               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


TERRY D. BEMORE,                          No. 12-99005
             Petitioner-Appellant,
                                             D.C. No.
                v.                        3:08-cv-00311-
                                            LAB-WVG
KEVIN CHAPPELL, Warden,
            Respondent-Appellee.            OPINION


     Appeal from the United States District Court
       for the Southern District of California
      Larry A. Burns, District Judge, Presiding

               Argued and Submitted
    September 10, 2014—San Francisco, California

                     Filed June 9, 2015

     Before: Stephen Reinhardt, Ronald M. Gould,
        and Marsha S. Berzon, Circuit Judges.

              Opinion by Judge Berzon
2                     BEMORE V. CHAPPELL

                           SUMMARY*


                          Habeas Corpus

    The panel affirmed the district court’s denial of habeas
corpus relief on California state prisoner Terry Bemore’s
claim that his counsel was constitutionally ineffective at the
guilt phase, reversed the district court’s denial of habeas
relief with respect to Bemore’s penalty phase
ineffective-assistance claim, and remanded.

    Regarding Bemore’s argument that counsel fraudulently
misappropriated and diverted court-issued funds supplied to
the defense thereby creating a conflict of interest, the panel
held that without a showing that counsel’s misuse of funds
caused him to investigate less thoroughly than he otherwise
would have, Bemore has not established any constitutional
deprivation under Cuyler v. Sullivan, 446 U.S. 335 (1980).

    The panel held that counsel provided constitutionally
deficient representation at the guilt phase by presenting a
weak alibi defense after failing to investigate either that
defense or a mental health alternative. The panel concluded,
however, that Bemore did not suffer the requisite prejudice to
the guilt verdict as a result, and that the California Supreme
Court’s rejection of this guilt-phase claim was not an
objectively unreasonable application of Strickland v.
Washington, 466 U.S. 674 (1984).




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

    The panel held that counsel provided constitutionally
deficient representation at the penalty phase in that counsel’s
early decision to pursue a risk-fraught “good guy” mitigation
strategy did not satisfy her duty first to unearth potentially
mitigating mental health evidence. The panel held that in
deferring to counsel’s decision not to pursue a mental health
mitigation case despite counsel’s unreasonable investigation,
the California Supreme Court unreasonably applied
Strickland. The panel concluded that Bemore was so
substantially prejudiced by the constitutionally deficient
deprivation of adequate representation at both stages that it
was unreasonable for the state court to have left the death
penalty in place. The panel wrote that mitigation mental
health evidence, combined with a different guilt phase
strategy, might well have influenced the jury’s appraisal of
Bemore’s moral culpability, and that the state court’s contrary
conclusion constituted an unreasonable application of
Strickland.

    With regard to the guilt phase ineffective-assistance
claim, the panel held that the district court did not abuse its
discretion in denying Bemore’s motion for an evidentiary
hearing and discovery. With regard to the penalty-phase
ineffective-assistance claim, the panel wrote that its
conclusion that declarations and other evidence already in the
record support Bemore’s claim obviates any need to remand
for discovery.

    The panel remanded to the district court with instructions
to grant the petition for a writ of habeas corpus with respect
to the penalty phase and to return the case to the state court to
reduce Bemore’s sentence to life without parole, unless the
state elects to pursue a new capital sentencing proceeding
within a reasonable amount of time as determined by the
district court.
4                  BEMORE V. CHAPPELL

    The panel addressed Bemore’s other asserted grounds for
relief in a concurrently filed memorandum disposition.


                         COUNSEL

Robert R. Bryan (argued) and Cheryl J. Cotterill (argued),
Law Offices of Robert R. Bryan, San Francisco, California,
for Petitioner-Appellant.

Holly D. Wilkens (argued), Supervising Deputy Attorney
General; Kamala D. Harris, Attorney General; Julie L.
Garland, Senior Assistant Attorney General; Robin Urbanski,
Deputy Attorney General, San Diego, California, for
Respondent-Appellee.


                         OPINION

BERZON, Circuit Judge:

     Terry Bemore was sentenced to death for the murder of
Kenneth Muck, a employee at Aztec Liquor in San Diego.
His co-defendant, Keith Cosby, was tried by a separate jury
and sentenced to twenty-five years to life for the same crime.
Bemore seeks habeas relief on the grounds that his trial
lawyers were constitutionally ineffective for: presenting a
flawed alibi defense; failing to challenge the torture special
circumstance; presenting no evidence of mental impairments
at the guilt phase or penalty phase; and creating a conflict of
interest by diverting state-paid defense funds for personal
                      BEMORE V. CHAPPELL                             5

use.1 See Strickland v. Washington, 466 U.S. 674 (1984). We
hold that counsel provided constitutionally deficient
representation at the guilt phase, but Bemore did not suffer
the requisite prejudice to the guilt verdict as a result. With
regard to the penalty phase, however, Bemore was both
deprived of the representation guaranteed by the Sixth
Amendment and so substantially prejudiced by the
constitutionally deficient deprivation of adequate
representation at both stages that it was unreasonable for the
state court to have left the death penalty in place.

   We therefore affirm in part, as to the district court’s
denial of the habeas corpus petition challenge to Bemore’s
conviction for murder. We reverse in part, as to the district
court’s denial of the habeas petition with regard to the penalty
phase claim.

                       I. BACKGROUND

                          A. The Crime

    Around 10:00 pm on August 26th, 1985, Kenneth Muck
was ending his shift as a clerk at Aztec Liquor. Before
locking up for the night, Muck was supposed to set a burglar
alarm and transfer cash from the store register to a safe in a
back-room storage area. At some point after 10:15 pm, the
security company that monitored the alarm system called
Aztec’s owner to notify him that the alarm had not yet been
set. The owner sent an employee to check on the store. The




  1
    In addition to his ineffective assistance of counsel claims, Bemore
raises several other grounds for habeas relief. We address them in a
memorandum disposition filed concurrently with this opinion.
6                     BEMORE V. CHAPPELL

employee walked in, saw blood near the storage room, fled,
and immediately called the police.2

    The police found Muck dead on the floor of the storage
room, stabbed thirty-seven times. The safe was gone.
Smeared blood and striation marks on the floor indicated that
the safe had been tipped onto a mop and pushed or dragged
out the door. Officers noted two sets of bloody footprints,
one of which, an expert determined, was made by men’s size
thirteen tennis shoes.

    Two months after the robbery and murder, a local TV
show, Crime Stoppers, ran a segment seeking information
about the Aztec crimes. Patti Hill, girlfriend of Bemore’s
friend Jackie Robertson, contacted Crime Stoppers and
conveyed her suspicion that Bemore and his friend Keith
Cosby were involved. She provided to the police several
money bags and a knife Bemore had left in Hill and
Robertson’s apartment, as well as a mop Bemore had thrown
into a dumpster. The owner of Aztec Liquors identified the
mop and money bags as identical to those stolen from the
store.

    Not long afterwards, Cosby was driving Bemore’s car and
crashed it into someone’s yard. Cosby was taken into
custody, and a detective obtained a warrant to search the car.

    2
       Interviews with area residents confirmed that Muck was killed
sometime around 10:00 pm. A neighbor had visited the store between
9:30 and 9:45 pm to return a plunger he had borrowed and had a casual
conversation with Muck. He found nothing amiss. That neighbor also
reported seeing a car outside the store matching the description of
Bemore’s car, a maroon Buick Electra 225 with several visible missing
parts, including hubcaps and the front license plate. Another neighbor
testified that she and her boyfriend looked out their bedroom window
between 9:45 and 10:00 pm and saw two strangers standing outside a
“medium to large-sized sedan-type” car behind the liquor store.
                     BEMORE V. CHAPPELL                           7

Found in the trunk during the search were two knives and two
pairs of shoes, size twelve or thirteen. Cosby eventually
admitted he was at Aztec Liquors the night of the robbery, but
told police Bemore had committed the murder while he
waited outside.

    Cosby and Bemore were both charged with first degree
murder (Cal. Pen. Code § 187), robbery (Cal. Pen. Code §
211), and burglary (Cal. Pen. Code § 459), along with two
special circumstances: murder in the commission of a
robbery and intentional murder involving torture. The trials
were severed; Cosby went to trial first. He was convicted of
both Aztec crimes and also of another murder-robbery, tried
concurrently. With respect to the Aztec murder, the jury did
not unanimously find true the special circumstances of torture
and murder in the commission of a robbery. Cosby was
sentenced to twenty-five years to life for Muck’s murder.

                     B. Trial - Guilt Phase

    Bemore was then tried separately. The prosecution
centered its case on the testimony of residents of the Bates
Street neighborhood who knew Bemore. Bates Street was
known to be “a marginal neighborhood whose inhabitants
generally knew one another and were involved in the sale and
use of crack cocaine.” People v. Bemore, 22 Cal 4th. 809,
821 (2000). Taken together, the Bates Street residents
testifying at trial placed Bemore on Bates Street the night of
the murder, wearing shoes similar to the size thirteen
sneakers whose footprints were left at the crime scene, and
with fresh scratches on his back.3 Bemore’s friends Troy

   3
     Bemore alleges that the prosecution withheld or allowed to go
uncorrected evidence pertaining to impeachment of many of these
witnesses in violation of Brady v. Maryland, 373 U.S. 83 (1963) and
Napue v. Illinois, 360 U.S. 264 (1959). We conclude, however, in the
8                      BEMORE V. CHAPPELL

Patterson and Jackie Robertson admitted to helping Bemore
and Cosby drill a hole in the stolen safe. Several witnesses
testified that Bemore had made statements to them
implicating himself in Muck’s murder.

     In support of the torture special circumstance allegation,
the prosecution’s expert witnesses testified about the
circumstances and details of the murder. The forensic
pathologist who performed the autopsy, for example,
concluded that Muck was likely restrained for some period of
time during the attack. He opined that at least two knives
were used to cause the thirty-seven wounds and that both
knives recovered from Bemore’s trunk were consistent with
at least some of the wounds. A crime scene reconstructionist
concluded using blood spatter patterns that fifteen to thirty
minutes passed from the initial assault to the last blow.4 At
closing argument, the prosecution suggested that the evidence
indicated that Bemore and Cosby had restrained and tortured
Muck for the purpose of “forc[ing] [him] to open up the
safe.”

   The defense, led by appointed counsel Robert
McKechnie, presented few witnesses, relying primarily on
Bemore’s own testimony. Bemore’s primary defense was a
novel alibi.




memorandum disposition filed concurrently with this opinion that,
applying AEDPA’s stringent standards, it would not have been
unreasonable for the state court to deny those claims because Bemore was
not prejudiced.
    4
   The defense made little effort to challenge the prosecution’s forensic
experts. We find it unnecessary to reach Bemore’s IAC claim on that
matter. See infra note 18.
                   BEMORE V. CHAPPELL                       9

     According to Bemore, he was committing another robbery
at the time of the Aztec crimes. Bemore told the jury that at
approximately 9:00 pm on the evening of Muck’s death, he,
Patterson, and Cosby drove to a K-Mart to case it for a
robbery. While he was inside, Patterson and Cosby took off
in his car. Left with no car and no cash, Bemore walked to a
nearby Wherehouse Records store and robbed one of the
clerks. He then got into a cab and went to buy cocaine,
eventually returning to Bates Street to smoke the cocaine and
to buy more.

    Some (unspecified) time later, Bemore went on, he saw
Cosby and Patterson drive past in his car with a blood-
covered safe in the backseat. He helped his friends carry the
safe to his garage, assisted them in opening it, and convinced
them to give him a share of the money inside. Despite the
earlier testimony of several Bates Street residents that
Bemore had implicated himself in the murder, Bemore firmly
denied knowing anything about it.

    On cross-examination, the alibi broke down. Twice
Bemore referred to Wherehouse Records—the store he
claimed to have robbed—as “Wherehouse Liquor.” He
couldn’t remember which direction he had walked to get from
K-Mart to Wherehouse Records; why he had chosen to rob
Wherehouse Records over all the other stores he had passed
along the way; or whether he had intended to rob the
Wherehouse Records store when he walked into it. He
couldn’t remember whether there had been people in the store
when he pointed the gun at the cashier or whether any of the
employees had said anything to him during or after the
robbery. Nor could he remember several other aspects of the
robbery, including what he said, how he handled the gun, and
10                      BEMORE V. CHAPPELL

how much money he took. He seemed to have forgotten
factual details he had given in his direct testimony.5

    Two witnesses to the Wherehouse Records robbery had
identified Bemore as the robber at a preliminary hearing.6 To
corroborate Bemore’s alibi at trial, counsel called the two as
witnesses. One—the cashier, Yolanda Salvatierra—this time
was not sure whether Bemore was the robber, and said she
had in fact been unsure when she identified Bemore at the
preliminary hearing. Both at trial and at the preliminary
hearing, she described the robber as “muscular” and six-foot-
two or six-foot-three. Bemore was six-foot-six, and he was
thin both at the time the crimes occurred and at trial.

    Carrie Jacobs, the second Wherehouse Records robbery
witness who had identified Bemore at the preliminary
hearing, was unavailable at trial. Her testimony from the
preliminary hearing was read to the jury. Although she had
identified Bemore out of a lineup after the crime, Jacobs
wasn’t sure at the preliminary hearing that Bemore was the
person she had earlier identified; she “couldn’t . . . definitely
say” that he was. Like Salvatierra, she remembered the
robber as muscular and about six-foot-one, and she thought
he was “possibly . . . darker” than Bemore. She reported that
she had gotten only a fleeting glance at the Wherehouse

      5
      In his direct testimony, for example, Bemore said that he had
approached a Wherehouse Records clerk and told her he was going to
retrieve his checkbook from his car; he then left the store briefly, returned,
and robbed the clerk at gunpoint. On cross-examination, the prosecutor
asked him, “You said something about a checkbook earlier?” Bemore
responded “I said something about a checkbook?”
  6
   Bemore was initially charged with fourteen other robberies and three
counts of assault in addition to the Aztec robbery. After a preliminary
hearing, the magistrate held Bemore to answer for only the Aztec crimes
and a few others; the others were later dismissed.
                   BEMORE V. CHAPPELL                      11

Records robber, who otherwise had his back to her the entire
time.

    On rebuttal, the prosecution called a third eyewitness,
Kim Rainer, an employee who was with Salvatierra when the
store was robbed. Immediately following the robbery, Rainer
described the perpetrator as a muscular black man of about
Bemore’s height. At both the preliminary hearing and at trial
Rainer said her initial descriptions were incorrect—perhaps
due to her distress at the time—and that the robber was
actually shorter than Bemore and had lighter skin. She stated
that she could not positively identify Bemore as the robber of
the Wherehouse Records store.

    Also on rebuttal, investigator Richard Cooksey testified,
further calling into question Bemore’s description of the
Wherehouse Records robbery. According to Cooksey, a
parking structure mentioned in Bemore’s testimony did not
exist at the time of the crime, and the distance from K-Mart
to Wherehouse Records was longer than Bemore said it was.
Crucially, Cooksey also testified that when he had driven
from Wherehouse Records to Aztec Liquors, obeying all
traffic laws, the travel time was just over sixteen
minutes—meaning that even if Bemore had committed the
Wherehouse Records robbery at 9:00 pm, he could easily
have arrived at Aztec before Muck’s murder, which occurred
around 10 pm.

    The jury returned a verdict of guilty on all counts. The
jury also found true the special circumstances of murder
during the commission of a robbery and murder involving the
infliction of torture.
12                  BEMORE V. CHAPPELL

                   C. Trial-Penalty Phase

    The trial then proceeded to a penalty phase before the
same jury. The prosecution’s penalty phase case centered on
testimony that Bemore had committed two prior,
unadjudicated offenses.

    Zelda C., who formerly lived on Bates Street, testified
that one night, after she hosted a group of people in her
apartment to smoke cocaine, Bemore raped her. Zelda did
not tell the police about the rape at the time, but two of her
sisters testified that she called them the morning after the
incident and told them about the rape. (The judge admitted
Zelda’s statements to her sisters, over the defense’s objection,
as excited utterances.) Lloyd Howard, who sold drugs to
Bemore and many other Bates Street residents, and who had
invited Bemore to Zelda’s house the night of the rape,
testified that Zelda also told him about the rape the following
morning.

    As to the second prior unadjudicated offense, Kevin
Oliver (“Oliver”) and his wife, Jacqueline Oliver, testified
about an altercation with Bemore in which Bemore pointed
a gun at Oliver and hit him over the head with a wine bottle.
Bemore and Oliver were both taken to the hospital. Oliver
testified that he overheard Bemore, who was being treated
next to him, say aloud that he planned to kill Oliver’s
children.

    McKechnie’s co-counsel, Elizabeth Barranco, led the
penalty phase presentation for the defense. In preparation,
Barranco had hired forensic psychologist Dr. Kenneth
Fineman to evaluate Bemore. Barranco had recently read an
article of Dr. Fineman’s describing his theory regarding “sun
children”—minority children from poor homes who, because
of their talents, become immersed in affluent white society,
                   BEMORE V. CHAPPELL                       13

but then subsequently act out and, due to the psychological
stress of having to live in two different worlds, begin using
drugs. Barranco hoped that Bemore, an African-American
and former star basketball player recruited to play at several
colleges, might fit this diagnosis. Her mitigation strategy was
to present Bemore as “a good guy with a drug problem.”

    Barranco sent Bemore for four days of psychological
testing with Dr. Fineman. When Dr. Fineman’s report came
back, Barranco was surprised and “angry” that the report
made no mention at all of the “sun children” theory. Instead,
Dr. Fineman reported that Bemore suffered from a number of
psychological conditions, including “mild, diffuse organic
brain impairment”; attention-deficit disorder; and poor
impulse control resulting in “a fundamental inability to
control his behavior” when his “needs press upon him.” He
also stated that Bemore “can be quite hostile, explosive and
aggressive[,] . . . [and] seldom takes into account the impact
his actions are likely to have on others.” Based on his
findings, Dr. Fineman named several “diagnostic
considerations,” including “bi-polar affective disorder,”
“intermittent explosive disorder,” and “anti-social personality
disorder.”

    Dr. Fineman approached Barranco and recommended
further testing to complete a mental health diagnosis.
Barranco did not have Dr. Fineman or any other mental
health professional follow up. Instead, convinced that Dr.
Fineman’s report conflicted with her “good guy” defense
strategy, she placed the report “in the back of a file drawer.”
She did not show it to or discuss it with Bemore, and there is
no evidence in the record before us that she showed it to her
co-counsel.

    Rather than further investigating a mental health
mitigation strategy, Barranco went forward with her
14                 BEMORE V. CHAPPELL

previously chosen “good guy” mitigation plan. She called
over 40 witnesses to testify to Bemore’s personal history and
good character. Many of the witnesses knew him through
high-school and college basketball and described him as a
good player and kind person. Some did not believe Bemore
used drugs; others said he became addicted to drugs and
alcohol after his mother died. Several witnesses described
him as a deeply religious person and related that he had at one
time attended ministry school. Bemore’s wife testified that
Bemore had expressed remorse for putting his family through
the ordeal of the trial. And a number of inmates, correctional
officials, and other jail personnel described Bemore as
obedient, religious, and a role model for other inmates.

    On a different topic, Bemore’s childhood family life,
Bemore’s half-brother Kenneth Daugherty testified that he
and Bemore, along with two other half-brothers, were raised
by a drug-abusing caretaker while their mother was ill with
severe rheumatoid arthritis. The caretaker physically abused
the children by hitting them with a cane and with an
extension cord. One of Bemore’s other brothers testified that
as a child, Bemore, the youngest of the four brothers, was
sometimes recruited to act as lookout while his brothers
committed burglaries. Dr. Bucky, a clinical psychologist,
testified that children like Bemore who grow up with
substance-abuse problems in the home are likely to develop
their own chemical dependancies in the future.

    On rebuttal, the prosecution concentrated on Bemore’s
behavior in jail. Several witnesses, painting a different
picture than Barranco had presented, testified that Bemore
used threats and intimidation to obtain drugs, cigarettes, and
other scarce commodities while incarcerated. Some of these
witnesses, and others, maintained that his religiosity was a
pretense, contrived to obtain favorable testimony at trial. A
few said Bemore was physically violent. On surrebuttal, a
                      BEMORE V. CHAPPELL                             15

group of inmates testified that the inmates who had testified
against Bemore regarding his behavior in jail did so to
retaliate against him because he did not tolerate their
disciplinary infractions, but, instead, disposed of their drugs
and intervened in their fights.

    Inmates and officials also described a “food-tampering”
incident they said Bemore had masterminded. Bemore, they
said, intentionally contaminated one evening’s dinners,
expecting that a large group of inmates would be taken to the
hospital and some might be able to escape. The plan
succeeded in sending many inmates to the hospital. None
escaped.

    After considering all the penalty phase evidence, the jury
sentenced Bemore to death.

                     D. Procedural History

    Judge Gill (who had previously presided at Cosby’s trial)
denied Bemore’s motions for a new trial and a modification
of his sentence. The California Supreme Court affirmed the
conviction and sentence. On June 19, 2000, Bemore filed a
habeas petition directly with the California Supreme Court.7
Seven years later, the court summarily denied all claims on
the merits without an evidentiary hearing.

    Bemore then filed a timely writ of habeas corpus in the
district court for the Southern District of California. The
court refused to hold an evidentiary hearing on any of
Bemore’s claims and denied relief on all claims. A final



 7
   Bemore’s current counsel has represented him throughout his state and
federal habeas proceedings.
16                  BEMORE V. CHAPPELL

order and Certificate of Appeal were issued on September 25,
2012.

                      II. DISCUSSION

                   A. Standard of Review

    We review a district court’s denial of a petition for writ of
habeas corpus de novo. Lambert v. Blodgett, 393 F.3d 943,
964 (9th Cir. 2004). Because Bemore’s petition was filed in
the district court after the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) became effective, we may
grant relief only if the last state court merits decision was
“‘(1) was contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the
Supreme Court . . . ; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.’”
Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003)
(quoting 28 U.S.C. § 2254(d)). For relief to be granted, a
state court merits ruling must be “so lacking in justification
that there was an error . . . beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U.S.
86, 103 (2011).

    Here, on direct appeal, the California Supreme Court
issued a reasoned ruling on the narrow claim that counsel was
ineffective for presenting “good inmate” evidence at the
penalty phase. Bemore, 22 Cal. 4th 809, 847–853 (2000). On
habeas, the California Supreme Court summarily denied
Bemore’s broader ineffective assistance of counsel (“IAC”)
claims without analysis or citation to authority. In
determining whether the California Supreme Court’s decision
to deny habeas relief concerning the “good inmate” evidence
IAC claim was reasonable, we apply AEDPA deference to the
state court’s analysis. See Cannedy v. Adams, 706 F.3d 1148,
                       BEMORE V. CHAPPELL                               17

1156–59 (9th Cir. 2013). For claims that the state court did
not expressly address, including penalty-phase IAC claims
not limited to the “good inmate” evidence, we conduct an
independent review of the record to “determine what
arguments or theories . . . could have supported[] the state
court’s decision.” Richter, 562 U.S. at 102. We then “ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding
in a . . . decision of th[e] [Supreme] Court.” Id.

      B. Conflict of Interest: Misuse of Defense Funds

    Bemore argues, first, that lead counsel McKechnie
fraudulently misappropriated and diverted court-issued funds
supplied to the defense, thereby creating a conflict of interest.
See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).8 Relying
on a declaration by Barranco,9 Bemore claims that despite
the $145,851.81 paid to lead investigator Charles Small—a
sum totaling nearly half the defense budget—“little [to] no
work was . . . done” by Small. Assertedly, McKechnie knew

  8
     Bemore’s briefing categorizes this contention as an IAC claim but
analyzes the issue as a conflict of interest claim governed by Cuyler, not
Strickland. If otherwise made out, a Cuyler claim can succeed without
proving that there is a reasonable probability that the alleged conflict
affected the outcome of the trial, as required under Strickland. See
Strickland, 466 U.S. at 694; Cuyler, 446 U.S. at 348. Bemore has,
accordingly, not argued that the alleged conflict-of-interest IAC would
satisfy the Strickland standard for prejudice.
  9
    We refer throughout to Barranco’s declaration dated June 12, 2000.
Barranco has since submitted three other declarations. Those three
declarations were not before the California Supreme Court, so we may not
consider them here. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011). We deny Bemore’s motion for a stay and abeyance to present the
late-submitted declarations to state court, as he has not made the requisite
showing of good cause for not having presented them earlier. See
Gonzales v. Wong, 667 F.3d 965, 980 (9th Cir. 2011).
18                 BEMORE V. CHAPPELL

of Small’s fraudulent billing but continued to pay him for
work not performed because Small knew that McKechnie had
cheated on his wife during a business trip, and McKechnie
was afraid Small would reveal that information if he refused
to pay him. Bemore also suggests that McKechnie
encouraged defense specialists to bill for more hours than
they actually spent on the case, and that he billed for hours
worked by a law clerk who later insisted that he had “never
spent so much as one minute on the case.” That money,
Bemore alleges, paid for McKechnie’s gambling habit and his
“lavish lifestyle; e.g., his new law office and his expensive
home.”

    Troubling as these allegations are, Bemore has not shown
that the asserted financial improprieties support a Cuyler
claim. To make out such a claim, “a defendant who raised no
objection at trial must demonstrate that an actual conflict of
interest adversely affected his lawyer’s performance.”
Cuyler, 446 U.S. at 348.

    Here, it is questionable whether the allegedly padded
bills, without more, could demonstrate an actual conflict of
interest. Although Bemore repeatedly refers to McKechnie’s
conduct as fraudulent, a violation of an ethical duty or
standard of professional conduct does not create a conflict of
interest absent a showing that the violation “actual[ly] . . .
impaired [counsel’s] ability to effectively represent” his
client. United States v. Nickerson, 556 F.3d 1014, 1019 (9th
Cir. 2009). And while a conflict of interest claim “may in
theory lie where an attorney’s financial interests are in
conflict with his client’s interests,” Williams v. Calderon,
52 F.3d 1465, 1473 (9th Cir. 1995) (emphasis added), without
evidence that the available defense funds were run dry,
overcharging the court—even fraudulent overcharging—has
no inherent tendency to dissuade counsel from loyalty to his
                    BEMORE V. CHAPPELL                       19

client where it counts: in the investigation and presentation of
the case.

    Further, even if we were to conclude that McKechnie’s
use of funds did create an actual conflict of interest, Bemore
has not shown that any such conflict affected McKechnie’s
performance. Bemore acknowledges that there was no “lack
of funding” or “insufficient funds” for his defense. Court
disbursement lists show that eight individuals listed as
experts were employed and received defense funds, and that,
in addition to Small, seven investigative firms were paid
small sums to conduct forensic investigation.              The
accusations of fraud may bolster Bemore’s other IAC claims
by negating, for example, any inference that the amount of
time and money spent indicates that McKechnie’s decisions
were carefully considered and researched. But without a
showing that McKechnie’s misuse of funds caused him to
investigate less thoroughly than he otherwise would have,
Bemore has not established any constitutional deprivation.
See Cuyler, 446 U.S. at 348.

                    C. IAC: Guilt Phase

    We turn now to Bemore’s claim that McKechnie offered
ineffective assistance at the guilt phase by (1) presenting an
“unprepared, uncorroborated, and uninvestigated” alibi
defense, and (2) failing to investigate and present evidence of
mental impairment that could have negated Bemore’s
culpability. As we shall develop, the two subissues are
closely related.

    To prevail on a Strickland ineffective assistance of
counsel claim, a defendant must establish that counsel’s
performance was deficient and that he was prejudiced.
Strickland, 466 U.S. at 687–88. Counsel is deficient where
he makes errors so serious as to deny the defendant the
20                 BEMORE V. CHAPPELL

“counsel” guaranteed by the Sixth Amendment—where he
fails to offer “reasonably competent” assistance as measured
by “prevailing professional norms.” Id. Reversal is
warranted only if the defendant can 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.

    A federal court applying AEDPA on habeas review must
ask whether the state court was unreasonable in its
application of Strickland, a question “different from asking
whether defense counsel’s performance fell below
Strickland’s standard.” Richter, 562 U.S. at 101. “The
question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id. at
105.

     1. Investigation and preparation of the alibi and
        alternative defenses

    “[C]ounsel has a duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691.
The duty to investigate is flexible, and not “limitless.”
Hendricks v. Calderon, 70 F.3d 1032, 1039 (9th Cir. 1995)
(quoting United States v. Tucker, 716 F.2d 576, 584 (9th cir.
1983)).      Also, a tactical decision may constitute
constitutionally adequate representation even if, in hindsight,
a different defense might have fared better. See id.; Reynoso
v. Giurbino, 462 F.3d 1099, 1113 (9th Cir. 2006).

    McKechnie’s investigation of defenses, we conclude, was
so deficient as to fail these forgiving standards. Whether
performance was deficient is a fact-specific inquiry; “[n]o
particular set of detailed rules for counsel’s conduct can
satisfactorily take account of the variety of circumstances
                       BEMORE V. CHAPPELL                              21

faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant.”
Strickland, 466 U.S. at 688–89. Prevailing professional
norms do, however, provide insight into what it means to
provide reasonably competent assistance. See Bobby v. Van
Hook, 558 U.S. 4,7 (2009).

     Bemore was charged in 1985 and tried in 1989. During
that period, “the prevailing professional norms, as outlined by
the ABA Standards, required that a lawyer ‘conduct a prompt
investigation of the circumstances of the case and explore all
avenues leading to facts relevant to the merits of the case
. . . .’” Doe v. Ayers, 782 F.3d 425, 434 (9th Cir. 2015)
(quoting Van Hook, 588 U.S. at 7, 11) (internal alterations
omitted).

     McKechnie’s investigation and preparation of the alibi
defense did not meet this standard. The extent of
McKechnie’s investigation was, apparently, reviewing police
reports of the Wherehouse Records robbery and cross-
examining at the preliminary hearing three eyewitnesses to
that crime.10 McKechnie did not take steps to investigate the
plausibility of the alibi by researching the timeline and
geography to which Bemore planned to testify. He did not
interview the eyewitnesses at all after the preliminary
hearing, even though the trial was three years later. And the
first and only time McKechnie met with Bemore to prepare
the alibi testimony was the night before Bemore was to take
the stand. Yet, Bemore’s alibi was the entire defense.



 10
    As indicated earlier, financial records show checks for “investigation”
services made out to several payees, but the record does not indicate, and
the state has not attempted to explain, what, if any, work was done. Any
inference that productive work must have been completed is diminished
by the allegations of fraudulent billing.
22                     BEMORE V. CHAPPELL

Because he expended such minimal effort, McKechnie did
not learn of several critical flaws in the alibi presented.

    First, especially given the alibi’s central importance,
McKechnie’s decision minimally to prepare Bemore, the
primary alibi witness, was professionally unacceptable. See
Alcala v. Woodford, 334 F.3d 862, 890 (9th Cir. 2003)
(holding that failure to prepare a witness to testify “could
[not] possibly ‘be considered sound trial strategy’” (quoting
Strickland, 466 U.S. at 689)). Bemore was so unprepared that
he could not supply basic facts about the crime, forgot his
own direct testimony on cross, and testified to details easily
disproved by investigator Cooksey’s rebuttal testimony.11
The discrepancies in Bemore’s testimony were so obvious
that, in his closing argument, the prosecutor presented a chart
comparing Bemore’s testimony on direct and cross-
examination, telling the jury, “two people testified for the
defense in this case. They were both named Terry Bemore.”

    Second, investigation into the geographical layout of
Wherehouse Records and its surroundings would have
revealed that the account Bemore provided on the stand
rested in part on geographical features that were not there
when the crime was committed.

    Third, and critically, a rudimentary investigation also
would have demonstrated that it was possible for the same
perpetrator to have committed both the Wherehouse robbery
at 9:00 pm and the Aztec robbery and murder at 10:00 pm.
Indeed, as McKechnie was aware from the preliminary
hearing, the state initially charged, and the preliminary

 11
    McKechnie not only failed to prepare Bemore to testify, according to
Barranco, but also rattled Bemore just before he took the stand by leaning
over and whispering, “‘Just don’t act like a nigger’ or words to that
effect.”
                   BEMORE V. CHAPPELL                       23

hearing magistrate judge found probable cause for, both
crimes. In other words, the inherently risky “I was
committing a different robbery” alibi was not really an alibi,
as Bemore could have both committed that robbery and
committed the murder. Bemore did testify to his whereabouts
after the Wherehouse robbery, but that account was entirely
uncorroborated, lacking in detail, and self-contradictory.

     Finally, McKechnie’s decision not to interview before
trial the key eyewitnesses likewise contributed to the large
gap in defense counsel’s pretrial information regarding the
viability of the alibi. Such interviews could have revealed
that one witness McKechnie planned to present to corroborate
the alibi would recant. In light of Jacobs’s unavailability at
trial, Salvatierra’s changed testimony meant that there was
not a single witness testifying live before the jury who placed
Bemore at Wherehouse Records. And Jacobs’s testimony,
read to the jury by Barranco, was wavering, as she stated that
she did not remember whether Bemore was the person she
identified in a lineup after the Wherehouse Records crime;
Jacobs thought the robber “might have been darker” than
Bemore; and she indicated that, although Bemore’s face
looked like what she remembered of the robber’s, she saw the
robber’s face only “for an instant.”

    Counsel’s duty to investigate and to prepare his client’s
defense becomes “especially pressing where . . . the witnesses
and their credibility . . . are crucial.” Reynoso, 462 F.3d at
1113. That is the case with regard to a lawyer’s decision
whether to discourage his client from presenting an
uncorroborated, implausible alibi theory, see Johnson v.
Baldwin, 114 F.3d 835, 840 (9th Cir. 1997), particularly in a
capital case, where a penalty phase will follow. In that
circumstance, it may well be preferable for the defendant not
to take the stand where his alibi is weak, “thereby depriving
the jury of [an] adverse credibility determination” that could
24                   BEMORE V. CHAPPELL

greatly undermine the jury’s sympathy for him at the penalty
phase. Id.; see Florida v. Nixon, 543 U.S. 175, 181 (2004).

     The state maintains that these precepts are not pertinent
here, as it was Bemore’s idea to present the alibi.12 But even
if the alibi was suggested by Bemore, counsel cannot neglect
to investigate both the possible alibi and alternative defenses.
“Although a defendant’s proclamation of innocence . . . may
affect the advice counsel gives,” it “does not relieve counsel
of his normal responsibilities under Strickland.” Burt v.
Tallow, 134 S.Ct. 10, 17 (2013).

    We are not suggesting that, had McKechnie made an
informed decision to present an imperfect, but well-prepared
alibi, rather than a weak alternative defense (or no defense),
that would necessarily have been deficient performance. See
Strickland, 466 U.S. at 689. But, as we develop later, in a
capital case, the choice of guilt phase defense involves
strategic decisions as to both the guilt and penalty phases.
“[C]ounsel can hardly be said to have made a strategic choice
when s/he has not yet obtained the facts on which such a
decision could be made.” Reynoso, 462 F.3d at 1113
(quoting Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir.
1994)) (alteration omitted). “This is not a case where counsel
‘could not have predicted just how damaging placing [the
defendant] on the stand would be.’” Hernandez v. Martel,
824 F. Supp. 2d 1025, 1091 (C.D. Cal. 2011) (quoting Allen
v. Woodford, 395 F.3d 979, 1000 (9th Cir. 2005)) (alterations
in original). With adequate investigation, McKechnie could
have made an appropriate strategic choice and then
competently advised Bemore as to whether to take the stand,


  12
   Bemore, by contrast, contends that McKechnie contrived that plan.
We need not address that disagreement. As we explain, regardless of
whose idea the alibi was, McKechnie was obliged to investigate it.
                       BEMORE V. CHAPPELL                            25

given the available alternatives. McKechnie, however, failed
to conduct a reasonable investigation, nor did he make a
reasonable decision rendering investigation unnecessary. See
Strickland, 466 U.S. at 691. Instead, McKechnie essentially
abdicated his role as a lawyer in developing the principal
defense. His failure adequately to investigate before putting
on an alibi that was not really an alibi was constitutionally
inadequate even under our “doubly deferential” review.
Richter, 562 U.S. at 104.

    Moreover, and notably, a potentially “viable alternative
defense”—a mental health defense—was quite possibly
available, yet McKechnie did not investigate that defense,
either. Phillips v. Woodford, 267 F.3d 966, 976 (9th Cir.
2001). The “deference owed [to] strategic judgments” to
pursue one trial strategy and not an alternative is “defined . . .
in terms of the adequacy of the investigations supporting
those judgments.” Wiggins v. Smith, 539 U.S. 510, 521
(2003). Medical expert reports and statements by Bemore’s
family and friends, all known or readily available to
McKechnie at the time, evinced a possibility that Bemore was
so mentally impaired as to be unable to form the requisite
intent to commit the crimes. Dr. Fineman, hired by co-
counsel Barranco to conduct an investigation for the penalty
phase, issued an eighteen-page report a year before the trial
began indicating that Bemore suffered from, among other
mental defects, organic brain impairment and a “fundamental
inability to control his behavior.” There was a possibility that
Bemore had some form of mental illness, including bipolar
disorder.13 According to Dr. Fred Rosenthal, a psychiatrist

  13
    There is no indication in the record before us that McKechnie was
aware of the report. McKechnie led the guilt phase of the trial, and
Barranco the penalty phase, with minimal overlap in their duties.
Barranco stated that she placed the report “in the back of a file drawer”
upon reading it.
26                     BEMORE V. CHAPPELL

hired by habeas counsel, bipolar disorder causes manic
phases in which the individual “will become . . . impulsive,
have lapses in judgment, and can even become psychotic.”
Intermittent explosive disorder, another of the possibilities
Dr. Fineman mentioned, causes episodes that “often resemble
epileptic seizures” in which “the individual [may] engage in
sudden violence and then have no memory of his actions
when the episode ends.”

    Dr. Fineman’s declaration states that he “informed trial
counsel of the test results and advised that a guilt-phase
defense of diminished capacity was possible in this case, but
recommended that further development was necessary.”14 No
follow-up was ever conducted.


     McKechnie’s unawareness of the report—if he was so unaware—does
not absolve him of his investigative duties or undermine the IAC claim
with regard to the defense team as a whole. In Wiggins, the Court held
that an investigation into a defendant’s background was deficient where
counsel failed to uncover details about the defendant’s social history that
were easily obtainable in “state social services, medical, and school
records.” 539 U.S. at 516. Here, with minimal coordination between
counsel, McKechnie should have been aware that Dr. Fineman had been
engaged and that a report was in existence, and he should have read the
report.
 14
    California’s diminished capacity defense had been abolished several
years before Muck’s murder. See Cal Penal Code § 25 (1982). Dr.
Fineman’s suggestion of a diminished capacity defense was therefore in
error. But, although a criminal defendant on trial in California in 1989
could not use evidence of his mental health issues to demonstrate that he
“could not” entertain the requisite mental state to commit the crime, and
could not present evidence of insanity at the guilt phase, he nevertheless
could introduce mental health evidence not rising to the level of insanity
to demonstrate that “he did or did not” in fact possess the requisite mens
rea. People v. Elmore, 59 Cal. 4th 121, 142–44 (2014) (quoting People
v. Wells, 33 Cal. 2d 330, 350 (1949), superseded by statute as stated in
People v. Saille, 54 Cal. 3d 1103 (1991)); see also Saille, 54 Cal. 3d at
1116–17.
                       BEMORE V. CHAPPELL                            27

    McKechnie was also on notice that a number of Bemore’s
family, friends, and acquaintances had described Bemore as
having an erratic and “crazy” temperament. Transcripts of
pre-trial interviews with several government witnesses
reported that Cosby had described Bemore’s behavior during
and after the killing as “crazy,” “frenz[ied]” and “berserk.”
Another witness warned that Bemore was generally a calm,
quiet person, but that he occasionally went into violent fits,
“like a raging bull.”

     Finally, there were strong indications that Bemore’s daily
functioning may have been impaired. Bemore’s brother
testified at the penalty phase that Bemore was beaten with an
extension cord and a cane in his childhood. McKechnie may
also have been aware that Bemore suffered from periodic
seizure-like episodes.15 Moreover, Bemore “freely admitt[ed]
to at least a 10 year history of drug usage including PCP,
heroin, marijuana and cocaine.” Dr. Isabel Wright, a social
anthropologist hired for the penalty phase, explained in a
letter to the judge that Bemore’s cocaine addiction left him
“no longer able to control his behavior.” Taken together,
these facts—or their availability on a proper investigation—
would have alerted McKechnie to the possibility of serious
mental-state issues that, properly investigated, might have
given rise to an alternative to the alibi defense.

 15
    Bemore alleged in his state habeas petition that Cosby knew, and was
willing to testify, that the drugs Bemore consumed made him “crazy,” and
that Bemore “[s]ome times [sic] for no apparent reason . . . would start
drooling like he had cerebral palsy.” Cosby’s declaration so stating,
submitted in federal habeas proceedings, was not presented to the state
court. However, Dr. Fineman’s declaration, which was before the state
court, quotes from an “affidavit[]” of Cosby’s including the same
language about “cerebral palsy” as quoted in Bemore’s state habeas
petition and as appears in Cosby’s the later-submitted declaration. The
record is not clear whether Cosby made these statements before the trial,
and, if so, whether McKechnie was aware of them.
28                  BEMORE V. CHAPPELL

    The state contends that, once McKechnie settled on the
alibi defense, he had no duty to pursue a “directly
conflicting” mental health defense. See Bean v. Calderon,
163 F.3d 1073, 1082 (1998); Turk v. White, 116 F.3d 1264,
1266–68 (9th Cir. 1997). That contention puts the cart before
the horse. Even if presenting mental health evidence would
have conflicted with or diluted an alibi defense in this
instance, that fact does not absolve counsel of a duty to
investigate a mental health—or alibi—defense. That way, he
could decide in an informed manner which defense was
preferable, an especially critical decision where the
weaknesses of an alibi should have been known.

    The cases the state relies on do not undermine our
determination. In Turk, for example, counsel adequately
investigated the self-defense strategy he ultimately chose,
discovered significant evidence supporting that theory, and
then made an informed decision not to pursue an insanity
defense that would have conflicted with the requirement that
a person who acts in self-defense act “as a reasonable
person.” 116 F.3d at 1266. In Bean, counsel’s decision to
reject a diminished capacity defense in favor of a properly
investigated alibi defense was reasonable in large part
because the defendant “refus[ed] to adopt the diminished
capacity defense.” 163 F.3d at 1082. See also Phillips,
267 F.3d at 979–80 (explaining that Turk and Bean were not
determinative of the IAC issue that case). These cases do not
disturb the principle that counsel may not “settle[] early on an
alibi defense,” without investigating potential mental health
defenses: “strategic decisions . . . [must] be reasonable and
informed.” Jennings, 290 F.3d at 1014 (citing Strickland,
466 U.S. at 691).

   Nor are we convinced by the state’s arguments that
counsel was absolved from his duty to investigate Bemore’s
mental health because other evidence was inconsistent with
                   BEMORE V. CHAPPELL                      29

a guilt phase mental health defense. The state notes, first,
that Dr. Fineman’s report mentioned possible unfavorable
diagnoses, including anti-social personality disorder, in
addition to bipolar disorder and other impairments. Relying
on Hendricks v. Calderon, which held that “even where there
is a strong basis for a mental defense, an attorney may forego
that defense where the attorney’s experts would be subject to
cross-examination based on equally persuasive psychiatric
opinions that reach a different conclusion,” 70 F.3d at 1038,
the state argues that where counsel has obtained an
unfavorable expert report, he has no duty to “shop” for
differing opinions. See Murtishaw v. Woodford, 255 F.3d
926, 947 (9th Cir. 2001).

     The state also emphasizes that evidence was adduced at
trial suggesting that Muck’s murder was premeditated,
deliberate and intentional, and maintains that defense counsel
therefore reasonably declined to investigate a mental health
defense. For example, forensic experts testified that he
suffered a number of non-lethal stab wounds—a result, the
state argued, of Bemore’s “unsuccessful effort to torture him
into opening the safe.” And a number of witnesses testified
that Bemore told them he would not have stabbed the clerk so
many times had he opened the safe rather than fighting back.
Because such evidence was inconsistent with a defense that
Bemore did not possess the requisite mens rea for the crime,
the state argues, abandoning any investigation of a mental
health defense for the guilt phase was reasonable.

    The state’s arguments are misguided. First, Dr. Fineman
indicated that “further development was necessary” before
firm conclusions could be reached. McKechnie could not
have determined whether the potentially favorable expert
testimony would be undermined by the partially adverse
preliminary findings without the benefit of an actual
diagnosis. The principle that counsel need not doggedly seek
30                     BEMORE V. CHAPPELL

out a favorable expert report in the face of a conclusively
unfavorable one does not negate counsel’s duty to follow up
on a concededly preliminary report that both contained some
potentially promising information and recommended further
inquiry.

     Further, that there was likely to be evidence introduced at
trial consistent with premeditation, deliberation, and intent,
while critical to the prejudice inquiry—as we later
explain—did not absolve McKechnie of the duty to conduct
an adequate mental health investigation. Notably, the alibi
defense necessarily depended on convincing the jury to
discredit witness reports of Bemore’s incriminating
statements. So a mental health defense would have been no
worse in that regard than an alibi defense. And a follow-up
mental health evaluation might have resulted in a diagnosis
consistent with what happened during the murder.16 Without
uncovering the weaknesses of the alibi defense or
investigating the contours of a potential mental health
defense, McKechnie was not in a position to determine which
defense was the more promising strategy.

    Finally, many of the potential diagnoses the state cites as
inconsistent with a mental health guilt phase defense would
likely have been of benefit at the penalty phase. Porter v.
McCollum, for example, held that an neuropsychologist’s


 16
    That Muck was stabbed repeatedly and over an extended period does
not, as the prosecution argued, mean that the crime must have been carried
out in a planned, deliberate manner. Moreover, had McKechnie made an
informed decision and then pursued a mental defense, the forensic
evidence that the stabbing occurred in this manner could have been
disputed. Although we find it unnecessary to reach Bemore’s IAC claim
regarding the failure to challenge the torture special circumstance, see
infra note 19, we note that McKechnie made no effort to dispute the
forensic evidence regarding the manner of the stabbing.
                       BEMORE V. CHAPPELL                               31

report that the petitioner “suffered from brain damage that
could manifest in impulsive, violent behavior” established
mitigating evidence that the petitioner was “impaired in his
ability to conform his conduct to the law and suffered from an
extreme mental or emotional disturbance.” 558 U.S. 30, 36
(2009).

    Had he conducted an appropriate investigation,
McKechnie might have determined that a mental health
defense, even if a longshot at the guilt phase, was the superior
choice in view of the impending penalty phase. In capital
cases, “counsel must consider in conjunction both the guilt
and penalty phases in determining how best to proceed.”
Nixon, 543 U.S. at 192. Where the evidence of guilt is
substantial, “avoiding execution may be the best and only
realistic result possible.” Id. at 191 (quotation marks and
alterations omitted) (quoting ABA Guidelines for the
Appointment and Performance of Defense Counsel in Death
Penalty Cases § 10.9.1, Commentary (rev.ed. 2003), reprinted
in 31 Hofstra L.Rev. 913, 1040 (2003)).                In such
circumstances, counsel “may reasonably decide to focus on
the trial’s penalty phase, . . . [and] must strive at the guilt
phase to avoid a counterproductive course.” Id.

     Presenting a weak alibi defense at the guilt phase, and
thereby risking losing credibility in advocating for a client’s
life at the penalty phase, is often a questionable strategy, as
the Supreme Court has acknowledged. See id. at 192; United
States v. Cronic, 466 U.S. 648, 656 n.19 (1984).17 As noted


  17
     Empirical data shows that “complete innocence” guilt phase defenses
are often risky, sometimes contributing to the imposition of the death
penalty, and also that, even if a defendant does not express remorse for his
crime, jurors react favorably to strategies that reflect an acknowledgment
of responsibility. Scott E. Sundby, The Capital Jury and Absolution: The
Intersection of Trial Strategy, Remorse, and the Death Penalty, 83 Cornell
32                    BEMORE V. CHAPPELL

in Yarborough v. Gentry, if defense lawyers “make certain
concessions showing that [they] are earnestly in search of the
truth, then [their] comments on matters that are in dispute will
be received without the usual apprehension surrounding the
remarks of an advocate.” 540 U.S.1, 9–10, (quoting Jacob A.
Stein, Closing Argument § 204, at 10 (1992)). Given the
hazards of a weak innocence defense, counsel’s failure even
to investigate Bemore’s potential mental health issues is a
strong indication of deficient performance.

    Any single omission in McKechnie’s investigation and
preparation may not, on its own, have rendered his
performance “below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. But taken
together, and in light of the consideration that Bemore’s
defense was entirely dependent on the weak, uninvestigated
alibi, we conclude that “there is [no] reasonable argument that
counsel satisfied Strickland’s deferential standard,” Richter,
562 U.S. at 105, by presenting that defense after failing to
investigate either it or a mental health alternative.

     2. Prejudice at the guilt phase

   We nevertheless affirm the district court’s denial of
Bemore’s guilt-phase IAC claim. Reasonable jurists, we
conclude, could disagree whether, as the trial actually went,
Bemore has illustrated “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694; see
Richter, 562 U.S. at 103.

    In a case in which counsel’s error was a failure adequately
to investigate, demonstrating Strickland prejudice requires


L. Rev. 1557, 1589 (1998) (cited in Nixon, 543 U.S. at 192).
                    BEMORE V. CHAPPELL                       33

showing both a reasonable probability that counsel would
have made a different decision had he investigated, and a
reasonable probability that the different decision would have
altered the outcome. See Wiggins, 539 U.S. at 535–36. On
the record before us, fairminded jurists could conclude either
that (1) had McKechnie conducted an adequate investigation
into the alibi and available alternative defenses, he would
likely have presented the alibi defense anyway, or that (2)
although a reasonably competent attorney would have chosen
to pursue a mental health defense instead of the alibi, the
mental health defense was not reasonably likely to succeed.

    To prevail on a mental health defense, Bemore would
have had to prove either that “because of his mental illness or
voluntary intoxication, he did not in fact form the intent
unlawfully to kill,” Saille, 54 Cal. 3d. at 1117 (emphasis
omitted), or that he was not guilty by reason of insanity—i.e.,
that he “was incapable of knowing or understanding the
nature and quality of his or her act and of distinguishing right
from wrong at the commission of the offense,” Cal. Pen.
Code § 25. See Elmore, 59 Cal. 4th at 142–44. Bemore did
present some evidence to the state habeas court tending to
show that these standards might have been met. But given
the evidence suggesting Muck’s murder was deliberate and
premeditated, the record does not provide sufficient evidence
to demonstrate that any reasonable jurist would have
concluded that a guilt-phase mental health defense was
reasonably likely to have been successful in avoiding a guilty
verdict.

     Perhaps most notably, no expert testimony was presented
on habeas indicating that, had follow-up mental health
investigation occurred, counsel could have presented
evidence sufficient to establish a mental health defense to
first-degree murder. Dr. Fineman did not conduct a follow-
up evaluation of Bemore for the habeas petition, despite his
34                  BEMORE V. CHAPPELL

insistence that a follow-up evaluation was necessary to make
any firm diagnosis of Bemore’s mental state. And he did not
attest on habeas that Bemore’s mental state at the time of the
offense was consistent with any guilt phase defense to the
crime. Rather, Dr. Fineman averred only that the facts “gave
rise to the guilt-phase defense of whether he was able to form
the requisite intent,” and that “it is questionable as to whether
he was capable of knowing or understanding the nature and
quality of his act and of distinguishing right from wrong.”
(Emphases added).

    Dr. Rosenthal’s state habeas declaration is more definite.
Dr. Rosenthal met with Bemore after trial, and, having
reviewed Dr. Fineman’s preliminary report and other
materials, declared that Bemore “was not able at the time of
the homicide to form the requisite specific intent,
premeditate, deliberate, or harbor malice . . . because of his
extreme mental disorders and intoxication.” But any
testimony negating Bemore’s sanity or intent to kill or to
premeditate at the time of the crime would have been
countered by the substantial evidence that the crime involved
deliberate, premeditated decisions. Witnesses testified that
Bemore told them he stabbed Muck because he did not open
the safe upon demand.

    Thus, even had the defense presented a mental health
defense, the jury could well have concluded from the
evidence that the killing was done in a calculated manner by
a perpetrator able to understand and intend the consequences
of his actions. Bemore may well have garnered more
sympathy with the jury had he presented a mental health
defense—or no defense—in lieu of an incongruous alibi
                       BEMORE V. CHAPPELL                             35

defense.18 But the prejudice resulting from Bemore’s
appearance on the stand is not a basis on which we may grant
relief at the guilt phase (although, we later conclude, it is
quite pertinent to our penalty phase analysis). See Cargle v.
Mullin, 317 F.3d 1196, 1208 (10th Cir. 2003); Sanders v.
Ryder, 342 F.3d 991, 1001 (9th Cir. 2003).

    In sum, Bemore has not shown a reasonable likelihood
that the result at the guilt phase would have been different but
for counsel’s errors. The California Supreme Court’s
rejection of this claim was therefore not an objectively
unreasonable application of Strickland.19



  18
     Even a better investigated and prepared alibi would not have likely
have been successful. Numerous state witnesses testified to conversations
with Bemore in which he had admitted involvement in the Aztec murder
and robbery. Bemore, 22 Cal. 4th at 820–25. Bemore did not contest that
his car was at the scene of the crime and that he was involved in opening
and disposing of the stolen safe. And knives linked to Bemore were
consistent with those used to kill Muck. Bemore, 22 Cal. 4th at 819–20.
 19
    We need not address Bemore’s additional argument that McKechnie
rendered constitutionally ineffective assistance at the special
circumstances phase by neglecting to challenge the prosecution’s theory
that Muck was tortured. Even if McKechnie had persuaded the jury not
to vote for the torture special circumstance, Bemore would still have been
death-eligible based on the robbery special circumstance. True, any
ineffectiveness at the special circumstances phase may have prejudiced
Bemore at the penalty phase—facts established regarding the length of
time and degree of pain Muck suffered may have made it more likely that
the jury would vote for the death penalty rather than life in prison. But
because we ultimately reverse as to the penalty phase, based both on
counsel’s ineffective representation in investigating mitigating
circumstances and also on prejudicial spillover from the guilt phase IAC,
it does not matter to our ultimate judgment whether Bemore was
additionally prejudiced by counsel’s performance at the special
circumstances phase. See United States v. Preston, 751 F.3d 1008, 1029
n.29 (9th Cir. 2014).
36                  BEMORE V. CHAPPELL

                   D. IAC - Penalty Phase

    The representation Bemore received at the penalty phase
by counsel Barranco, like the representation by McKechnie
at the guilt phase, was “outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at
690. Further, assuming, as we must, that the California
Supreme Court concluded otherwise, its conclusion was an
“objectively unreasonable” application of the Supreme
Court’s holding in Strickland. Wiggins, 539 U.S. at 520–21
(quoting Williams, 529 U.S. at 409). Finally, as to the penalty
phase, we are persuaded that “counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable,” Strickland, 466 U.S. at 687, and that “there
is no possibility fairminded jurists could disagree.” Richter,
562 U.S. at 786. We therefore reverse the denial of habeas
relief with regard to imposition of the death penalty.

     1. Investigation of mitigating evidence

     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. See Doe, 782 F.3d at 435;
Frierson v. Woodford, 463 F.3d 982, 989 (9th Cir. 2006). At
the guilt phase, a defendant’s mental state is directly relevant
for limited purposes—principally, as we have discussed, legal
insanity or actual failure to form the requisite intent at the
time of the offense. See supra note 14. By contrast,
“[b]ecause a sentencing jury is given ‘broad latitude to
consider amorphous human factors, in effect, to weigh the
worth of one’s life against his culpability,’ the presentation of
relevant mitigation evidence is of vital importance to the
jury’s penalty determination.” Frierson, 463 F.3d at 993
(quoting Hendricks, 70 F.3d at 1044).
                   BEMORE V. CHAPPELL                      37

    Consequently, “‘[i]t is imperative that all relevant
mitigating information be unearthed for consideration at the
capital sentencing phase.’” Wharton v. Chappell, 765 F.3d
953, 970 (9th Cir. 2014) (quoting Caro v. Calderon, 165 F.3d
1223, 1227 (9th Cir. 1999)). “To that end, trial counsel must
inquire into a defendant’s social background, family abuse,
mental impairment, physical health history, and substance
abuse history; obtain and examine mental and physical health
records, school records, and criminal records; consult with
appropriate medical experts; and pursue relevant leads.” Id.
(quoting Hamilton v. Ayers, 583 F.3d 1100, 1113 (9th Cir.
2009)). Where counsel is aware of potentially mitigating
evidence, he or she must investigate that evidence, absent a
reasonable strategic reason not to do so. Hendricks, 70 F.3d
at 1039.

    Barranco’s penalty-phase investigation failed to meet
these standards. Like McKechnie, Barranco was on notice,
through preliminary hearing testimony, transcripts of the
state’s interviews with Bates Street residents, and her own
conversations with Bemore’s friends and family, that Bemore
had periodic manic-like episodes; was a heavy drug user; and
was severely beaten as a child in a manner and to a degree
that brain damage could have resulted. Barranco was also
aware, through Dr. Fineman’s preliminary diagnoses, that
Bemore may have been bipolar or suffered other mental
disorders. And, notably, while many of Dr. Fineman’s
diagnoses were preliminary, he conclusively found that
Bemore suffered “mild, diffuse organic impairment,” and
exhibited impaired reasoning skills, judgment, and ability “to
control his impulsivity.”

    Despite these indications, Barranco purposely truncated
the inquiry into Bemore’s mental health. She hired Dr.
Fineman specifically for the purpose of developing the “sun
child” theory that would have explained Bemore’s drug use
38                 BEMORE V. CHAPPELL

as the product of cultural pressures, not to develop evidence
of mental impairment. When Dr. Fineman reported that
Bemore did suffer a number of mental impairments and
possible disorders, and recommended further inquiry, she
terminated his involvement and put his report in the back of
a drawer. And Dr. Bucky, who testified only about the
impact on Bemore of growing up in a family with chemical
dependency, was “neither asked . . . to conduct any
psychological testing of Mr. Bemore nor requested . . . [to]
give an opinion as to his mental state at the time of the
homicide.” The net result was that there was, except for Dr.
Fineman’s fairly vague “organic impairment” assessment,
and despite Dr. Fineman’s indications of possible, serious
mental health issues, no definitive conclusion concerning
either Bemore’s mental state at the time of the crime or his
overall mental health diagnosis.

     None of the state’s arguments in defense of Barranco’s
ill-considered decision to brush aside any mental health
mitigation inquiry are convincing. The state points to the
“over forty witnesses” who did testify for the defense at the
penalty phase. Many of these witnesses knew Bemore only
slightly, as one-time basketball teammates or co-workers.
One witness was an orthopedic surgeon who testified about
a foot injury Bemore had suffered. The vast majority spoke
only about their perception that Bemore had good character.
But “the ABA Standards prevailing at the time called for
[Bemore]’s counsel to cover several broad categories of
mitigating evidence,” not just one. Van Hook, 558 U.S. at 11.
And a good character defense was unlikely to be persuasive
to a jury that had just decided that Bemore had carried out a
grizzly murder, including torturing the victim, and had lied on
the stand to boot.

   Some of the defense penalty phase witnesses did mention
Bemore’s drug problems and tumultuous upbringing. Even
                    BEMORE V. CHAPPELL                        39

so, it is not enough just to present “extensive mitigating
evidence” where particularly persuasive evidence—especially
evidence in the form of expert testimony—was omitted.
Caro, 165 F.3d at 1227.

    Caro held, for instance, that a petitioner was entitled to an
evidentiary hearing on an IAC claim because his lawyer had
not engaged toxicologists or neurologists to evaluate the
impact of the petitioner’s extensive chemical exposure, nor
provided “those experts who did examine [him] with the
information necessary to make an accurate evaluation.” Id.
at 1227; see also id. at 1226–27. We so held even though the
jury was presented with evidence that the petitioner was
beaten as a child and exposed to chemicals. Id. at 1230
(Kleinfeld, J., dissenting). As Caro made clear, it is not
enough that some of the defense witnesses informed the jury
of the facts that might underlie a mental health mitigation
defense; “expert testimony to explain the ramifications of
those experiences on [petitioner’s] behavior . . . is necessary.”
Id. at 1227 (maj. op.).

    The state also maintains that it would have been apparent
from the outset that a mental health defense would have
conflicted with Barranco’s strategy of presenting Bemore as
“a good guy with a drug problem, garnering whatever benefit
[she] could from the notion of lingering doubt.” Had Dr.
Fineman testified, the state argues, the state would have
cross-examined him about some of the adverse elements of
his initial report—namely, that Bemore, in addition to
possibly suffering from bipolar disorder and organic
impairment, was “subtly controlling,” “self-indulgent,”
unable to “empathize with others,” and possibly a sociopath.
These findings would have cast doubt on Bemore’s character,
the state suggests, and so Barranco could have made a
strategic decision not to pursue a theory that would allow
those findings to come out.
40                     BEMORE V. CHAPPELL

    This reasoning is unpersuasive, for several reasons. First,
Barranco’s investigation into her chosen “good guy”
mitigation strategy itself contained a serious omission,
making her decision to pursue that approach in lieu of
presenting mental health evidence uninformed in that
respect.20 As part of her “good guy” strategy, Barranco
attempted to present Bemore as a good inmate, which opened
the door to damaging rebuttal testimony about Bemore’s bad
behavior in jail, including several instances of assault and,
most particularly, his role in the alleged food-tampering
incident that sent a number of prisoners to the hospital in the
hope of fostering escape. Barranco expected that evidence of
the food tampering incident would not be admitted, as she
thought—erroneously—that Bemore had been found factually
innocent of the offense. See Bemore, 22 Cal. 4th at 849. In
fact, Barranco admitted to the trial court that she had relied
on “rumor and hearsay,” id. (alteration omitted), rather than
looking into the food tampering case herself, and told the
court that “she would not have introduced good inmate
evidence ‘at all’ had she known the food tampering evidence


 20
    On direct appeal, the California Supreme Court addressed the narrow
question whether Barranco provided ineffective assistance by presenting
evidence of Bemore’s good behavior in jail, as that evidence opened the
door to damaging rebuttal testimony about the uninvestigated food-
tampering incident. See Bemore, 22 Cal. 4th at 850–51. The court held
that the food-tampering testimony was not so damaging that it would have
altered a reasonably competent attorney’s defense strategy. On the whole,
the court reasoned, Barranco made an informed decision to present the
“good inmate” evidence and “risk unfavorable revelations on rebuttal.”
Id. at 851. We assume, for present purposes, that the California Supreme
Court reasonably applied Strickland in concluding that Barranco’s
presentation of “good inmate” testimony and her investigation of the food-
tampering incident did not themselves fall below Strickland’s standard for
effective assistance of counsel. See 28 U.S.C. § 2254(d)(1). But that
assumption does not address the reasonableness of the California Supreme
Court’s denial of relief on the much broader penalty phase IAC claim,
discussed above, on habeas review.
                     BEMORE V. CHAPPELL                         41

‘had happened’ and ‘could come in . . . as the last evidence
the jury hear[d] before they deliberate penalty.’” Id. Given
that Barranco should have been aware the state would attempt
to rebut evidence of Bemore’s good behavior in jail, her
failure to examine the details of the incident is, at least, strong
evidence of deficient performance. See Rompilla v. Beard,
545 U.S. 374, 383–85 (2005) (holding that the state court
unreasonably applied Strickland in concluding that counsel’s
performance was adequate, where counsel failed to examine
a publically available file on the defendant’s prior
conviction).

    Second, while it “may well have been strategically
defensible upon a reasonably thorough investigation” to rely
on good character evidence in addition to mental health
evidence, “the two sentencing strategies are not necessarily
mutually exclusive.” Wiggins, 539 U.S. at 535. One can
have a serious mental illness and still be a good friend and
kind person. A defense that Bemore was “a good guy with a
drug problem,” was fully consistent with a defense that he
was a good guy who was plagued by a drug problem and
mental illness. And even if the mental health evidence
showed Bemore to be impaired in a manner that made him
self-serving, explosive, and violent, as the state contends,
“brain damage that could manifest in impulsive, violent
behavior” is nonetheless mitigating, as it indicates that
Bemore was “substantially impaired in his ability to conform
his conduct to the law and suffered from an extreme mental
or emotional disturbance.” Porter, 558 U.S. at 36.

    Third, a decision is not a “strategic” one if not informed.
The question under Strickland is not only “whether counsel
should have presented a [different] mitigation case,” but also
“whether the investigation supporting [counsel’s] decision not
to introduce mitigating evidence . . . was itself reasonable.”
Wiggins, 539 U.S. at 523.
42                  BEMORE V. CHAPPELL

     We recently held, in Elmore v. Sinclair, for example, that
it was a reasonable strategic decision for counsel to pursue a
remorse mitigation defense in lieu of a mental health defense
that would “detract from, or destroy, the remorse strategy.”
781 F.3d 1160, 1172 (9th Cir. 2015). In Elmore, counsel
hired two mental health experts to evaluate the defendant,
and, armed with their conclusions, conducted two mock trials.
The mock trials showed that jurors responded more favorably
to a defense based on remorse and acceptance of
responsibility than to one based on the defendant’s mental
health or brain damage. Id. Here, by contrast, Barranco
decided to present her “good guy” mitigation defense without
first investigating appropriately the mental health alternative.
When an alternative in the form of a mental health mitigation
strategy became apparent by way of Dr. Fineman’s report and
anecdotes from Bemore’s friends and family, she
precipitously pushed that possibility aside as inconsistent
with the “sun child” aspect of her planned “good guy”
mitigation presentation.

     In short, Barranco’s early decision to pursue a risk-
fraught “good guy” mitigation strategy did not satisfy her
duty first to unearth potentially mitigating mental health
evidence. See Wiggins, 539 U.S. at 535–36. “In deferring to
counsel’s decision not to pursue a [mental health] mitigation
case despite [counsel’s] unreasonable investigation, the
[California Supreme Court] unreasonably applied Strickland.”
 Id. at 534.

     2. Prejudice at the penalty phase

    To determine whether Barranco’s failure to investigate
and uncover mitigating evidence prejudiced Bemore, we
must consider both whether there is “a reasonable probability
that a competent attorney, aware of this [evidence], would
have introduced it at sentencing,” and that “had the jury been
                    BEMORE V. CHAPPELL                       43

confronted with this considerable mitigating evidence, there
is a reasonable probability that it would have returned with a
different sentence.” Id. at 535, 536. If no reasonable jurist
could disagree that the mitigating evidence a proper
investigation would have uncovered “may have meant the
difference between a life or death sentence,” Daniels v.
Woodford, 428 F.3d at 1210, we must grant relief. See
Pinholster, 131 S.Ct. at 1403.

    The available mitigating mental health evidence was
compelling. Even without the benefit of a final diagnosis,
Dr. Fineman had determined, before trial, that Bemore had
organic brain damage and “a fundamental inability to control
his behavior” when his “needs press upon him.” Reviewing
Dr. Fineman’s report in light of information about Bemore’s
drug use just before the crime and his history of erratic,
explosive behavior, Dr. Rosenthal stated that whatever
Bemore’s specific condition might be, it was clear at the time
of trial that his ability “to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the
law was impaired.” Cal. Penal Code § 190.3(h). Dr.
Fineman’s and Dr. Rosenthal’s conclusions would have been
bolstered by Dr. Wright’s statement that “[o]nce Bemore
stated using Crack he was no longer able to control his
behavior,” and by available testimony from Bemore’s friends
that he was prone to uncontrollable manic-like episodes.
Troy Patterson, for example, stated in his declaration that, had
he been asked, he would have testified that, at the time of the
Aztec incident, Bemore was “constantly using mind-altering
drugs” that “made him crazy . . . flip out, go out of his mind
and lose control of himself.”

    At the penalty phase, the jury was explicitly instructed to
take mental health evidence into account, by considering
whether Bemore was “under the influence of mental or
emotional disturbance” and whether his “capacity . . . to
44                       BEMORE V. CHAPPELL

appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law was impaired as a
result of mental disease or defect or effects of intoxication.”
The prosecution affirmatively addressed each of these issues
during closing argument, emphatically stating that Bemore
“wasn’t under the influence of any extreme mental or
emotional disturbance,” and that his capacity to conform his
conduct with the law was not diminished by intoxication or
mental defect. Had the mental health evidence been
presented, this reductive argument could not have been made.
At the capital penalty phase, where the jury is given broad
latitude to consider all factors that bear on whether a
defendant ought to live or die, see Frierson, 463 F.3d at 993,
a reasonably competent attorney would have presented that
evidence, see Wiggins, 539 U.S. at 535–36.

    That Cosby received twenty-five years to life for Muck’s
murder is also of some relevance to our conclusion regarding
Strickland prejudice.21 Cosby, whose attorneys presented
evidence of impaired judgment due to drug use and organic
brain damage, received this lesser sentence despite his having
been concurrently convicted, by a single jury, of a second
robbery and murder. In ruling on a motion to reconsider
Bemore’s death sentence, Judge Gill stated that the
significantly different sentence in the Cosby trial was “in
[his] mind.” He was satisfied that the discrepancy was
justified, however, because in “the case of Mr. Cosby there
was some fairly convincing evidence [of] head trauma he
sustained as an infant . . . [and] demonstrable physiological
damages and deficits.” He noted that “[t]here’s no such
evidence in the case of Mr. Bemore.” Had mental health


 21
    The result in Cosby’s trial is, of course, not itself a sufficient basis for
determining the likely impact of mental health evidence in Bemore’s
penalty phase. C.f. Pulley v. Harris, 465 U.S. 37, 43–46 (1984).
                   BEMORE V. CHAPPELL                       45

evidence been presented, “there is clearly a reasonable
probability that the . . . jury—and the . . . judge—‘would have
struck a different balance,’ and it [was] unreasonable to
conclude otherwise.” Porter, 558 U.S. at 42 (quoting
Wiggins, 539 U.S. at 537).

    Our conclusions with regard to IAC at the guilt phase
further support our conclusion that it would have been
objectively unreasonable for the state court to conclude that
the Strickland prejudice standard was not met at the penalty
phase. First, as a general matter, “[e]vidence that might not
rise to the level of defense of a crime may nonetheless be
important mitigating evidence.” Stanley v. Schriro, 598 F.3d
612, 624 (9th Cir. 2010). And second, in this instance,
counsel’s guilt phase IAC in choosing, between two
inadequately investigated defenses, each unlikely to succeed,
a weak alibi defense likely to undermine Bemore’s credibility
and thus the likelihood of jury sympathy for him, could well
have contributed to the outcome of the penalty phase. The
two ineffective representation decisions—not putting on a
mental health mitigation defense at the penalty phase, and
putting on a guilt phase defense both unlikely to succeed and
likely adversely to affect the jury’s view of Bemore for the
penalty phase—must be viewed cumulatively in determining
whether the Strickland prejudice standard was met with
regard to the jury’s decision to sentence Bemore to death.
See Chambers v. Mississippi, 410 U.S. 284, 290 n.3 (1973);
Sanders v. Ryder, 342 F.3d 991, 1001 (9th Cir. 2003).

    As the state indicates, the prosecution did present
significant aggravating evidence, including allegations of
assault and rape. But mitigating mental health evidence
would have proven a heavy counterweight. In addition to
lessening Bemore’s culpability for the Aztec crimes, such
testimony would likely have affected the jury’s opinion with
regard to the unadjudicated offenses.
46                    BEMORE V. CHAPPELL

    Prejudice under Strickland does not require a showing
that counsel’s actions “more likely than not altered the
outcome.” Strickland, 466 U.S. at 693. For Bemore to have
avoided the death penalty, only one juror need have been
persuaded by mitigating evidence to show mercy and vote
against a capital sentence. So Bemore need only show that
counsel’s errors were “sufficient to undermine confidence in
the outcome” reached by a single juror. Id. at 694.22

    In denying Bemore’s penalty-phase IAC claim, the state
court “either did not consider or unreasonably discounted the
mitigation evidence” that could have been presented. Porter,
558 U.S. at 42. We conclude that mitigating mental health
evidence, combined with a different guilt phase strategy,
“‘might well have influenced the jury’s appraisal’ of
[Bemore’s] moral culpability,” Wiggins, 539 U.S. at 538
(quoting Williams, 529 U.S. at 398), and that the state court’s
contrary conclusion constituted an unreasonable application
of Strickland.

                      E. Discovery Motions

    In addition to denying Bemore’s claims on the merits, the
district court denied Bemore’s motion for an evidentiary
hearing and motion for leave to take depositions of three
defense witness. Bemore appeals denial of both motions.
The district court’s ruling on the discovery motions is
reviewed for abuse of discretion. Mabe v. San Bernadino
Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1112 (9th
Cir. 2001).


  22
     Richter noted that “the difference between Strickland’s prejudice
standard and a more-probable-than-not standard” may be “slight.”
562 U.S. at 112. Even so, there is a difference, which could matter in
some instances. So precision as to the applicable standard is essential.
                       BEMORE V. CHAPPELL                             47

    As to Bemore’s claim of IAC at the penalty phase, our
conclusion that declarations and other evidence already in the
record presented to the state court support Bemore’s claim
obviates any need to remand for discovery.

    With regard to discovery on Bemore’s guilt phase IAC
claim, we may not consider new evidence unless the state
court’s legal conclusions were contrary to, or an unreasonable
application of, clearly established federal law as determined
by the Supreme Court, or its determination of facts was
unreasonable in light of the evidence presented to the state
court, 28 U.S.C. §2254(d). See Pinholster, 131 S. Ct. at
1398–99; Earp v. Ornoski, 431 F.3d 1158, 1166–67 (9th Cir.
2005). We reject Bemore’s argument that the state court’s
denial of an evidentiary hearing rendered its determination of
facts unreasonable, see §2254(d)(2); Hurles v. Ryan, 752 F.3d
768, 791–92 (2014). “Under California law, the California
Supreme Court’s summary denial of a habeas petition on the
merits reflects that state court’s determination that ‘the claims
made in th[e] petition do not state a prima facie case entitling
the petitioner to relief.’” Pinholster, 131 S. Ct. at 1402 n.2
(quoting In re Clark, 5 Cal. 4th 750, 770 (Cal. 1993))
(alterations in original). As Bemore has not shown that it was
unreasonable or contrary to clearly established federal law for
the state court to conclude that, taking the factual allegations
in his habeas petition to be true, he was not entitled to relief
on his guilt phase claim, see People v. Duvall, 9 Cal. 4th 464,
474–75 (1995), further discovery is not warranted, and the
district court did not abuse its discretion in denying the
motion.23


 23
     We further reject Bemore’s contention that an evidentiary hearing is
warranted based on new evidence that presents a new, unexhausted claim,
as Bemore has not shown “good cause for not presenting the new evidence
to the state court.” Gonzalez, 667 F.3d at 972, 980; see supra note 9.
48                 BEMORE V. CHAPPELL

                    III. CONCLUSION

    We AFFIRM the district court’s denial of habeas relief
on Bemore’s claim that his counsel was constitutionally
ineffective at the guilt phase. We REVERSE the district
court’s denial of habeas relief with respect to Bemore’s
penalty phase IAC claim and REMAND with instructions to
grant the petition for a writ of habeas corpus with respect to
the penalty phase and return the case to the state court to
reduce Bemore’s sentence to life without parole, unless the
State of California elects to pursue a new capital sentencing
proceeding within a reasonable amount of time as determined
by the district court.

  AFFIRMED in part, REVERSED in part and
REMANDED.
