*4 SMITH, JR., D. MILAN Circuit Judge: (Pinholster) Lynn Scott Pinholster to death sentenced after a convicted him of double murder with a knife in the of a home robbery burglary. course and remedies, exhausting After his state Pin- sought a corpus holster writ of habeas federal court in alleged, district which he claims, among other ineffective assistance guilt penalty counsel both the trial. phases Applying the stan- dards of Antiterrorism and Effective (AEDPA), taking drugs Kumar’s home and entry into Penalty Act of 1996 Death 104-132, money. in its Id. 110 Stat. Pub.L. No. Pin- upheld district court ruling,
final Kumar’s drove towards As Corona conviction, granted habeas but holster’s house, stop directed Corona to Pinholster sentence because death relief on his Id. Pinholster Tapar’s at Lisa residence. deficient trial counsel’s court found robbery, help with the Tapar wanted phase of at the performance door, on her she but when he knocked Pinhol- unconstitutionally prejudiced trial him and shut the door entry refused ster’s defense. took a response, Id. In Pinholster face. af- of this court three-judge panel A belt, from his stabbed buck knife de- guilt phase court’s the district firmed door, scratched swastika through the grant of habe- but reversed its termination hood of her car. thunderbolts into the penalty phase. as relief on father, a third witness her Tapar, Id. (9th (Pinholster II), F.3d 742 Ayers description of Corona’s this corroborated Cir.2008). banc, affirm the Sitting en we incident. Id. of Pin- Although the denial court. district *5 Brown, Pinholster, and Corona When ineffective assistance guilt phase
holster’s at Kumar’s residence and found no arrived penalty phase his appropriate, claim was it, home, they in and ransacked one broke claim warrants habe- assistance ineffective marijuana amount of from a taking a small considered under even when as relief in spilling green substance bedroom and AEDPA’s deferential standards. they Id. at 582-83. While the kitchen. house, car searching heard a were AND PROCEDURAL I. FACTUAL and Rob- pull up and saw Thomas Johnson BACKGROUND1 housesitters) (Kumar’s ap- ert Beckett Phase The Prosecution’s Guilt A. the front door opened one of whom proach, Case police. would call the and shouted he Pinholster, Brown, and Corona Id. in the California recounted As leave, to towards the rear door Art all moved appeal, Coro- opinion on direct Court’s Beckett came to the back (Corona), but Johnson and accomplice the commis- na way. Id. When Johnson and blocked their charged, the crimes served most of sion of house, Pinholster struck tried to enter the primary witness. prosecution’s as the times, (Pinholster I), or four de- 1 him in the chest three Ayers v. Pinholster money. Id. Johnson 765, manding drugs and 865, Cal.Rptr.2d 824 P.2d Cal.4th (1992). ground on the trial, dropped his wallet 571, At testified Corona order to sit down. Id. Pinholster, obeyed co- he, and Pinholster’s he attacked Beckett as (Brown), at- Pinholster then defendant, were David Brown him in the chest. Id. stabbing approached, apartment at Pinholster’s tending party and Pin- 1982, ground, to the dropped Beckett January when evening of on the repeatedly, him in the head holster kicked to rob Michael them Pinholster solicited pocket, Beckett’s took the wallet from Kumar, Pinholster drug dealer. Id. a local wallet. Id. picked up Johnson’s forcing also anticipated that he told the others Cir.2008), (9th thor- opinion F.3d 749-56 Supreme Court’s 1. The California facts in this (Pinholster I), oughly the detailed summarize 1 Cal.4th People v. Pinholster verification, we reit- independent case. With 581-87 Cal.Rptr.2d 824 P.2d our facts material majority those (1992), panel's erate here three-judge and our II), (Pinholster disposition. Ayers opinion in Pinholster chest, Brown then stabbed Johnson them was also human. Id. at 583-84. Ad- “bury[ing] his knife to the hilt.” Id. John- ditionally, Brown, when police arrested he son and Beckett died of their wounds. carrying a buck knife with human blood traces close to the hilt and with
Pinholster, Brown, and Corona then left dimensions matched a stab wound Kumar’s house and drove back to Pinhol- body. Johnson’s Id. at 584. Police also apartment. ster’s way, Id. On the Brown discovered human blood the inside fore- and Pinholster that they commented sleeve, arm of Corona’s shirt but did not “gotten good.” them Id. Pinholster find blood on his knife. Id. return, washed his upon knife and the split proceeds three robbery: and a quarter-ounce marijuana. Id.
$23 B. Pinholster’s Guilt Phase Case Although Pinholster called Corona the During guilt phase trial, of his Pin- day after the crime and told him to “lie holster testified on his own behalf and low,” Corona turned himself two weeks presented an alibi defense. Id. at 584-85. gave later and police. a statement Id. He boasted that he had committed hun- Corona, According to threat- dreds of robberies over previous six up ened to blow him on way to court if years, using gun, knife, but never a Corona refused to right against invoke his drug victimize dealers. Id. at 584. Al- self-incrimination, and against testified though he a prior admitted kidnapping Nevertheless, him. Id. Corona testified knife, conviction with the use of a he against and, Pinholster and Brown at the claimed that he pleaded to the aggravating trial, end of the pleaded guilty burglary. *6 circumstance only part as of a plea bar- Id. gain. Id. Pinholster also going admitted wife, Casey Corona, Corona’s who was to Kumar’s taking marijuana house and at apartment Pinholster’s Pinholster, when bedroom, from the but ransacking denied Brown, and her husband returned from the killing anyone. residence or Id. Pin- residence, Kumar’s corroborated her hus- holster asserted that Corona had asked testimony initiation, band’s about the exe- him for Kumar’s address that night, and cution, and aftermath of the crime. Id. gone Corona had to Kumar’s house She testified that she watched Pinholster later to steal some additional drugs and knife, wash blood from his and that she money. Id. at 585. him say, heard “It had to be done way the
it was done. We had to do what we had to Jury’s C. The Guilt Phase Verdict do.” Id. At guilt the close of the prosecution phase, jury
The the presented also forensic convicted Pinholster of first-degree evidence that mur- Pinholster had been in Ku- der and mar’s home found that the following after the two multi- ransacking. Id. Ac- cording ple-murder special-circumstance to Corona’s testimony, allega- Pinholster true, wore jeans boots and tions were him evening making eligible on the a of the for first, murders. death During Id. their sentence: search of Pin- he committed each apartment, holster’s police during murder the robbery course of a discovered and boots, towel, pair jeans, second, and a a burglary; all and personally he microscopic blood traces on used a them. Id. knife. Id. at 581. The also While the boots and the towel posi- burglary, tested convicted him of robbery, and blood, tive for human jeans the were not intentional great bodily injury infliction of tested to determine whether the on through blood personal use of a knife. Id. Penalty himself, Phase mit him to represent he
D. The Prosecution’s
which
did
July
from March
to
1983. Pinhol-
Case
II,
E. Pinholster’s Phase Case self for one to two hours. He concluded by, any had been represented sig- Pinholster that Pinholster “did not manifest rejected, court-ap- signs symptoms later several different nificant or of mental dis- pointed attorneys represent him in this order or defect other than his antisocial history.” petitioned per- case before he the court to disorder Based personality examination, teachers, on his Dr. Stalberg opined counselors, former juvenile or functional, cognitively that Pinholster was officers. damage,
without brain and noted that preparation limited that was done while allegedly epilepsy, Pinholster he interviewing mother, included Pinholster’s had not past year had seizure for the (Brashear), Burnice Brashear who later was not on medication. trial Pinholster’s became the sole defense witness called at counsel did Stalberg again, not contact Dr. proceeding. Brashear testified that nor did any consult with other mental Pinholster had been in several accidents as expert. health a small child. When Pinholster was two old, years Brashear accidentally ran over counsel billed a total of car, him badly with her injuring his 6.5 hours in head. preparation for the five, When Pinholster was four or phase Brash- of the trial.2 Brainard stated that ear was involved in a car while “Mr. accident which Dettmar was primarily respon- through Pinholster’s head went psychiatric, sible for the wind- psychological, and shield. Brashear also testified that Pin- case,” other mental health issues in the he get holster did not along well with had “no recollection of Mr. having Dettmar step-father, who was a disciplinarian strict any secured or reviewed of [Pinholster’s] records, point of abuse at medical times. She nor did stated see [Brainard] any disruptive Pinholster was in the class- [of them].” “So far as[Brainard] recol- child, lected], room as a but “did much neither Mr. better” Dettmer nor [Brai- when sent to an academically handicapped any nard] interviewed previous Scott’s class in grade. third or fourth providers” medical though they even were prior “aware to trial that Dr. Dubin and Brashear further testified that when other providers health care had treated ten, Pinholster was about she took him to Mr. Pinholster for seizure disorder.” a psychiatrist who recommended that he vein, the same Brainard admitted: placed be in a mental institution. She I do not recall interviewing or attempt- rejected that recommendation because she ing to interview family [Pinholster’s] “didn’t think he was that gone.” far members or other persons regard- Meanwhile, began stealing ing penalty phase testimony, except things and playing “Robin Hood” around [sic], Mrs. Brashears defendant’s moth- neighborhood, which indicated to her er. I have no seeing recollection of that “something working was not right.” attempting to secure eventually [Pinholster’s] Pinholster juvenile was sent to *8 records, school juvenile records, medical hall as a result of these thefts. As an records, or prior records of placements. adult, Pinholster physical problems had I have no recollection of interviewing or that included epilepsy, which Brashear un- attempting to interview [Pinholster’s] derstood to be the result of his being 2. ords.”). The record shows that counsel billed 1.5 Despite Diss. at dissenting 697. our prep, hours to penalty phase” "[s]tart for on colleague’s well-known flair for "creative” 11, 1984, April "[p]rep. 3.0 penalty hours for writing, appropriate it is not for a federal phase and conf. April with Mrs. Brashear” on appellate conjure up court to evidence that 25, "[p]rep. penalty and 2.0 hours for exist, especially does not when we have coun- phase” April on guess- 1984. The dissent testimony they sel’s own that did not antici- es that other records—which do not mention pate penalty hearing, a death and thus did not penalty phase preparation might penalty be — II, prepare it. for See Pinholster 525 F.3d at (or, worse, preparation disguise "per- 751. hapsfcounsel] diligent was not about time rec- severely jail” appeal, when he ment on direct Pinholster filed a up pretty “beaten petition alleged, state habeas in which he also stated that he was eighteen. She claims, among other ineffective epilepsy, but that assistance medication for on guilt penalty of counsel at both the and if he received the recom- did not know she phases of his trial. prison. medication while mended In support guilt phase of his ineffective then testified that her other Brashear claim, presented assistance he “basically very good chil- children were that his counsel had failed to test dren,” been in trou- although had also independently forensic evidence and to specifically ble with the law. She men- prior move to exclude bad acts evidence charges younger for both her tioned DUI prosecution. introduced girl” daughter. and her “wild Brash- son presented also evidence that his however, counsel that her other emphasized, ear during were ineffective Pinholster, phase like who was children were not by failing adequate to conduct an investi- and had been in and out of a “show-off’ gation into his mental health. Specifically, from the time he was mental institutions Stalberg, he claimed that Dr. the expert the doctors had twelve. She stated attorneys, consulted had “unreason- “something wrong here outside of found ably, incompetently perfunctorily and ar- just Brashear also testi- bad behavior.” unsupported rived at conclusions based really “never wanted fied that Pinholster upon inadequate investigation analy- much,” having anything at home too presented He testimony sis.” also “everything normally materialwise Woods, Dr. George who also condemned have,” although and that people that most Stalberg’s report Dr. and offered an alter- money,” he family “didn’t lots analysis. native Dr. Woods indicated that always had “a roof over his head” disorder, bipolar Pinholster suffered from Finally, clothes.” she indicated “decent murders, that at the Pin- time of the although perfect Pinholster was “a an epilepsy- holster was the throes of home, long stay state gentleman” Dr. opined related seizure. Woods also affected him so that it was prison had incompetent that Pinholster was to stand him to remember that he could difficult for trial. open and walk outside. doors The California Court issued an Penalty Jury’s
F. The Phase Verdict penalty phase order to show cause on the Trial and the State Court’s Sen- claim, ineffective assistance but then vacat- tencing of Pinholster granted improvidently ed the order as Following testimony Brashear’s and two petition denied the “on the substantive deliberation, days a half ground that is without merit.” each returned a death verdict on Federal H. The Habeas Petition 7, 1984, May
two murder counts on Pin II, 751-52, 525 F.3d at and the holster petition Pinholster filed a federal habeas state trial court sentenced Pinholster ac petition, April this Pinhol- *9 cordingly. ster use of Dr. testi- abandoned Woods’s mony presented testimony and instead The Petition
G. State Habeas Stalberg, of Dr. who stated that if trial provided him with Supreme After the California Court set counsel had Pinholster’s multiple-murder special family history, particularly circum- as related to aside one disorders, judg- but otherwise affirmed the medical he would have made stance 660 At inquiry concluding evidentiary hearing,
further “before as discussed merely personality dis- [Pinholster] further detail section III.B.3.b. of this parties stipulated order.” After the opinion, presented mitigation Pinholster petition included new material facts evidence that his counsel had failed to claims, and unexhausted the district court present penalty phase at the of his trial. dismissed the unexhausted claims and held testimony This evidence included that his fully petition abeyance. exhausted upbringing childhood much was worse than his mother had described. His bio- Supreme The California Court denied logical father an unemployed drunk petition Pinholster’s second state habeas mother, who was unfaithful to his and the “on the ground substantive is with- couple shortly divorced after Pinholster’s out merit.”3 birth. His father swings had mood The case then returned to federal dis- fits of anger, eventually and was diagnosed court, trict requested where Pinholster an paranoid personality narcissistic II, evidentiary hearing. Pinholster 525 divorce, parents’ disorder. After his Pin- law, at Applying pre-AEDPA F.3d 754. generally holster’s mother did not have evidentiary the court an hearing denied enough money provide for the children granted summary judgment to the and, money, when she had usually spent it guilt phase State on Pinholster’s ineffec- on grandmother, herself. Pinholster’s who claims, 748, 9, tive assistance id. at n. 754 often watched the children while his moth- 756, granted but evidentiary hearing worked, er used to “beat the hell out of’ Pinholster’s phase ineffective as- him because he resembled his father. claim, sistance pre- id. 754. Pinholster step-father came into his
pared a
by
declaration
Dr. Stalberg to
old,
life
years
when Pinholster was five
serve as direct testimony
hearing.
for that
was, according
to Pinholster’s evi-
During
Stalberg’s
Dr.
subsequent deposi-
dence, more than simply
disciplina-
a strict
tion, however, he
nothing
testified that
rian. The step-father beat
the children
the information compiled by the defense
fists,
belt,
with his
and—on at least one
team
opinion
altered his basic
that Pinhol-
two-by-four
occasion—a
board. Other-
ster “suffers
Personality
from Antisocial
wise,
“completely
he was
indifferent” to
Disorder.” Defense counsel
dropped
then
them.
Stalberg
Dr.
additional
from the case and
also
substituted
experts,
family
two new
Dr.
showed that the
did
get enough
Donald Olson and
II,
Dr. Sophia Vinogradov.
neighbor-
eat and lived in crime-ridden
F.3d at 755.
hoods,
wild,
and that the children ran
fre-
Porter,
by
The dissent
Wiggins,
seems mesmerized
the fact
Rompilla,
deference in
respective
supreme
where their
state trial
the California
Court twice de-
postconviction
courts had both denied
relief.
petitions.
nied Pinholster’s state habeas
Diss.
Instead,
granted
any
the Court
habeas relief
684-85, 688-89,
707-09.
It is true that the
way, because collateral habeas review is not
denial,
postcard
justices
issued
the same
concerned with the number of times the state
previously
who had
peti-
denied Pinholster’s
grant
did or did not
relief. See Porter v.
tion,
technically
a second look. Howev-
-
McCollum,
U.S. -,
130 S.Ct.
er, contrary
suggestion,
to the dissent’s
L.Ed.2d - (2009)
curiam);
(per
Wiggins v.
level of deference is not measured
Smith,
123 S.Ct.
U.S.
number of times that habeas relief has been
Beard,
(2003); Rompilla
L.Ed.2d 471
case,
denied.
If that were the
then the Su-
U.S.
habeas
II,
Terry
claim.
525 conviction became final.
Williams
tive assistance
362, 379-84,
529
120
Taylor,
at 773.
the affirmative vote of
U.S.
Upon
F.3d
(2000).
1495,
has not “broken sufficient
by
a constitutional
principle
II.
AND
advanced
JURISDICTION
STANDARD
if
petitioner, even
lower federal courts
OF REVIEW
381,
have decided the issue.
Id. at
120
jurisdiction
pursuant
We have
28
Nevertheless,
S.Ct. 1495.
while
Su-
§ 2253. We review a district
U.S.C.
preme
authority
binding,
Court
circuit
deny
or
grant
court’s decision
writ of
precedent may
“persuasive”
court
be
novo,
corpus
Mayle,
de
Lewis v.
habeas
determining
clearly
what law is
established
(9th
989,
Cir.2004),
391 F.3d
and the
applied
and whether a state court
that law
findings
district court’s
of fact for clear
unreasonably.
Murphy,
Clark v.
331 F.3d
error,
Calderon,
815,
Bonin v.
59 F.3d
(9th Cir.2003).
A
state court
(9th Cir.1995). Because Pinholster filed
“contrary
decision is
to”
Supreme
petition
his federal habeas
clearly
precedents
Court’s
established
if
provisions
govern
of AEDPA
his claims.
applies
the decision
a rule that contradicts
Johnson,
782, 792,
Penry v.
See
governing
law
prece-
set forth in those
1910, 150
(2001).
121 S.Ct.
L.Ed.2d 9
dents, thereby reaching
oppo-
a conclusion
provides
petitioner
AEDPA
that a
by
Supreme
site to that reached
Court
is not entitled to habeas relief on
claim
law,
on a matter of
if it
or
confronts a set
“adjudicated on
the merits”
the state
materially
of facts that is
indistinguishable
adjudication:
court unless that
from a decision of the Supreme Court but
(1) resulted in a decision that was con-
Terry
reaches
different
result.
to,
trary
or involved an
Williams,
unreasonable
405-06,
529 U.S. at
of,
application
clearly established Feder-
law,
al
as determined
the Supreme
Under the
appli
“unreasonable
States;
Court of the United
or
prong,
may grant
cation”
a federal court
(2) resulted in a decision that was based
relief where a state court “identifies the
on an unreasonable determination of the
governing legal
correct
rule from [the Su
in light
presented
facts
of the evidence
preme]
unreasonably ap
Court’s cases but
proceeding.
the State court
plies
particular
it to the facts of the
...
2254(d).
§
28 U.S.C.
The relevant state
case,”
“unreasonably
or
a legal
extends
court decision is the last reasoned decision principle from[Supreme
precedent
Court]
claim,
regarding a
Barker v. Fleming, 423
apply
to a new context where it should not
(9th
Cir.2005),
F.3d
and “the
unreasonably
or
refuses to extend that
phrase ‘[adjudicated] on the
re-
merits’
principle to a new context
where
should
quires that
grant
or
[state court’s]
apply.” Id. at
pari § materia 28 U.S.C. merely the state court’s decision was not erroneous,
“Clearly
“objectively
established” federal law
un
incorrect
but
409-10,
holdings
consists of
Id. at
663
case,
parties
denying
for its decision
although
In this
both
habeas relief on
merits,
where,
here,
applies,
disagree
AEDPA
as
no other
agree that
owed to the
state court decision has addressed the
the level of deference
over
held, however,
decision
claims at issue. We have
Supreme Court’s
California
situations,
Pinholster
that
in such
we
summary
“perform
of its
nature.
an
light
that,
only
review of the
‘independent
because the court found
record’ to as
argues
certain whether the
there was insufficient evidence to
state court decision
and n objectively
prima
make a
facie claim for relief
unreasonable.” Himes v.
(9th
848,
Thompson,
actual
F.3d
allegedly never reached the
merits
336
853
Cir.
2003)
claim,
Lewis,
Delgado v.
(quoting
of the
we review the court’s decision
223 F.3d
(9th
State,
contrast,
976,
Cir.2000));
by
Cooper
deference. The
982
see also
v.
without
Brown,
(9th
870,
Cir.2007);
summary
510 F.3d
921
argues that because the court’s
adjudi
Mayle,
of Pinholster’s claim was an
Lewis v.
question
proper
measure of defer
Terry
L.Ed.2d 674
See
Williams,
where,
applies
ence that
under AEDPA
as
U.S.
393-94, 125
Wiggins Court thus reached its conclusion
A. The Guilt Phase
that counsel rendered ineffective assis-
part by
tance under Strickland in
distin-
three-judge panel unanimously
Our
held
guishing
Wiggins
the facts in
from
those
that,
assuming
even
repre-
counsel’s
Terry Williams:
sentation at
guilt phase
of the trial
petitioner
contrast
to the
performance,
[I]n
constituted deficient
the dis-
..., Wiggins
Williams
does not have a
trict court properly
evidentiary
denied an
record of violent conduct that could have hearing
granted summary judgment
by
been
introduced
State to offset
favor of the State because Pinholster failed
powerful mitigating
this
showing
prejudice.
narrative. As
to make a colorable
found,
II,
757, 761, 775,
the Federal District Court
the Pinholster
1. Federal
imply any
federal courts
such restriction.
contends that the dis
The State
addition, AEDPA
independent
has an
in granting
trict court abused its discretion
a habeas
provision
expressly restricts
evidentiary hearing
federal
on petitioner’s ability to introduce new evi-
ineffective
penalty phase
assistance
in
dence
federal court. See 28 U.S.C.
allegedly
claim because the court
failed to
2254(e)(2).
applies
§
That
restriction
properly
whether Pinholster
de
consider
diligent in
petitioner
when the
was not
claim in the
veloped a factual basis for the
seeking
develop
the new evidence
result,
Supreme
As a
California
Court.
Jackson,
state court. Holland v.
argues,
improp
the district court
the State
649, 652-53, 124 S.Ct.
159 L.Ed.2d
erly
grant
reached its decision
habeas
(2004).
2254(d)(1)
§
Neither
nor
683
be
relief based on evidence that was not
2254(e)(2)
any language
§
contains
indicat-
fore the state court.
properly
introduced un-
ing
evidence
2254(e)(2)
apply-
§
is irrelevant when
regarding
The State’s contention
der
2254(d)(1).
contrary,
§
evidentiary hearing
unavailing.
ing
On the
federal
is
2254(e)(2)
that,
§
when draft-
petitioner
correct that when a
establishes
The State is
AEDPA,
was aware that fed-
challenges
ing
Congress
a state habeas court’s factual
rely
conclusions,
sometimes
petitioners
the relevant evidence is re-
eral habeas
habeas
presented
in the state
presented
stricted to that
to the state ha-
evidence
AEDPA,
court,
to that
Congress responded
and that
post-
beas court: Under
federal
statutory
with an explicit
issue
restriction
not exhibit a lack
diligence
in state
court,
on the introduction of such evidence.
pertinent
petitioner’s
to the
claims
under AEDPA.
legal backdrop against
which Con
gress
Holland,
drafted and enacted AEDPA also
Similarly,
governed
a case
2254(d)(1).
2254(d)(1),
§
by §
informs our construction of
although the Court ex-
Historically,
petitioner
a federal
plained
habeas
that a state habeas court’s decision
rely
long
could
on new evidence as
as that
generally must be
in light
reviewed
alter
underlying
evidence did not so
evidence presented at
the state habeas
claims as to
them
proceeding,
render
unexhausted.
immediately
Court
there-
254, 260,
Vasquez Hillery,
U.S.
after noted that a
petitioner
federal habeas
(1986).
S. Ct.
§
546 U.S. at
S.Ct.
Williams,
prisoner’s
er or the
counsel.”
529 U.S.
(citing
[Michael]
Michael
1479).
420, 432,
430-32,
Taylor,
in both Mi- Williams v.
As
S.Ct.
(2000).
Holland,
“Diligence require will in the usual case minimum, at a prisoner, seek an statutory text Given AEDPA’s evidentiary hearing in state court in the governing prece and the Court’s dent, prescribed manner state law.” Id. at approach the most reasonable in federal habeas [120 1479]. new evidence introduced proceedings straightforward: the most is evidentiary an sought hearing 2254(e)(2) restricts the evidence Section regarding court claim state may be considered in federal habeas failing counsel was ineffective for to in- 2254(d)(1) § proceedings, and contains no vestigate present mitigating evi- additional on the relevant evi restrictions phase. dence He did not If admissible under dence. the evidence is develop fail to the factual basis of this 2254(e)(2), § if it Michael Williams or evidentiary claim in state court petitioner’s does not render claims hearing appropriate. then it Vasquez, unexhausted under properly evaluating considered in whether upon independent inquiry, Based our we *17 legal the reached the conclusion state say cannot that the district court erred in a application habeas court was reasonable Holland, analysis. its See at U.S. Supreme Court law. (noting that in to addition the district court’s failure to make the here, Importantly, the district court ex- requisite findings evidentiary for an hear pressly found that Pinholster had met the ing, the Sixth Circuit also failed to “inde requirements evidentiary hearing for an matters”). inquire into pendently these under AEDPA. In the addendum to its exercised diligence pursuing granting order habeas relief on Pinhol- evidentiary hearing in state court re penalty phase ster’s ineffective assistance garding mitigation ineffective assis claim, stated, court district relevant By withdrawing tance claim. order to its part: dismissing show cause and ha Pinholster’s AEDPA, merits, ... a petitioner petition Under is not beas on the the state court evidentiary hearing any entitled to an if he denied Pinholster further opportunity develop failed to the factual of a factual develop basis record state court. claim in court. limi diligent, state 28 U.S.C. Because Pinholster was 2254(e)(2). 2254(e)(2) § § develop inap failure to tations of 28 are “[A] U.S.C. Holland, 653, 124 plicable. factual basis of claim is not established See 542 U.S. at diligence, unless there is lack of or some S.Ct. 2736.7 Cir.1999)
Moreover,
if
(rejecting
even
those limitations did
an exhaustion chal-
lenge
both the
as
“unwarranted
apply,
hairsplitting”
we find that
federal and
many
step
where
each
petitions
proceed-
the state habeas
detail
sub-
habeas
facts,
ings
legal
same,
claim remained
including trial
stantially identical
precise
predicate
but the
factual
changed
failure to file a motion for a
counsel’s
evidentiary hearing).
after the
prepare mitigation
case
continuance
penalty phase,
for the
counsel’s introduc-
testimony,
tion of Brashear’s
Pinholster’s
2. Deficient Performance
child,
home life as a
and Pinholster’s edu-
Strickland,
In
the Court held that
medical, social,
cational,
psychological, and
duty
“counsel has a
to make reasonable
family background. Although Pinholster
investigations or to make a reasonable de
experts during
proceedings
substituted
particular
cision that makes
investigations
ultimately developed
who
different mental
unnecessary.
case,
ineffectiveness
theories,
impairment
experts
these
none-
particular
decision not
to investigate
background
theless relied on the same
directly
must be
assessed for reasonable
presented
that Pinholster
facts
the state
circumstances,
ness
all the
applying a
2254(e)(2)
§
Accordingly,
court.
if
were to
heavy measure of deference to counsel’s
us,
scope
limit the
of the evidence before
judgments.”
mitigation evidence introduced at the fed
referenced “[prevailing
practice
norms of
evidentiary hearing
properly
eral
before
as reflected in American Bar Association
in considering
penalty
us
Id.;
standards.”
see
Rompilla,
also
phase ineffective assistance claim. For
(“[W]e
U.S. at
investigate
all the available
significance
plain[ ]
the case
circumstances of
and the
ground
Williams,
Terry
[mitigation] evidence.”
mitigating evidence
to uncover
in an effort
399,120
The Court
at
S.Ct. 1495.
phase defense:
529 U.S.
penalty
to the
relevant
where,
ineffective assistance
has also found
duty
lawyer
of the
to conduct
It is the
artic-
these well-defined norms”
“[d]espite
circum-
of the
investigation
prompt
Standards,
in the ABA
“counsel
ulated
all
explore
the case and to
stances of
investigation
peti-
of [the]
abandoned their
relevant to the
leading to facts
avenues
having acquired
background
tioner’s
after
of the case and
merits
history
only rudimentary knowledge of his
investigation
of conviction.
event
Wiggins,
from a narrow set
sources.”
always include efforts to secure
should
524,123
539
at
S.Ct. 2527.
U.S.
possession
in the
information
and law enforcement au-
prosecution
labors to convince us
The dissent
duty
investigate exists
thorities. The
Hook,
-,
130
Bobby v. Van
558 U.S.
of the accused’s admissions
regardless
(2009),
13,
gins,
point
[counsel]
no
did
“[a]t
strategic
any kind of reasonable
decision.
history or
any
petitioner’s
life
Instead,
mistakenly thought
counsel
counsel “ex-
family background,” nor did
all,
penalty phase
would be no
at
there
beyond the PSI
pand
investigation
their
allegedly failed to
because the State had
Investigation Report] and
[Presentence
notice of
intent
to introduce
provide
its
[Department of Social Services]
the DSS
previously
evidence. As
not-
aggravating
at
123 S.Ct.
records.” 539 U.S.
ed, however, the state trial court held a
Finally, Rompilla,
2527.
counsel called
on that
and determined that
hearing
issue
Rompilla’s family
as wit-
five of
members
the State had served Pinholster with ade-
penalty phase
at the
and examined
nesses
quate
during
period
notice
in which he
reports
of three mental health wit-
represented
pre-trial.
himself
Neverthe-
nesses,
failed to review
of the
but
less,
mistake,
learning
even after
of their
Rompilla’s
in the court file on
materials
counsel declined the court’s invitation to
conviction, despite knowledge of the
prior
for a
prepare
move
continuance
prosecution’s intention to introduce those
penalty phase, stating on
record
381-86,
materials at trial.
at
See
U.S.
they
time
did not believe the extra
“would
Pinholster’s
trial
counsel
imagination,
sonable stretch of the
“be
readily
even less review of the
available
strategy.”
considered sound trial
See
lawyer Wiggins,
records than did the
Strickland,
2052.
U.S.
report
who reviewed both the PSI
and the
penalty phase.
DSS records before the
stretch,
exactly
such an unreasonable
Moreover,
in Terry
similar to counsel
yet
dissenting colleague
our
demonstrates
Williams,
attorneys spent
less
again why
such a
he would be
talented
preparing
penalty
than a
for the
week
of fiction. He
a
writer
concocts
fantastical
ease,
phase,
prepa-
but in Pinholster’s
attorneys
strategy
trial
for Pinholster’s
de-
average
ration lasted less than an
work-
spite
they
their own admissions that
were
Also,
day.
lawyers in
Terry
while the
both
unprepared.
told the trial
simply
Counsel
Rompilla performed
defi-
penalty
Williams
judge
hearing—
week before the
ciently
though they
even
interviewed and
“falling
much too soon for them to be
multiple
prepared
called
witnesses
their swords”—that
had not
phase,
mitigation
Pinholster’s counsel
interviewed
case.10 Diss. at 701 n.10. The
reasonable,
assuming
Even
that the
failed to
informed decision that such
9.
State had
an
investigation
unnecessary.
notice,
See Strick-
provide adequate
counsel would not
2052;
land,
Terry
466 U.S. at
duty
investigate
have been absolved
their
Williams,
673 Rather, strategy. reviewing borne out a week a court must truth of that claim was give attorneys the benefit of the later. To consider the reasonableness the investi fabricate an thing, is one but to gation support strategy.”); doubt said to that attorneys themselves could 1222, that the excuse Duncan v. 528 F.3d 1234 Ornoski (9th Cir.2008) conjure another. The dissent up is (interpreting Strickland to appeared that so ineffec- suggests counsel mean that “decisions are made before something they must have had tive investigation is conducted are complete mind; words, no one other sinister only the of investigation reasonable if level — However, incompetent. giv- could be that reasonable”), denied, was also cert. unprepared to en that counsel claimed be -, 1614, U.S. S.Ct. 173 L.Ed.2d rejected phase, the offer of penalty (2009); v. Ryan, Correll 539 F.3d prepare, presented only time to additional (9th Cir.2008) (“A decision counsel witness, devastating “mitigation” one present mitigating not to evidence cannot sentence, their a death it is secured client strategic be as a excused decision unless they merely being obvious were not supported investiga reasonable sneaky; they incompetent, they were tions.”); Jennings Woodford, v. 290 F.3d miserably discharge failed the duties (9th Cir.2002) 1006, 1014 (“Although de they owed to their client at the fense empowered counsel is to make such phase of his murder trial. decisions, strategic Strickland demands that such decisions be in sure, reasonable and may
To be some cases counsel formed.”). to think it would have have “sound reason money time and on pointless spend been Here, defense counsel in- conducted no investigation,” thereby ... ren- additional vestigation into Pinholster’s background at dering counsel’s failure to discover addi- all, interviewing aside from his mother. mitigating tional evidence reasonable. See only Not investigation gross- counsel’s 2456;
Rompilla, 545 U.S.
ly
they
inadequate;
also failed to look into
also,
792-95,
e.g., Burger,
see
483 U.S. at
any of the limited mitigating evidence that
(finding
site for counsel to their in “abandon[] tance put penalty them “not to on a edly told of vestigation petitioner’s background [the] noted, approach defense” fails. As this having acquired only rudimentary after rejected by Court. has been history a knowledge from narrow set Porter, at Further- 130 S.Ct. 453. See 524-25, Wiggins, of sources.” 539 U.S. at assertion, more, support of this 2527; Siripongs see also v. Cal report relies on an interview written State (9th deron, Cir.1994) 35 F.3d 1316 July investigator a 1991. defense deficiently that counsel (holding performed noted, However, court be- as district by failing cursory to “conduct more than a the defense cause neither Pinholster nor investigation” by making attempt “no evidentiary at investigator testified to humanize before the [the defendant] hearing, hearsay.11 this statement Re- jury”). Accordingly, we hold coun truth, gardless of its the record demon- complete investigate sel’s almost failure to influ- strates that the statement did not readily mitigation available evidence trial counsel’s because performance, ence objectively Pinholster’s case was unreason defense, present trial did a counsel under prevailing able both the norms of constitutionally albeit a defective one. practice, as in the ABA reflected Stan Moreover, assuming even that the state- trial, in place dards at the time of his true, it ment is did not relieve counsel of clearly well as the established federal law duty investigate. to “A their constitutional in Strickland. defendant’s insistence that counsel not call penalty phase witnesses at the does not Prejudice 3. duty investigate
eliminate counsel’s
to
mit- We also hold that trial counsel’s consti-
igating evidence or
advise the defendant
tutionally
performance prejudiced
deficient
potential consequences
failing
of the
Strickland,
Pinholster’s defense. See
evidence,
mitigating
thereby
introduce
as-
noted,
at
U.S.
that at least one
would have struck a
Mitigation
b. Available
balance,”
Evidence
Wiggins, 539 U.S. at
different
added).
537,123
(emphasis
S.Ct. 2527
Although the State’s aggravating
severely
evidence was
detrimental to Pin-
Aggravating Evidence
a.
case,
holster’s
the record reflects that the
noted,
As the district court
there was
harmful effect of that evidence could have
aggravating
substantial
this
significantly
been
mitigated had Pinhol
presented
case. The State
evidence that
ster’s trial counsel performed competently.
of the murder vic-
Instead,
Pinholster beat both
only
mitigation evidence intro
tims,
knife,
stabbed one of them with a
duced
defense counsel at the
wallets,
a paltry gain
inaccurate,
took their
all for
of phase
damaging
was the
testi
quarter-ounce
marijuana.
and a
mother,
mony of Pinholster’s
$23
Brashear.
If
Yet,
when Pinholster took the stand
counsel had
minimally
conducted even a
trial,
the victims
murdering
he denied
adequate
investigation, however,
that he had committed
boasted
hundreds would have found a trove of additional
previous
years,
of robberies over the
six
mitigation evidence that would have hu
knife,
using gun,
but never a
to victimize
and,
manized Pinholster to the
at the
drug
openly
dealers. He was also
disre-
time,
same
contradicted Brashear’s mis
spectful
deputy prosecutor,
of the
ap-
leading
omitted,
version
events. This
peared unconcerned
available,
seriousness
readily
but
evidence also would
murders,
underlying
and even have done much to counter the State’s
laughed or
during
evidence,
smirked several times
aggravating
which Brashear’s
deputy prosecutor’s
cross-examination.
testimony failed to
rebut
even address.
addition,
the State introduced evi-
Organic
Damage
i.
Brain
dence of Pinholster’s earlier conviction for
knife,
First,
with a
kidnapping
of his threat
counsel would have discovered ev-
witness,
kill the State’s lead
and of
organic
idence of the
basis for Pinholster’s
assault of another
individual with a mental
developed
health troubles that
as a
straight
history
razor. Pinholster had a
result of
inju-
his traumatic childhood head
well, including
other violent outbursts as
During
penalty phase,
ries.
Brashear
two,
striking
proceeding,
a bailiff after a court
testified
when Pinholster was
she
resisting
assaulting
po-
injured
arrest and
several
“quite badly”
his head
when she
officers,
once, during
apparent
accidentally
lice
an
ran
him
over
with her car.
seizure,
epileptic
hitting
wife
nearly
and The accident
tore off one of his
he
medication when
that,
with anti-seizure
when he was
also testified
ears. She
old, and he fre-
years
nine
five,
had a car accident
she
four or
complex partial
quently suffered
the wind-
through
his head went
which
Dr.
thereafter.
Ol-
grand mal seizures
however,
counsel,
Pinholster’s
shield.
car accidents
concluded
the two
son
evidence re-
any medical
present
failed to
damaged the frontal lobes of
injuries.
those
consequences of
garding the
brain,
injury
frequently
causes
result,
to an un-
argued
the State
As a
Dr.
damage,
This
impulsive behaviors.
in-
injuries were
jury that these
informed
was evidenced both
explained,
Olson
significant:
*24
abnor-
epilepsy and
his
Pinholster’s
by a car when he was
was run over
He
reading as a child.12 Dr. Vi-
mal EEG
very unfortu-
years old. That’s
three
similarly concluded that Pinhol-
nogradov
brain
There is no evidence
nate.
injuries resulted in
ster’s childhood head
get dropped,
A lot of children
damage.
that
damage
brain
organic, pre-frontal
A
their cribs or whatever.
fall from
explained
changed
personality
his
through a
years later he went
couple of
violent, and antisocial be-
aggressive,
window,
hospitalized, got medical
car
havior,
Stalberg
while Dr.
characterized
care.
injuries
“devastating” and
possibly
addition,
wrongly
In
Brashear
testified
them to Pinholster’s
likewise connected
after a
epilepsy began
Pinholster’s
that
epilepsy.
jail
beating that he incurred
severe
medical
This additional
changed
She then
age
eighteen.
helped
aggrava-
have
counter the State’s
claimed that she discovered
story
her
First,
respects.
tion
in three
evi-
case
a
by witnessing the end of
epilepsy
may
damage
that Pinholster’s brain
dence
seizure,
told her about
point
at which
he
influenced,
caused, his behav-
have
or even
confusing
Given her
testi-
his condition.
may
ior at the time of the crime
have led
however,
argued at the
mony,
the State
morally
jurors
conclude that he was less
penalty phase that Pinholster
end of the
offense,
at the time of the
and at
culpable
epilepsy
at all. The State
did not
juror may
least one
have been inclined
if
jury
to the
that
Pinholster
argued
also
voting
capital
in favor of a
refrain from
“a doctor would have
truly
epilepsy,
had
Wiggins,
sentence. See
you
in to tell
that. Medical
brought
been
(holding
prejudice
is
records,
contrast, readily
something.”
proba-
if
established
“there is
reasonable
evidence would have
mitigation
available
bility
juror
that at
one
would have
least
injuries
shown
Pinholster’s childhood
a different balance” between life
struck
effects on his mental
likely
long-term
death).
organic
brain
Evidence
health.
juries to
injury in other cases has led
beyond
demonstrates
a defendant’s
The evidence
consider whether because
... his
epi-
physically compelled
that Pinholster suffered from
“behavior was
doubt
re-
culpability
would have been
young age.
from a
moral
lepsy
Woodford,
v.
280 F.3d
duced.” Caro
diagnosed
epilepsy
and treated
first
words,
pre-
epilepsy
spends
arguing er
is
indicator
12. The dissent
some time
epilepsy
damage,
pre-frontal
is irrelevant because he
brain
frontal brain
suffering
a fit when he committed
impul-
was not
aggressive,
damage frequently leads to
however,
point,
The
is that Pinhol-
crimes.
jury did not hear this
sive behaviors. The
damaged by his numerous
ster's brain was so
evidence.
epilepsy.
it caused
In oth-
head traumas that
(9th Cir.2002).
reason,
might
1257-58
For this
serve as a basis for a sen-
[it]
(citations
prob-
evidence of serious mental health
tence less than death.”
quo-
lems,
omitted)).
including organic
damage,
brain
tation
very
marks
exis-
“precisely
type
of evidence that we
organic neurological
tence of
problems
jury
have found critical for a
to consider may
mitigating
serve as
evidence at sen-
deciding
impose
whether to
when
death
tencing by eliciting
or,
sympathy
at the
Woodford,
Douglas
sentence.”
316 F.3d
least,
very
degree
some
of understanding
(9th Cir.2003).
Here,
as in from the sentencer.
Douglas,
See
Porter, it “was not reasonable to discount
1090;
F.3d at
see also Hendricks v. Cal-
entirely
psychiatrist’s]
the effect that
deron,
(9th
[a
Cir.1995)
70 F.3d
testimony might
have had on the
(holding that mental health evidence could
judge.”
sentencing
Second, properly presented evidence of defense to conviction in guilty phase”). injury, profound Pinholster’s brain and its Though the dissent mocks the fact that behavior, effect on his could have altered *25 counsel did not attempt to humanize Pin- jury’s impressions of his detrimental holster, diss. at boastful, guilt phase testimony and of his clearly considers humanizing important an disrespectful by indicating demeanor an part penalty-phase mitigation in a death organic inappropriate expres- basis for his Porter, (“The penalty case. See at 454 tendency sions and for his to exaggerate judge jury at original Porter’s sen- past. way, “in his this the hands of a tencing nothing heard almost that would competent attorney,” the harmful evidence humanize Porter or allow them to accu- provided by Pinholster’s trial testimony rately gauge his moral culpability.”). his actually offensive manner could support[his] “have been used to claims of Deprived ii. Abusive and Childhood dysfunctional upbringing continuing Second, if counsel had conducted ade- Correll, mental disorder.” See F.3d quate investigation, they would have found evidence of Pinholster’s abusive and de- Third, organic Pinholster’s prived upbringing. Brashear minimized injury brain would him have humanized and distorted the true nature of Pinhol- eyes jury, even if the relationship ster’s with step-father his injury concluded that his brain was when she testified at penalty phase: responsible during for his actions his com- Q: get along Did he with stepfa- his mission of the crime. It necessary is not ther, Mrs. I sorry, Brashear? am I there abe direct causal connection know this is difficult you. for injury between a defendant’s brain and the Well, A: try times. He would crime he commits for the existence discipline him and sometimes I was ob- injury to a humanizing serve as and there- jectionable always— to that. Scott has mitigating fore factor during sentencing. he had mind of his own. See, Carolina, e.g., Skipper South 1, 4-5, U.S. L.Ed.2d Q: you
(1986) punish- Do feel of that (“Although it is true that [the evi- given ment that was to Scott abu- specifically dence] would not relate to peti- sive or near abusive? culpability tioner’s for the crime he com- mitted, Well, question there is no but that such A: I think so at times. Scott mitigating [evidence] would be the sense push boy would the limit. He was a early, and made all once was awakened way. My husband had his own that —he in circles in the back of us children run temper lose his sometimes I collapse. near yard until we were him, always thought he was yes. He praising of Bud ever have no recollection him to make him see punishing emotionally doing anything sup- Scott to be thing supposed he was wasn’t for portive Scott. even when he and Scott rebelled doing, got quite a bit quite young. We psychiatric records also indi- hassles. arguments used step-father frequently cated that his relationship does Scott Q: kind of What head, back, him paddle to hit on the today? stepfather have with his shoulders, him out at knocking times with- care. And rela- subsequent out medical Well, just very okay. it’s He feels A: testimony tives’ additional declaration happened what has to Scott. bad for that, beginning showed when friendly relationship? Q: But is it a old, years maternal was one and a half his A: Yes. of’ him for grandmother “beat the hell out contrast, mitiga- the additional In stark father, she resembling biological whom showed that Pinholster suf- tion evidence “good as a and her husband detested physical violent and continuous fered mitiga- this available nothing.”13 Absent brother, during early years. His abuse evidence, however, free tion the State was Terry, described this abuse as follows: testi- misleading to summarize Brashear’s frequently beat Scott step-father] [Our mony ordinary discipline, arguing its *26 child; beatings a these while Scott was jury: closing statement to the “She said until left our home. continued Scott step-father disciplined him. So what? fists, belt, any- Bud would use your you disciplined I am sure have all available, including on at least thing else disciplined myself. I I re- children. was all four board. Of one occasion two my run from mother trying member children, suffered the most Scott old, years I when was 16 and she couldn’t The frequent beatings. and violent situ- any catch me more.” got; older we it grew ation worse the Brashear also testified that Pinholster received noth- long was not before Scott really anything “never wanted for home There was ing positive at all from Bud. much,” “everything normal- having too I much violence our home dreaded so have,” ly people materialwise most day. coming home each family although and that “didn’t have half-sister, Tammy, likewise money,” always had “a roof over lots of he recalled: and “decent clothes.” She even his head” frequently physical- supposed as a child was recalled his embarrassment
Scott it ly step-father, having abused Bud friends over to the house because Scott’s family’s hit financial situa- Brashear. Bud Scott with his fists showed the secure people ... impoverished as several times within one tion: more “[T]he as often with, he wouldn’t punishments unpre- hung Bud’s were that he around week. instance, it bring up them to the house. He said and severe. For Bud dictable abuse, hand,” "beat[ing] calling other the hell out of him” 13. The minimizes this it dissent him, spanking.” at 712. We "no more than Diss. hitting yelling[ing] and "while at [him] ” say lifting baby "up by think it safe to far, 'just your goes being like father’ far hand, holding] him his two hands with one beyond spanking. mere air, wail[ing] up in the on him with her law, too nice a house and ruined his “small trouble” with the they was and that “basically very good were image.” children”: Q: What kind of trouble? mitigation As the available shown, however, the truth would have was My younger A: picked son once was up siblings that Pinholster and his suffered on a driving, drunk driving under the deprivation. According extreme to addi- influence, which was dropped. guess I testimony declaration from Brash- tional really he wasn’t they as intoxicated as siblings, family ex- ear’s “remained thought he was. The posses- other was tremely poor” after Brashear’s second sion of some drug. kind of He got marriage, get kids did not and “[t]he probation scared, totally Once, eat.” enough to Brashear’s sister something you carry your around in ear. stayed in the over awoke middle of the Q: your How about daughter? A: boys in mix- night to see “the the kitchen trouble, She’s been in a little bit yes. water, trying ing flour with to make them- Mostly self-destructive to herself. She something to eat.... The selves house was girl. was a wild She isn’t more. really filthy.... Completely unsuper- picked got up She on a drunk arrest vised,” “ran the children wild and trashed also. living.... They wherever were asked, When “Generally speaking, was furniture, apartments, everything,” ruined your children?,” Scott like other she an- family until “skip out on the swered, “No, sir.” else,” generally rent and move somewhere neighborhood! to another “bad ] lots mitigation available evidence would while, of crime.” All the “when it came established, however, that each of spending money, always spent Burnice it Brashear’s children had problems. severe Although on herself first.... her kids brother, Alvin, When Pinholster’s older raga-muffins looked like and their clothes old, twenty years the State charged always dirty, were old and Burnice was him with rape sodomy of a four- *27 always very nicely.” dressed Without this teen-year-old. He later entered a state however, jury, evidence before the the mental hospital, where diagnosed doctors argue State was able to that Pinholster him schizophrenia and determined good “came from a home. You heard that incompetent he was to stand trial. deprived many he was not a Had child. After attempts, several unsuccessful Alvin him, things going probably for more than ultimately committed suicide overdos- many children.” ing drugs. on younger Pinholster’s broth- er, Terry, diagnosed with mild depres- Family’s iii. Criminal and Mental drugs, half-sister, sion and used and his History Tammy, began first drinking when she Third, adequate investigation, seventeen, with an age was eleven. At Tammy was Pinholster’s trial counsel would charged have dis- with sexual battery and oral copu- covered a wealth of regarding evidence fourteen-year-old girl. lation on a Tammy family’s significant criminal and mental prostitution, also had arrests for public history. testimony, drunkenness, her Brashear inac- possession marijuana. and curately distinguished half-brother, Guy, Pinholster from the diagnosed who was siblings, portraying rest of his him depression prescribed as the with manic and li- thium, wayward most of her children far. She was admitted to two psy- different siblings hospitals. testified had been in chiatric Gary, another half- son, clearly A mother loves her and a mother. brother, of alcoholism history Clearly not the gentleman. ladies and temper.14 horrible
in the world. witness most unbiased Abuse iv. Pinholster’s Substance defense offered argued that the The State Fourth, counsel conducted had trial who loves her “[n]othing except a mother they would have investigation, adequate born, person Even the most heinous son. long- of Pinholster’s discovered had a mother Adolph probably even Hitler At the abuse. standing substance him,” proba- would loved and that “[i]t who that Pinholster Brashear testified phase, bly [Pinholster] be charitable refer family, as a by his grew up supported species.” human Given a member of the to- family that sticks close of “a member minimally de- adequate of a absence believe,” and you would not gether like arguments these went investigation, fense drug prob- mention of his chronic made no completely unchallenged, and mitiga- the additional According to lems. jurors to be counsel could ask evidence, however, reality tion merciful, for providing any without reason sniffing glue and Pinholster started Rompilla, 545 U.S. at them to do so. See nicotine, alcohol, and mari- using paint (“This evidence adds twelve; using
juana
ages
between
ten
case that bears no rela-
up
mitigation
to a
secanol,
downers,
ages thirteen
between
mercy
pleas
tion to the few naked
fourteen;
heroin
regularly using
actually put
jury....”).
before the
using cocaine between
sporadically
ages fourteen and sixteen. This substance
on
vast differences between
Based
into his adulthood.
abuse continued
testimony and the evidence
Brashear’s
proceed-
at Pinholster’s habeas
presented
Exploitation
of Brashear’s
State’s
mitigating
effect
ings
well as on
—as
Testimony
evidence would have had
the additional
conclude
aggravation
the State’s
case—we
the additional
Finally, without
objectively unreasonable for
evidence,
it was
was able to
mitigation
State
to deter-
the weakness of Brashear’s
California
capitalize on
summarily that not one of the twelve
testimony
closing argument:
in its
mine
jurors
against
have voted
the death
proffer in this
did the defendant
What
Wiggins, 539 U.S. at
penalty.
you
to ask
to come
particular case as
therefore find that coun-
We
than death?
anything
back with
less
*28
performance prejudiced
sel’s deficient
person,
gentleman,
Not one
ladies and
Strickland,
466 U.S. at
defense. See
courtroom,
per-
came into this
not one
find
determina-
ternal
marks
This is
lawyer
Belmontes’s
showed that putting
precisely
type
the
of evidence that was
on an
mitigation
possible
effective
case is
kept
jury. Despite
from Pinholster’s
the
in
potentially
even
the face of
devastating
Judge’s
pose
Chief
best efforts
the dis-
aggravating evidence. The mitigating evi-
sent as a reflection of current
presented painted
dence
a complete pic-
jurisprudence,
very
Van Hook has
ture of
past,
Belmontes’s
and the addition-
little relevance to whether
at-
Pinholster’s
al
presented
evidence
was not
would
torneys
repre-
made reasonable efforts to
simply
have
been cumulative: that his sis-
during
penalty phase
sent him
of trial.
ter had
young,
died when he was
that he
Wong
The recent decision in
v. Bel
signs
depression
exhibited
after her
is also uninstructive in
montes
this case. death,
likeable,
and that he had a strong,
outset,
At the
the Court was careful to
Belmontes,
respectful
character.
at
holding by stating
limit the
that “[t]he
starkly
385. This evidence
contrasts with
challenge confronting
lawyer
Belmontes’
the unheard
Pinholster’s case:
U.S. -,
very specific.”
... was
130 organic
disease,
damage,
brain
mental
— L.Ed.2d-(2009).
Sub
beatings, abandonment,
childhood
(including
stantial evidence
his own boast
family
nuclear
filled with mental
illness
admission)
ful
indicated that Belmontes
and violence. Not
did Pinholster’s
committed,
escaped punishment
mother,
witness,
one mitigating
fail to
for,
Belmontes,
a previous murder.
paint an adequate picture, she downplayed
prosecution
S.Ct. at 385. The
was desper
story
and undermined his
in order to make
get
ate to
that evidence
and Belmontes’s
herself look better on the stand.
attorney
mitigation strategy
“built his
Visciotti,
Finally,
aggravating
evi-
overriding
around the
need to exclude it.”
substantially stronger,
dence was
as Vis-
“proceed cautiously,
Id. He had to
struc
ciotti
“a
committed
cold-blooded execution-
turing
mitigation arguments
and wit
style
of one victim
killing
attempted
possibility
nesses to limit” the
that he
another,”
execution-style killing of
both af-
open
would
the door.
Id.
385. Perched
accomplice
ter Visciotti and his
had driven
tightrope,
attorney
on this
man
still
the victims to a remote area to rob them.
aged
“put
on nine witnesses that he
20, 26,
comparable (internal to find and introduce such evidence. quotation failure a child. See id. omitted). marks whether paramount concern is not Our hold that the Califor- Accordingly, we from federal death sentences are safe “few denial of “postcard” Supreme nia Court’s 685, rather that feder- diss. at but judges,” ineffective as- phase penalty uniqueness the judges “acknowledge[ ] al objectively claim constituted sistance of death ‘the cor- punishment [and] of the clearly es- application of unreasonable reliability ... for responding need Pin- law in Strickland. tablished federal appropri- that death is the determination ” attorneys performed even more holster’s McCleskey Kemp, punishment.’ ate lawyers Terry deficiently than the 1756, 279, 340, 107 U.S. S.Ct. Williams, and Rompilla; Wiggins, (1987) (Brennan, J., dissent- L.Ed.2d 262 mitigat- the available between balance Carolina, v. North ing) (quoting Woodson aggravating evi- ing evidence and 305, 2978, 96 S.Ct. dence, showing prejudice, purposes for (1976)). guarantees L.Ed.2d from that materially indistinguishable Constitution, as inter- the United States Rompilla. Terry Williams Court, Supreme apply to our preted upstanding court’s our most affirm the district most troubled and We therefore alike, pen- duty our as Article III relief on Pinholster’s citizens grant of habeas claim, fairly impartially apply assistance those alty phase judges ineffective compels to all us to finding proper- guarantees such relief warranted when citizens today. AEDPA’s deferential ly considered under rule as we do law and the facts standards. Given the above, fully persuaded
discussed we are IY. CONCLUSION objectively unreasonable for it was above, explained For the reasons we Supreme to deter- the California Court up- AFFIRM the district court’s decision summarily mine that not one of the twelve grant- conviction but holding Pinholster’s jurors against a death would have voted in- ing penalty phase habeas relief on his sentence, especially light fact claim. The case is effective assistance deliberated almost two and court to is- REMANDED for the district a death days finally returning half before sen- vacating sue a writ Pinholster’s death verdict. tence, time set unless within reasonable so, doing way we in no minimize the conducts a new by the court the State underlying brutal nature of Pinholster’s imposes trial or a lesser penalty phase court crimes of conviction. As the district applicable sentence consistent with law. murders were “hei- acknowledged, AFFIRMED and REMANDED. Williams, Nevertheless, Terry nous.” that a Wiggins, Rompilla establish KOZINSKI, Judge with whom Chief “excruciating life histo- petitioner’s habeas join, KLEINFELD Judges RYMER and ry,” Wiggins, 539 U.S. dissenting: childhood,” Terry “nightmarish Williams, twice The California 529 U.S. at Pinholster’s claim that his powerful considered provide mitigating can sentence be aside death set because enough outweigh imposition ineffectively, lawyers performed and twice the most horren- death for even crimes, claim on the merits. Under lightly rejected cannot dous of and that we
685
AEDPA,
465, 473-74,
Landrigan,
determinations come to us
550 U.S.
those
127 S.Ct.
(2007).
1933,167
layer
in a double
of deference:
L.Ed.2d 836
encased
first,
to which
the substantial deference
Few state court judgments can with
in
lawyers are entitled under Strickland
error, see,
stand even one such
e.g., Jones
judgments during the course of
making
(9th
Ryan,
Cir.2009);
v.
mon in our circuit.
presented
relies on evidence never
to the
Background
may
state courts and that we
therefore not
proceedings
Following
sentence,
consider
federal habeas
his conviction and
governed by
(represented
AEDPA. Contra
v. Pinholster
Williams
two new law-
(Michael Williams),
Taylor
yers)
mandatory
took a
appeal to the Cali-
437-40,
146
fornia Supreme
painfully
L.Ed.2d 435
Court.
In a
(2000). Second, majority applies
thorough
retro
opinion
up
pages
takes
Mosk,
spectively
per
Reporter,
standard for counsel’s
the Pacific
Justice
writing
court,
relationship
People
formance that bears no
to that
for unanimous
affirmed.
v.
Pinholster,
prevailing California at the time of Pin-
4 Cal.Rptr.2d
Cal.4th
(1992).
Bobby
holster’s trial in 1984.
Contra
Leonard Tauman was and, by its show- 1990, case as demonstrated February for Pinholster counsel order, certainly must have focused cause being appeal was still when the direct *33 Yet, on the IAC claim. after its attention began Tauman his know that briefed. We all, July it 1995 the court unani- seeing the California Su- investigation long before petition “on the sub- mously denied affirmed the conviction preme that it is without merit.” ground stantive have declara- February because we majority justices C-7] A of the also [Ex. dating back to 1991. in the record tions (not here) claims relevant denied various first not file Pinholster’s Yet Tauman did procedural grounds. August until petition state habeas years ap- after he was than three more a point, At that Tauman took bow and many relied on pointed. petition This stage left. The scene moved to exited eventually pre- that were the witnesses which, appoint- in April federal court petition in the federal habeas sented post- his second team of ed Pinholster many majority the facts the now raised lawyers, conviction Michael Snedeker and counsel should have dis- says Pinholster’s (the Michaels). year A Abzug Michael preparing mitigation a case. covered later, feder- the Michaels filed Pinholster’s was a re- centerpiece petition The of the relying on a new mental petition, al habeas Woods, Dr. psychiatric expert, a port expert Stalberg psy- health named Dr. —a suffering diagnosed who Pinholster as just the same happened chiatrist who be disease, namely bipolar dis- from a mental consulted expert Pinholster’s counsel had order, and a seizure disorder. at trial and who had found Pinholster to be night sane and sober on the of the crime. Supreme Court did not The California Woods, theory discredited Dr. with his petition. this summarily brush aside bipolar disor- that Pinholster suffers from Rather, the state show ordered der, jettisoned, never to be seen why ought granted cause not be again.1 ground petitioner “on the re relief Stalberg Because Dr. disavowed Dr. ceived ineffective assistance of counsel (and (IAC) versa), trial,” opinion par- in Woods’s vice penalty phase at the [ ] recognized failure “to ascer ties that the state court had to part because of counsel’s given Stalberg’s first crack at Dr. evi- pursuant tain that notice to Penal Code be So, provide aggrava pursuant stipulation, dence. [of section 190.3 intent abeyance held in ting provided petition and to federal evidence] been while, the Michaels filed a August [Ex. C-4]* for a continuance.” move petition second habeas in the California responded length, state and Pinholster major Its difference then filed a traverse. The California Su Court. petition from the first state was the omis- preme Court thus had extensive evidence * extensive, transcript original spanning refers to the of Pinholster’s Because the record is court; courts, trial in and “CT” is the Clerk’s multiple proceedings state in different I of- transcript original trial in state from the legend “ER” fer a for the cited sources. (he court. excerpts of in this refers to record filed court; exhibits, B,” e.g., “Ex. are Woods, lettered dropping Dr. who The reasons for pro- exhibits from the record of state habeas cottage diagnosing specialty maintains exhibits, ceedings; e.g., numbered “Ex. 40- psychotic, obvious. criminal defendants as are 1,” pro- experts are exhibits from the federal habeas None of the other to examine Pinhol- thought ceeding; transcript much of "DT” refers ster on behalf of either side court; evidentiary diagnosis. hearing in federal "TR” his “organic of Dr. tal personality syn- of Dr. Woods and the inclusion sion illness— that he saw lots of Stalberg, who said now drome”—as result of head trauma he evidence that hadn’t been mitigating sustained as a child. con-
brought to his attention when he was while, All the court district and the Notably, Stalberg trial. Dr. sulted parties labored under the mistaken im- recanting diagno- well short of stopped pression that Pinholster’s case was not petitioner psychopath. sane sis by AEDPA covered because he had filed supreme The state court denied the sec- request a stay counsel and of execu- petition ground ond “on substantive tion before AEDPA’s effective date. See *34 [Ex. B] that it is without merit.” addi- Calderon v. U.S. Dist. Ct. the Cent. for tion, majority justices a substantial Cal., 530, (9th 533, Dist. 163 F.3d 540 pro- of the claims on various denied most (en Cir.1998) banc). parties proceed- (that grounds untimely, were cedural evidentiary ed to an hearing and the dis- judicata). successive or barred res trict court made findings while Calderon not surprising, This is as the second state was still law of the circuit. This means petition presented nothing new—not even the district court did not limit psychiatric opinion purporting peti- a new responsibility absolve Pinholster of moral tioner to presented evidence that he first for the heinous acts he had committed. court, in state required by AEDPA 28 2254(e); § U.S.C. nor did the district court
The matter then went back to federal
apply AEDPA’s standard of substantial
litigated
where it
court
was
four more
deference to state court determinations of
years,
including cross-motions for sum-
See, e.g.,
law and fact.
Mirzayance, 129
mary judgment
preparations
for an
1420;
evidentiary hearing (generating
Landrigan,
over 110 S.Ct.
Dr.
that Pinholster
1, 11,
540 U.S.
124 S.Ct.
Two months the Michaels followed the district court filed an “finding” order off-stage Tauman and the Federal Public that petitioner diligent had been in devel- Defender’s office was substituted as Pin- oping the record in the state court and post-conviction holster’s third team of law- present that he was therefore entitled to yers. New counsel fired the radioactive evidence in federal court that he had not Stalberg psychiat- Dr. and found two new (Drs. presented in state court. The district experts Vinogradov) ric Olson and who, erroneously court also held that it owed no September years 2002—18 after supreme a deference to the state court un- up diagnosis trial —came mitigating Pinholster suffers from a men- der AEDPA. See, e.g., Payton, Brown v. teeth.
Discussion 133, 148-49, 125 S.Ct. U.S. in a crimi- A claim that defense counsel (2005) J., (Breyer, concurring) L.Ed.2d 334 under nal case was ineffective Strickland (“[T]his Congress’ is a case in which in- into the law- inquiry calls for an whether struction to defer to the reasonable conclu- worse than would yer’s performance was critical judges sions of state-court makes a by minimally compe- rendered have been I a state difference. Were California com- practicing tent counsel the same judge, likely penal- I would hold that [the] munity at the same time. The ty-phase proceedings Eighth violated the that we repeatedly has cautioned Nonetheless, Amendment.... in circum- lawyer’s before step must into that shoes present, judge stances like federal performance. attempting judge We place must leave state-court decision hindsight import can’t use standards ” (citations omitted)). merely .... It is not place. Even if from a different time and magic spell, sing-song invocation of lawyer incompetent, we find that a we can make the state court’s decision which unless it’s may not vacate the conviction *35 into thin air. disappear actually prej- clear that the defendant was by lawyer’s performance; udiced AEDPA limits federal courts in another is, are convinced there is a unless we way: may only We consider evi- important probability reasonable the outcome presented dence that was first to the state would have been different. 2254(e). This, too, § courts. 28 U.S.C. perfect makes sense: Whether state governs, AEDPA we are con-
When correctly reasonably court has by yet strained another measure of defer- —or —inter- preted Supreme precedent depends Court ence, to the courts one we owe state say on the facts. It no makes sense to which first examined and ruled on the unreasonably that a state court applied issue. Deference in the IAC context is clearly Supreme established law to Court particularly appropriate because the state facts didn’t know existed. The state courts, in supreme partic- and state courts differently might court well have ruled ular, are most familiar with the of type petitioner presented different facts. inquiry we must undertake under Strick- judges land. court an State have intimate Through pernicious combination of familiarity with the local standards of errors, majority roughshod these runs practice and far know better than federal perfectly over the reasonable determina- judges reasonably what could have been tion, unanimously twice made expected competent counsel at the time court, supreme state’s that Pinholster did place of trial. State courts are also prejudicial not suffer Strickland error. likely far more to understand the behavior And it does so based on facts Pinholster juries, of local figure and thus can best out presented never to the state court. This is hypothetical whether a strategy, invented nothing like deference. years habeas counsel or decades after trial, A. Our review is limited to the record changed would have the outcome. presented peti- in the state habeas It AEDPA requires is such reasons tions
that we defer to the determinations of the
they
court
contrary
According
majority,
state
unless
are
to or
to the
28 U.S.C.
2254(e)(2),
§
application
requires development
an unreasonable
which
2254(d)(1).
court,
§
authority.
inapplicable
in state
U.S.C.
record
extraordinarily
This
high
diligence
standard has
because “Pinholster exercised
evidentiary hearing
incompetent
failing
state
been
to do so
pursuing
regarding
mitigation
year delay
his
ineffective
trial. The 18
in presenting
court
By withdrawing its order
diagnosis
“organic
claim.
personality syn-
assistance
dismissing Pinholster’s
to show"cause and
drome” must mean either
that habeas
merits,
petition on the
the state
habeas
counsel
not diligent
or trial counsel
any further oppor-
denied Pinholster
court
was not
escape.
ineffective. There’s no
the factual record in
tunity
develop
majority
The
to think
seems
that Mi-
Maj. op.
court.”
at 668.
state
Williams,
430-32,
chael
529 U.S. at
First,
majority
double-faults.
Pin-
Richey,
Bradshaw v.
diligent
presenting
holster has not been
74, 79,
126 S.Ct.
Maybe the
believes
yers couldn’t have
discovered
until the
Vinogradov
Drs.
impossible because
440-43,
got
case
to federal court.
at
Id.
weren’t available. But if not these
Olson
contrast,
120
By
S.Ct. 1479.
a different
doctor, there must have been
particular
claim, one based on evidence that was
up
some doctor who could have come with
petitioner
available to
while in state
diagnosis
the same
in 1993 or 1997 when
present
court —but which he failed to
brought
peti-
Pinholster
his state habeas
438-40,
precluded.
there —was held
Id. at
possible,
tions.
If that was not
it would
thing the state could
concealed
441-42,
present
know—to
the evidence from Drs.
Compare
at
120 S.Ct.
event.
id.
Vinogradov and Olson to the California
1479. Nor did Pinholster need the court’s
Supreme Court. Our case is thus different
expert
re-
subpoena power to obtain
Williams,
post-
from Michael
where “state
439-40,
at
120 S.Ct.
ports. Compare id.
relief was no
available at
longer
conviction
1479. Nor can Pinholster claim that such
light,
the time the
facts came to
[hidden]
at the
expert opinions weren’t available
petition-
it would have been futile for
[and]
petitions,
time
the state habeas
because
Virginia
return to the
courts.”
er to
529
pur-
that would make them irrelevant for
444,
U.S. at
Holland and Bradshaw
indulged
tioner has
in a double dose of
even less than Michael Williams. Hol
non-diligence. Our consideration of his
bluntly:
land states
“In this and related
clearly
new evidence is
barred
section
contexts we have made clear that whether
2254(e)(2).
a state court’s decision was unreasonable
in light
must be assessed
of the record the
dangerous
This
part
most
652,
court had
it.”
at
before
542 U.S.
majority opinion
key
as it
out a
com-
blots
Yarborough,
(citing
S. Ct.
540 U.S.
ponent of AEDPA. The statute was de-
6,
Cockrell,
124 S.Ct. Miller-El v.
537 signed
petitioners
to force habeas
to devel-
322, 348,
U.S.
154 L.Ed.2d
op their factual claims in
court.
state
See
Cone,
(2003),
and Bell v.
Williams,
436-37,
Michael
U.S.
*37
n.
122
S.Ct.
sumption circumstances, under the Supreme B. The did California Court challenged “might action be consid- unreasonably apply not twice estab- strategy.” ered sound trial ... precedent
lished The availability post-tri- intrusive of concluding that trial inquiry attorney performance al into competent counsel were guidelines detailed its evalua- of for tion encourage proliferation Washington, Strickland v. which was challenges. trial, Criminal shortly decided after Pinholster’s of ineffectiveness unfavorably trials resolved to the important a number of caveats that defen- increasingly dant tvould come to be majority today seems to forgotten: fol- trial, lowed a second this one particular No of set detailed rules counsel’s unsuccessful defense. satisfactorily counsel’s conduct can take variety account circumstances 668, 688-90, (1984) range added). counsel or the (emphases L.Ed.2d 674 faced defense legitimate regarding decisions how best prophetic More words have seldom been represent the criminal spoken. defendant. Any such set of rules would interfere opinion just here illustrates how far constitutionally protected inde- strayed we’ve from the Court’s wise cau- pendence of counsel and restrict *38 in tions Strickland. Rather than looking wide latitude counsel must have in mak- to the practice applicable standards of in ing tactical decisions. community held, the at the time trial was adopted
we have now
a national standard
scrutiny
per-
Guidelines,
Judicial
counsel’s
in
embodied
the ABA
which
of
be highly
rigidly
require
must
It
are read
a certain kind
formance
deferential.
is all too tempting
investigation
for a defendant to
of
and a certain kind of miti-
(what
second-guess
gation
counsel’s assistance after
defense
is known as “human-
defendant)
sentence,
conviction or adverse
izing”
every
and it is
capital case.
court,
Strickland,
easy
examining
689,
all too
for a
coun- Contra
466
at
U.S.
proved
sel’s defense after it has
unsuc-
paid
No attention is
to wheth-
cessful,
particular
to conclude that a
act
contempo-
er these standards reflect the
rary
Rather,
or omission of counsel
community.
was unreasonable.
norms in the
defendant),
mitigation
(including
may
de- witnesses
proper
current notions of
good
for
other
telescoped
pursuing
are
back across the dec-
reason
ave-
fense
mitigation,
sympathy
nues of
such as
retroactively imposed on counsel
for
ades and
family.
the defendant’s
knowing that this is
way
who had no
them.
expected
Contra id.
what
law,
According
amplified
to our case
as
exactly
is
what
This
by today’s opinion, any
lawyer
trial
who
summarily
the Sixth
reversed
Circuit
altar
worship
fails to
of “humaniza-
doing
“Judging
in Van Hook:
counsel’s
an incompetent
tion” will be labeled
boob
conduct in the 1980s on the basis of [later
judges
later counsel and federal
who all
pausing
ABA
even
Guidelines]—without
they
think
know
represent
capi-
how to
they
pre-
consider whether
reflected the
tal defendant better
than his own trial
vailing professional practice at the time of
lawyers.
self-respecting lawyer
No
wants
held,
was,”
the Court
“error.”
published opinion
trial —
to be berated
—as
Hook,
Van
Cal.4th
40
affir-
cases).
(1995)
1287,1304-05
(collecting
duty.
mative constitutional
(9th Cir.1995)
(empha-
70 F.3d
1038
ABA
rehashing
Instead of
the
Guide-
added).
sis
The state relied on Hendricks
lines, majority
asking
the
should be
wheth-
proof
of the standard of care in its brief
investigation by
er
Pinholster’s counsel
before us and
the district court.
comported
the standards for counsel
capital
in a
case in
in the mid-
California
adopt
Pinholster asks us to
a different
Hook,
1980s. Van
Hendricks “that 1981 [the recognized duty time of trial] was Certainly, attorneys Hendricks’ in capital of defense counsel cases to they any duty did not believe to history obtain social evidence relevant to investigate history Hendricks’ social mental client’s condition where there opinions face of the unanimous anwas indication of mental disturbance experts their own there was no provide and to such evidence to an ex- basis for a mental defense.
pert
order for the client’s condition to
legal authority
Hendricks cites
be properly evaluated.” Under Hen-
meager support
argument.
offers
for his
view,
duty
dricks’ 1995
Berman was
authority
Hendricks’
merely
cited
dis
bound
family
to interview Hendricks’
duty
cusses the basic
under Strickland
medical,
friends,
members and
to obtain
investigate potential
defenses before
school,
records,
employment
to oth-
making strategic decisions.
ABA
See
verify
erwise
autobiography
Hendricks’
Relating
Standards
to the Administra
pass
this
on to his
Justice,
4.1;
information
tion of Criminal
Standard 4 —
mental
experts.
health
“Without such
DeCoster,
U.S. v.
695
capital
competence
cases.
professional
rele-
duty
investigate
material
alleged
ABA
in pass-
it cites the
Guidelines
in the face of While
a mental defense
vant to
396,
1495,
for
at
120 S.Ct.
there
ing,
is no basis
529 U.S.
advice
there
expert
dispute
v. Lew-
that counsel there had
also Evans
was no real
a defense. See
such
Cir.1988) (fail-
(9th
is,
631,
The same state trial
637
been ineffective.
855 F.2d
defendant’s mental
concluded
investigate
judge who sentenced Williams
ure to
deficient,
of im-
there is evidence
performance
when
that counsel’s
condition
perform-
1495,
370,
deficient
a
pairment constitutes
at
120 S.Ct.
conclusion
id.
ance,
hampers
when it
prejudicial
and is
Supreme
accepted and
Virginia
Court
of evidence of mental
presentation
later
“barely disputed” before the U.S.
the State
impairment).
395,
at
120
Supreme Court.
Id.
S.Ct.
evidence, as there is not
1495. There was
Hendricks,
“As
stan- S.Ct.
Justice
[the
in
practice Maryland
capital
dard
cases
linchpin
O’Connor’s
concurrence.
at
Id.
393-94,
at
time of
trial
Wiggins’
the
included the
Second, insofar as the ABA Guidelines
jority
by
here and
a number of other
relevant,
place
trial took
after
Wiggins’
are
cases, that some version of the ABA
recent
provid-
the ABA issued its 1989 Guidelines
is the minimum standard of
Guidelines
cases, and
ing specific
capital
standards
the
imposes
Constitution
on all 50
practice
it is that version of the ABA Guidelines
I
surprised
States. would be
to learn that
the
Wiggins
which the
relied. But
Rompilla
Court in
had meant
mandatory
1989 Guidelines are far more
specific
give
than the
to
the ABA the
1982 Guidelines that
constitutional authori-
were in force at the
ty
time
to set the standard of care for all crimi-
trial. Whereas the 1982
con-
Guidelines
nal cases across the nation. And I
only single
tained
sentence
the “Com-
Hook,
wouldn’t be alone. See Van
130
mentary,” pointing
types
out certain
(Alito, J.,
at 20
concurring).
S.Ct.
inquiries that “will be relevant” in all crim-
Williams,
Terry
Wiggins
Rompilla
cases,
inal
the 1989
capi-
Guidelines outline
rely on the ABA Guidelines as background
tal counsel’s affirmative duties at some
support where they overlap with local
length,
including
investigation
an
standards (Terry
Wiggins)
Williams and
“
comprise
‘should
efforts to discover all
proposition
where the
is so obvious that
reasonably
mitigating
available
(Rompilla).
it’s a matter of common sense
any
and evidence to
aggravating
rebut
evi-
Hook,
See Van
irrelevant; newer, Wiggins more ex- summarily reversed for Van Hook. acting edition guidelines applied than petitioner’s Here we have more those ported standards cannot be back to proof. failure of We have evidence going Pinholster’s case. way: the other determination our Finally, Rompilla, says there’s which cases, court in Hendricks and other p. see nothing about general scope of investi- infra, duty investigate gation required for defense in capi- counsel petitioner the time was not what now tal cases. Rompilla majority The found a claims to be. This is Van Hook on stilts. single flaw in perform- defense counsel’s ance, 2. The namely the Facts of This Case. failure to examine Justice prior Rompilla case file of a O’Connor’s concurrence in conviction that counsel em- knew the prosecution rely phasized on in “our longstanding case-by-case aggravation, 383, 387-90, 545 U.S. at approach determining whether attor- unconstitutionally guilt penalty, try consider both ney’s performance mitigation possi- under Strickland.” U.S. work as much evidence as deficient majority here phase. ble into the guilt compe- *43 little to determine what very does precisely Pinholster’s trial counsel did realistically could have done tent counsel They brother, this. on Pinholster’s put penalty phase. at the help defense, Terry, to but support his alibi also lip paid “strong Not service is even following mitigation elicited from him the that counsel’s conduct falls presumption (1) evidence: that Pinholster “was more or range pro- of reasonable within the wide 6015]; [TR less institutions all his life” Strickland, fessional assistance.” (2) that from epilepsy Pinholster suffered Rather, 689,104 majori- 2052. Terry him and had seen have two seizures ty pointing out coun- is satisfied that with 6015-18, 6031-32]; [TR in single evening surprised by put sel the need to on were (3) that Pinholster was drunk on the evidence, they that mitigation turned down [TR night 6036] of murders. an offered continuance that Terry by examined at trial was Brai- only prepara- of 6.5 hours in “billed a total nard, and Brainard must have prepped of penalty phase tion the trial.” for him or he couldn’t have learned about (footnote omitted). Maj. The op. at 658 mitigating begin those facts to with. Yet on all counts. majority wrong is an examination of Brainard’s time records with I as well start the most might speaking makes no of mention Terry, “only 6.5 The hours” has obvious error. say this certainly doesn’t by petitioner’s able habe- been brandished spent mitigation. time on smoking gun: as counsel like a concrete possible prep It is work on trial must proof lawyers that Pinholster’s Dettmar, Terry was done Pinholster’s they spent because incompetent have been counsel, trial other or that it was included work-day preparing such an less than a for cryptic in one of more Brainard’s nota- is, important hearing. “only Problem the tions, “Interviewing such defense wit- myth.2 6.5 hours” is (3/28/84), nesses” “Brainard & Dettmar in- comes figure hour from the time 6.5 (3/6/84) terview witness” or “Brainard & Brainard, just who was one records (3/7/84). [Ex. Dettmar interview with” lawyers, includes Pinholster’s trial Or, 71-2] perhaps Brainard was dili- the notation “prep, time bore gent way about records. One or the time Maj. op. n.2. penalty phase.” See at 658 other, spent preparing some of the time clearly a lot spent But the defense team Terry must counted as time be counsel mitigation. more Under Califor- time on hours, spent on 6.5 mitigation all law, put didn’t prosecution nia have to testified, spent Terry of which after were at all penalty-phase on evidence in order to obviously that. don’t include penalty; ask for the death could logged There hours on are other Brai- entirely presented relied on the clearly nard’s time sheets that were Thus, devot- guilt phase. it doesn’t during mitigation. on example, ed to For Febru- prosecution given, matter whether has received, ary 1984, he billed for “Conf. with has notice of an the defense Brashear, mother,” tri- Burnice aggravation hearing. preparing for re; al, days necessarily epi- must and two for “Research counsel in California later Hook, appears at 8. There Building mythology one See Van must be a such to be CLE name. of the trade for habeas counsel. course the tools [Ex. 71-2] lepsy history”; February and conf. with nurse.” re medical on 21 there “Penal nothing capital punish- There was Burnice could have Code research on pos- ment”; February crime, on 23 there is “confer- sibly said about the so the time ence defendant’s mother re childhood entirely her spent with must have been on problems”; February on 25 there is “Re- mitigation. on spent epilepsy The time 190.3”;4 search on Pen. February C. obviously mitigation-related. also mitiga- there are notations for various Brainard’s time records show that he items, including tion-related “Further re- spent about 700 hours on Pinholster’s case search on Pen. C. 190.3”and “Phone call to fairly and much of that time is described appointed psychiatrist.” February On *44 general terms. Just because there were spent Dettmar six hours “preparation on only 6.5 hours that specifically he de- ” argument, penalty death phase (empha- preparation penalty scribed as for the added). sis phase doesn’t mean that’s all the time he spent mitigation. on other, cryptic There are more notations might might go mitigation, majority claims that Pinholster’s client, such as County “Visit to L.A. Jail” counsel admitted “that they spent almost 10), (February but such as we have of preparing no time for penalty phase Dettmar’s time sheets shows that the de- 671,3 hearing,” maj. op. at but I’ve found keenly fense team was aware of the need very hefty no such admission in this rec- mitigation to show in- vigorously majority ord. Nor is the in right claiming vestigating mitigation evidence. Dett- that “[b]illing records confirm” such an mar’s time stop abruptly records on March only admission. The time sheets and dec- 15, 1984, which inwas midst they larations reference are Brainard’s. guilt phase, so we don’t know what else he n.2, Maj. op. Yet, at 658 671. according to did to prepare penalty for the “death Brainard, it was Dettmar primar- who was phase,” but we do know he was active ily in charge penalty phase. [ER he appear- because made further court 182, 337, 350, 122] SER We don’t a ances and his name is in referenced Brai- complete records; set of Dettmar’s time nard’s time sheets. we have through those March know, For all we just Dettmar did about 1984, which does not include the 8-week everything Pinholster claims should have period leading up to and including the behalf, been done on his like examining his penalty phase, when Dettmar likely most records, medical talking and school would have been preparing portion for that authorities, school prison guards, friends of the trial. What we do have of Dett- neighbors, all in a vain effort to find mar’s time sheets indicates that he spent say good someone who would a word about considerable time preparing mitigation. for him. We know that Dettmar was the con- Thus, 13, 1984, January on we have the point tact Stalberg, for Dr. the defense notation “phone call to defendant’s psychiatrist, team’s and that pro- mother Dettmar paragraph, majority jority quoting the same self-inculpato- states: are Brainard’s declarations, penalty ry “One week hearing, dutifully before the coun- dozens of which he signed years judge they pp. sel seven prepare told the ‘did not after trial. See 700-01 & nn. 6-9 mitigation’ case because 'felt there infra. ” penalty phase hearing.’ would be no Maj. op. at 671. These statements are not from the mitigation § 4. Penal Code 190.3 deals with transcript of capital Pinholster’s trial. What the ma- cases. know, the documentation based on the doctor We information him with the vided have, lawyers engaged that the we do (Dr. Stal- diagnosis. forming used miti- relevant to highly activities that were addressed to Dett- letter is berg’s opinion psychiatrist retaining as gation, such in his mar, Stalberg mentions and Dr. Pinholster, talking to the examined who were with dealings declaration and edu- mother and brother defendant’s Dettmar.) clearly went to activity This epilepsy. We also cating themselves about phone call yet (except for mitigation, time that he know from Dettmar’s sheets 29) ac- spent is not the time February penalty preparing for the “death for on time-sheet counted February. See early as phase” file lawyer’s case There is no supplied. has supra. remotely It consis- therefore isn’t there’s no activity, documenting “strong pre- and the tent with the record it; virtually we know testimony about does, say, majority as the sumption” activities it. Dettmar’s nothing about spent trial team “less that Pinholster’s including leading up to and months the two workday” preparing an average than blank. complete are a penalty phase phase. Maj. op. at 672. *45 activities may mitigation-related be There proof, so Petitioner bears the burden at all. nothing know about which we lawyers that his didn’t if he wants to claim mitigation, he must spend enough time on the burden of brings us back to Which they spend did account for all the time and the petitioner, on which rests proof, say they spend didn’t before we can that counsel’s conduct “strong presumption fair —or consistent with enough. It’s not range of reasonable the wide falls within present partial petitioner AEDPA —for Strickland, assistance.” professional for the first time federal time records 2052. Pinholster at U.S. infra, court, p. 700 n. 6 p. supra; of over- heavy burden to shoulder his fails lawyers only spent Tada!—my then claim— as Inasmuch presumption. that coming gambit This mitigation. 6.5 hours on unable to unwilling or Pinholster has been Hook, didn’t work Van 130 S.Ct. at trial team actions of half his document the work here. shouldn’t pro- in the a crucial two months during supposedly short time In addition to the carry ordi- failed to ceedings, he has spent mitiga on Pinholster’s defense team petitioner. habeas nary burden of tion, majority’s “proof’ other that his near car- certainly comes nowhere And he incompetent is the lawyers must have been in inef- especially heavy burden rying the surprise at they by were taken fact that cases, he must overcome fectiveness where they learned there end of trial when counsel “strong presumption” yet refused penalty phase would be advancing competent to them the trial diligent were a continuance offered a eontinu The decision to decline court.5 his interests. assume, prosecution supposedly surprised majority, that the law- 5. I'll like the Maj. planned put aggravation evidence. on surprised the state yers fact were in lawyers truly op. n.2. If the defense at 658 at the planned put aggravation evidence phase, penalty had no idea there would be a be phase, the record can also penalty but billing prepar- noted, why were both of them time Dettmar’s As construed otherwise. ing for it? billing the "death him for time records show they February. claim in court penalty phase” back as The defense team did as far notice, rec- aware of the state’s but how in his time weren't Brainard too has a notation pre- ords, at April they going to have a shot penalty phase” on else were prep, for "Start putting aggrava- cluding on an the state from the defense team was two weeks before only incompetent Hook, if anee seems the defense have considered. Van at They required were to do no than lawyers already hadn’t more conducted ade that. quate if investigation mitigation. into But
they
looking
mitigation
had been
for
evi
know,
just
For all we
tip
this is
along, they
already
dence all
iceberg
of what the defense team did
mitigation strategy
pur
decided what
pursuing mitigation
evidence since Dett-
mar’s time
present
period
sue. And if their decision was to
records for the crucial
from March 15 until the end of trial are
only
in mitigation,
Pinholster’s mother
missing. Dettmar’s case file is also miss-
turning
per
then
down continuance was
ing, which
given
could have
us pretty good
reasonable;
fectly
“strategic choices made
insight
into the activities of Pinholster’s
after thorough investigation of law and
“death
phase” lawyer as the de-
plausible
facts relevant to
options are vir
in full swing
fense team was
preparing for
Strickland,
tually unchallengeable.”
penalty phase.
Dettmar was dead
U.S.
701 a lack of recollection is counsel, Maj. proof, burden of Brainard. surviving ster’s statements, Indeed, out a fail- stamped absolutely nothing. These worth at 658. op. habeas coun- satisfy at the behest of the dozen to recall does not even ure trial, say seem after years sel it does not production, because burden but, fact, nothing at all. say great deal the fact not recalled.9 prove disprove or that “no recollection” Thus, Brainard statements, accommodating no Brainard’s any medical or had reviewed Dettmar client, try help a former made to doubt inter- records; “not recall” he did school pp. 700-01 n.7 su- zilch. See also prove family interview attempting to viewing or pra.10 regarding persons or other members assume, majority plainly If as the we he had “no recol- testimony; phase does, lawyers trial that Pinholster’s attempting to secure seeing or lection gum at the same couldn’t walk and chew single records.” Within school Scott’s time, idiocy degree part no on their then Brainard as majority quotes paragraph the indulge But we must surprise recollection would us. having no recollecting or no contrary “strong presumption recolleet[ed]” stating as[he] “so far or (sec- Maj. op. at 658 than 5 times. for tactical reasons [they choices] fewer made original).8 There is not neglect.” ond alteration Yar- through than sheer rather attesting categorical statement single (citing at borough, U.S. any of failed to do Brainard and Dettmar Strickland, things.
these 2052). that we this means for us is What with the time presume, must consistent very be- can be useful Failure to recall have, that Pinholster’s trial records we do the risk of contradiction cause it avoids lawyers fully aware were all, Who, dispute can after perjury. sometime dur- mitigation have to deal with something? recall else doesn’t
someone
trial,
spend
did
carry
ing
the course of
con-
needed to
when evidence is
But
*2,
(M.D.Fla.2007).
has no
carefully parsed
hearing,
when
first
but
all,
lawyers and
is thus
at all from one of his
a denial at
revealed not to be
*47
words
is a case in which
doesn’t remember.
not untruthful.
It
the other one
convey a
literally
are used to
are
true
that
impression; analysis of whether or when
false
just
forgetfulness
another ex
Brainard’s
lying
long-
is a
behavior constitutes
such
sword,"
“falling
ample of counsel
on
standing
in ethics.
issue
something
are known to do
trial counsel
denial,
http://en.
Wikipedia, Non-denial
See, e.g., LaG
help their clients on habeas.
(last
wikipedia.org/wiki/Non-deniaLdenial
Stewart,
1253,
(9th
1276
133 F.3d
rand
22, 2009).
November
visited
Hendricks,
Cir.1998);
70
at 1039. Be
F.3d
usually
few if
conse
counsel
suffer
cause
it,
quote
Brainard
majority
but
8. The
doesn’t
ineffective, many
quences
being
see
for
found
why
for a
recall
he failed to ask
also did not
tactic;
may
some
even see
no harm in this
it.
when the trial court offered
continuance
Fox,
duty.
generally Lawrence J.
as their
See
[ER 367]
Meaningful:
Making
Predeces
the Last Chance
Duty
Capital De
Ethical
to the
sor Counsel’s
right
Brainard's failure
majority is
9. The
(2003).
fendant,
L.Rev. 1181
31 Hofstra
prove
perform a
he did
to recall also doesn’t
not,
tendency
part
on the
of
Laudable or
this
op.
investigation, maj.
but
reasonable
seriously
assis
distorts our ineffective
counsel
the state need
it doesn’t matter because
competent
are
jurisprudence;
counsel
tance
performed a reasonable
prove
counsel
they effectively con
found ineffective because
prove
petitioner who must
investigation. It is
jurisprudence then fills
point. Our
cede the
through
opposite. Porter met this burden
adequate
descriptions
perfectly
up
of
with
trial
of
the affirmative statements
deficient.
performance
is assumed to be
Crosby,
WL
counsel. Porter v.
siderable time
investigating
ing
Brown,
and effort
ave-
of hindsight.”
lens
Sims v.
(9th Cir.2005) (internal
mitigation
nues for
and made a reasoned
F.3d
quo-
professional judgment
way
omitted);
that the best
to tation marks
Turner v. Calder-
on,
(9th
serve their client would
rely
Cir.2002) (inter-
be to
on the
281 F.3d
that they
got
hope
fact
never
notice and
omitted);
nal quotation
Hendricks,
marks
judge
bar
putting
the state from
not manifest planned robbery apparently holster his or disorder mental symptoms of defect doing. and was aware what he of personality his than antisocial other pro- This inference not as he did Although alleg- by history. he disorder subjective other any vide information not tak- epilepsy, has he has been edly directing than to bur- individual past year at for the ing medication Kumar’s home. glarize had a County has not seizure. Jail mitigation, appear not As it does Additionally, appear it does not that he Mr. epilepsy, hyperactivity Pinholster’s damage cogni- as he was brain suffers child, incorrigibility as a or were relat- on status examina- tively intact mental except incorrigibil- ed to the the offenses tion. ity upon psychopathic per- reflects history hyperactivity of He has sonality traits. He not under the hospitalization Camar- youngster influence of extreme mental or emotion- Hospital age at the 14 for illo State disturbance, impaired al nor did he was not incorrigibility. He medicated ability appreciate criminality the or just day there and received observa- requirements conform his conduct to the in the Au- spent tion. He time Youth of the law. prisons and in various state with- thority psychiatric treatment or requiring
out medication. Also, Mr. per- because of history lengthy drug has a de- He sonality likely it is be disorder he would variety, narcotic but his pendency security problem and a recalcitrant has not in drug dependency resulted custody. while in damage. any brain offenses, added). the alleged (emphases [ER 797-98] 2. As for the de- any denies involvement other fendant later, presented Years when directing to burglarize than an individual gathered with additional residence with Mr. Pinholster col- counsel, Stalberg habeas the same Dr. money from lecting sale 1/3 significance and did marginal found it of loot. He is able to describe his stolen diagnosis: not change his night question great on the actions detail, my April in- omitting of course direct As set forth declarations of 1997; 2000; victims. It January and June volvement appear significant- he was additional I have documents therefore ly impaired night intoxicated reviewed since 1997 did contain some question. might conceivably information that be mitigating very within broad defini- Additionally, considering state- *49 tion section of California Penal Code attributed to the defendant ments 190.3(k). hand, the other as I testi- witnesses, On appear it would also he was 2001, the my deposition July fied fully doing aware of what he was at the I additional materials reviewed did not allegedly time of the offenses. He stat- ed, finding my out alter conclusion that Mr. “I’ll take care of where Personality Antisocial Dis- I’ll Kumar.” This suffers from dope is. handle 704
order, as that
term is
practicing
defined
sel
criminal law in California
DSM-III.
then
back
would have been aware of a
of
added).
capital
number
cases
psychiatric
[ER 793]
where
(emphases
testimony backfired with devastating ef
Dr. Stalberg’s expert
Given
opinion, try
See,
Harris,
e.g.,
1505;
fect.
949 F.2d at
ing
develop psychiatric
to
mitigation case
Williams,
People
883, 934-35,
v.
44 Cal.3d
at the time of trial would have been ex
336,
Cal.Rptr.
(1988);
245
751 P.2d
traordinarily difficult.
395
lawyers
He told the
Robertson,
People
21,
11,
v.
entirely
Pinholster was
sane
33 Cal.3d
44 n.
and so
night
that,
ber on the
77,
(1982).11
the murder and
188 Cal.Rptr.
707
2052;
time.
688,104
lawyers in California used
at the
Murray
at
S.Ct.
v.
487-88,
Carrier,
478, 484,
771, 801,
People
Cooper,
477
106
U.S.
53 Cal.3d
(1986); p.
701
(1991);
L.Ed.2d 397
S.Ct.
91
P.2d 865
Cal.Rptr.
809
supra.
Visciotti,
325, 336-37,
n.9
re
Cal.4th
(1996).
Is
Cal.Rpt r.2d
holster
the theories
248 Cal.Rptr.
We and Supreme the California sanity? Court holster’s We need not speculate clearly have competent held that a lawyer because Dr. Stalberg is here to tell us. may rely on opinion competent the He looked at it all exactly and reached the expert go and need not expert-shopping diagnosis same as in 1984: Pinholster is a until he finds opinion one whose psychopath. he likes. sane [ER 793] pipe It’s a Harris, 1525; Fields, 949 F.2d at In re 51 dream to imagine competent that a trial scan, diagnosis proffered by The Vinogra- Drs. formed CT MRI or other test that dov vigorously disputed by actually and Olson is the showed the existence of brain dam- experts, age, state's suggested who cast serious doubt on the that such tests would have any reputable psychiatrist notion injuries been available to reveal at the time of have diagnosis reached the same at the trial. experts firmly time The state's held to the Vinogradov's theory, Pinholster’s trial. Dr. view that injuries Pinholster’s childhood wer- nutshell, in a is that responsible Pinholster must be en’t suffer- for his antisocial behavior. ing Indeed, damage from brain caused [ER his child- Dr. 795] Rudnick main- injuries hood simplest because that is the tained that one of the two accidents caused explanation 730-41, all, for his behavior. injuring only [ER no head trauma at Pinhol- per- 1273-1316] nor Neither she Dr. Olson ster’s [ER shoulder and ear. 768] v. debate the wisdom of Caro competent tracted about in 1984 who went lawyer (9th Cir.2002), Woodford, this 280 F.3d got with all this evidence expert Woodford, F.3d 1079 Douglas have nonetheless searched diagnosis would Cir.2003). (9th I that the found) argue Nor need (much Vinogradov a Dr. less for take opportunity banc court should this en opposite conclusion—all reach Douglas, although it to overrule Caro and have judge might or two the trial week no dis- principled because there is should phase. willing to continue been illness “organic” between mental tinction majority reason the There is a third “mental” mental illness. All I need Dr. rely Vinogradov’s Dr. shouldn’t out is AED- point the undebatable: Under says It it need evidence: doesn’t Olson’s PA, may only clearly on law estab- rely we By representing that Maj. op. at 669. to. Supreme lished Court. Circuit reach the same conclusion without it would Douglas which is all Caro and precedent, majority holding that reports, the is their are, granting for relief under enough isn’t sufficient, its standing on what remains is majority unable to AEDPA. That own, Supreme to show that California single sup- Supreme cite a Court case If applied unreasonably Strickland. it proof of this distinction is itself port hold, it majority what means to this is reversing no lawful the Cali- has basis courage its convictions should fornia Court. its drop psychiatric discussion Epilepsy. majority some spends It can cause confusion evidence. discussing epilepsy, time and whether *56 majority for to law of the circuit the the caused in childhood Pinholster’s opinion of its the say part one (as injuries speculated) head his mother but superfluous is psychiatric evidence of prison beating. a result a It doesn’t as heavily on it. rely then later so If Epilepsy matter: is a seizure disorder. fact, go can’t let majority possibly In the it by drugs, controlled causes the af- not because, evidence once psychological the of to the with person drop ground flicted to diagnosis that we remove the of- legs, arms and clenched fists and stiff ill- from mental trauma-induced suffers who foaming at the mouth. To those ten ness, left to very there little with which is an of an have seen individual the midst lawyers, of far judgment the the impugn fit, unforgettable, scary epileptic it is an the Su- the of California judgment less not in throes of experience. But when the Court. preme fit, it normally; is the individual behaves are a mental illness and his faculties not it this proper if were to consider Even impaired. not evidence, gives too majority it far the suggested, no it would weight by relying on law that has No one has and much suggest, make no that Pinholster in a court’s review of state sense place federal robbed, major- people beat and stabbed court decision under AEDPA. two In- while fit. magi- having epileptic with the death ity’s supposedly infatuation deed, Pin- Stalberg, of mental Dr. who interviewed organic cal effect illness, night about the events the merely psychological as holster opposed murders, 676-79, illness, good how Pinhol- maj. op. at is the remarked mental see that he gotten memory was and concluded another area where our court has ster’s [ER impaired But hadn’t been or intoxicated. in front the Court. out 2254(d)(1). Stalberg epilepsy 798] Dr. knew of § I therefore see 28 U.S.C. report, it in his but observed majority pro- in a mentioned engage need not mother, Stalberg they say And Dr. tells was irrelevant. us what have to is no evidence, that, today even with all the new different from' —much less “in stark con- original diagnosis. he Trial trast” mother’s description. stands to—the What is near-abuse; they educated themselves as to epi- counsel had describe abuse or well, supra, confirms, lepsy pp. as see 697-98 their than testimony rather con- tradicts, must been it was a testimony. convinced dead the mother’s position in no second-guess end. We’re Then is the suggestion there Pin- that judgment. grandmother holster’s abused him because Deprived Abusive Childhood. The father, he looked like whom Pinhol- majority tries to make Pinholster’s child- ster’s grandparents despised. What’s re- like by using hood seem hell on earth just is markable here how this testi- weak phrases alarmist like “abusive and de- mony is. actually Both aunt Pinholster’s prived upbringing,” maj. op. and “suf- and uncle make it clear that are deprivation,” maj. op. fered extreme at talking nothing about more than severe majority 679. The also tries hard to cre- aunt, spankings. The Fosberg, Lois ate impression pre- that the evidence quite explicit about this: wildly sented on habeas was different from times, Q: “And your at mother would heard, what characterizing spank him?” testimony “misleading,” maj. mother’s A: “Yeah.” 675, 678, op. testimony Q: many “How you your times did see family the other standing members as “[i]n spank mother Scott?” contrast,” maj. stark op. at and being “Quite A: few.” vastly Maj. from op. different hers. Q: give you “Can me an estimate?” fact, what’s remarkable is how little support family provide A: members “No.... She very rough theory of extreme abuse him so with other ones.” and deprivation. Q: “And how did she *57 him? spank Did punch she him or hit him with her
Pinholster’s mother testified trial that palm, him, backhand or what?” the punishment husband, her by inflicted stepfather, Scott’s was “abusive or near A: “Hit with jerk him her hand Maj. op. abusive.” at 677. In what the arm or—” contrast,” majority claims “stark Pinhol- Q: palm?” “With her siblings ster’s testified that the step-father “Yeah, things A: like that.” “frequently beat Scott while Scott was a [2 53-54] DT child---- Bud stepfather] [the would use The uncle also leaves no doubt that what belt, fists, or anything available, else grandmother the supposedly to Pinhol- did including least one occasion a by two ster was no more than spanking: Maj. four op. (Terry board.” at 678 Pin- holster). And, “Scott as a child was A: fre- occurred—often pick “[I]t she would quently physically abused step- up Scott’s him playpen out the one or father, hit just Bud Brashear. Scott spank Bud with two arms and him across his fists often as several times within legs. back and butt punishments mean, one week. Bud’s were un- IAnd more than once. I predictable Maj. and severe.” op. at don’t know how many times. It Pinholster). (Tammy enough impression While Pinholster’s to make an siblings give somewhat more detail than on me.” supports single it instance where himself he says 125] Pinholster DT
[2 mixing water. In she saw them flour and grandparents’ at the his summers enjoyed breath, however, farm; says she “made the same grandfather [the chicken fed food like good themselves.” the children were “canned feel about children] would “start spaghetti” and kids 40-4] [Ex. during at each throwing food other the evidence of it—that’s all That’s -awfully strange for behavior meals”-— lawyers have that Pinholster’s “abuse” [ER starving general, 687] children. two up nearly to come with after able been testimony picayune, aunt’s borders on the investigating.14 Is digging decades disciplin- her sister as she criticizes for support really a the record does what keeping a ing sufficiently, for children contrast” with what Pinholster’s “stark dirty living neighbor- house and bad me, to To seems like say? mother had accuse expects hoods. One next her to of the same. more forgetting Burnice of to weed the lawn. Pinholster himself describes the situa- (Pin- The that his sister uncle testifies to those of his in terms much closer tion mother) good took care of herself holster’s (Duvall p. supra inter- See mother. ragamuffins; while the children looked like view). misleading the Accusing Burnice of 682] If says nothing [ER he about food. picture of an inaccurate jury by providing deprivation” this is then there “extreme un- wholly situation is Pinholster’s home justice are few the criminal defendants trial Had Pinholster’s counsel justified. system extremely deprived are not who route, they might have go that decided deserving pass. of a mileage to coax a bit more out able been siblings, who of Pinholster’s Neither relatives, really but would it some than his time house spent far more suggest something them given uncle, say they get didn’t aunt and brutally murdering two excuse” for “abuse eco- enough or that suffered to eat I later? don’t think so. strangers decades Indeed, Pinholster deprivation. nomic majority’s now the claim turn Let’s says exactly opposite, praising himself “extreme depriva- Pinholster suffered always a hot meal on having his mother for The entire Maj. op. support at 679. tion.” (Duvall inter- p. 705 supra table. See events, major- which the for this version view). “the ity for some reason believes be is, nothing sup- fact there’s truth,” testimony simple of Pin- comes from the *58 theory deprivation, uncle, porting the of abuse or mostly aunt and holster’s and many in to the stark contrast evidence Aunt uncle were visitors to aunt. household, other There was no evidence but their declarations disclose cases. bones, concussions, bleeding, hospi- infrequent. were broken that their observations lasting any or makes that talization or kind serious general aunt a statement The so-called eat, injury resulting from Pinholster’s get enough didn’t to the children undermined, (which opinion majority says can be that then 14. The also Pinholster’s him, are occasionally a to the the facts on which he relies stepfather paddle used on extent report used to knocking Maj. op. unsupported), at 678. can’t be him out. This is was not sneak the record evidence that in the It's a into not based on evidence record. means, i.e., through presented by report the usual psychiatrist’s that is "fact” related a testimony subject entirely sworn to cross-examination. what Pinholster told him. based on wrong rely on this majority is thus psychiatrist can The While the use [ER 767] gathers forming for "evidence.” he as a basis information 714 517, drinking at children to be E.g., Wiggins, hospitalized 539 123 had
abuse.
U.S.
2527;
Williams,
they
very
Terry
young.
529
at when
were
Terry
U.S.
S.Ct.
Williams,
19,
1495; Harris,
529
at 395 n.
120 S.Ct.
949 F.2d at
U.S.
120 S.Ct.
1495.
try
1505-06. Pinholster’s father didn’t
Porter,
him.
gins, 539
at
123
2527. In
U.S.
S.Ct.
permissive
more
than some would con-
fact,
of incest or
there was no evidence
done;
some of
familial
were
bonds
id.;
of sexual abuse.
Hen-
E.g.,
kind
particularly
caring.
warm or
But
dricks, 70
at 1037.
F.3d
Nor
there
absolutely nothing
there is
this record
that
children
to be
evidence
had
re-
that
suggests
experience
placed
moved from the home and
foster
that
growing up differed from
of millions
neglect-
were
care because
abused
young
of other
men from broken homes
Williams,
E.g., id.; Terry
ed.
U.S. at
making
with
parents who have hard time
395, 120
1495.
no
S.Ct.
There was
evi-
Hyperbolic language
ends meet.
cannot
that
parent
dence
either
was convicted of
force from the
doesn’t
something
record
neglect,
child abuse or
or was even
contain. And what it doesn’t contain is
charged
Terry
anything
such behavior.
conceivably
could
Williams,
1495;
at
swayed
jury
go easy
U.S.
120 S.Ct.
on Pinholster
Harris,
E.g.,
Wiggins,
U.S. at
straight-razor, kidnapped
someone with a
2527;
Johnson,
Moore
F.3d
at knife-point
someone else
and on multi-
(5th Cir.1999).
586, 613
The children wer-
kicked,
ple occasions
bodi-
spit
thrown
en’t
“in
dog pen
locked
a small wire mesh
ly
police
proudly
fluids on
officers. He
filthy
that was
and excrement
filled.”
having
admitted to
committed hundreds of
Rompilla, 545
U.S.
715 Having first-degree for the murder of Art Corona? murders. learned arrange likely. bloody Not of his siblings biological all and his problems, suffered from mental father History. Family Criminal and Mental might well have concluded Pin- majority recognizes, As Pinholster’s the a apple from a bad tree holster bad that her mother did disclose other children law, hope there was no rehabilitation or had the difficulties difficulties with drugs Tammy and alcohol and that as redemption. It’s not if such ideas are behavior. engaged self-destructive of, even in the pages unheard Unit- that, Beyond go on habeas does the record See, Bell, Reports. e.g., ed States Buck v. mental, depth regarding into more the 200, 207, 274 71 L.Ed. U.S. of problems substance-abuse and criminal (1927). siblings biological
the his Pinholster of Pinholster’s Substance Abuse. Much father. history of Pinholster’s of substance abuse Whether, degree, what is and to this habeas, newly presented although on a mitigating highly Perhaps debatable. jury through did hear some of it his might have expert argued mental health Terry’s testimony during guilt brother from this evidence that Pinholster suffered phase. “juries We’ve held before that are defect, but genetic from mental none some unlikely to favor defenses on based abuse noted, Stalberg always Dr. here have. As of dangerous drugs evaluating a defen- fundamentally believed Pinholster was a culpability dant’s for violent behavior.” of is true Drs. psychopath. sane same Mayfield Woodford, F.3d n. and Geiger. Rudnick Drs. Olson and Vi- (9th Cir.2001). Telling jury a lot may not nogradov, whose evidence we con- sider, druggie more about what a Pinholster was pp. supra, believed that see 688-91 personality syn- hurt “organic probably Pinholster’s would have him rather than drome” was induced childhood head helped him. which, course, possibly trauma cannot evidence, is no There much less clear relationship be inherited and thus bears no evidence, convincing that Pinholster’s problems siblings to whatever mental his anything substance abuse had to do with father, biological had. He never knew his night actions of the murders. any part so bad behavior on the father’s trial, At the end of the after the p. have
wouldn’t affected son. See verdict, its trial returned death court interview). (Duvall And, course, supra findings, including made certain the follow- providing evidence that Pinholster’s broth- ing: capacity defendant’s to appre- “[T]he er sister nuts are under- criminality ciate the of his conduct and his their usefulness as abuse and ne- mined capacity to conform his conduct to the glect witnesses. requirements way of law were in no im- psychiatric expert Without relate disease, defect, paired as a of mental result problems mental substance-abuse or effect of or drugs intoxicants behavior, siblings this [CT 1185] combination thereof.” Under just easily could have as been AEDPA, finding this is entitled to a pre- likely aggravating mitigating- —more sumption correctness and can be lawyers As trial experienced former. if overturned rebuts clear know, always jurors forgiving are not *60 mood, convincing and or after evidence. U.S.C. generous especially 2254(e)(1). § have just multiple convicted a defendant of siblings
The Pinholster had trouble with alcohol, drugs and and his sister was a So here is where we stand girl. self-destructive wild mitigation evidence: Pinholster’s brother Alvin died and was Jury Evidence Heard in considerable trouble with the law. family together close abusive, Pinholster’s “sticks stepfather
Pinholster’s was or you like believe.” nearly so. was on night Pinholster intoxicated boys juve-
Pinholster and homes of the murders. age nile halls after 10 or 11. him Pinholster’s mother ran over with a New Evidence Habeas That Was Not car at 2 or age badly injuring his head Presented the State Courts at a requiring hospital. treatment diagnosis organic brain damage ageAt was in a car promoted by Vinogradov Drs. and Olson. he through accident where flew the win- Testimony from Pinholster’s uncle about dow and badly. hit head his childhood and Pinholster’s mother and grandparents. failing Pinholster started at school in the grade, learning problems first and has New Evidence on Habeas That Was Pre- dating to kindergarten. back sented to the State Courts In grade, third teacher sug- Pinholster’s thought Pinholster’s aunt that his moth- gested “something that he was more er neglectful, was selfish and a poor just than disruptive a child.” poor disciplinarian housekeeper, fourth grade, third or Pinholster was deprived proper the children of nutri- emotionally sent to a class for handi- tion. capped performance children where his grandmother spanked him, Pinholster’s improved. possibly looking for his biological like childhood, Pinholster had difficult father. of-
ten
into
getting
fights with his brothers.
Alvin’s death was
suicide.
biological
may
Pinholster’s
father
have
A psychiatrist recommended Pinholster
mentally
been
ill.
hospitalized
be
age
A teacher found Pinholster’s mother un-
At age
Pinholster was institutional-
receptive
guidance
how
about
she
ized for six months in a psychiatric hos-
learning
should handle his
disabilities
pital.
problems.
and emotional
Throughout childhood Pinholster stole
Only
category
the evidence
the third
things
had a blustery personality.
presented
was not
but could
ageAt
badly
Pinholster was
beaten
have been.
in jail.
just
There
much
I suppose
ain’t
there.
personality changed
after
presented
counsel
could
this evi-
teens;
he
imprisoned
late
he
dence,
thing
but one
is clear: It would not
became
difficulty
withdrawn and had
ad- have
possible
present
been
the mother’s
justing to life on the outside.
testimony,
painted
relatively rosy
which
epilepsy,
picture
Pinholster has
which
family,
he’s
particularly
her
medication,
it,
taken
role in
testimony
has
several
and also the
brother,
sister,
serious
uncle,
seizures.
aunt and
which
*61
My
disagree. They believe
colleagues
life as terrible and the
family
their
painted
here, name-
only one strategy
that there is
and selfish. Assum-
neglectful
mother
“humanize”
ly trying to
the defendant
all this evidence avail-
counsel had
ing that
I
trashing
stepfather.
mother and
the
phase, they
at the
present
to
able
apply
But
the
they’re wrong.
think
let’s
They
make a choice:
have had to
would
methodology anyhow, 130 S.Ct.
Belmontes
try
and
to devel-
with the mother
go
could
385, 387,
and
at
turn the clock back to 1984
family,
the
or
her and
sympathy for
op
law-
try to
how far Pinholster’s
figure out
parents as
paint Pinholster’s
they could
hu-
gotten
trying
to
yers could have
sympathy for
try
up
to work
villains
manize him.
absolutely
They
could not
personally.
him
sides
having
collapse
Imagine
without
the
off the
do both
this: Counsel
leave
middle;
she
approaches
sympathy
two
are not mother and lose whatever
the
the
on
may
They put
for
gained
of
have
Pinholster.
mitigation.”
...
theories]
“consistent
aunt
her
persnickety
on the
who criticizes
Porter,
who can that Pinholster suffers Stalberg: Dr. It my professional opin- from mental illness and there’s no evidence ion that he was not. expert such mental health even they go existed 1984. So for- have Dr. Stalberg, you Prosecutor: testified expert, ward without an case they which that Mr. ep- Pinholster suffers from very have little. go Or can forward ilepsy? expert they with the do have—Dr. Stal- Stalberg: may Dr. I believe he have berg. epilepsy suffered from sometime say they put Stalberg So let’s Dr. on past. There have not been tell the that there of miti- is bunch recent manifestations. gating past. evidence from Pinholster’s So you Prosecutor: Do believe he suffered far, good. so But the prosecution then epileptic fit night on the gets to cross-examine and it Stalberg, goes murders? something like this: your Prosecutor: Dr. Stalberg, based Stalberg: Dr. I no to be- reason defendant, examination of the did lieve this. you form an opinion as to whether Prosecutor: suffering epi- Would from he suffers from a mental illness? faculties, lepsy impair his mental Stalberg: Dr. Yes I did. schizophrenia para- the same as you Prosecutor: Did him diagnose might? noia being bipolar? Stalberg: Dr. No it would not. No, Stalberg: Dr. I did not. epileptic Prosecutor: Can fits be faked? paranoid? Prosecutor: Is he Stalberg: Stalberg: Very easily. Dr. Dr. No.
Prosecutor: Is he a schizophrenic? possible Prosecutor: Is it a real to tell No, Stalberg: Dr. he’s not. epileptic fit from a fake one? regard for the could, responsible no showed Perhaps a doctor Stalberg:
Dr.
rights
people
of other
reasonable
lay people would
most
I doubt
but
*63
many years prior to this
throughout the
the difference.
to tell
be able
this character
recent conviction
most
form
other
you
Did
Prosecutor:
(emphasis
[Ex. 41]
apparent.
trait was
Mr. Pin-
as to
opinion
professional
added).
mental condition?
holster’s
counsel,
competent
I did.
Stalberg:
reality,
Yes
this
Dr.
Given
Belmontes,15
careful to
would have been
tell us what
you
And can
Prosecutor:
that the state would
any possibility
avoid
that is?
evidence,
psychiatric
damaging
in such
put
person-
He has antisocial
Stalberg:
Dr.
to make
have been forced
do
and so would
ality disorder.
Stalberg. That would have
without Dr.
known, in
that what’s
Prosecutor:
Is
brother,
only the
the sis-
counsel with
left
being
psycho-
speech, as
common
aunt,
ter,
sniping
uncle—all
at each
the
the
path?
mother,
trashing Pinholster’s
while
other
it is.
Stalberg: Yes
Dr.
step-father
the
grandparents
—and
school teacher.
does this mean?
And what
Prosecutor:
he feels no em-
It means
Stalberg:
Dr.
assumes,
argument,
for the sake of
This
of others.
suffering
the
pathy
allowed a miti-
would have
that Pinholster
conscience.
He has no
his
publicly disgraced
which
gation defense
very much. You
you
Thank
likely
Is this
to
stepfather.
Prosecutor:
mother
may step
single juror
change
down.
his
led even a
seriously
I
penalty?
doubt
mind about
course,
have known
Counsel,
would
likely,
jury
would have
it. Far more
psychiatric
the door to
they opened
if
by Pinhol-
just
more effort
this as
one
seen
put
evidence,
be entitled
the state would
them,
lying
manipulate
like his
ster to
So, if Pinholster
as well.
in such evidence
on the stand.
self-aggrandizing
would have
Stalberg,
Dr.
the state
put on
like Dr.
expert, someone
its own
presented
findings
here made
Superior
The
Court
on
petitioner
June
Geiger, who examined
aggravating
evi-
weight
about
19, 1984,
diagnosis as follows:
gave
that the evidence
“The
finds
dence:
Special
Cir-
the truth of
concerning
impaired by mental
subject was not
overwhelming, and the
is
way
that he
cumstances
in such
or defect
disease
that the
of the evidence
jury’s assessment
criminality of
appreciate the
could not
mitigation as to
outweighs the
aggravation
his conduct
conduct or conform
penalty to be
proper
of the
the selection
of the law. This
requirements
‘death,’
overwhelmingly
supported
high degree
showed a
man’s conduct
(emphases
weight of the evidence.”
and viciousness.
cruelty, callousness
added).
all
“Considering
1184]
of the
[CT
personality
Antisocial
... DIAGNOSIS:
evidence,
finds that the factors
the Court
This di-
CONCLUSION:
disorder....
reasonable doubt
beyond all
aggravation
to the commitment
agnosis is related
(emphasis
mitigation.”
outweigh
man
those
this
in the sense
offenses
again, such recharacteriza-
case. Then
perform-
opinion’s paean to counsel's
15. The
Belmontes,
op.
maj.
must
case are not so
matter in a habeas
ance
tions of a
surprise
Belmontes,
to certain members
as a
come
My disagree, not colleagues but that’s the test. we should whether What ask is Visciotti is actually remarkably similar justices Supreme the of the California Supreme to our case. The same California unreasonably clearly applied Court estab- Court decided Pinholster’s second habeas Court in con- Supreme precedent lished petition petition; habeas Visciotti’s state cluding My hold colleagues otherwise. they by supreme decided the state were by comparing mitigating that did the Visciotti, court 10 In apart. about months Williams, that in Terry evidence here with case, lawyer as in the our defense chose to Wiggins Rompilla, and but those cases are rely family the sympathy on defense rath- not point single on because not a one of “humanizing” than the er defendant be- required them the that a Court to hold was opinion “[i]t cause his at- state prejudice court’s determination on to tempt gain petitioner for sympathy Rather, case, unreasonable. each Visciotti, re failed.” 14 the Court reviewed a state decision court 801, Cal.Rptr.2d at Cal.4th 926 applied contrary either to standard P.2d 987. Counsel did not pur- therefore Supreme precedent Court or failed to ad- large sue—and was not aware of—a at all. Rompilla, 545 U.S. prejudice dress majority of facts “trove” like the believes Wiggins, 2456; at 125 S.Ct. is the case here. Williams, 2527; at Terry 123 S.Ct. hearing, At the federal habeas Visciotti 395-96, at U.S. Com- presented evidence of the parison with the facts of those cases is irrelevant because the Court wasn’t there atmosphere discordant in the Visciotti required to AEDPA apply deference. The by family home an unending created Hook, same is true of Belmontes and Van physical series and verbal confronta- both of which in summary resulted rever- petitioner’s parents; tions between sals even pre-AEDPA under law. physical punishment petitioner Visciotti, point siblings; violence;
The case on imper- which did threats of involve a regard- family’s state court determination manence caused the numer- ing prejudice, which moves and on impact ous its school at- 22-27, unanimously ability deferred. 537 tendance and the to make lasting U.S. majority friendships; S.Ct. 357. The mishandles children’s efforts to es- Visciotti It cape as well. doesn’t wheth- hiding, matter household turmoil house, leaving er we think prejudice probably early marriage, here is Visciotti; greater than in to drugs the Court did resort as “self-medication.” say workers, Visciotti psychologists, was a particularly Social other case, close differing regarding impact nor were there views testified witnesses to read it advance develop- prosecutor’s file petitioner’s of these events and un- society. surprised function in trial and thus was ability ment [aggravating] evi- prepared to face 926 P.2d Cal.Rptr.2d Id. Likewise, “failed to investi- dence.” he lawyer explained his strat- 987. Visciotti’s evidence as gate mitigating and discover egy as follows: types of the ignorance a result of his jury in the prior to selection He decided mitigat- jury might consider trial, petitioner’s saw when he Visciotti ing.” murder, videotaped reenactment penalty phase of the trial During sympathy attempt to elicit that he would itself, present readi- Agajanian “failed family as petitioner’s for that, that would have ly available evidence He believed al- strategy. phase to which revealed to the the extent petitioner for could though sympathy petition- subjected psychological sympathy petitioner expected, not be child, impact His defense as a might physical be. abuse parents er’s *65 parents peripatetic family that the suggest dysfunctional therefore the and would development, whose son should not people petitioner’s nice life had on and were be killed. the correlation between these events petitioner’s drugs.” resort to Also Id. trial, penalty phase the of the during jus- Supreme Court the California While an unfocused clos- Agajanian “delivered to Pinhol- thrice unanimous as tices were during which he undercut ing argument, twice on habe- appeal, on direct ster —unce by telling the his client’s own case in twice divided Visciotti’s. were as— petitioner’s that the evidence of mental Mosk, wrote the who Notably, Justice problems mitigat- and emotional was not appeal, in direct dis- opinion ing.” di- on the IAC issue Visciotti’s sented deep dissent on appeal and was rect penalty phase he even invited In of the of petition; habeas the context
Visciotti’s
trial,
Agajanian
the death
“en-
courts to set aside
it is clear that
the federal
subject
prosecu-
n.
58 Cal.
tirely
Id. at 359-62 &
to
fail[ed]
sentence.
Brown
adversarial
meaningful
In our
Visciotti
unanimous
Supreme
the California
Court’s
justices were unani-
court
supreme
state
appeal
direct
opinion
As
petition.
the habeas
denying
mous in
petitions,
in both of his habeas
participated
shows, this was not a court whose
Visciotti
two victims are
also dead. Pinholster’s
“follow the leader.” Jus-
played
members
hopes
long
forgotten;
dead and
whatever
clearly
minds of
and Brown
had
tices Mosk
may have had were
aspirations they
own;
sepa-
Kennard wrote
their
Justice
the misfortune
they
cut short because
why
agreed
she
with the
rately
explain
greed
getting
way
in the
of Pinholster’s
In re
Cal.4th
majority.
Visciotti
anger.
357-59,
Cal.Rptr.2d
are J., But I believe (Rehnquist, dissenting). degree the same prejudice mination on enough, clear and it’s been the unanimous deference If must be reinstated. we I think not. death sentence case? gave to Visciotti’s ourselves, Perry; surely Stier; do not do it it will M. be Kristin Sandra B. Katami; Jeffrey done for us. Paul T. J. Zar-
rillo, Plaintiffs-Appellees,
and Family Coalition; Our Lavender Sen- Bay; Parents, iors of the East Fami- lies, and Friends of Lesbians Gays, City County of San Francis-
co, Plaintiff-intervenors-Appellees, PERRY; Stier;
Kristin M. B. Sandra v. Katami; Jeffrey Zarrillo, Paul T. J. Schwarzenegger; Arnold Edmund G. Plaintiffs-Appellees, Brown, Jr.; Horton; Mark B. Linette Scott; O’Connell; Patrick Dean C.
Logan, Defendants, City County Francisco, of San Plaintiff-intervenor, Hollingsworth; Knight; Dennis Gail J. Gutierrez; Hak-Shing Martin F. Wil Protectmarriage. Tam; Jansson; liam Mark A. SCHWARZENEGGER,
Arnold in his of- 8, Project -Yes Com capacity ficial as Governor of Califor- Renewal, California Defendant-Inter nia; Brown, Jr., Edmund G. in his venors-Appellants. capacity Attorney official as General 09-17241, Nos. California; 09-17551. Mark B. Horton in his capacity official as Director of the United Appeals, States Court of Department California of Public Ninth Circuit. Registrar Health & State of Vital Sta- tistics; Scott, Dec. Linette in her official capacity Deputy Director of Health Boies, Uno, Boies, David Thoedore H. Strategic Planning Information & Flexner, Armonk, NY, Schiller & Theo- Department the California of Public Boutrous, Jr., dore J. Esquire, Christo- *68 Health; O’Connell, Patrick in his offi- Dusseault, Gibson, pher D. Dunn & capacity cial as Clerk-Recorder Crutcher, LLP, CA, Los Angeles, Ethan County Alameda; Dean C. Lo- Douglas Dettmer, Esquire, Rebecca Jus- gan, capacity Regis- his official Lazarus, tice Evangelis Kapur, Theane trar-Recorder/County Clerk for Enrique Gibson, Antonio Monagas, Dunn County Angeles, Defendants, Los Crutcher, LLP, CA, Francisco, & San McGill, Olson, Matthew Theodore Amir C. Tayrani, Crutcher, LLP, Gibson Dunn & DC, Washington, for Plaintiff-Appellee. Hollingsworth; Knight; Dennis Gail J. Gutierrez; Martin Hak-Shing F. Mennemeier, Jr., Wil Kenneth C. Mennem- Protectmarriage. Tam; Jansson; eier, liam Mark Stroud, A. LLP, Glassman & Sacramen- 8, Project to, CA, Pachter, -Yes Tamar Deputy Attorney Com Renewal, California General, Justice, Defendant-Inter California Department of venors-Appellants. Francisco, CA, San for Defendants.