               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


THEODORE WASHINGTON,                      No. 05-99009
         Petitioner-Appellant,
                                          D.C. No.
              v.                      CV-95-02460-JAT

CHARLES L. RYAN, Warden,
          Respondent-Appellee.             OPINION



     Appeal from the United States District Court
              for the District of Arizona
     James A. Teilborg, District Judge, Presiding

      Argued and Submitted September 26, 2018
                Pasadena, California

                   Filed April 17, 2019

   Before: Ronald M. Gould, Consuelo M. Callahan,
         and N. Randy Smith, Circuit Judges.

             Opinion by Judge Gould;
             Dissent by Judge Callahan
2                    WASHINGTON V. RYAN

                          SUMMARY *


               Habeas Corpus / Death Penalty

    The panel reversed the district court’s denial of habeas
relief as to the penalty phase, and remanded, in a case in
which Arizona state prisoner Theodore Washington, who
was sentenced to death for first-degree murder, asserted that
his trial counsel rendered ineffective assistance by not
investigating and presenting mitigating evidence at the
penalty phase.

    The panel reviewed the district court’s decision de novo
in this pre-AEDPA case and applied the standard articulated
in Strickland v. Washington, 466 U.S. 668 (1984) – assessing
the state court record to determine whether Washington’s
counsel was constitutionally deficient and whether the
deficient performance resulted in prejudice.

    The panel held that counsel performed ineffectively by
not properly investigating Washington’s background, and as
a result, the trial court was not presented at the penalty phase
with substantial mitigation evidence regarding Washington’s
education and incarceration, his diffuse brain damage, and his
history of substance abuse. The panel held that this raises a
probability that, had the court been presented with the
mitigation evidence in the first instance, the outcome would
have been different, as the sentencing judge might have
decided that Washington should be spared death and be
imprisoned for life.


    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  WASHINGTON V. RYAN                      3

   Dissenting, Judge Callahan wrote that in second-
guessing the performance of Washington’s trial counsel, the
majority uses a standard for gross incompetence that doesn’t
square with precedent, and doesn’t hold Washington to his
heavy burden of prejudice.

  The panel addressed other issues in a concurrently filed
memorandum disposition.


                       COUNSEL

Nathaniel C. Love (argued), Sidley Austin LLP, Chicago,
Illinois; Gilbert H. Levy, The Law Offices of Gilbert H.
Levy, Seattle, Washington; Mark E. Haddad, Sidley Austin
LLP, Los Angeles, California; for Petitioner-Appellant.

Laura P. Chiasson (argued), Assistant Attorney General;
Lacey Stover Gard, Chief Counsel; Mark Brnovich,
Attorney General, Office of the Attorney General, Tucson,
Arizona; for Respondent-Appellee.


                        OPINION

GOULD, Circuit Judge:

    Arizona state prisoner Theodore Washington appeals the
district court’s denial of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254. In 1987, a jury found
Washington guilty of six crimes involving the robbery and
murder of Sterleen Hill in her Arizona home. The court
sentenced Washington to death.

   In his habeas corpus petition, Washington challenges his
conviction and sentence on the first-degree murder charge.
4                 WASHINGTON V. RYAN

He asserts that he is entitled to habeas relief on several
grounds, the majority of which are addressed in a separate
memorandum disposition filed concurrently with this
opinion. This opinion solely addresses Washington’s
certified claim for ineffective assistance of trial counsel.
Washington contends that his counsel did not investigate and
present mitigating evidence at the penalty phase, including
evidence of diffuse brain damage, childhood abuse, and
substance abuse. The Arizona court previously considered
and rejected this claim on post-conviction review.

    Because review under the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-122, 100 Stat.
1214 (“AEDPA”), does not apply in this case, we are not
bound by the highly deferential “double deference” in
considering Washington’s claim of ineffective assistance of
counsel and its proper analysis. See Hardy v. Chappell, 849
F.3d 803, 824–26 (9th Cir. 2016) (explaining the interaction
of 28 U.S.C. § 2254(d) and the standard for deficiency under
Strickland v. Washington, 466 U.S. 668 (1984)). Instead, we
apply the familiar standard articulated in Strickland, and
assess the state court record to determine whether
Washington’s counsel was constitutionally deficient and
whether the deficient performance resulted in prejudice. See
Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (applying the
Strickland analysis in a pre-AEDPA case). Because
Washington’s counsel did not properly investigate
Washington’s background, the trial court at the penalty
phase was not presented with substantial mitigation evidence
regarding Washington’s education and incarceration, his
diffuse brain damage, and his history of substance abuse.
This raises a reasonable probability that, had the court been
presented with the mitigation evidence in the first instance,
the outcome would have been different. The sentencing
judge might have decided that Washington should be spared
                     WASHINGTON V. RYAN                              5

death and be imprisoned for life. 1 We reverse the district
court’s denial of habeas relief and remand with instructions
to grant habeas relief against the death penalty, unless within
a reasonable time the state retries the penalty phase or
decides to modify the sentence to life in prison.

                                  I

    At around 11:45 p.m. on the night of June 8, 1987, two
men forced their way into Ralph and Sterleen Hill’s Yuma,
Arizona home in what turned out to be a disastrously violent
home invasion. The men forced the Hills to lie face down
on the floor of the master bedroom and bound their hands
behind their backs. One of the men intermittently “screwed”
a pistol in Ralph’s ear while both men yelled at the couple
demanding that the Hills give them drugs or money. Ralph
glimpsed one of the assailants as he ransacked the drawers
and closets in the room. The Hills were discovered lying
face down in their bedroom. Both had been shot in the back
of the head. Ralph survived the horrendous shot to his head,
but was seriously injured. Sterleen did not survive the
shooting.

   Police arrested Fred Robinson shortly after the incident.
Robinson was the common law husband of Susan Hill, Ralph

     1
       In this case, because it predated the rule in Ring v. Arizona,
536 U.S. 584 (2002), the judge had the power the power to select life
imprisonment rather than death. For cases after the effective date of
Ring, a jury has this power. In either case, the decision maker at the
penalty phase need not account for its decision. See generally Ring,
536 U.S. 584; Gregg v. Georgia, 428 U.S. 153 (1976). Accordingly, the
decision maker after hearing all mitigation and aggravation evidence,
will be left, to borrow a phrase from Milton, with the power “to temper
justice with mercy.” John Milton, Paradise Lost, book x, lines 77–78
(1674).
6                 WASHINGTON V. RYAN

Hill’s daughter from a prior marriage. Police also arrested
Jimmy Mathers and Theodore Washington in connection
with the crimes. The state charged the three men with
(1) first degree murder for the death of Sterleen Hill,
(2) attempted first degree murder, (3) aggravated assault
causing serious physical injury, (4) aggravated assault using
a deadly weapon, (5) burglary in the first degree, and
(6) armed robbery. The three men were tried together, and
the jury convicted on all counts.

                             A

    The penalty phase of the trial commenced on January 8,
1988. In this appeal, we are concerned with the penalty
phase of Washington’s trial and the death penalty sentence
he received.

    Washington’s trial counsel, Robert Clarke, called three
witnesses to testify on Washington’s behalf: Washington’s
friend, Steve Thomas; Washington’s mother, Willa Mae
Skinner; and Washington’s half-brother, John Mondy.

    Steve Thomas testified that he knew Washington for two
years. He testified that Washington was easily influenced
but not violent. He also testified that Washington was a
dedicated father. When asked if Washington had a drug
problem, Thomas testified that he had not noticed one. Willa
Mae Skinner testified that Washington was a good child and
that he dropped out of school when he was in high school.
She also testified that Washington was a good father, and
that he was gentle and “liked to party.” Finally, John Mondy
reiterated that Washington was affable but easily led. He
also confirmed that Washington had trouble in school as a
child.
                  WASHINGTON V. RYAN                      7

    During closing argument, Clarke focused primarily on
attacking the sufficiency of the court’s findings under
Enmund v. Florida, 458 U.S. 782 (1982), and Tison v.
Arizona, 481 U.S. 137 (1987). Regarding mitigation, Clarke
did not entirely ignore all mitigation, but rather urged the
court to consider Washington’s age, his relatively minor
criminal record, his good relationship with his son, and his
general demeanor as a caring individual. This appeal is
concerned primarily with the mitigation evidence and
argument that Clarke did not present.

    The trial court found that the state had established two
aggravating factors beyond a reasonable doubt: (1) that the
murder was committed in an especially cruel, heinous, or
depraved manner, and (2) that the murder was committed
for, or motivated by, pecuniary gain. With respect to
mitigation, the court found that Washington’s age was not a
mitigating factor and that the remaining mitigating factors
did not outweigh the aggravating factors. The court
sentenced all three defendants to death on the first-degree
murder charges.

                             B

   Washington, Robinson, and Mathers each appealed their
convictions and sentences to the Arizona Supreme Court.
The state high court affirmed Washington and Robinson’s
convictions and sentences, State v. Robinson, 796 P.2d 853,
865 (Ariz. 1990), but found insufficient evidence to convict
James Mathers and vacated his conviction, State v. Mathers,
796 P.2d 866 (Ariz. 1990).

   Following the direct appeal process, Washington and
Robinson challenged their convictions and sentences on
post-conviction review (“PCR”). The court held a joint PCR
hearing on September 8, 1993. The Honorable Stewart
8                  WASHINGTON V. RYAN

Bradshaw, the same judge who presided over the trial, also
presided over the post-conviction review proceeding.
Washington, through his appellate counsel, argued that
Clarke was ineffective at the penalty phase due to his failure
to present mitigating evidence. Specifically, Washington
argued that Clarke erred by failing to conduct a more
thorough review of his school, medical, and incarceration
records. He also argued that Clarke should have obtained a
psychological evaluation and presented the results to the
court.

    The bulk of the new evidence presented at the PCR
hearing was elicited through the testimony of Dr. Roy, the
defense counsel’s retained psychologist. Dr. Roy evaluated
Washington in 1992. He conducted clinical interviews and
several psychological tests. Dr. Roy’s interviews with
Washington revealed that he suffered abuse as a child in the
form of daily whippings with straps and belts and that adults
in the home used alcohol as a means to sedate him as a child.
His review of Washington’s school and Department of
Corrections (“DOC”) records revealed that he was placed in
classes for the “educable mentally retarded” when he was
five years old and that he had been marked as low-IQ while
incarcerated. However, Dr. Roy testified that these records
conflicted with his own clinical findings because
Washington tested at a low-average IQ of 96.

    Dr. Roy’s interviews with Washington also revealed that
Washington had substance abuse problems relating to
alcohol and cocaine use. Washington told Dr. Roy that he
began drinking recreationally at age eight and was a
functional alcoholic by age fourteen. He also told Dr. Roy
that he was heavily intoxicated on the night of the murder.
Washington also said that he was a heavy cocaine user and
                  WASHINGTON V. RYAN                       9

that he consumed about $175 in cocaine per day at the time
of the crime.

    Finally, Dr. Roy testified that he believed that
Washington suffered from diffuse brain damage resulting
from early and prolonged drug and alcohol use and
numerous traumatic head injuries. Dr. Roy testified that
diffuse brain damage can result in disinhibition and poor
social judgment as well as poor impulse control and an
inability to appreciate the long-term consequences of one’s
actions. Dr. Roy testified that, in his opinion, Washington’s
cocaine addiction and his impaired impulse control likely
contributed to his ability to be manipulated by others into
making poor decisions.

    The state called Dr. Eva McCullars, a psychiatrist who
also evaluated Washington. Dr. McCullars reviewed
Dr. Roy’s report and conducted clinical interviews with
Washington in June 1993. Dr. McCullars testified that she
did not review Washington’s DOC records, school records,
or adult incarceration records. Dr. McCullars agreed that
Washington suffered from diffuse brain damage, but
concluded that Washington also suffered from antisocial
personality disorder. On direct examination, the state asked
Dr. McCullars whether diffuse brain damage could cause
hyperkenesis (hyperactive behavior or attention deficit
disorder). Dr. McCullars explained that “[hyperkenesis] is
one example of diffuse brain damage.” She went on to
explain that several prominent individuals including Walt
Disney and Thomas Edison exhibited hyperkinetic behavior
as children. When questioned on cross examination,
Dr. McCullars acknowledged that Washington came from a
“significantly dysfunctional family.” She also admitted that
several of the markers for antisocial personality disorder,
such as early truancy and an inability to maintain
10                 WASHINGTON V. RYAN

employment, were more frequently associated with lower
socio-economic status black adolescents when compared to
the general population.

    Robert Clarke, Washington’s trial counsel, also testified
at the PCR hearing. Clarke testified that he did not request
Washington’s education or corrections records because he
believed his interviews with Washington, Skinner, Mondy
and Bryant were sufficient. Clarke testified that he had
“very extensive discussions” with Washington about what
his life was like and any possible substance abuse issues. He
also testified that he had “relatively extensive” discussions
with Washington’s mother, half-brother, and girlfriend.
Clarke testified that, based on these interviews, “there wasn’t
anything that clued me in that there was a special problem
that would suggest I should obtain those types of records.”
With respect to Washington’s drug use, Clarke testified that
Washington never told him that he was addicted to cocaine
or that he was using cocaine on the night of the murder.
When questioned on the matter, Clarke acknowledged that
Bryant had told Clarke that Washington had a “cocaine
problem,” but that he did not investigate further.

    In a written order, Judge Bradshaw held that Washington
was not entitled to relief for ineffective assistance of counsel
at the penalty phase.             Judge Bradshaw credited
Dr. McCullars’s findings that Washington had antisocial
personality disorder and was poorly adjusted to living in
society. However, Judge Bradshaw concluded that “there is
nothing . . . which lessened his ability to differentiate right
from wrong or conform his actions with the law.” Judge
Bradshaw also explained that he had been aware at the time
of sentencing that Washington had been doing well while
incarcerated. Judge Bradshaw further reasoned that any
drug and alcohol dependency “taken separately or with any
                    WASHINGTON V. RYAN                         11

other mitigating circumstance or circumstances would [not]
have mitigated against the sentence [Washington] has
received.”

                               C

   On April 25, 1995, the Arizona Supreme Court
summarily denied Washington’s petition for review of the
PCR court’s decision. Washington then commenced his
habeas action in the federal district court, culminating in this
appeal.

    In his amended federal habeas corpus petition,
Washington raised 17 claims. The district court determined
that claims 1, 2, 3 (in part), 6, 7, 8 (in part), 9, 11 (in part),
12, 14 (in part), 16, and 17 were procedurally barred. On
April 22, 2005, the district court rejected the remaining
claims on their merits and dismissed the petition.
Washington filed a motion to alter the judgment on May 5,
2005, which the district court denied on June 8, 2005.

    On July 11, 2005, Washington filed an untimely notice
of appeal from the district court’s denial of habeas relief. A
three-judge panel of this court held that it lacked jurisdiction
and affirmed the district court’s denial of Rule 60(b) relief.
Washington v. Ryan, 789 F.3d 1041 (9th Cir. 2015). The
court then granted Washington’s motion for en banc
rehearing. Washington v. Ryan, 811 F.3d 299 (9th Cir.
2015). In a 6–5 decision, the en banc panel held that
Washington was entitled to relief under Rule 60(b)(1) and
(6) from his untimely notice of appeal and ordered the
district court to “vacate and reenter its judgment denying
Washington’s petition for writ of habeas corpus, nunc pro
tunc, June 9, 2005,” to render the notice of appeal timely.
Washington v. Ryan, 833 F.3d 1087, 1102 (9th Cir. 2016).
The United States Supreme Court denied the state’s petition
12                 WASHINGTON V. RYAN

for writ of certiorari. Ryan v. Washington, 137 S. Ct. 1581
(2017) (mem.).

    In his opening brief, Washington raised three certified
issues and four uncertified issues. In this opinion, we
address Washington’s certified claim for ineffective
assistance of counsel at the penalty phase. The remaining
issues are addressed in a memorandum disposition filed
concurrently with this opinion.

                             II

     We review de novo a district court’s decision to grant or
deny a habeas petition under 28 U.S.C. § 2254. See Bean v.
Calderon, 163 F.3d 1073, 1077 (9th Cir. 1998). Because
Washington filed his habeas petition before the enactment of
AEDPA, the provisions of AEDPA do not apply to this case.
Id. (citing Jeffries v. Wood, 114 F.3d 1484, 1495–96 (9th Cir.
1997) (en banc)). Instead, we review the claim under the
familiar standard set out in Strickland and its progeny
without the added deference required under AEDPA.

                             III

    To prevail on his claim for ineffective assistance of
counsel, Washington must establish that Clarke’s
performance was deficient and that he suffered prejudice as
a result. See Strickland, 466 U.S. at 687–89. To establish
deficient performance, Washington must show that
“counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. To establish prejudice,
Washington must show that there is “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id.
at 694. These are formidable barriers to habeas corpus
                   WASHINGTON V. RYAN                       13

petition relief in federal court to state prisoners even absent
application of AEDPA.

                              A

    To prevail under Strickland’s performance prong,
Washington must show that his “counsel’s representation
fell below an objective standard of reasonableness.” See
Strickland, 466 U.S. at 688. Even without the added layer
of deference to the state court decision under AEDPA,
“[s]urmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371 (2010). In
articulating the standard against which counsel’s
performance should be judged, the Strickland Court
emphasized the deference due to a lawyer’s decisions both
as to scope of investigation and decisions made after
investigation: “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable. . . .” Strickland, 466 U.S.
at 690. We have likewise recognized the wide latitude to be
given to counsel’s tactical choices. See, e.g., United States
v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1993)
(“Review of counsel’s performance is highly deferential and
there is a strong presumption that counsel’s conduct fell
within the wide range of reasonable representation.”).

    But our deference to counsel’s performance is not
unlimited. As the Court explained in Strickland, counsel’s
strategic choices made after less than complete investigation
are reasonable only to the extent that “reasonable
professional judgments support the limitations on
investigation.” 466 U.S. at 690–91.

    The mitigation obligation applies even when a person is
clearly guilty. See Penry v. Lynaugh, 492 U.S. 302, 318–20
(1989), abrogated on other grounds by Atkins v. Virginia,
14                  WASHINGTON V. RYAN

536 U.S. 304 (2002) (“[R]ather than creating a risk of an
unguided emotional response, full consideration of evidence
that mitigates against the death penalty is essential if the jury
is to give a ‘reasoned moral response to the defendant’s
background, character, and crime.’” (quoting Franklin v.
Lynaugh, 487 U.S. 164, 184 (1988), abrogated on other
grounds by Atkins, 536 U.S. 304)). Indeed, that is a key point
of the penalty phase of a capital case, which proceeds only
after a determination of guilt in the earlier phase. See Gregg,
428 U.S. at 191–92 (endorsing the use of a bifurcated trial to
determine guilt and penalty). In the penalty phase, the focus
shifts from guilt to culpability, and evidence on both
aggravating and mitigating factors is properly considered.
See Ariz. Rev. Stat. Ann. § 13-751 (2018) (identifying
statutory aggravating and mitigating circumstances in
capital-eligible cases); Buchanan v. Angelone, 522 U.S. 269,
275–76 (1998) (observing that the penalty phase of capital
sentencing involves a determination of eligibility, where
“the jury narrows the class of defendants eligible for the
death penalty, often through consideration of aggravating
circumstances,” and selection, where “the jury determines
whether to impose a death sentence on an eligible defendant”
and must consider “any constitutionally relevant mitigating
evidence”).

    At the penalty phase, “[a] decision not to . . . offer
particular mitigating evidence is unreasonable unless
counsel has explored the issue sufficiently to discover the
facts that might be relevant to his making an informed
decision.” Lambright v. Schriro, 490 F.3d 1103, 1116 (9th
Cir. 2007); see also Ainsworth v. Woodford, 268 F.3d 868,
874 (9th Cir. 2001) (holding counsel’s performance was
ineffective where counsel “failed to adequately investigate,
develop, and present mitigating evidence to the jury even
                  WASHINGTON V. RYAN                      15

though the issue before the jury was whether [the defendant]
would live or die”).

    Washington asserts that Clarke erred by not reviewing
his education records and incarceration records. “In
preparing for the penalty phase of a capital trial, defense
counsel has a duty to ‘conduct a thorough investigation of
the defendant’s background’ in order to discover all relevant
mitigating evidence.” Robinson v. Schriro, 595 F.3d 1086,
1108 (9th Cir. 2010) (quoting Correll v. Ryan, 539 F.3d 938,
942 (9th Cir. 2008)). We have recognized that, “[a]t the very
least, counsel should obtain readily available documentary
evidence such as school, employment, and medical records.”
Id. at 1109. Clarke did not request or review any such
records and provided no tactical reason for his failure to do
so. Instead, Clarke relied entirely on his interviews with
Washington, Skinner, Mondy, and Bryant and testified that
he did not believe other sources of information would have
been fruitful. Clarke’s failure to review these basic and
readily-available sources of mitigating information fell
below prevailing professional norms at the time. See id.

    Washington also alleges that Clarke erred by not
retaining an expert to conduct a psychological evaluation. A
psychological evaluation at the penalty phase is not always
required. Gentry v. Sinclair, 705 F.3d 884, 900 (9th Cir.
2013). Instead, “[t]rial counsel has a duty to investigate a
defendant’s mental state if there is evidence to suggest that
the defendant is impaired.” Douglas v. Woodford, 316 F.3d
1079, 1085 (9th Cir. 2003).

    In assessing counsel’s performance, we must keep in
mind that “[i]t is imperative that all relevant mitigating
information be unearthed for consideration at the capital
sentencing phase.” Caro v. Calderon, 165 F.3d 1223, 1227
(9th Cir. 1999). Whereas evidence of mental impairment is
16                   WASHINGTON V. RYAN

relevant at the guilt phase of a capital trial if it tends to negate
the mens rea and criminal liability, evidence of mental
impairment is relevant at the penalty phase for broader
purpose; namely, where it “might provide a basis for
refusing to impose the death penalty on a particular
individual, notwithstanding the severity of his crime or his
potential to commit similar offenses in the future.” Abdul-
Kabir v. Quarterman, 550 U.S. 233, 246 (2007); see also
McKoy v. North Carolina, 494 U.S. 433, 440 (U.S. 1990)
(“Relevant mitigating evidence is evidence which tends
logically to prove or disprove some fact or circumstance
which a fact-finder could reasonably deem to have
mitigating value.” (quotation omitted)). In light of the broad
scope of evidence relevant to mitigation at the penalty phase
of a capital case, we have recognized that counsel’s duty to
investigate possible psychological mitigation evidence is
higher at the penalty phase than it might be during the guilt
phase of trial: “At the penalty phase, counsel’s duty to
follow up on indicia of mental impairment is quite different
from—and much broader and less contingent than—the
more confined guilt-phase responsibility.” Bemore v.
Chappell, 788 F.3d 1151, 1171 (9th Cir. 2015).

    We may conclude, arguendo, that based solely on the
limited facts known to Clarke during his investigation—
which included Clarke’s discussions with Washington and
his friends and family, but not Washington’s education and
incarceration records—Clarke’s decision not to seek a
psychological evaluation was not objectively unreasonable.
But our analysis does not end there. In a case such as this,
the question under Strickland is “whether the investigation
supporting [counsel’s] decision not to introduce mitigating
evidence . . . was itself reasonable.” Id. (alterations in
original) (quoting Wiggins v. Smith, 539 U.S. 510, 523
(2003)).
                   WASHINGTON V. RYAN                      17

    As discussed above, Clarke performed unreasonably by
not reviewing Washington’s education and incarceration
records. We must therefore determine whether, if Clarke
had performed reasonably in reviewing those records, he
would have uncovered information that would have
prompted him to obtain a psychological evaluation for
Washington. See Rompilla v. Beard, 545 U.S. 374, 390–93
(2005). We conclude that an objectively reasonable lawyer
would have done so. If Clarke had reviewed Washington’s
education and incarceration records, he would have seen that
Washington’s elementary school had placed Washington in
classes for the educable mentally retarded and that the DOC
had indicated that Washington had a low IQ. Although the
Supreme Court had not yet recognized that the Eighth
Amendment bars the execution of mentally retarded
individuals at the time of Washington’s penalty trial, Atkins,
536 U.S. at 321, the Court had made clear that evidence of
mental retardation was important mitigation evidence that
should be presented at the penalty phase, Penry, 492 U.S. at
322–24 (noting that evidence of a defendant’s mental
retardation may render him less culpable for his crime). A
reasonable attorney would have investigated the potential
that Washington may have been mentally retarded after
reviewing Washington’s education and incarceration
records.

    In sum, although Clarke did not perform unreasonably
by not requesting a psychological evaluation based on the
evidence known to him at the time, his unreasonable failure
to review Washington’s education and incarceration records
prevented Clarke from gaining information that would have
led him to request a psychological evaluation. See Rompilla,
545 U.S. at 390–93 (concluding that counsel erred by failing
to review defendant’s prison file, which would have
prompted counsel to further investigate potential
18                 WASHINGTON V. RYAN

psychological mitigation evidence). As discussed below,
these errors prevented Washington from presenting
substantial mitigation evidence at the penalty phase.

    Washington also argues that Clarke erred by not
investigating and presenting evidence of his childhood
abuse. Through his conversations with Dr. Roy, Washington
revealed that he suffered physical abuse as a child in the form
of daily whippings and beatings. Roy was also told that
Washington was given alcohol as a child to control his
behavior. None of this information later given to Dr. Roy
had come to Clarke’s attention during the trial. By contrast,
both psychological experts who testified at the PCR hearing
agreed that Washington’s childhood was significantly
dysfunctional. Unlike other categories of information that
are easily verified through documentary evidence, Clarke
had to rely entirely on the word of Washington and his
family members in determining whether Washington
suffered childhood abuse. Because neither Washington nor
his family members had then indicated that Washington
suffered abuse as a child, Clarke did not err by not further
investigating Washington’s childhood abuse, to the extent
that he could have, or by not presenting the information he
did not have regarding abuse at the sentencing hearing. See
Strickland, 466 U.S. at 691 (“[W]hen a defendant has given
counsel reason to believe that pursuing certain investigations
would be fruitless or even harmful, counsel’s failure to
pursue those investigations may not later be challenged as
unreasonable.”).

    Finally, Washington alleges that Clarke erred by not
investigating and presenting evidence of his substance
abuse. Again, Clarke did not err by failing to investigate
Washington’s substance abuse, because Clarke reasonably
relied on his conversations with Washington and his friends
                  WASHINGTON V. RYAN                     19

and family, wherein substance abuse was not indicated.
Washington had told Clarke that he was heavily intoxicated
on the night of the crimes, but he denied that he had any
ongoing problems with drugs or with alcohol. Similarly,
Washington’s mother described him as someone who “liked
to party,” but also did not say that Washington had problems
with addiction. Perhaps the single clue Clarke had that
might have raised his suspicions about substance abuse was
the statement of Washington’s girlfriend that Washington
had a “cocaine problem.” However, when set against
Washington’s own statements and those of his family
members, Clarke’s decision not to further investigate
Washington’s drug abuse was not objectively unreasonable.

    In summary, Clarke performed ineffectively by not
reviewing Washington’s education and incarceration
records. If Clarke had performed effectively, he would have
known about and acted on information regarding
Washington’s potentially impaired cognitive function.
While we recognize that, as a general rule, deficient lawyer
performance should be found only in exceptional cases
presenting extraordinarily poor performance, we
nonetheless conclude that the record here amply
demonstrates that Clarke’s representation of Washington at
the penalty phase was objectively unreasonable and deficient
for the reasons articulated above.

                             B

    Relief for ineffective assistance of counsel under
Strickland requires both deficient performance in
representation and prejudice. Even in light of Clarke’s
performance, Washington can succeed on his ineffective
assistance of counsel claim only if Clarke’s performance
resulted in prejudice. To establish prejudice, Washington
must show “a reasonable probability that, but for counsel’s
20                WASHINGTON V. RYAN

unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. To determine
whether a reasonable probability exists that the sentencing
judge would not have imposed the death sentence in light of
the mitigation evidence, we “reweigh the evidence in
aggravation against the totality of the available mitigating
evidence.” Wiggins, 539 U.S. at 534.

    Here, as a result of Clarke’s performance, the sentencing
court did not hear any evidence concerning Washington’s
potentially impaired cognitive functions or his possible
mental retardation. However, to establish that those
omissions prejudiced him, Washington must show that there
is a reasonable probability that he would have received a
different sentence if those materials and evidence had been
introduced at sentencing. Strickland, 466 U.S. at 694.
Washington faces a significant obstacle in doing so, because
we need not guess at whether the outcome would have been
different if that evidence had been available to the court at
sentencing.      The sentencing judge, Judge Bradshaw,
considered that evidence during the PCR proceeding and
concluded in a written order that those materials would not
have made a difference. Judge Bradshaw’s unequivocal
ruling might ordinarily persuade us that Washington cannot
show prejudice. The materials that Clarke missed, though
they undoubtedly had mitigating value, were not so
overwhelming that they influenced Judge Bradshaw’s no-
prejudice finding.

   However, the case of Washington’s co-defendant, Fred
Robinson, casts a long shadow on our prejudice analysis
                       WASHINGTON V. RYAN                              21

here. 2 In Robinson v. Schriro, we considered Fred
Robinson’s habeas corpus petition. 595 F.3d at 1098–99.
That case is important here because Washington and
Robinson were tried and sentenced together, and their
convictions and sentences were affirmed in state court
following joint PCR proceedings, in nearly identical written
orders. Like Washington, Robinson alleged that he received
ineffective assistance of counsel based on his trial counsel’s
failure to present mitigation evidence at the penalty phase.
Id. at 1108–10. Judge Bradshaw (like here) concluded that
the mitigation evidence Robinson produced in the state PCR
proceeding would not have made a difference. Yet, we
determined that Judge Bradshaw, who presided at both
Robinson’s and Washington’s trial and PCR proceedings,
applied an unconstitutional “nexus test” in considering
Robinson’s      newly-presented     mitigation      evidence. 3

     2
       We recognize that the Supreme Court has said that each case
assessing deficiency or prejudice must be judged on its own facts, in a
separate determination, and that a broad general rule could not be used.
See Strickland, 466 U.S. at 696 (“[I]n adjudicating a claim of actual
ineffectiveness of counsel, a court should keep in mind that the principles
we have stated do not establish mechanical rules.”). However, we also
recognize that longstanding principles of justice demand that like cases
be treated alike, see, e.g., H.L.A. Hart, The Concept of Law 159–166 (3d
ed. 2012), and the relevant aspects of Robinson’s and Washington’s
cases are substantially congruent for the purposes of our prejudice
analysis.
    3
      Arizona’s nexus test required that mitigation evidence must have
a direct or causal relationship with the crime itself. See State v. Djerf,
959 P.2d 1274, 1289 (Ariz. 1998). However, as we explained in
Robinson, the nexus test is unconstitutional, and federal law is clear that
a sentencing court must consider all mitigating evidence. See, e.g., Smith
v. Texas, 543 U.S. 37, 45 (2004) (rejecting a Texas court’s refusal to
consider mitigating evidence unless there was a “nexus” between the
mitigating circumstance and the murder); Tennard v. Dretke, 542 U.S.
274, 283 (2004) (rejecting a Fifth Circuit test that barred the
22                  WASHINGTON V. RYAN

Therefore, we concluded that Judge Bradshaw had not
“properly evaluated the mitigating evidence offered in the
evidentiary hearing,” 595 F.3d at 1113, and that the
possibility that Judge Bradshaw would have imposed a
sentence other than death if he had applied the correct
standard when considering that evidence was enough to
establish prejudice. Id.

    Turning now to this case, Judge Bradshaw committed
precisely the same error by imposing the nexus test when
evaluating Washington’s mitigation evidence. Evidence of
brain damage and mental disorders is important to the
mitigation analysis. See, e.g., Daniels v. Woodford, 428 F.3d
1181, 1209 (9th Cir. 2005); Caro v. Woodford, 280 F.3d
1247, 1258 (9th Cir. 2002) (“More than any other singular
factor, mental defects have been respected as a reason for
leniency in our criminal justice system.”); Mitchell v. United
States, 790 F.3d 881, 903–04 (9th Cir. 2015) (“Evidence that
[Petitioner] was a chronic user of alcohol and drugs from a
young age is the kind of ‘classic mitigating evidence’ that
counsel must pursue at the penalty phase . . . .”). However,
when evaluating Washington’s newly-presented evidence of
diffuse brain damage, Judge Bradshaw discounted the value
of the evidence because “[there was nothing] at the time of
the offenses, which lessened his ability to differentiate right
from wrong or to conform his actions with the law.” As we
concluded in Robinson, Judge Bradshaw’s analysis
erroneously demanded that the newly-presented evidence
relate to Washington’s guilt for the charged offense, a
standard that has been squarely rejected by the United States



consideration of mitigating evidence unless “the criminal act was
attributable to [a] severe permanent condition”).
                       WASHINGTON V. RYAN                              23

Supreme Court. See, e.g., Smith, 543 U.S. at 45; Tennard,
542 U.S. at 283.

    Thus, we must conclude here that there is a reasonable
probability that the outcome of sentencing would have been
different if the trial court had been presented with evidence
of Washington’s cognitive defects and had properly
evaluated that evidence consistently with the Supreme Court
decision in Smith. As in Robinson, our confidence in the
Arizona court’s imposition of the death sentence has been
undermined, and we remand.

                                   IV

    Washington received ineffective assistance of counsel at
the penalty phase and was prejudiced thereby. He is thus
entitled to relief in the form of a new penalty phase trial. We
reverse the district court’s denial of a writ of habeas corpus
as to the penalty phase and remand with instructions to grant
the writ of habeas corpus unless the state court undertakes
resentencing proceedings within a reasonable time to be
determined by the district court. 4


     4
       The majority’s reasoning throughout its opinion responds in
substance to the contentions asserted by the dissent, and we do not
address all of the dissent’s errors of reasoning and disregard of precedent
here. However, we include the following points in brief response to the
contentions of the dissent: First, the dissent without any proper basis
asserts that the majority has stated the Strickland standard but then
“might have applied” a different standard. Our majority opinion
discusses and applies the Strickland standard. Second, the dissent relies
on Judge Bradshaw’s conclusion that the new evidence would not have
made a difference. But this ignores Supreme Court precedent that made
clear the Arizona sentencing judge could not have constitutionally
required a causal nexus between the mitigation evidence and the crimes.
As explained supra at 20–22, that erroneous premise almost certainly
24                   WASHINGTON V. RYAN

    REVERSED and REMANDED for issuance of a writ
of habeas corpus. 5



CALLAHAN, Circuit Judge, dissenting:

    I dissent.     A jury properly convicted Theodore
Washington for the murder of Sterleen Hill and the
attempted murder of Ralph Hill, and the trial court judge
properly sentenced him to death. Washington’s claim of
ineffective assistance of counsel presents no basis for
vacating his sentence.

     The majority errs in its application of both prongs of
Strickland v. Washington, 466 U.S. 668 (1984). First, in
second-guessing      the    performance      of    Theodore
Washington’s trial counsel, the majority uses a standard for
gross incompetence that doesn’t square with precedent. A
post-conviction petition can always point to something that
trial counsel should have done differently. Here, more than
30 years after Washington was sentenced to death, the
majority grants Washington relief because his trial counsel
failed to investigate Washington’s education and
incarceration records. But trial counsel’s performance was


affected Judge Bradshaw’s assessment. Third, the dissent does not
correctly apply the Supreme Court’s precedent in Eddings v. Oklahoma,
455 U.S. 104 (1982) (suggesting that the sentencer in a capital case
cannot “refuse to consider, as a matter of law, any relevant mitigating
evidence” offered by the defendant), and Smith v. Texas, 543 U.S. 37
(2004) (holding that there may not be a requirement of a causal nexus
between mitigation evidence and the crime).
     5
       In a separate memorandum disposition filed simultaneously with
this opinion, we affirm against all other issues raised by Washington.
                  WASHINGTON V. RYAN                      25

reasonable because his extensive discussions with
Washington and Washington’s family and friends gave him
no reason to suspect that those records contained helpful
information.

    Second, the majority doesn’t hold Washington to his
heavy burden of showing prejudice. Instead, the majority
erroneously presumes prejudice. The evidence that the
majority concludes Washington’s trial counsel should have
unearthed would not have fundamentally altered the
narrative counsel competently (even if not perfectly)
presented at sentencing. Indeed, we need not guess whether
the new evidence would have made a difference at
sentencing because the same judge who sentenced
Washington to death (Judge Bradshaw) later presided over
the post-conviction review proceedings. Judge Bradshaw
unequivocally concluded the new evidence would not have
made a difference. His “unique knowledge of the trial
proceedings”—including his front-row seat to the
presentation of evidence showing brutality of the execution-
style murder of Sterleen Hill—“render[ed] him ‘ideally
situated’” to evaluate Washington’s claim at post-conviction
review. Murray v. Schriro, 882 F.3d 778, 818, 821 (9th Cir.
2018) (quoting Schriro v. Landrigan, 550 U.S. 465, 476
(2007)). There is no good reason for us to dismiss Judge
Bradshaw’s conclusion from our lofty perch 25 years later.

                             I.

    Before describing the lengthy procedural history of the
case, the majority opinion briefly describes the home
invasion turned execution-style murder. As this case wound
its way through the courts, what has been lost is the cruelty
and senselessness of the defendants’ acts.
26                 WASHINGTON V. RYAN

    The victims, Sterleen and Ralph Hill, were bound, and
forced to lie face down on their bedroom floor in preparation
to be shot, execution-style, with a shotgun. Sterleen was
forced to listen helplessly as her husband was shot first and
then wait as the shotgun was reloaded, knowing that she
would be next. Had the Hills’ teenage son, LeSean, not run
off, it is evident that he would have suffered the same fate.
(Ralph testified he heard a voice in the background say, “We
better get the kid.”). The murder and attempted murder
appear to have been completely unnecessary to the
completion of the robbery. It does not appear that the
victims could have identified the defendants, and there was
no sign of struggle. There simply was no need to kill.

    The panel unanimously agrees that substantial evidence
supports the jury’s finding that Washington was one of the
men who carried out the execution-style murder and
attempted murder of the Hills. The heinous nature of the
crimes led the sentencing judge to impose the death penalty.
The panel also agrees the state court’s application of the
aggravating factors warranting the death sentence was
proper.

                             II.

    The principles underlying and governing a claim of
ineffective assistance of counsel are familiar. But they bear
repeating here because the majority strays from them. “The
right to counsel is a fundamental right of criminal
defendants; it assures the fairness, and thus the legitimacy,
of our adversary process.” Kimmelman v. Morrison,
477 U.S. 365, 374 (1986). “[T]he right to counsel is the right
to the effective assistance of counsel.” Strickland, 466 U.S.
at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771
n.14 (1970)). Under Strickland’s two-part test for claims of
ineffective assistance of counsel, a convicted defendant must
                    WASHINGTON V. RYAN                        27

show (1) constitutionally deficient performance by counsel
(2) that prejudiced the defense. Id. at 687.

    “The essence of an ineffective-assistance claim is that
counsel’s unprofessional errors so upset the adversarial
balance between defense and prosecution that the trial was
rendered unfair and the verdict rendered suspect.”
Kimmelman, 477 U.S. at 374. “As is obvious, Strickland’s
standard, although by no means insurmountable, is highly
demanding.” Id. at 382; see also Padilla v. Kentucky,
559 U.S. 356, 371 (2010) (“Surmounting Strickland’s high
bar is never an easy task.”). “Only those habeas petitioners
who can prove under Strickland that they have been denied
a fair trial by the gross incompetence of their attorneys will
be granted the writ . . . .” Kimmelman, 477 U.S. at 382.

    “When counsel focuses on some issues to the exclusion
of others, there is a strong presumption that he did so for
tactical reasons rather than through sheer neglect.”
Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (citing
Strickland, 466 U.S. at 690). Even if inadvertence (not
tactical reasoning) results in non-pursuit of a particular issue,
“relief is not automatic. The Sixth Amendment guarantees
reasonable competence, not perfect advocacy judged with
the benefit of hindsight.” Id.

                              III.

   The majority pays lip service to the rules placing an
exacting burden on an inmate claiming ineffective assistance
of counsel, but it doesn’t actually hold Washington to
28                    WASHINGTON V. RYAN

Strickland’s “highly demanding” standard. See Kimmelman,
477 U.S. at 382. 1

                                  A.

    Washington failed to meet his burden on the first
Strickland prong. I agree with the majority’s conclusion that
much of the alleged deficiencies of counsel do not amount
to gross incompetence. The majority is wrong, however, in
concluding that Washington’s trial counsel, Robert Clarke,
provided constitutionally deficient performance by failing to
obtain and review Washington’s education and incarceration
records.

    First, the record does not support the majority’s implicit
suggestion that the education records themselves contain
meaningful mitigation evidence. The majority states that the
sentencing court did not hear evidence concerning
Washington’s “possible mental retardation.” Maj. Op. at 20.
The only conceivable evidence for such a possibility is a
notation in a 1965 education record (from when Washington
was five years old) of the need for placement in special
classes for the “educable mentally retarded.” But that single,
decades-old notation is inconsequential when compared
with more than ten additional years of schooling in the
general population. And any suggestion that the school
records showed a low IQ is contradicted by later IQ testing
by Washington’s own expert, Dr. Roy. Washington has
never even suggested the possibility of mental retardation.
     1
       The Supreme Court has on occasion corrected our court for reciting
yet straying from Strickland. See, e.g., Wong v. Belmontes, 558 U.S. 15,
27–28 (2009) (reversing where the Ninth Circuit recited the correct
standard for prejudice but its analysis “suggested it might have applied”
a different standard).
                      WASHINGTON V. RYAN                            29

In short, the district court was correct in observing that
Washington “presented no evidence that either his school
records or his California incarceration records would have
revealed potential mitigation.” 2

    Second, even assuming it were proper to conclude so
reflexively that the failure to obtain the education records
was categorically incompetent, that conclusion alone
wouldn’t justify the majority’s finding of incompetence.
Instead, the majority’s holding necessarily requires a second
layer of attorney deficiency. To the majority, if Clarke had
reviewed Washington’s education records, he would have
seen the 1965 notation about the need for placement in
special classes. Upon seeing that notation, the majority
reasons, all but the grossly incompetent lawyer would obtain
a psychological evaluation—even absent any other
indications from Washington’s life since kindergarten of
subnormal mental capacity.



    2
       As for the incarceration records, Washington, through his able
habeas counsel, points out that Clarke never obtained them, but he does
not even assert that, let alone explain why, such a failure was
constitutionally deficient. Nor does Washington indicate in his briefs
what the incarceration records would have revealed. The majority
doesn’t supply the missing reasoning or the missing description of
mitigation evidence in the incarceration records. We have held that
Strickland’s prejudice prong cannot be satisfied without “specification
of the mitigating evidence that counsel failed to unearth.” Cox v. Del
Papa, 542 F.3d 669, 681 (9th Cir. 2008). In the post-conviction review
proceedings, there was a suggestion that the incarceration records might
show good behavior. But Judge Bradshaw (who both sentenced
Washington and presided over the post-conviction review proceedings)
stated that he was already aware of Washington’s good behavior at the
time of sentencing.
30                   WASHINGTON V. RYAN

    The majority is too quick to find gross incompetence. If
Clarke had obtained the education records and seen the
single notation from over twenty years earlier indicating a
need for placement in special education classes, that notation
would have been considered in context with everything else
Clarke learned about Washington’s background. Clarke’s
investigation included “extensive discussions” with
Washington and Washington’s family and friends. Clarke
asked Washington and his family members about whether
Washington “had any propensity to violence,” “about his
drug use,” “about his alcohol intake,” “about whether or not
he was abused, growing up,” about “what discipline was
like,” and “things of that nature.” For example, from his
interviews, Clarke knew that Washington went to school in
the general population and that he struggled in high school,
dropping out in tenth or eleventh grade. 3 At the post-
conviction review hearing, Clarke testified that, in all the
interviews with Washington and his family, nothing
triggered any red flags signaling that further investigation
would have been fruitful. Clarke stated that he considered
that Washington’s family members would make better
witnesses than a psychologist who might examine
Washington for a relatively brief period. The majority’s
conclusion that only the grossly incompetent lawyer would
not have obtained a psychological evaluation under these
circumstances cannot be squared with Strickland’s
deferential standard for determining the competence of
counsel. See Yarborough, 540 U.S. at 8 (“The Sixth
Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.”).


     3
      Among the evidence Clarke presented at trial was testimony about
Washington struggling in school and dropping out in tenth or eleventh
grade.
                    WASHINGTON V. RYAN                        31

    Under the deferential standard required by Strickland
and its progeny, Clarke’s investigation was thorough and his
performance was reasonable. If Clarke’s performance
amounts to the “gross incompetence” habeas relief is
reserved for, it’s doubtful many attorneys could withstand
the second-guessing scrutiny of the majority’s approach for
determining constitutional competence.

                               B.

    “The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686. Strickland “requires showing
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id.
at 687. To prove prejudice, a defendant must show “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.

    “It is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding.’
Counsel’s errors must be ‘so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.’”
Harrington v. Richter, 562 U.S. 86, 104 (2011) (citations
omitted) (quoting Strickland, 466 U.S. at 693, 687).
Although the reasonable probability standard “does not
require a showing that counsel’s actions ‘more likely than
not altered the outcome,’ . . . the difference between
Strickland’s prejudice standard and a more-probable-than-
not standard is slight and matters ‘only in the rarest case.’”
Id. at 111–12 (quoting Strickland, 466 U.S. at 693, 697); see
32                    WASHINGTON V. RYAN

id. at 112 (“The likelihood of a different result must be
substantial, not just conceivable.”).

    To determine whether Washington has met his burden of
showing prejudice, we must “reweigh the evidence in
aggravation against the totality of available mitigating
evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).
This comparison cannot be made without first clearly
identifying the evidence in mitigation that would have been
offered at the penalty phase of trial but for counsel’s grossly
incompetent performance. The majority concludes that
Clarke’s incompetence resulted in the omission of “evidence
concerning Washington’s potentially impaired cognitive
functions.” 4 Maj. Op. at 20. By this, the majority
presumably refers to Dr. Roy’s conclusion that Washington
had symptoms of diffuse brain damage, likely caused by
multiple head injuries while Washington was young.
Dr. Roy further concluded that diffuse brain damage
contributes to a “lack of judgment” and an “inability to
establish stability in life.”

    In reweighing this evidence, we must take as our baseline
the evidence of aggravation and mitigation offered at trial
and the resulting sentence. 5 After considering the details of

     4
       The majority also suggests the omitted evidence includes
Washington’s “possible mental retardation.” Maj. Op. at 20. As
discussed above, that possibility has been ruled out and Washington
himself has never claimed (even now) a possibility of mental retardation.

     5
      The majority quotes Milton in suggesting that the sentencing judge
has “the power ‘to temper justice with mercy.’” Maj. Op. at 5 n.1.
Although that is valid as an abstract proposition, it tells us nothing
about—and even obfuscates—the proper analysis under Strickland.
Because a sentencing judge (or jury) has the power of leniency in every
capital case, it’s always possible that, as the majority states, “[t]he
                       WASHINGTON V. RYAN                              33

the brutal, execution-style murder and attempted murder,
and weighing it against the mitigation evidence
Washington’s counsel presented, Judge Bradshaw sentenced
Washington to death. With that starting point in mind, we
must undertake the theoretical inquiry of determining
whether it is reasonably likely that Washington would have
received a different sentence if the new mitigation evidence
were to be added to the mix of mitigation evidence that was
presented at trial.

    Of course, no guesswork is needed here. We know that
Washington’s new evidence would not have made a
difference because the sentencing judge said so. See Cook
v. Ryan, 688 F.3d 598, 612 (9th Cir. 2012) (finding no
prejudice where “the same trial judge who sentenced” the
petitioner to death stated that the new evidence “would not
have made any difference”). Judge Bradshaw “considered
all of [the new] information in the post-conviction hearing
and” definitively “held that none of it would have altered his
judgment as to the proper penalty for” Washington.
Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997).

   A fair evaluation of the evidence in light of Supreme
Court precedent confirms the soundness of Judge
Bradshaw’s finding of no prejudice. Because of Strickland’s


sentencing judge might have decided that [the defendant] should be
spared death and imprisoned for life.” Id. at 4–5. That is true even if the
hypothetical second trial were a redo of the first without any new
evidence. Of course, in engaging in the Strickland prejudice analysis,
we have to control for that. In other words, because we are rejecting
Washington’s other challenges to his sentence (i.e., he was properly
convicted and sentenced to death), we must presume that he would have
received the same sentence upon the same evidence. That is easier said
than done; but we must do so to analyze properly whether Washington
has met his burden of showing prejudice.
34                    WASHINGTON V. RYAN

“highly demanding” standard, Kimmelman, 477 U.S. at 382,
it’s no surprise that petitioners have historically found little
success bringing ineffective assistance of counsel claims.
However, beginning in 2000, the Supreme Court found
Strickland’s “high bar” satisfied in four cases involving
claims of ineffective assistance of counsel at the penalty
phase of a capital trial. Williams v. Taylor, 529 U.S. 362
(2000); Wiggins, 539 U.S. 510; Rompilla v. Beard, 545 U.S.
374 (2005); Porter v. McCollum, 558 U.S. 30 (2009). These
decisions serve as guideposts for determining when relief is
warranted in such cases.

     In Williams, the jury fixed the punishment at death after
hearing evidence of a long history of criminal conduct
including armed robbery, burglary and grand larceny, auto
thefts, violent assaults on elderly victims, and arson.
529 U.S. at 368. At sentencing, defense counsel offered very
little evidence. Id. at 369. 6 In addressing Williams’
Strickland claim, the Supreme Court cited “graphic” details
“of Williams’ childhood, filled with abuse and privation,”
evidence that Williams was “borderline mentally retarded,”
and other significant mitigation evidence that was not
unearthed only because of counsel’s deficient performance:

         [C]ounsel did not begin to prepare for that
         phase of the proceeding until a week before
         the trial.    They failed to conduct an
         investigation that would have uncovered

     6
      Counsel presented testimony from Williams’ mother and two
neighbors who briefly described Williams as a “nice boy” and non-
violent. Williams, 529 U.S. at 369. They also played a taped excerpt
from a statement by a psychiatrist that merely related “Williams’
statement during an examination that in the course of one of his earlier
robberies, he had removed the bullets from a gun so as not to injure
anyone.” Id.
                   WASHINGTON V. RYAN                      35

       extensive records graphically describing
       Williams’ nightmarish childhood, not
       because of any strategic calculation but
       because they incorrectly thought that state
       law barred access to such records. Had they
       done so, the jury would have learned that
       Williams’ parents had been imprisoned for
       the criminal neglect of Williams and his
       siblings, that Williams had been severely and
       repeatedly beaten by his father, that he had
       been committed to the custody of the social
       services bureau for two years during his
       parents’ incarceration (including one stint in
       an abusive foster home), and then, after his
       parents were released from prison, had been
       returned to his parents’ custody.

Id. at 395, 398 (citation and footnote omitted). In concluding
Williams had shown prejudice, the Court noted that the same
judge who presided over the criminal trial heard Williams’
post-conviction review claims. That trial judge, who
initially “determined that the death penalty was ‘just’ and
‘appropriate,’ concluded that there existed ‘a reasonable
probability that the result of the sentencing phase would
have been different’” if evidence developed in the post-
conviction proceedings had been offered at sentencing. Id.
396–97.

    In Wiggins, trial counsel focused their strategy at
sentencing on arguing that the defendant was not directly
responsible for the murder, and they did not present any
other mitigation evidence, despite knowledge of at least
some of the defendant’s troubled background. 539 U.S.
at 523–24. The Court cited “powerful” mitigation evidence
that counsel either had, or should have, discovered. Id.
36                WASHINGTON V. RYAN

at 534–35. When Wiggins was a young child, his alcoholic
mother frequently left him and his siblings home alone for
days without food, “forcing them to beg for food and to eat
paint chips and garbage.” Id. at 516–17. The mother beat
Wiggins and his siblings and had sex with men while her
children slept in the same bed. Id. at 517. On one occasion,
the mother forced Wiggins’ hand against a hot stove burner,
resulting in his hospitalization. Id. After being removed
from his mother’s custody and placed in foster care, Wiggins
was physically abused and “repeatedly molested and raped”
by one foster father, and gang-raped on multiple occasions
by a foster mother’s sons. Id. He ran away from one foster
home and began living on the streets. Id. The Court held
that had the jury been presented with Wiggins’ “excruciating
life history,” rather than virtually no mitigation evidence,
“there is a reasonable probability that at least one juror
would have struck a different balance.” Id. at 537.

    In Rompilla, trial counsel undertook a number of efforts
to investigate possible mitigating evidence, “including
interviews with Rompilla and some members of his family,
and examinations of reports by three mental health experts
who gave opinions at the guilt phase,” but none of these
sources was helpful. 545 U.S. at 381. Notwithstanding these
efforts, the Court found one “clear and dispositive” error by
counsel. Id. at 383. Defense counsel knew the prosecution
intended to seek the death penalty and would hinge its
penalty case on Rompilla’s prior conviction for rape and
assault. Id. Counsel nevertheless failed to even look at the
court file for the prior conviction; had they done so “they
would have found a range of mitigation leads that no other
source had opened up.” Id. at 384, 390. The mitigation
evidence that would have been available from simply
looking at the files included, among other things:
                  WASHINGTON V. RYAN                      37

       Rompilla’s parents were both severe
       alcoholics who drank constantly. His mother
       drank during her pregnancy with Rompilla,
       and he and his brothers eventually developed
       serious drinking problems. His father, who
       had a vicious temper, frequently beat
       Rompilla’s mother, leaving her bruised and
       black-eyed, and bragged about his cheating
       on her. His parents fought violently, and on
       at least one occasion his mother stabbed his
       father. He was abused by his father who beat
       him when he was young with his hands, fists,
       leather straps, belts and sticks. All of the
       children lived in terror. There were no
       expressions of parental love, affection or
       approval. Instead, he was subjected to
       yelling and verbal abuse. His father locked
       Rompilla and his brother Richard in a small
       wire mesh dog pen that was filthy and
       excrement filled.      He had an isolated
       background, and was not allowed to visit
       other children or to speak to anyone on the
       phone. They had no indoor plumbing in the
       house, he slept in the attic with no heat, and
       the children were not given clothes and
       attended school in rags.

Id. at 391–92. All the evidence counsel failed to discover
simply by failing to look at the court file of the prior
conviction “add[ed] up to a mitigation case that bears no
relation to the few naked pleas for mercy actually put before
the jury.” Id. at 393. The Court thus concluded there was a
reasonable probability of a different result had counsel
performed adequately. Id.
38                WASHINGTON V. RYAN

    In Porter, penalty phase counsel offered scant evidence
on behalf of Porter. “The sum total of the mitigating
evidence was inconsistent testimony about Porter’s behavior
when intoxicated and testimony that Porter had a good
relationship with his son.” Porter, 558 U.S. at 32. Post-
conviction review proceedings revealed several facts about
Porter’s “abusive childhood, his heroic military service and
the trauma he suffered because of it, his long-term substance
abuse, and his impaired mental health and mental capacity.”
Id. at 33.

       Porter routinely witnessed his father beat his
       mother, one time so severely that she had to
       go to the hospital and lost a child. Porter’s
       father was violent every weekend, and by his
       siblings’ account, Porter was his father’s
       favorite target, particularly when Porter tried
       to protect his mother. On one occasion,
       Porter’s father shot at him for coming home
       late, but missed and just beat Porter instead.

Id. Porter’s company commander in the Army also offered
a “moving” account of Porter’s heroic efforts “in two of the
most critical—and horrific—battles of the Korean War,” for
which Porter “received two Purple Hearts and the Combat
Infantryman Badge, along with other decorations.” Id. at 30,
34–35, 41. A neuropsychologist “concluded that Porter
suffered from brain damage that could manifest in
impulsive, violent behavior.” Id. at 36. The expert also
testified that “[a]t the time of the crime . . . Porter was
substantially impaired in his ability to conform his conduct
to the law and suffered from an extreme mental or emotional
disturbance,” which would have provided a basis for two
statutory mitigating circumstances. Id.
                  WASHINGTON V. RYAN                      39

    In concluding Porter established prejudice, the Court
reasoned that “[t]he judge and jury at Porter’s original
sentencing heard almost nothing that would humanize Porter
or allow them to accurately gauge his moral culpability.
They learned about Porter’s turbulent relationship with [the
victim], his crimes, and almost nothing else.” Id. at 41. The
Court emphasized the significance of Porter’s military
service, both because “he served honorably under extreme
hardship and gruesome conditions” and because “the jury
might find mitigating the intense stress and mental and
emotional toll that combat took on Porter.” Id. at 43–44.

    Washington’s case has little in common with Williams,
Wiggins, Rompilla and Porter.              First, Porter is
distinguishable because of the Court’s emphasis on the
unique significance of military service in potentially
mitigating against aggravating factors. See Porter, 558 U.S.
at 43 (“Our Nation has a long tradition of according leniency
to veterans in recognition of their service, especially for
those who fought on the front lines as Porter did.”).
Likewise, Rompilla is distinguishable because there is no
analog here to the “dispositive” failure of trial counsel in
Rompilla to look at the records that prosecution had
indicated would serve as the basis for its case for the death
penalty.

    Second, although the evidence of Washington’s head
injuries suggests a difficult childhood and perhaps provides
a more complete picture of his background than was
presented at trial, that evidence is not nearly as extreme as
the mitigating evidence in the Supreme Court decisions. The
head injuries and the suggested harsh discipline of
Washington’s mother are not comparable to the outright
beatings and criminal neglect of Williams’ parents, the
starvation, neglect, physical abuse, molestation and rape,
40                 WASHINGTON V. RYAN

and gang-rape Wiggins suffered at the hands of his mother
and foster families, Rompilla being locked up with his
brother “in a small wire mesh dog pen that was filthy and
excrement filled,” deprived of clothing, and beaten by his
alcoholic father, or the other harrowing facts in those cases.
See Rhoades v. Henry, 638 F.3d 1027, 1051 (9th Cir. 2011)
(“Even the more complete picture portrayed in the proffer of
Rhoades’s dysfunctional family with its alcoholism, abuse,
aberrant sexual behavior, and criminal conduct does not
depict a life history of Rhoades himself that is nightmarish
as it was for the petitioners in cases such as Rompilla,
Wiggins, and Williams. . . .”).

    Even if we didn’t have the benefit of Judge Bradshaw’s
finding of no prejudice, in considering how Washington’s
sentencing might have gone had his counsel presented the
evidence that the majority concludes was unfairly omitted, I
seriously doubt the sentencing judge would have elected not
to impose the death penalty.

    Although the majority acknowledges Washington’s
heavy burden of showing prejudice, it doesn’t actually hold
him to making such a showing. Nor does the majority even
engage in the necessary reweighing of evidence. Instead, the
majority effectively presumes prejudice, concluding that our
decision in Robinson v. Schriro, 595 F.3d 1086 (9th Cir.
2010), casts such “a long shadow” that the question of
whether Washington can show prejudice has already been
decided. See Maj. Op. at 20–22. The majority perceives
itself within the “shadow” of Robinson because Washington
and Robinson were co-defendants, tried and sentenced
together by the same judge, and the same judge denied their
petitions for post-conviction review. But the sharing of a
procedural history does not make two cases analogous. Only
similarities on the issue in question—here, whether
                   WASHINGTON V. RYAN                       41

counsel’s performance was constitutionally deficient and
whether any deficiency resulted in prejudice—can render
cases analogous. On the issues of attorney competence and
prejudice, the facts of Robinson starkly differ from the facts
here.

    Robinson’s trial counsel “engaged in virtually no
investigation” and “did not call a single witness or introduce
any evidence” at the sentencing hearing. Robinson, 595 F.3d
at 1109. In contrast, here, Clarke investigated potential
mitigation evidence by having “very extensive” discussions
with Washington about his background and by
interviewing—both before trial and after the verdict—
Washington’s mother, brother, and common-law wife.
Clarke also called three witnesses, each of whom offered
testimony supporting a cogent narrative that Washington
was friendly yet gullible, non-violent, and a loving father
(and son) and that he desired to make something of his life.

     In Robinson, the significance we placed on the utter
failure of Robinson’s counsel cannot be overstated. For
starters, we based our finding of prejudice on counsel’s non-
performance because, under Arizona’s death penalty statute
at the time of sentencing, the “failure to present a mitigation
defense all but assured the imposition of a death sentence.”
Robinson, 595 F.3d at 1111 (quoting Summerlin v. Schriro,
427 F.3d 623, 640 (9th Cir. 2005)). We also distinguished
two Supreme Court cases—Bobby v. Van Hook, 558 U.S. 4
(2009) and Wong, 558 U.S. 15—on the basis that Robinson’s
counsel failed to put on any mitigation evidence. Robinson,
595 F.3d at 1111 n.21 (stating that in both Bobby and Wong
“defense counsel presented a significant amount of
mitigating evidence”).

   Because the utter failure of Robinson’s counsel all but
compelled a conclusion of prejudice, the state’s best
42                 WASHINGTON V. RYAN

argument perhaps was that the new evidence should be
disregarded altogether because it lacked a “causal
connection” to the crime. See id. at 1111–12. We rejected
that argument based on Supreme Court precedent holding
that evidence of a defendant’s background and mental
capacity is relevant to mitigation and cannot be ruled
inadmissible simply because the defendant fails to show a
causal connection between the evidence and the crime. Id.
at 1112; see Smith v. Texas, 543 U.S. 37, 45 (2004)
(reaffirming the holdings of Eddings v. Oklahoma, 455 U.S.
104 (1982), and Tennard v. Dretke, 542 U.S. 274 (2004)).

    There is a difference, of course, between the admissibility
of evidence and the weight given to that evidence. Thus,
although a court must allow a defendant to present any
mitigation evidence (think Smith/Eddings/Tennard), “the
failure to establish . . . a causal connection may be considered
in assessing the quality and strength of the mitigation
evidence,” State v. Newell, 132 P.3d 833, 849 (Ariz. 2006).
See McKinney v. Ryan, 813 F.3d 798, 817–18 (9th Cir. 2015)
(en banc) (referring to Newell’s rule as “proper[]”). The
district court here recognized this difference. It “neither
[mis]understood state law to preclude consideration of
relevant proffered mitigation, nor to impose a minimum
threshold before such mitigation could be considered.”
Consistent with that (correct) view of the law, the district
court understood Judge Bradshaw to have “considered the
mitigation [evidence] proffered to show prejudice, but
[Judge Bradshaw] determined that it carried insufficient
weight to alter the sentence.” In my view, the district court
correctly interpreted Judge Bradshaw’s decision and the
majority unfairly assumes that Judge Bradshaw didn’t
follow the law when nothing from his order compels such a
conclusion. Judge Bradshaw stated that the information
revealed from Washington’s psychological evaluation for
                       WASHINGTON V. RYAN                              43

the post-conviction review proceedings would not “have
altered the sentence imposed.” 7 Notably, Washington’s able
and zealous habeas counsel does not even contend Judge
Bradshaw committed an Eddings error as to the
psychological evidence. 8

   Washington has not met his burden of showing prejudice
under Strickland. That is, the omission of the new mitigation

    7
       In discussing Washington’s evidence of substance abuse, Judge
Bradshaw concluded that the asserted drug and alcohol dependence did
not affect Washington’s “ability to conform his actions to the demands
of society.” The quoted language “echoes the causal nexus test of”
Arizona’s (former) statutory mitigating factor for diminished capacity.
See McKinney, 813 F.3d at 810; Ariz. Rev. Stat. § 13-703(G)(1) (2008).
We held in McKinney that the causal nexus test applied in the context of
this mitigating factor “does not violate Eddings.” McKinney, 813 F.3d
at 810. Had Judge Bradshaw said nothing more, it could be inferred that
he failed to consider Washington’s evidence for purposes of non-
statutory mitigation. But Judge Bradshaw didn’t stop there; the very next
sentence in his order shows that he in fact considered the evidence. He
concluded that the evidence of substance abuse, considered alone or
together with other mitigation evidence, would not “have mitigated
against the sentence [Washington] has received.” The conclusion that
the evidence of substance abuse lacked a causal nexus to the crime was
thus appropriate because “a court is free to assign less weight to
mitigating factors that did not influence a defendant’s conduct at the time
of the crime.” Hedlund v. Ryan, 854 F.3d 557, 587 n.23 (9th Cir. 2017).

     8
       Washington’s only assertion of an Eddings error is his claim that
Judge Bradshaw was wrong to conclude that he could not consider the
reversal of James Mathers’ conviction as a mitigating factor. That
contention is part of a claim we unanimously reject in a memorandum
disposition filed concurrently with this opinion. Even if Judge Bradshaw
failed to follow the law, it wouldn’t justify the majority’s de facto
presumption of prejudice. An Eddings error by the post-conviction
review court would mean, at most, that we give little or no weight to the
state court’s conclusion on prejudice. Such an error would not eliminate
the need to assess prejudice under Strickland.
44                 WASHINGTON V. RYAN

evidence did not deprive Washington of “a fair trial,” see
Strickland, 466 U.S. at 687, nor does the omission
undermine my confidence that the trial “produced a just
result,” see id. at 686.

                      *       *       *

    Washington and his two co-defendants were convicted
and sentenced to death for the murder of Sterleen Hill and
the attempted murder of Ralph Hill. Anyone following this
case is aware that one of Washington’s co-defendants had
his conviction overturned and the other had his sentenced
vacated. Under these circumstances, there is a temptation to
bend the governing legal standards to equalize the outcomes
for the three defendants in an effort “to achieve what appears
a just result.” Holland v. Florida, 560 U.S. 631, 673 (2010)
(Scalia, J., dissenting). However enticing the impulse, that
is not our role. Ours is the duty to apply the law to determine
whether Washington has met his high burden of showing a
constitutional violation that deprived him of a fair trial. He
has not.

    Today’s decision is neither just nor faithful to
Strickland’s standard. The majority “succumbs to the very
temptation that Strickland warned against”—cherry-picking
the record “to second-guess counsel’s assistance” through
the “distorting” lens of “hindsight.” Rompilla, 545 U.S.
at 408 (Kennedy, J., dissenting).       The majority also
discredits the sentencing judge’s own conclusion—based on
his front-row seat at trial—that the evidence presented on
post-conviction review would not have made a difference.
Washington received a fair trial. The only injustice here is
our unwarranted interference with Arizona carrying out the
penalty lawfully chosen by the sentencing judge. We cannot
bend the legal standards to “correct” Judge Bradshaw’s
choice against leniency. Although Judge Bradshaw had the
                  WASHINGTON V. RYAN                   45

power to temper justice with mercy, in our role as federal
appellate judges on habeas review, we do not.

   I respectfully dissent.
