitled to significant

weight. Explaining its conclusion that the murder was espe-

cially cruel, the state court noted that Souter, the victim, suf-

fered a slit throat and forty knife injuries to her face, hands,

chest, neck, abdomen and thigh, some of which were defen-

sive. State v. Detrich, 932 P.2d 1328, 1338-39 (Ariz. 1997).

She also suffered blunt force trauma injuries, including

bruises on her nose, jaw, and scalp, and scraping and tearing

of the lining of her mouth. Id. at 1339. That Souter was con-

scious during some of the attack was evidenced by her gur-

gling attempts to respond to Detrich’s questions. Id. at 1338-

39. This evidence demonstrated that Souter must have suf-

fered excruciating pain before she died. The court also noted

that Souter suffered mentally when she was held at knifepoint

and threatened with sexual assault. Id. at 1339.

The state court further found that the crime was “especially

heinous or depraved” because of the gratuitous violence

beyond that necessary to cause death; because Detrich rel-

ished in the murder, asking Charlton if he “want[ed] a shot”

at the dead body; because the killing was senseless; and

because the victim was helpless. Id. at 1339. Despite the

majority’s conclusion to the contrary, nothing before the state

4606 DETRICH v. RYAN

post-conviction court (including Dr. Briggs’s report) alters the

significance of these facts. Maj. Op. at 4587-89.

The state trial court gave full credence to Detrich’s sub-

stance abuse problems and dysfunctional childhood. As miti-

gating factors, the state court found, under Arizona Revised

Statute § 13-703(G)(1), that Detrich’s capacity to appreciate

the wrongfulness of his conduct or conform it to the law was

significantly impaired, based on testimony that he was drink-

ing heavily and possibly using cocaine at the time of the

crime. The court also found the following non-statutory miti-

gation: physically and mentally abusive background; remorse;

and history of alcohol and drug abuse.

According to Pinholster, we look only to the state court

record, which includes the following evidence of Detrich’s

mental health: (1) the 1985 evaluations, one by a state psy-

chologist and the other by a psychiatrist, that were attached to

the presentence report; (2) a 1991 court psychologist’s evalua-

tion that the state provided to the trial court; and (3) Dr.

Briggs’s report on neuropsychological functioning, which

Detrich’s habeas counsel presented in the state post-

conviction proceeding. The 1985 psychological report noted

Detrich’s impulsivity, immaturity, poor judgment, and low

tolerance for frustration. Similarly, the 1985 psychiatric eval-

uation found Detrich’s judgment to be grossly intact “with

occasional impulsive responses,” and remarked that Detrich

appeared to become frustrated quickly. Despite these observa-

tions, both reports stated that Detrich did not suffer from a

thought disorder or from delusional thinking. The 1991 report

confirms these conclusions, noting that Detrich did not exhibit

any symptoms of a major mental disorder or any other signifi-

cant psychiatric disturbance and his thought processes were

logical and coherent. However, unlike the 1985 reports, the

1991 evaluation did not reflect a high tendency toward impul-

sivity. Tellingly, together these reports noted that Detrich did

not have a history of prior felony convictions or a known sig-

nificant history of aggressive behavior. As the district court

DETRICH v. RYAN 4607

aptly noted, Detrich’s lack of a violent history before the mur-

der undercuts his argument that he could not conform his con-

duct to the law.

The addition of Dr. Briggs’s report did not alter the signifi-

cance of the other psychological evidence. In line with the

other doctors’ observations, Dr. Briggs noted Detrich’s impul-

sivity in several areas of the testing session. His examination

also revealed no pattern of cognitive dysfunction and that

Detrich’s neurological functioning was in the normal range,

which was a “recovered picture from the reported head trau-

mas and toxic abuse.” Dr. Briggs acknowledged that Detrich’s

appearance of greater overall impairment of function was

“likely an interaction between his emotional state and his mild

neuropsychological deficits.” He ultimately concluded that

“decision-making, especially when compromised by alcohol,

was not based on any consequence-driven thought process,

but rather a learned behavior that bypassed right and wrong.”

The majority asserts that “Dr. Briggs’s report not only

offers an expert explanation of the causal link between Det-

rich’s horrific childhood and his crime, but also indicates that

his neuropsychological deficits contributed to the crime.”

Maj. Op. at 4588. This reading of the report is the majority’s

gloss on Dr. Briggs’s explanation, not what the report actually

says. Although Dr. Briggs acknowledges that Detrich devel-

oped a mindset “in which instinct took over and reason could

not be accessed,” Dr. Briggs makes no specific findings as to

Detrich’s mindset at the time of Souter’s murder. More

importantly, the Briggs report does not provide a reasonable

probability that a factfinder would make such a connection.

While Dr. Briggs’s report may shed some additional light on

Detrich’s abusive background and mental health and provide

generalized statements about Detrich’s impulsive or instinc-

tive behaviors, it does not establish that Detrich could not

conform his behavior to the law when he murdered Souter

nearly ten years earlier. See State v. Johnson, 133 P.3d 735,

750 (Ariz. 2006) (“[T]he weight to be given [to] mental

4608 DETRICH v. RYAN

impairment should be proportional to a defendant’s ability to

conform or appreciate the wrongfulness of his conduct.”

(alteration in original) (internal quotation marks and citation

omitted)).

Whatever the specific impairments that Detrich may suffer,

I agree with the district court’s determination that they are

“entitled to only minimal mitigating weight because [Detrich]

has no history of violence or evidence that the impairments

cause aggression, the crime was not impulsive, and the

experts agree that [Detrich] is largely cognitively normal with

at least an average IQ.” Ultimately, as the district court con-

cluded, Detrich “has not proven that he suffers from a mental

impairment which is a ‘major contributing cause’ to his con-

duct at the time of the crime.”

The additional letters from Detrich’s family presented in

the state habeas proceedings also do not alter the mitigation

calculus. Although these letters recount a truly sad story and

more fully develop Detrich’s abusive childhood and his his-

tory of drug and alcohol abuse, this evidence was cumulative

and known by the trial court at sentencing. More than one of

the mental health evaluations before the state trial court noted

the considerable abuse and neglect he suffered, specifically

chronicling that Detrich had been chained up, pushed down

stairs, held under water in the bathtub, and encouraged to

drink alcohol and use drugs as early as eight or nine years old.

The sentencing judge specifically accounted for the abuse

Detrich suffered and found both statutory and non-statutory

mitigating circumstances.

None of the additional documentation made any connection

between Detrich’s inability to conform his conduct to the

requirements of the law at the time of the murder and his trou-

bled childhood, the alcohol and drug abuse, the accidents he

suffered, and his psychological or neurological challenges.

See State v. Stanley, 809 P.2d 944 (Ariz. 1991) (holding that

drug and alcohol abuse could not be considered a mitigating

DETRICH v. RYAN 4609

factor where the defendant did not prove by a preponderance

of the evidence that his drug and alcohol problem signifi-

cantly impaired his capacity to appreciate the wrongfulness of

his conduct or to conform his conduct to the requirements of

the law). Looking at the evidence before the state court, as

Pinholster requires us to do, it was not unreasonable for the

state post-conviction court to hold there was no reasonable

probability that, if Detrich’s counsel had fully investigated

and presented the available mitigation evidence, Detrich

would not have been sentenced to death. This conclusion was

not an unreasonable application of federal law.

B. NO UNREASONABLE DETERMINATION OF FACT UNDER

§ 2254(D)(2)

Rather than analyzing the appeal under § 2254(d)(1), the

majority rests its decision on a purported unreasonable deter-

mination of fact—i.e., that any defect in the state court deter-

mination is more properly cognizable under § 2254(d)(2). I

disagree. Nonetheless, were this case more appropriately ana-

lyzed under § 2254(d)(2), the state court did not make an

unreasonable determination of fact. And finally, even if that

were so, on a de novo review, Detrich still falls short on the

prejudice requirement.

To begin, as we emphasized in Taylor, the “unreasonable

determination” standard of § 2254(d)(2) is a “daunting

standard—one that will be satisfied in relatively few cases.”

366 F.3d at 1000. It would, of course, be unreasonable for the

state court to fail to account for, or even acknowledge, Dr.

Briggs’s report en toto. “A rational fact-finder might discount

[highly probative evidence] or, conceivably, find it incredible,

but no rational fact-finder would simply ignore it.” Id. at

1006. Had the state court not considered the Briggs report, it

would have inappropriately diminished the weight of the psy-

chological evidence, which would reveal a major fault in that

court’s fact-finding process. Or, had the state court mischarac-

4610 DETRICH v. RYAN

terized the report or fatally misinterpreted it, likewise it would

have been unreasonable. But that is not what happened here.

At the request of Detrich’s counsel, Dr. Briggs provided an

extensive, seven-page single-spaced report covering every-

thing from “General Neuropsychological Functioning” to

“Symptomatic Patterns” and “Diagnostic Impressions and

Neurological Implications.” In the face of the extensive

report, the majority concludes that because the state court did

not explicitly cite to or acknowledge statements in Dr.

Briggs’s report that could be construed as favorable to Detrich

and failed to highlight the finding that Detrich had developed

a “mindset” that “bypassed right or wrong” and “in which

instinct took over and reason could not be accessed,” that

court made an unreasonable determination of fact. Such a

characterization does not give the state court’s determination

the deference to which it is entitled. See Taylor, 366 F.3d at

999-1000 (“What the ‘unreasonable determination’ clause

teaches us is that, in conducting this kind of intrinsic review

of a state court’s processes, we must be particularly deferen-

tial to our state-court colleagues.”) The state court’s determi-

nation must stand unless we are satisfied that “any appellate

court to whom the defect is pointed out would be unreason-

able in holding that the state court’s fact-finding process was

adequate.” Id. at 1000.

I don’t want to say the majority is nitpicking, but it cer-

tainly could be characterized that way. At a minimum, it is

fair to say that the majority opinion does cherry pick. See e.g.,

Wetzel v. Lambert, 132 S. Ct. 1195, 1198-99 (2012) (vacating

and remanding grant of habeas where circuit court, in finding

the state court’s determination “patently unreasonable,” over-

looked some determinations of the state court and “focused

solely” on one portion of the state court decision). As for the

“recovered picture,” Dr. Briggs actually said, “This is a recov-

ered picture from the reported head traumas and toxic abuse.”

Of course, the head trauma took place long before both the

crime and the trial, and the post-conviction court acknowl-

DETRICH v. RYAN 4611

edged the alcohol abuse and credited it as a mitigating factor.

The state habeas court’s reference that “[Detrich’s] neuropsy-

chological functioning was normal,” is hardly a misstatement

since that is what Dr. Briggs found. The court did not attempt

to link that finding with the time of the crime. Overall, the

court simply found that “Dr. Briggs’[s] report was not signifi-

cantly different” from the other reports considered at trial.

And it was not, although it added more texture and detail.

The district court reached the same conclusion; it is worth

quoting the entire analysis:

Petitioner alleges that the PCR court’s decision was

unreasonable because it ignored evidence in con-

cluding that Dr. Briggs’s report was not “signifi-

cantly different” from the report considered at

sentencing. The significant difference that Petitioner

points to is Dr. Briggs’s conclusion that Petitioner

has neuropsychological deficits. Dr. Briggs stated in

his report that Petitioner had a few impaired perfor-

mances on his testing “which do not appear to have

major clinical significance.” (Pet. Ex. 22 at 2, 6.)

While Dr. Briggs noted that Petitioner’s functioning

was recovered since the time of his head injuries and

substance abuse, he concluded that Petitioner’s

neuropsychological function was normal and that

there was no cognitive dysfunction. (Id. at 6, 3.) He

also stated that Petitioner’s psychological and emo-

tional profile was the most significant factor in his

behavior. (Id. at 6.) Similarly, Dr. Boyer concluded

in 1991 that Petitioner’s cognitive functioning was

grossly intact, that he was of at least average intelli-

gence, that he did not have any major mental disor-

der or psychiatric disturbance, but that his ability to

relate emotionally was impaired and he had antiso-

cial attitudes. (Pet. Ex. 58 at 3, 7, 9.) Dr. Briggs’s

report is in conformance with all of these findings.

In light of the fact that Dr. Briggs indicated that Peti-

4612 DETRICH v. RYAN

tioner’s impaired performances were not of clinical

significance and emphasized other issues as the

major contributing forces in his behavior, the PCR

court’s conclusion that his report was not “signifi-

cantly different” than Dr. Boyer’s is not objectively

unreasonable.

Detrich v. Schriro, No. CV-03-229-TUC-DCB, 2007 WL

4024551, at *22 (D. Ariz. Nov. 15, 2007).

Here, the state court’s reference to the Briggs report is a

question of reasonable interpretation and nuance, which does

not meet § 2254(d)(2)’s strict standards. Such a formulation

not only does not reasonably lead us to “merely doubt

whether [the state court’s fact-finding] process operated prop-

erly,” Taylor, 366 F.3d at 1000, but it is also insufficient to

support the majority’s conclusion that the state court unrea-

sonably determined the facts. The majority’s efforts to recon-

stitute Dr. Briggs’s findings do not change this conclusion.

Extracting isolated morsels from Dr. Briggs’s report, the

majority leaves much of the context behind. Though Detrich’s

scored a 25 on the General Neuropsychological Deficit Scale,

a score of 26-40 would only represent mild impairment. This

score is in line with Dr. Briggs’s observations that Detrich

suffered from “mild neuropsychological deficits.” Even

acknowledging that his assessment represented a “recovered

picture,” Dr. Briggs concluded that “Detrich‘s brain is intact

and he has good abilities when he accesses it.” Dr. Briggs’s

comments regarding Detrich’s emotional status as the “most

significant factor” relate to Detrich’s presentation at the time

of evaluation and provide minimal insight regarding Detrich’s

mental state at the time of the crime. The report is hardly as

direct and conclusive as the majority would like to believe.

Giving in to such post hoc interpretation and reconfigura-

tion of the facts is not in accord with the AEDPA. The state

court stated that it considered the Briggs report and we should

accept that representation at face value. That the court did not

DETRICH v. RYAN 4613

quote the entire seven-page report is hardly an AEDPA sin.

In fact, Dr. Briggs made multiple findings, including those

related to impulsivity, substance abuse, dysfunctional child-

hood, and severe abuse that support the court’s conclusion

that, at bottom, the report was “not significantly different”

than the earlier reports. The added detail did not change the

inevitable conclusion that the mitigation evidence was simply

insufficient to overcome the aggravation factor in the view of

the state habeas court. For example, the Briggs report

acknowledged multiple deficiencies, such as: “His basic prob-

lem seems to be that he is impulsive and insists on having his

own way regardless of the law or the feelings of other peo-

ple”; “Residual effects from earlier peripheral hand [sic head]

injuries are seen to contribute to some of the impaired perfor-

mances”; and “[I]t is believe[d] that the mindset was devel-

oped in which instinct took over and reason could not be

accessed.” But it was not necessary for the court to reference

or quote each of those findings to reach its conclusion nor

should we impose such a burden. Would the majority reach

the same conclusion had the state court simply attached or

reproduced the language of the report in full? I trust that form

should not trump substance. In sum, I conclude that the state

court did not make an unreasonable determination of fact.

Whether the majority’s conclusion as to an unreasonable

factual finding is correct does not change the result. It simply

triggers a de novo review that requires us to consider all of the

psychological reports, including that of Dr. Briggs, along with

the other evidence of mitigation. Reviewing the state record

de novo, I agree with the state post-conviction court: in light

of the especially heinous, cruel and depraved nature of the

crime, coupled with the mitigation evidence—which was not

overwhelming but ranged from childhood abuse, alcoholism,

neurological deficit, remorse, and lack of a criminal record—

there was no reasonable probability that the new evidence

presented to the state post-conviction court “would have com-

pelled [the trial court] to impose a sentence less than death.”

4614 DETRICH v. RYAN

C. ROLE OF NEW EVIDENCE

Post-trial, Detrich developed the record through Dr. Briggs

plus additional, though essentially duplicative, evidence from

his family. Now, in this habeas proceeding, he not only wants

a “redo” and brush up on Dr. Briggs’s testimony, he wants to

bring in a host of other experts on a claim that he already

presented to the state post-conviction court. In light of my

analysis as to Detrich’s inability to pass through the § 2254(d)

bar, I would not proceed with new evidence.

But even with the benefit of the new evidence that the dis-

trict court permitted before having the benefit of Pinholster,

the district court concluded after extensive analysis that Det-

rich did not “prove[ ] that he suffers from a mental impair-

ment which [was] a ‘major contributing cause’ to his conduct

at the time of the crime,” that he “ha[d] not discovered signifi-

cant new or more weighty mitigation than was considered by

the sentencing judge,” and that “[e]ven if Petitioner is correct

that no deference is owed under the AEDPA, the Court finds

that Petitioner has failed to demonstrate prejudice under

Strickland.” I agree. Ultimately, Detrich does not present a

new claim, previously undiscoverable evidence, suppressed

evidence, evidence ignored by the state court, or a myriad of

other circumstances that could qualitatively strengthen his

assertions of prejudice. His piling on of new evidence does

not alter either the weight or the conclusions drawn from the

state court record.

I respectfully dissent.