                                              Volume 1 of 3
                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SCOTT LYNN PINHOLSTER,                 
              Petitioner-Appellee,           No. 03-99003
               v.                             D.C. No.
ROBERT L. AYERS, Jr., Warden,              CV-95-06240-GLT
           Respondent-Appellant.
                                       

SCOTT LYNN PINHOLSTER,                 
               Petitioner-Appellant,
                                             No. 03-99008
                 v.
JEANNE S. WOODFORD, of the                    D.C. No.
                                           CV-95-06240-GLT
California State Prison at San
                                              OPINION
Quentin,
              Respondent-Appellee.
                                       
        Appeal from the United States District Court
           for the Central District of California
         Gary L. Taylor, District Judge, Presiding

                  Argued and Submitted
            June 23, 2009—Seattle, Washington

                  Filed December 9, 2009

   Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Stephen Reinhardt, Pamela Ann Rymer, Andrew J. Kleinfeld,
        Kim McLane Wardlaw, William A. Fletcher,
   Richard A. Paez, Marsha S. Berzon, Jay S. Bybee, and
            Milan D. Smith, Jr., Circuit Judges.

                            16039
16040            PINHOLSTER v. AYERS
        Opinion by Judge Milan D. Smith, Jr.;
        Dissent by Chief Judge Alex Kozinski
                     PINHOLSTER v. AYERS                 16045




                         COUNSEL

Kristofer Jorstad, Deputy Attorney General, Los Angeles,
California, for the respondent-appellant, cross-appellee.

Sean K. Kennedy, Federal Public Defender, Los Angeles,
California, for the petitioner-cross appellant/appellee.


                         OPINION

MILAN D. SMITH, JR., Circuit Judge:

   Scott Lynn Pinholster (Pinholster) was sentenced to death
after a jury convicted him of double murder with a knife in
the course of a home robbery and burglary. After exhausting
his state remedies, Pinholster sought a writ of habeas corpus
in federal district court in which he alleged, among other
claims, ineffective assistance of counsel at both the guilt and
penalty phases of his trial. Applying the standards of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, in its final
ruling, the district court upheld Pinholster’s conviction, but
granted habeas relief on his death sentence because the court
found that trial counsel’s deficient performance at the penalty
phase of the trial unconstitutionally prejudiced Pinholster’s
defense.
16046                    PINHOLSTER v. AYERS
   A three-judge panel of this court affirmed the district
court’s guilt phase determination but reversed its grant of
habeas relief on the penalty phase. Pinholster v. Ayers (Pin-
holster II), 525 F.3d 742 (9th Cir. 2008). Sitting en banc, we
affirm the district court. Although the denial of Pinholster’s
guilt phase ineffective assistance claim was appropriate, his
penalty phase ineffective assistance claim warrants habeas
relief even when considered under AEDPA’s deferential stan-
dards.

I.     FACTUAL AND PROCEDURAL BACKGROUND1

  A.    The Prosecution’s Guilt Phase Case

   As recounted in the California Supreme Court’s opinion on
direct appeal, Art Corona (Corona), an accomplice in the
commission of most of the crimes charged, served as the pros-
ecution’s primary witness. Pinholster v. Ayers (Pinholster I),
824 P.2d 571, 582 (Cal. 1992). At trial, Corona testified that
he, Pinholster, and Pinholster’s co-defendant, David Brown
(Brown), were attending a party at Pinholster’s apartment on
the evening of January 8, 1982, when Pinholster solicited
them to rob Michael Kumar, a local drug dealer. Id. Pinholster
told the others that he anticipated forcing entry into Kumar’s
home and taking drugs and money. Id.

   As Corona drove towards Kumar’s house, Pinholster
directed Corona to stop at Lisa Tapar’s residence. Id. Pinhol-
ster wanted Tapar to help with the robbery, but when he
knocked on her door, she refused him entry and shut the door
in his face. Id. In response, Pinholster took a buck knife from
  1
   The California Supreme Court’s opinion in People v. Pinholster (Pin-
holster I), 824 P.2d 571, 581-87 (Cal. 1992), and our three-judge panel’s
majority opinion in Pinholster v. Ayers (Pinholster II), 525 F.3d 742, 749-
56 (9th Cir. 2008), thoroughly summarize the detailed facts in this case.
With independent verification, we reiterate here only those facts material
to our disposition.
                     PINHOLSTER v. AYERS                 16047
his belt, stabbed it through the door, and scratched a swastika
and thunderbolts into the hood of her car. Id. Tapar, her
father, and a third witness corroborated Corona’s description
of this incident. Id.

   When Pinholster, Brown, and Corona arrived at Kumar’s
residence and found no one home, they broke in and ran-
sacked it, taking a small amount of marijuana from a bedroom
and spilling a green substance in the kitchen. Id. at 582-83.
While they were searching the house, they heard a car pull up
and saw Thomas Johnson and Robert Beckett (Kumar’s
housesitters) approach, one of whom opened the front door
and shouted that he would call the police. Id. at 583. Pinhol-
ster, Brown, and Corona all moved towards the rear door to
leave, but Johnson and Beckett came to the back and blocked
their way. Id. When Johnson tried to enter the house, Pinhol-
ster struck him in the chest three or four times, demanding
drugs and money. Id. Johnson dropped his wallet on the
ground and obeyed Pinholster’s order to sit down. Id. Pinhol-
ster then attacked Beckett as he approached, stabbing him in
the chest. Id. Beckett dropped to the ground, and Pinholster
kicked him in the head repeatedly, took the wallet from Beck-
ett’s pocket, and also picked up Johnson’s wallet. Id. Brown
then stabbed Johnson in the chest, “bury[ing] his knife to the
hilt.” Id. Johnson and Beckett died of their wounds.

   Pinholster, Brown, and Corona then left Kumar’s house and
drove back to Pinholster’s apartment. Id. On the way, Brown
and Pinholster commented that they had “gotten them good.”
Id. Pinholster washed his knife upon his return, and the three
split the proceeds of the robbery: $23 and a quarter-ounce of
marijuana. Id.

   Although Pinholster called Corona the day after the crime
and told him to “lie low,” Corona turned himself in two weeks
later and gave a statement to police. Id. According to Corona,
Pinholster threatened to blow him up on his way to court if
Corona refused to invoke his right against self-incrimination,
16048                  PINHOLSTER v. AYERS
and testified against him. Id. Nevertheless, Corona testified
against Pinholster and Brown and, at the end of the trial,
pleaded guilty to burglary. Id.

   Corona’s wife, Casey Corona, who was at Pinholster’s
apartment when Pinholster, Brown, and her husband returned
from Kumar’s residence, corroborated her husband’s testi-
mony about the initiation, execution, and aftermath of the
crime. Id. She testified that she watched Pinholster wash
blood from his knife, and that she heard him say, “It had to
be done the way it was done. We had to do what we had to
do.” Id.

   The prosecution also presented forensic evidence that Pin-
holster had been in Kumar’s home after the ransacking. Id.
According to Corona’s testimony, Pinholster wore boots and
jeans on the evening of the murders. Id. During their search
of Pinholster’s apartment, police discovered boots, a towel,
and a pair of jeans, all with microscopic blood traces on them.
Id. While the boots and the towel tested positive for human
blood, the jeans were not tested to determine whether the
blood on them was also human. Id. at 583-84. Additionally,
when police arrested Brown, he was carrying a buck knife
with human blood traces close to the hilt and with dimensions
that matched a stab wound in Johnson’s body. Id. at 584.
Police also discovered human blood on the inside forearm of
Corona’s shirt sleeve, but did not find any blood on his knife.
Id.

  B.    Pinholster’s Guilt Phase Case

   During the guilt phase of his trial, Pinholster testified on his
own behalf and presented an alibi defense. Id. at 584-85. He
boasted that he had committed hundreds of robberies over the
previous six years, using a gun, but never a knife, to victimize
drug dealers. Id. at 584. Although he admitted a prior kidnap-
ping conviction with the use of a knife, he claimed that he
pleaded to the aggravating circumstance only as part of a plea
                      PINHOLSTER v. AYERS                  16049
bargain. Id. Pinholster also admitted going to Kumar’s house
and taking marijuana from the bedroom, but denied ransack-
ing the residence or killing anyone. Id. Pinholster asserted that
Corona had asked him for Kumar’s address that night, and
that Corona had gone to Kumar’s house later to steal some
additional drugs and money. Id. at 585.

  C.   The Jury’s Guilt Phase Verdict

   At the close of the guilt phase, the jury convicted Pinholster
of first-degree murder and found that the following two
multiple-murder special-circumstance allegations were true,
making him eligible for a death sentence: first, he committed
each murder during the course of a robbery and a burglary;
and second, he personally used a knife. Id. at 581. The jury
also convicted him of burglary, robbery, and intentional
infliction of great bodily injury through personal use of a
knife. Id.

  D.   The Prosecution’s Penalty Phase Case

   At the penalty phase of the trial, Pinholster stipulated that
he had a prior kidnapping conviction with the use of a knife,
and that he was identified as having held the knife to the vic-
tim’s throat. Id. at 586. Pinholster also stipulated to numerous
disciplinary infractions during his prison term for the kidnap-
ping, such as throwing urine at guards, threatening to stab
guards, and threatening to throw guards from an upper tier of
the prison. Id. The prosecution presented testimony that Pin-
holster had a violent history with law enforcement, including:
an outburst in court as a juvenile during which he threatened
everyone in the room and struck a bailiff; resisting arrest as
an adult by kicking one police officer in the back of the head
while allegedly faking an epileptic seizure; making threats
and kicking the X-ray machine when taken to the hospital
after his arrest; starting a racial fight while in custody and
kneeing an officer in the groin; and various other incidents of
violence or threats of future violence while in custody, includ-
16050                 PINHOLSTER v. AYERS
ing death threats. Id. In addition, the prosecution presented
testimony that Pinholster was a well-known member of the
juvenile gang community. Theodore Mesquita testified that
Pinholster had once cut Mesquita’s arm with a razor, after-
wards pursuing him on foot to the hospital where Mesquita
required fifty stitches to close his wound. Id. at 586-87. Cathy
Ann Smith, Pinholster’s ex-wife, also testified that Pinholster
once broke her jaw while seeming to have an epileptic sei-
zure. Id. at 587.

  E.    Pinholster’s Penalty Phase Case

   Pinholster had been represented by, and later rejected, sev-
eral different court-appointed attorneys to represent him in
this case before he petitioned the court to permit him to repre-
sent himself, which he did from March 17 to July 13, 1983.
Pinholster II, 525 F.3d at 751 n.5. Pinholster later reconsid-
ered, however, and the Los Angeles County Superior Court
appointed Harry W. Brainard and Wilbur G. Dettmar to repre-
sent him during the guilt and penalty phases of his trial. Id.

   On March 22, 1983, the State mailed a letter to Pinholster
at the Los Angeles County Jail, informing him that the prose-
cution planned to offer aggravating evidence at the penalty
phase. Id. at 751. When the guilt phase ended on April 24,
1984, Pinholster’s counsel moved to exclude the aggravating
evidence on the ground that the prosecution had failed to pro-
vide reasonable notification under California Penal Code
§ 190.3. Id. The state trial court denied the motion, conclud-
ing that Pinholster had received actual notice of the State’s
intention to seek the death penalty during the time period in
which he represented himself. Id. at 751, 751 n.6. In doing so,
however, the court advised defense counsel that it would grant
a defense motion to continue the penalty phase of the trial to
allow Pinholster’s counsel to prepare a mitigation case. Id. at
751. Pinholster’s counsel declined the offer, stating that they
did not believe that more time “would make a great deal of
difference.”
                          PINHOLSTER v. AYERS                         16051
   Pinholster’s counsel had earlier consulted with Dr. John M.
Stalberg, a psychiatrist, who examined Pinholster on March
11, 1984, about a week after the guilt phase of the trial began.
Dr. Stalberg had received a copy of Pinholster’s police reports
as well as a copy of his 1978 probation report, and examined
Pinholster himself for one to two hours. He concluded that
Pinholster “did not manifest any significant signs or symp-
toms of mental disorder or defect other than his antisocial per-
sonality disorder by history.” Based on his examination, Dr.
Stalberg opined that Pinholster was cognitively functional,
without brain damage, and noted that while Pinholster alleg-
edly had epilepsy, he had not had a seizure for the past year
and was not on medication. Pinholster’s trial counsel did not
contact Dr. Stalberg again, nor did they consult with any other
mental health expert.

   Pinholster’s counsel billed a total of only 6.5 hours in prep-
aration for the penalty phase of the trial.2 Brainard stated that
while “Mr. Dettmar was primarily responsible for psychiatric,
psychological, and other mental health issues in the case,” he
had “no recollection of Mr. Dettmar having secured or
reviewed any of [Pinholster’s] medical records, nor did [Brai-
nard] see any [of them].” “So far as [Brainard] recollect[ed],
neither Mr. Dettmer nor [Brainard] interviewed any of Scott’s
previous medical providers” even though they were “aware
prior to trial that Dr. Dubin and other health care providers
   2
     The record shows that counsel billed 1.5 hours to “[s]tart prep. for pen-
alty phase” on April 11, 1984, 3.0 hours for “[p]rep. penalty phase and
conf. with Mrs. Brashear” on April 25, 1984, and 2.0 hours for “[p]rep.
penalty phase” on April 26, 1984. The dissent guesses that other records
—which do not mention penalty phase preparation—might be penalty
preparation in disguise (or, worse, that “perhaps [counsel] was not diligent
about time records.”). Diss. at 16125. Despite our dissenting colleague’s
well-known flair for “creative” writing, it is not appropriate for a federal
appellate court to conjure up evidence that does not exist, especially when
we have counsel’s own testimony that they did not anticipate a death pen-
alty hearing, and thus did not prepare for it. See Pinholster II, 525 F.3d
at 751.
16052                PINHOLSTER v. AYERS
had treated Mr. Pinholster for seizure disorder.” In the same
vein, Brainard admitted:

    I do not recall interviewing or attempting to inter-
    view [Pinholster’s] family members or any other
    persons regarding penalty phase testimony, except
    Mrs. Brashears [sic], defendant’s mother. I have no
    recollection of seeing or attempting to secure [Pin-
    holster’s] school records, juvenile records, medical
    records, or records of prior placements. I have no
    recollection of interviewing or attempting to inter-
    view [Pinholster’s] former teachers, counselors, or
    juvenile officers.

   The limited preparation that was done included interview-
ing Pinholster’s mother, Burnice Brashear (Brashear), who
later became the sole defense witness called at the proceeding.
Brashear testified that Pinholster had several accidents as a
small child. When Pinholster was two years old, Brashear
accidentally ran over him with her car, badly injuring his
head. When Pinholster was four or five, Brashear was
involved in a car accident in which Pinholster’s head went
through the windshield. Brashear also testified that Pinholster
did not get along well with his step-father, who was a strict
disciplinarian to the point of abuse at times. She stated that
Pinholster was disruptive in the classroom as a child, but “did
much better” when sent to an academically handicapped class
in third or fourth grade.

   Brashear further testified that when Pinholster was about
ten, she took him to a psychiatrist who recommended that he
be placed in a mental institution. She rejected that recommen-
dation because she “didn’t think he was that far gone.” Mean-
while, Pinholster began stealing things and playing “Robin
Hood” around the neighborhood, which indicated to her that
“something was not working right.” Pinholster eventually was
sent to juvenile hall as a result of these thefts. As an adult,
Pinholster had physical problems that included epilepsy,
                     PINHOLSTER v. AYERS                 16053
which Brashear understood to be the result of his being
“beaten up pretty severely in jail” when he was eighteen. She
also stated that he was on medication for that epilepsy, but
that she did not know if he received the recommended medi-
cation while in prison.

   Brashear then testified that her other children were “basi-
cally very good children,” although they had also been in
trouble with the law. She specifically mentioned DUI charges
for both her younger son and her “wild girl” daughter. Brash-
ear emphasized, however, that her other children were not like
Pinholster, who was a “show-off” and had been in and out of
mental institutions from the time he was twelve. She stated
that the doctors had found “something wrong here outside of
just bad behavior.” Brashear also testified that Pinholster
“never really wanted for anything at home too much,” having
had “everything normally materialwise that most people
have,” and that although the family “didn’t have lots of
money,” he always had “a roof over his head” and “decent
clothes.” Finally, she indicated that although Pinholster was
“a perfect gentleman” at home, his long stay in state prison
had affected him so that it was difficult for him to remember
that he could open doors and walk outside.

  F.   The Jury’s Penalty Phase Verdict and the State
       Trial Court’s Sentencing of Pinholster

  Following Brashear’s testimony and two and a half days of
deliberation, the jury returned a death verdict on each of the
two murder counts on May 7, 1984, Pinholster II, 525 F.3d
at 751-52, and the state trial court sentenced Pinholster
accordingly.

  G.   The State Habeas Petition

  After the California Supreme Court set aside one multiple-
murder special circumstance but otherwise affirmed the judg-
ment on direct appeal, Pinholster filed a state habeas petition
16054                 PINHOLSTER v. AYERS
in which he alleged, among other claims, ineffective assis-
tance of counsel at both the guilt and penalty phases of his
trial.

   In support of his guilt phase ineffective assistance claim, he
presented evidence that his counsel had failed to test the
forensic evidence independently and to move to exclude prior
bad acts evidence introduced by the prosecution. Pinholster
also presented evidence that his counsel were ineffective dur-
ing the penalty phase by failing to conduct an adequate inves-
tigation into his mental health. Specifically, he claimed that
Dr. Stalberg, the expert consulted by his attorneys, had “un-
reasonably, incompetently and perfunctorily arrived at unsup-
ported conclusions based upon inadequate investigation and
analysis.” presented the testimony of Dr. George Woods, who
also condemned Dr. Stalberg’s report and offered an alterna-
tive analysis. Dr. Woods indicated that Pinholster suffered
from bipolar disorder, and that at the time of the murders, Pin-
holster was in the throes of an epilepsy-related seizure. Dr.
Woods also opined that Pinholster was incompetent to stand
trial.

   The California Supreme Court issued an order to show
cause on the penalty phase ineffective assistance claim, but
then vacated the order as improvidently granted and denied
the petition “on the substantive ground that it is without
merit.”

  H.    The Federal Habeas Petition

   Pinholster filed a federal habeas petition on April 22, 1997.
In this petition, Pinholster abandoned use of Dr. Woods’ testi-
mony and instead presented the testimony of Dr. Stalberg,
who stated that if trial counsel had provided him with Pinhol-
ster’s family history, particularly as related to medical disor-
ders, he would have made further inquiry “before concluding
that [Pinholster] had merely a personality disorder.” After the
parties stipulated that the petition included new material facts
                         PINHOLSTER v. AYERS                        16055
and unexhausted claims, the district court dismissed the unex-
hausted claims and held the fully exhausted petition in abey-
ance.

   The California Supreme Court denied Pinholster’s second
state habeas petition “on the substantive ground that it is with-
out merit.”3

   The case then returned to federal district court, where Pin-
holster requested an evidentiary hearing. Pinholster II, 525
F.3d at 754. Applying pre-AEDPA law, the court denied an
evidentiary hearing and granted summary judgment to the
State on Pinholster’s guilt phase ineffective assistance claims,
id. at 748, 754 n.9, 756, but granted an evidentiary hearing on
Pinholster’s penalty phase ineffective assistance claim, id. at
754. Pinholster prepared a declaration by Dr. Stalberg to serve
as direct testimony for that hearing. During Dr. Stalberg’s
subsequent deposition, however, he testified that nothing in
the information compiled by the defense team altered his
basic opinion that Pinholster “suffers from Antisocial Person-
ality Disorder.” Defense counsel then dropped Dr. Stalberg
from the case and substituted two new experts, Dr. Donald
Olson and Dr. Sophia Vinogradov. Pinholster II, 525 F.3d at
755.
   3
     The dissent seems mesmerized by the fact that the California Supreme
Court twice denied Pinholster’s state habeas petitions. Diss. at 16102,
16108-09, 16145-48. It is true that the postcard denial, issued by the same
justices who had previously denied Pinholster’s petition, was technically
a second look. However, contrary to the dissent’s suggestion, the level of
deference is not measured by the number of times that habeas relief has
been denied. If that were the case, then the Supreme Court might have
exercised greater deference in Porter, Wiggins, and Rompilla, where their
respective state trial and supreme courts had both denied postconviction
relief. Instead, the Court granted habeas relief anyway, because collateral
habeas review is not concerned with the number of times the state did or
did not grant relief. See Porter v. McCollum, 558 U.S. ___, No. 08-10537
(2009) (per curiam); Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v.
Beard, 545 U.S. 374 (2005).
16056                 PINHOLSTER v. AYERS
   At the evidentiary hearing, as discussed in further detail in
section III.B.3.b. of this opinion, Pinholster presented mitiga-
tion evidence that his counsel had failed to present at the pen-
alty phase of his trial. This evidence included testimony that
his childhood upbringing was much worse than his mother
had described. His biological father was an unemployed
drunk who was unfaithful to his mother, and the couple
divorced shortly after Pinholster’s birth. His father had mood
swings and fits of anger, and was eventually diagnosed as
paranoid with narcissistic personality disorder. After his par-
ents’ divorce, Pinholster’s mother generally did not have
enough money to provide for the children and, when she had
money, usually spent it on herself. Pinholster’s grandmother,
who often watched the children while his mother worked,
used to “beat the hell out of” him because he resembled his
father.

   Pinholster’s step-father came into his life when Pinholster
was five years old, and was, according to Pinholster’s evi-
dence, more than simply a strict disciplinarian. The step-
father beat the children with his fists, a belt, and—on at least
one occasion—a two-by-four board. Otherwise, he was “com-
pletely indifferent” to them. The additional evidence also
showed that the family did not get enough to eat and lived in
crime-ridden neighborhoods, and that the children ran wild,
frequently trashed apartments, and lacked any moral or other
discipline.

   Regarding his schooling, Pinholster presented testimony
that he was a nice and intelligent child, but restless and hyper-
active, unable to sit still and in need of a great deal of atten-
tion. Although his fourth-grade teacher arranged several
appointments with his mother to discuss the situation, his
mother generally failed to attend or, if she did attend,
remained non-responsive throughout the appointment. After
Pinholster had been arrested three different times when he
was ten or eleven years old, the juvenile court placed him in
a home for emotionally disturbed boys, after which he stayed
                      PINHOLSTER v. AYERS                  16057
at a state mental hospital for about five months. Although the
psychiatric discharge report recommended his placement in a
good foster home, that suggestion went unheeded. In seventh
grade, Pinholster began using drugs, including marijuana, bar-
biturates, alcohol, acid, and cocaine. He became addicted to
heroin while in the eighth grade. Thereafter, he was sent to
juvenile hall at least nine times and to at least three schools
for troubled boys, and was finally sent to prison at age nine-
teen following a conviction for kidnapping.

   Pinholster also provided further details of his family’s
criminal and mental history. His older brother, Alvin, was
charged with the rape and sodomy of a fourteen-year-old, and
was later diagnosed with schizophrenia and found to be
incompetent to stand trial. Shortly after Pinholster’s parole
from his kidnapping sentence, Alvin committed suicide. Pin-
holster’s younger brother, Terry, was diagnosed with mild
depression and abused drugs, and his half-sister, Tammy,
began drinking alcohol when she was eleven. When Tammy
was seventeen, she was arrested with her boyfriend for sexu-
ally assaulting a fourteen-year-old girl. Guy, a half-brother,
was diagnosed with manic depression, and Gary, another half-
brother, was an alcoholic with severe mood swings.

   Pinholster’s experts also testified that he had suffered brain
damage that explained his aggressive, impulsive, and antiso-
cial behavior. Dr. Olson, a pediatric neurologist, concluded
that Pinholster sustained frontal-lobe injuries from the two
childhood car accidents, as evidenced by the facts that Pinhol-
ster suffered from epilepsy and that he had an abnormal elec-
troencephalogram (EEG) when he was nine years old. Dr.
Vinogradov, a psychiatrist, diagnosed Pinholster with organic
personality disorder brought on by childhood and later-life
head trauma, and ruled out a diagnosis of antisocial personal-
ity disorder.

   In light of this evidence, and applying pre-AEDPA law, the
district court granted Pinholster’s habeas petition based on the
16058                  PINHOLSTER v. AYERS
“inadequacy of defense counsel in investigating and present-
ing mitigation evidence at the penalty phase” of his trial. The
same day the district court filed its decision, however, the
Supreme Court issued its opinion in Woodford v. Garceau,
which held that AEDPA applies in capital habeas cases so
long as the petition was filed after April 24, 1996. 538 U.S.
202, 207 (2003). In response, the district court issued an
addendum to its order, concluding that Pinholster timely filed
his federal habeas petition; that Pinholster was entitled to an
evidentiary hearing under AEDPA; and that AEDPA did not
affect the grant of habeas relief because “[t]he California
Supreme Court did not adjudicate Pinholster’s claim that
counsel was ineffective for failing to investigate and present
mitigating evidence at the penalty phase.” The parties cross-
appealed, and a three-judge panel of our court affirmed the
district court’s guilt phase ineffective assistance determina-
tion, but reversed its grant of habeas relief on the penalty
phase ineffective assistance claim. Pinholster II, 525 F.3d at
773. Upon the affirmative vote of a majority of the eligible
judges in our court, we took the case en banc.

 II.    JURISDICTION AND STANDARD OF REVIEW

   We have jurisdiction pursuant to 28 U.S.C. § 2253. We
review a district court’s decision to grant or deny a writ of
habeas corpus de novo, Lewis v. Mayle, 391 F.3d 989, 995
(9th Cir. 2004), and the district court’s findings of fact for
clear error, Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.
1995). Because Pinholster filed his federal habeas petition in
1997, the provisions of AEDPA govern his claims. See Penry
v. Johnson, 532 U.S. 782, 792 (2001).

   AEDPA provides that a petitioner is not entitled to habeas
relief on any claim “adjudicated on the merits” by the state
court unless that adjudication:

       (1) resulted in a decision that was contrary to, or
       involved an unreasonable application of, clearly
                      PINHOLSTER v. AYERS                  16059
    established Federal law, as determined by the
    Supreme Court of the United States; or

    (2) resulted in a decision that was based on an unrea-
    sonable determination of the facts in light of the evi-
    dence presented in the State court proceeding.

28 U.S.C. § 2254(d). The relevant state court decision is the
last reasoned decision regarding a claim, Barker v. Fleming,
423 F.3d 1085, 1091 (9th Cir. 2005), and “the phrase ‘[adjudi-
cated] on the merits’ requires that the [state court’s] grant or
denial rest on substantive, rather than procedural, grounds,”
Lambert v. Blodgett, 393 F.3d 943, 966 (9th Cir. 2004) (read-
ing in pari materia with 28 U.S.C. § 2254(d)).

   “Clearly established” federal law consists of holdings of the
Supreme Court at the time the petitioner’s state court convic-
tion became final. Terry Williams v. Taylor, 529 U.S. 362,
379-84 (2000). Habeas relief is unavailable if the Supreme
Court has not “broken sufficient legal ground” on a constitu-
tional principle advanced by a petitioner, even if lower federal
courts have decided the issue. Id. at 381. Nevertheless, while
only Supreme Court authority is binding, circuit court prece-
dent may be “persuasive” in determining what law is clearly
established and whether a state court applied that law unrea-
sonably. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.
2003). A state court decision is “contrary to” the Supreme
Court’s clearly established precedents if the decision applies
a rule that contradicts the governing law set forth in those pre-
cedents, thereby reaching a conclusion opposite to that
reached by the Supreme Court on a matter of law, or if it con-
fronts a set of facts that is materially indistinguishable from
a decision of the Supreme Court but reaches a different result.
Terry Williams, 529 U.S. at 405-06.

  Under the “unreasonable application” prong, a federal court
may grant relief where a state court “identifies the correct
governing legal rule from [the Supreme] Court’s cases but
16060                  PINHOLSTER v. AYERS
unreasonably applies it to the facts of the particular . . . case,”
or “unreasonably extends a legal principle from [Supreme
Court] precedent to a new context where it should not apply
or unreasonably refuses to extend that principle to a new con-
text where it should apply.” Id. at 407. To show that a state
court’s application of Supreme Court precedent was “unrea-
sonable,” the petitioner must establish that the state court’s
decision was not merely incorrect or erroneous, but “objec-
tively unreasonable.” Id. at 409-10.

   In this case, although both parties agree that AEDPA
applies, they disagree over the level of deference owed to the
California Supreme Court’s decision in light of its summary
nature. Pinholster argues that, because the court found only
that there was insufficient evidence to make a prima facie
claim for relief and allegedly never reached the actual merits
of the claim, we review the court’s decision without defer-
ence. The State, by contrast, argues that because the court’s
summary denial of Pinholster’s claim was an adjudication on
the merits, we apply the usual deference required by AEDPA.

   Under our precedent, the California Supreme Court’s denial
of Pinholster’s petition for writ of habeas corpus “on the sub-
stantive ground that it is without merit,” Pinholster II, 525
F.3d at 754, constitutes a decision on the merits of his federal
claim. See Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir.
1992) (noting that “the California Supreme Court’s denial of
a habeas petition without comment or citation constitute[s] a
decision on the merits of the federal claims”) (citing Harris
v. Superior Court, 500 F.2d 1124, 1127-29 (9th Cir. 1974) (en
banc)); Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Cir.
2005) (recognizing that “[w]e construe ‘postcard’ denials
such as these to be decisions on the merits” (citing Hunter,
982 F.2d at 348)). The Supreme Court has not addressed the
question of the proper measure of deference that applies under
AEDPA where, as here, a state court provides no rationale for
its decision denying habeas relief on the merits, and where, as
here, no other state court decision has addressed the claims at
                         PINHOLSTER v. AYERS                        16061
issue. We have held, however, that in such situations, we
“perform an ‘independent review of the record’ to ascertain
whether the state court decision was objectively unreason-
able.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003)
(quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.
2000)); see also Cooper v. Brown, 510 F.3d 870, 921 (9th Cir.
2007); Lewis v. Mayle, 391 F.3d at 996. Such “[i]ndependent
review of the record is not de novo review of the constitu-
tional issue, but rather, the only method by which we can
determine whether a silent state court decision is objectively
unreasonable.” Himes, 336 F.3d at 853.4

                        III.   DISCUSSION

   Pinholster argues that the California Supreme Court’s sum-
mary denial of his Sixth Amendment claims of ineffective
assistance of counsel at the guilt and penalty phases of his
trial was objectively unreasonable under AEDPA. Because
the California Supreme Court issued its last decision in Octo-
ber 1997, we apply, as the relevant “clearly established Fed-
eral law” at that time, the Supreme Court’s familiar two-part
standard for analyzing ineffective assistance claims set forth
in Strickland v. Washington, 466 U.S. 668 (1984). See Terry
Williams, 529 U.S. at 391 (noting that “[i]t is past question
that the rule set forth in Strickland qualifies as clearly estab-
lished Federal law, as determined by the Supreme Court of
   4
     We need not determine in this case whether our prior decisions prop-
erly held that AEDPA deference applies to silent state court decisions such
as the denial at issue here, or whether that standard of deference applies
to claims involving new evidence introduced on federal habeas. See, e.g.,
Brown v. Smith, 551 F.3d 424, 429 (6th Cir. 2008) (reviewing an ineffec-
tive assistance of counsel claim without AEDPA deference in light of new
evidence introduced by a diligent petitioner). Whether we review the state
court’s decision de novo or for objective unreasonableness with an inde-
pendent review of the record, we would grant the writ as to Pinholster’s
penalty phase claim and deny the writ as to his guilt phase claims. Accord-
ingly, we will assume for purposes of this opinion that the stricter unrea-
sonableness standard applies.
16062                   PINHOLSTER v. AYERS
the United States,” and that “[the] Court’s precedent dictated
that the Virginia Supreme Court apply the Strickland test at
the time that court entertained Williams’ ineffective-
assistance claim” (internal quotation marks omitted)).

   In doing so, we note that the Court has repeatedly applied
Strickland’s ineffective assistance standard to cases where, as
here, the trial occurred before Strickland was decided on May
14, 1984.5 In Burger v. Kemp, 483 U.S. 776, 777, 794 (1987),
for example, the Court applied the Strickland standard in eval-
uating trial counsel’s performance where the habeas petitioner
was convicted and sentenced to death on January 25, 1978,
over six years before Strickland was decided. Additionally, in
Woodford v. Visciotti, 537 U.S. 20, 21, 22 (2003) (per
curiam), the Court applied the Strickland standard where the
petitioner was convicted and sentenced a year before Strick-
land was decided, see People v. Visciotti, 825 P.2d 388 (Cal.
1992), and where, as here, the petitioner’s ineffective assis-
tance claims were governed by AEDPA, see 537 U.S. at 21.

   Given that AEDPA deals only with the state court’s adjudi-
cation of a claim, it does nothing to alter the standard of care
to which trial counsel is held. At the same time, because Pin-
holster’s conviction was not final when Strickland was
decided, he is entitled to rely on Strickland in challenging his
conviction. See Teague v. Lane, 489 U.S. 288, 304-05 (1989);
Griffith v. Kentucky, 479 U.S. 314, 328 (1987).

   [1] To prevail under Strickland, the petitioner must first
“show that counsel’s performance was deficient.” 466 U.S. at
687. To be “deficient,” counsel’s trial performance must be
objectively unreasonable “under prevailing professional
norms” and under “all the circumstances” of the particular
case. Id. at 687-88. Our inquiry into “counsel’s performance
[is] highly deferential,” and “[a] fair assessment of attorney
performance requires that every effort be made to eliminate
  5
   As previously noted, Pinholster’s trial concluded on May 7, 1984.
                      PINHOLSTER v. AYERS                 16063
the distorting effects of hindsight, to reconstruct the circum-
stances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 689.
Given the “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,”
the petitioner carries the burden of showing that the chal-
lenged action could not be viewed as sound trial strategy. Id.

   [2] “Second, the [petitioner] must show that the deficient
performance prejudiced the defense.” Id. at 687. For us to find
prejudice, “[i]t is not enough for the [petitioner] to show that
the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. “On the other hand, . . . [the peti-
tioner] need not show that counsel’s deficient conduct more
likely than not altered the outcome in the case.” Id. Rather,
“[t]he [petitioner] must show that there is a reasonable proba-
bility 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.

   [3] Following AEDPA’s enactment, the Supreme Court has
reiterated that we apply a “case-by-case approach to determin-
ing whether an attorney’s performance was unconstitutionally
deficient under Strickland.” Rompilla v. Beard, 545 U.S. 374,
393-94 (2005) (O’Connor, J., concurring). In doing so, how-
ever, the Court has instructed that its post-AEDPA ineffective
assistance of counsel decisions are clearly relevant for the
purpose of informing the interpretation and application of the
standards originally announced in Strickland.

   In Wiggins v. Smith, for example, where the petitioner’s
trial originally took place in 1989, the Court observed that
“[o]ur opinion in [Terry] Williams . . . is illustrative of the
proper application of [Strickland’s] standards.” 539 U.S. 510,
514, 522 (2003). The Wiggins Court explained that “[w]hile
[Terry] Williams had not yet been decided at the time the
Maryland Court of Appeals rendered the decision at issue in
16064                PINHOLSTER v. AYERS
[Wiggins],” the Court’s reliance on Williams was nonetheless
proper because “Williams’ case was before [the Court] on
habeas review,” and because the Court “made no new law in
resolving Williams’ ineffectiveness claim” but merely applied
the established holding in Strickland. Id. at 522. The Wiggins
Court thus reached its conclusion that counsel rendered inef-
fective assistance under Strickland in part by distinguishing
the facts in Wiggins from those in Terry Williams:

    [I]n contrast to the petitioner in Williams . . . , Wig-
    gins does not have a record of violent conduct that
    could have been introduced by the State to offset this
    powerful mitigating narrative. As the Federal Dis-
    trict Court found, the mitigating evidence in this case
    is stronger, and the State’s evidence in support of the
    death penalty far weaker, than in Williams, where we
    found prejudice as the result of counsel’s failure to
    investigate and present mitigating evidence.

539 U.S. at 537-38 (citation omitted). Similarly, in Rompilla,
decided in 2005, the Court repeatedly cited Terry Williams
and Wiggins in reversing an ineffective assistance case in
which the state trial took place in 1988 and in which the state
postconviction decision issued in 1998. See Rompilla, 545
U.S. at 378-93, 387 n.7; Commonwealth v. Rompilla, 653
A.2d 626, 628 (Pa. 1995). Most recently, in Porter v. McCol-
lum, the Court relied on post-AEDPA cases in determining
the “prevailing professional norms” at the time of Porter’s
trial in 1988. 558 U.S. ___, No. 08-10537, slip op. at 9-10
(2009) (per curiam).

   [4] Thus, we hold that we are required to apply the instruc-
tions contained in the Supreme Court’s post-AEDPA ineffec-
tive assistance of counsel cases to inform and construe the
meaning of Strickland as it applies to Pinholster’s trial and
postconviction proceedings. In other words, Terry Williams,
Wiggins, Rompilla, and Porter help illuminate which applica-
tions of Strickland are unreasonable under AEDPA.
                       PINHOLSTER v. AYERS                  16065
  A.     The Guilt Phase

   [5] Our three-judge panel unanimously held that, even
assuming that counsel’s representation at the guilt phase of
the trial constituted deficient performance, the district court
properly denied an evidentiary hearing and granted summary
judgment in favor of the State because Pinholster failed to
make a colorable showing of prejudice. Pinholster II, 525
F.3d at 757, 761, 775, 777; see also Strickland, 466 U.S. at
697 (stating that a court may assume ineffective assistance to
resolve a claim on the basis of prejudice). We reach the same
conclusion, and adopt Judge Fisher’s discussion as to preju-
dice in the full paragraph at Pinholster II, 525 F.3d at 777,
which best summarizes the panel’s prejudice holding. We find
no useful purpose would be served by repeating extensive
work already contained in the Federal Reporter. On these
grounds, we affirm the district court’s denial of Pinholster’s
request for an evidentiary hearing and denial of habeas relief
on his claim of ineffective assistance of counsel at the guilt
phase.

  B.     The Penalty Phase

  In its appeal, the State argues that the California Supreme
Court was not objectively unreasonable in summarily denying
Pinholster’s claim that his attorneys rendered ineffective
assistance at the penalty phase of his trial by failing to investi-
gate, to discover, and to introduce readily available mitigation
evidence. For the following reasons, and based on our inde-
pendent review of the record, we disagree. See Himes, 336
F.3d at 853.

    1.    Federal Evidentiary Hearing

   The State contends that the district court abused its discre-
tion in granting Pinholster a federal evidentiary hearing on his
penalty phase ineffective assistance claim because the court
allegedly failed to consider whether Pinholster properly
16066                 PINHOLSTER v. AYERS
developed a factual basis for the claim in the California
Supreme Court. As a result, the State argues, the district court
improperly reached its decision to grant habeas relief based
on evidence that was not before the state court.

   [6] The State’s contention regarding the federal evidentiary
hearing is unavailing. The State is correct that when a peti-
tioner challenges a state habeas court’s factual conclusions,
the relevant evidence is restricted to that presented to the state
habeas court: Under AEDPA, federal postconviction relief is
available on such claims only if the state habeas court’s adju-
dication “resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2) (emphasis added).

   [7] Here, however, Pinholster challenges the California
Supreme Court’s legal conclusions. Such claims are governed
not by § 2254(d)(2), but by § 2254(d)(1). As noted above,
under § 2254(d)(1), relief is available if the state habeas
court’s adjudication “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States.” Significantly, Congress omitted “in light
of the evidence presented in the State court proceeding” from
§ 2254(d)(1), while including that language in § 2254(d)(2).
This omission strongly indicates that Congress did not intend
to restrict the inquiry under § 2254(d)(1) only to the evidence
introduced in the state habeas court, or to have federal courts
imply any such restriction.

   In addition, AEDPA has an independent provision that
expressly restricts a habeas petitioner’s ability to introduce
new evidence in federal court. See 28 U.S.C. § 2254(e)(2).
That restriction applies when the petitioner was not diligent in
seeking to develop the new evidence in state court. Holland
v. Jackson, 542 U.S. 649, 652-53 (2004). Neither
§ 2254(d)(1) nor § 2254(e)(2) contains any language indicat-
                      PINHOLSTER v. AYERS                  16067
ing that evidence properly introduced under § 2254(e)(2) is
irrelevant when applying § 2254(d)(1). On the contrary,
§ 2254(e)(2) establishes that, when drafting AEDPA, Con-
gress was aware that federal habeas petitioners sometimes
rely on evidence not presented in the state habeas court, and
that Congress responded to that issue with an explicit statu-
tory restriction on the introduction of such evidence.

    The legal backdrop against which Congress drafted and
enacted AEDPA also informs our construction of
§ 2254(d)(1). Historically, a federal habeas petitioner could
rely on new evidence as long as that evidence did not so alter
the underlying claims as to render them unexhausted. Vasquez
v. Hillery, 474 U.S. 254, 260 (1986). As § 2254(e)(2) demon-
strates, Congress included specific language in AEDPA when
it intended to change that traditional practice. Congress’s fail-
ure to include any such language in § 2254(d)(1), by contrast,
demonstrates that Congress did not intend for § 2254(d)(1) to
imply any additional departure from the Vasquez rule beyond
that contained in § 2254(e)(2).

   [8] Supreme Court precedent also fails to support the
State’s position on this issue. In Michael Williams—the
Court’s most significant decision regarding evidentiary devel-
opment in federal habeas proceedings under AEDPA—the
Court did not tie the right to a federal evidentiary hearing to
a prior determination that the state habeas court had unreason-
ably applied Supreme Court law to the record before it.
Michael Williams v. Taylor, 529 U.S. 420 (2000). Nor did the
Court indicate that evidence introduced at a properly con-
ducted federal evidentiary hearing must be disregarded unless
the federal court has already concluded that the state habeas
court decision involved an unreasonable application of
Supreme Court law. See id. at 437-44. The clear import of
Michael Williams is, to the contrary, that any new evidence
admissible either under § 2254(e)(2) or because the petitioner
did not exhibit a lack of diligence in state court, is pertinent
to the petitioner’s claims under AEDPA.
16068                   PINHOLSTER v. AYERS
   Similarly, in Holland, a case governed by § 2254(d)(1),
although the Court explained that a state habeas court’s deci-
sion generally must be reviewed in light of the evidence pres-
ented at the state habeas proceeding, the Court immediately
thereafter noted that a federal habeas petitioner can introduce
new evidence if he “was not at fault in failing to develop that
evidence in state court.” 542 U.S. at 652-53 (citing Michael
Williams, 529 U.S. at 431-37). As in Michael Williams,
nowhere did the Holland Court indicate that such new evi-
dence should be ignored absent an earlier determination of
unreasonableness under § 2254(d)(1).6 To the contrary, the
Court first concluded that the new evidence presented by the
petitioner during the federal habeas proceedings was not
admissible under Michael Williams or § 2254(e)(2), and only
then concluded that the state habeas court’s decision was rea-
sonable under § 2254(d)(1). Holland, 542 U.S. at 652-53.

   Bradshaw v. Richey also suggests that the reasonableness
of a state habeas court’s decision under § 2254(d)(1) should
be considered only after determining what evidence is admis-
sible under Michael Williams and § 2254(e)(2). 546 U.S. 74,
79 (2005). Bradshaw faulted the Sixth Circuit for “relying on
evidence that was not properly presented to the state habeas
courts without first determining (1) whether respondent was
at fault for failing to develop the factual basis for his claims
in state court, or (2) whether respondent satisfied the criteria
established by 28 U.S.C. § 2254(e)(2).” 546 U.S. at 79 (citing
Michael Williams, 529 U.S. at 430-32). As in both Michael
Williams and Holland, the Bradshaw Court nowhere indicated
that the Sixth Circuit should have first considered the state
habeas court’s decision in light of the evidence produced in
the state habeas proceeding, then considered whether the new
evidence was admissible, and only then considered whether
that new evidence warranted relief.
  6
   In fact, the Holland Court specifically noted, without endorsing, the
practice in certain circuits of reviewing claims based on such new evi-
dence de novo because “there is no relevant state-court determination to
which one could defer.” Id. at 653.
                      PINHOLSTER v. AYERS                  16069
   Given AEDPA’s statutory text and the Supreme Court’s
governing precedent, the most reasonable approach to any
new evidence introduced in federal habeas proceedings is the
most straightforward: Section 2254(e)(2) restricts the evi-
dence that may be considered in federal habeas proceedings,
and § 2254(d)(1) contains no additional restrictions on the rel-
evant evidence. If the evidence is admissible under Michael
Williams or § 2254(e)(2), and if it does not render the peti-
tioner’s claims unexhausted under Vasquez, then it is properly
considered in evaluating whether the legal conclusion reached
by the state habeas court was a reasonable application of
Supreme Court law.

   [9] Importantly, here, the district court expressly found that
Pinholster had met the requirements for an evidentiary hear-
ing under AEDPA. In the addendum to its order granting
habeas relief on Pinholster’s penalty phase ineffective assis-
tance claim, the district court stated, in relevant part:

    Under . . . AEDPA, a petitioner is not entitled to an
    evidentiary hearing if he failed to develop the factual
    basis of a claim in state court. 28 U.S.C.
    § 2254(e)(2). “[A] failure to develop the factual
    basis of a claim is not established unless there is lack
    of diligence, or some greater fault, attributable to the
    prisoner or the prisoner’s counsel.” [Michael] Wil-
    liams v. Taylor, 529 U.S. 420, 432 (2000). “Dili-
    gence for purposes of the opening clause depends
    upon whether the prisoner made a reasonable
    attempt, in light of the information available at the
    time, to investigate and pursue claims in state court;
    it does not depend . . . upon whether those efforts
    could have been successful.” Id. at 435. “Diligence
    will require in the usual case that the prisoner, at a
    minimum, seek an evidentiary hearing in state court
    in the manner prescribed by state law.” Id. at 437.

    Pinholster sought an evidentiary hearing in state
    court regarding his claim that counsel was ineffec-
16070                     PINHOLSTER v. AYERS
     tive for failing to investigate and present mitigating
     evidence at the penalty phase. He did not fail to
     develop the factual basis of this claim in state court
     and an evidentiary hearing was appropriate.

   [10] Based upon our independent inquiry, we cannot say
that the district court erred in its analysis. See Holland, 542
U.S. at 653 (noting that in addition to the district court’s fail-
ure to make the requisite findings for an evidentiary hearing,
the Sixth Circuit also failed to “independently inquire into
these matters”). Pinholster exercised diligence in pursuing an
evidentiary hearing in state court regarding his mitigation
ineffective assistance claim. By withdrawing its order to show
cause and dismissing Pinholster’s habeas petition on the mer-
its, the state court denied Pinholster any further opportunity
to develop the factual record in state court. Because Pinholster
was diligent, the limitations of 28 U.S.C. § 2254(e)(2) are
inapplicable. See Holland, 542 U.S. at 653.7

   Moreover, even if those limitations did apply, we find that
both the federal and the state habeas petitions detail many
substantially identical facts, including trial counsel’s failure to
file a motion for a continuance to prepare a mitigation case
for the penalty phase, counsel’s introduction of Brashear’s
testimony, Pinholster’s home life as a child, and Pinholster’s
   7
     The dissent suggests that Pinholster was not diligent in presenting evi-
dence in state court because he did not present the diagnoses of specific
doctors (Drs. Olson and Vinogradov) during his first habeas petition. Diss.
at 16109. However, Pinholster did attempt to present mental health evi-
dence in state court and was rejected. Pinholster’s request for an evidenti-
ary hearing in state court was denied. To claim that he was not diligent
because he did not present mental health evidence in state court nullifies
AEDPA’s exception for diligence, and is simply illogical. The dissent also
argues that Pinholster “hasn’t shown he couldn’t have returned to state
court” to develop the record there. Diss. at 16111. Again, the genesis of
this requirement is unclear. AEDPA requires only that the defendant dili-
gently attempt to present the evidence in state court. § 2254(e)(2). Pinhol-
ster tried, but was denied that opportunity, and we know of no case law
suggesting that he needed to be rejected twice.
                     PINHOLSTER v. AYERS                 16071
educational, medical, social, psychological, and family back-
ground. Although Pinholster substituted experts during the
proceedings who ultimately developed different mental
impairment theories, these experts nonetheless relied on the
same background facts that Pinholster presented to the state
court. Accordingly, if § 2254(e)(2) were to limit the scope of
the evidence before us, it would exclude only the new mental
impairment theories introduced in federal court, and their
exclusion would not affect our result.

   [11] We therefore conclude that the mitigation evidence
introduced at the federal evidentiary hearing is properly
before us in considering Pinholster’s penalty phase ineffective
assistance claim. For the same reasons, and because the facts
adduced at the evidentiary hearing have not fundamentally
altered the penalty phase ineffective assistance claim that the
California Supreme Court already considered, we also hold
that Pinholster has properly exhausted this claim. See Weaver
v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (rejecting an
exhaustion challenge as “unwarranted hairsplitting” where at
each step of the habeas proceedings the legal claim remained
the same, but the precise factual predicate changed after the
evidentiary hearing).

    2.   Deficient Performance

   [12] In Strickland, the Court held that “counsel has a duty
to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In
any ineffectiveness case, a particular decision not to investi-
gate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
counsel’s judgments.” 466 U.S. at 691. Strickland also
instructs that “[t]he proper measure of attorney performance
[is] reasonableness under prevailing professional norms.” Id.
at 688. As one example of a “guide[ ] to determining what is
reasonable,” the Court referenced “[p]revailing norms of prac-
tice as reflected in American Bar Association standards.” Id.;
16072                  PINHOLSTER v. AYERS
see also Rompilla, 545 U.S. at 387 (“[W]e long have referred
[to these ABA Standards] as guides to determining what is
reasonable.” (citation and internal quotation marks omitted)
(alterations in original)).

   At the time of Pinholster’s trial in 1984, the ABA standards
in place recognized that counsel in capital cases had a duty to
investigate thoroughly the client’s background and the cir-
cumstances of the case in an effort to uncover mitigating evi-
dence relevant to the penalty phase defense:

     It is the duty of the lawyer to conduct a prompt
     investigation of the circumstances of the case and to
     explore all avenues leading to facts relevant to the
     merits of the case and the penalty in the event of
     conviction. The investigation should always include
     efforts to secure information in the possession of the
     prosecution and law enforcement authorities. The
     duty to investigate exists regardless of the accused’s
     admissions or statements to the lawyer of facts con-
     stituting guilt or the accused’s stated desire to plead
     guilty.

Rompilla, 545 U.S. at 387 (quoting 1 ABA Standards for
Criminal Justice 4-4.1 (2d ed. 1982 Supp.)). This duty has
been unequivocally recognized by the Supreme Court, which
recently held that “[i]t is unquestioned that under the prevail-
ing professional norms at the time of [Pinholster’s] trial,
counsel had an ‘obligation to conduct a thorough investigation
of the defendant’s background.’ ” Porter, No. 08-10537, slip
op. at 9-10 (quoting Terry Williams, 529 U.S. at 396 (citing
1 ABA Standards for Criminal Justice 4-4.1, commentary, 4-
55 (2d ed. 1980)); see also Wiggins, 539 U.S. at 524 (“’The
lawyer also has a substantial and important role to perform in
raising mitigating factors both to the prosecutor initially and
to the court at sentencing . . . . Investigation is essential to ful-
fillment of these functions.’ ” (quoting 1 ABA Standards for
                      PINHOLSTER v. AYERS                 16073
Criminal Justice 4-4.1, commentary, 4-55 (2d ed. 1982))
(emphasis added)).

   [13] Since 1984—and in reliance on the same ABA Stan-
dards in place at the time of Pinholster’s trial—the Court has
elaborated that Strickland’s duty to investigate requires that
counsel “present[ ] and explain[ ] the significance of all the
available [mitigation] evidence.” Terry Williams, 529 U.S. at
399. The Court has also found ineffective assistance where,
“[d]espite these well-defined norms” articulated in the ABA
Standards, “counsel abandoned their investigation of [the]
petitioner’s background after having acquired only rudimen-
tary knowledge of his history from a narrow set of sources.”
Wiggins, 539 U.S. at 524.

   [14] The dissent labors to convince us that Bobby v. Van
Hook, 558 U.S. ___, No. 09-144 (2009), somehow changed
the rules with regard to the ABA standards. Diss. at 16116-20.
However, the Court held that it is permissible to use a restate-
ment of professional standards to help determine an attorney’s
obligation towards a client only when those standards “de-
scribe the professional norms prevailing when the representa-
tion took place.” Van Hook, No. 09-144, slip op. at 4. That is
precisely what we do here. We refer to the 1982 edition of the
ABA standards that were in effect at the time of Pinholster’s
1984 trial. Moreover, in Van Hook, the Sixth Circuit errone-
ously stated that attorneys “must fully comply” with the ABA
guidelines. Id. (citing Van Hook v. Anderson, 560 F.3d 523,
526 (6th Cir. 2009)). Here we make clear, as the Supreme
Court has, that such standards do not define reasonable repre-
sentation, but rather are “guides to determining what is rea-
sonable.” Strickland, 466 U.S. at 688. The dissent’s jeremiad
is therefore misplaced.

   In Porter, the Supreme Court found that the counsel’s
investigation “clearly did not satisfy” the aforementioned pro-
fessional norms. No. 08-10537, slip op. at 10. Porter’s counsel
met with him only once to discuss the penalty phase and did
16074                     PINHOLSTER v. AYERS
not obtain school, medical, or military records that counsel
should have known would have led to significant mitigating
evidence. Id. The Court also rejected counsel’s excuse that
Porter was “fatalistic and uncooperative.” Id.8

   [15] Similarly, the evidence here shows that Pinholster’s
trial counsel completely failed to discharge their responsibil-
ity to conduct the investigation required under Strickland.
One week before the penalty hearing, counsel told the judge
that they “did not prepare a case in mitigation” because they
“felt there would be no penalty phase hearing.” Notwithstand-
ing counsel’s admission, they inexplicably declined to request
a continuance—even though the judge indicated he would
readily grant one—because they did not believe the extra time
“would make a great deal of difference.” Billing records con-
firm counsel’s own admissions that they spent almost no time
preparing for the penalty phase hearing that would determine
whether Pinholster would live or die.

   At the penalty phase hearing, counsel waived their opening
statement and presented only one witness, Pinholster’s
mother, Brashear, whose testimony the district court aptly
described as “brief . . . damaging, incomplete, and inaccu-
rate.” Brashear testified about Pinholster’s head injuries as a
child as well as his epilepsy, but because the jurors lacked any
accompanying expert testimony to explain the ramifications
of those conditions they were left without the ability to make
informed judgments about that evidence. Trial counsel also
failed to obtain any of the readily available medical, psycho-
logical, law enforcement, or school records for Pinholster or
his siblings. Consequently, when they asked their retained
  8
    The dissent also uses this excuse, claiming that Pinholster was uncoop-
erative in putting on a penalty-phase defense and claiming that he proba-
bly (and “rational[ly]”) preferred to die than to spend his life in prison.
Diss. at 16137-38. Pinholster said no such thing, and all evidence—
including the habeas petition itself—speaks to the contrary. Regardless, a
difficult or fatalistic client does not give counsel license to collapse into
an armchair and admit defeat. See Porter, No. 08-10537, slip op. at 10-11.
                      PINHOLSTER v. AYERS                 16075
psychiatrist, Dr. Stalberg—whom they hired only after the
trial started—about the availability of mitigation evidence,
they failed to provide him with materials that were necessary
for him to make an informed determination.

   The dissent disparages these damaging admissions. Rather
than concede the lawyer’s admissions, the dissent employs
pop-linguistics to argue that what Brainard really meant when
he said he did not recall conducting a reasonable investigation
was that he actually did conduct a reasonable investigation.
Diss. at 16131-33. The dissent also makes much the fact that
the admissions were made after the trial, id. at 16132, 16144,
but the Supreme Court’s recent decision in Porter relied heav-
ily on the counsel’s post-conviction admission that he “had
only one short meeting with Porter regarding the penalty
phase . . . and that [h]e did not obtain any of Porter’s school,
medical, or military service records or interview any members
of Porter’s family.” No. 08-10537, slip op. at 10. The Court
clearly does not share the dissent’s notion that post-conviction
admissions by legal counsel do not count because attorneys
are apt to lie. Diss. at 16132 n.10.

   Here, counsel’s performance was far more deficient than
that of the attorneys in Terry Williams, Wiggins, and Rom-
pilla, where in each case the Supreme Court upheld the peti-
tioner’s ineffective assistance claim. In Terry Williams, “[t]he
record establishe[d] that counsel did not begin to prepare for
th[e] [penalty] phase of the proceeding until a week before the
trial,” that counsel had called only a total of four witnesses,
and that if counsel had not “failed to conduct an investiga-
tion[,] th[ey] would have uncovered extensive records graphi-
cally describing Williams’ nightmarish childhood.” 529 U.S.
at 369, 395. In addition, in Wiggins, “[a]t no point did [coun-
sel] proffer any evidence of petitioner’s life history or family
background,” nor did counsel “expand their investigation
beyond the PSI [Presentence Investigation Report] and the
DSS [Department of Social Services] records.” 539 U.S. at
516, 524. Finally, in Rompilla, counsel called five of Rompil-
16076                    PINHOLSTER v. AYERS
la’s family members as witnesses at the penalty phase and
examined the reports of three mental health witnesses, but
failed to review any of the materials in the court file on Rom-
pilla’s prior conviction, despite knowledge of the prosecu-
tion’s intention to introduce those materials at trial. See 545
U.S. at 381-86.

   Pinholster’s trial counsel performed even less review of the
readily available records than did the lawyer in Wiggins, who
reviewed both the PSI report and the DSS records before the
penalty phase. Moreover, similar to counsel in Terry Wil-
liams, Pinholster’s attorneys spent less than a week preparing
for the penalty phase, but in Pinholster’s case, the preparation
lasted less than an average workday. Also, while the lawyers
in both Terry Williams and Rompilla performed deficiently
even though they interviewed and called multiple witnesses at
the penalty phase, Pinholster’s counsel interviewed and pre
sented just one witness, whose testimony was not only mis-
leading, but also self-serving and harmful to Pinholster’s
defense.

  Nor, as the district court properly found, were counsel’s
actions the result of any kind of reasonable strategic decision.
Instead, counsel mistakenly thought that there would be no
penalty phase at all, because the State had allegedly failed to
provide notice of its intent to introduce aggravating evidence.
As previously noted, however, the state trial court held a hear-
ing on that issue and determined that the State had served Pin-
holster with adequate notice during the period in which he
represented himself pre-trial. Nevertheless, even after learning
of their mistake, counsel declined the court’s invitation to
move for a continuance to prepare for the penalty phase, stat-
ing on the record that they did not believe the extra time
“would make a great deal of difference.”9 Such an uninformed
  9
   Even assuming that the State had failed to provide adequate notice,
counsel would not have been absolved of their duty to investigate and
present mitigation evidence because the State could have relied solely on
                          PINHOLSTER v. AYERS                        16077
decision cannot, by any reasonable stretch of the imagination,
“be considered sound trial strategy.” See Strickland, 466 U.S.
at 689.

   In exactly such an unreasonable stretch, our dissenting col-
league demonstrates yet again why he would be such a tal-
ented writer of fiction. He concocts a fantastical trial strategy
for Pinholster’s attorneys despite their own admissions that
they were simply unprepared. Counsel told the trial judge a
week before the penalty hearing—much too soon for them to
be “falling on their swords”—that they had not prepared a
mitigation case.10 Diss. at 16132 n.10. The truth of that claim
was borne out a week later. To give attorneys the benefit of
the doubt is one thing, but to fabricate an excuse that the
attorneys themselves could not conjure up is another. The dis-
sent suggests that counsel appeared so ineffective that they
must have had something sinister in mind; in other words, no
one could be that incompetent. However, given that counsel
claimed to be unprepared for the penalty phase, rejected the
offer of additional time to prepare, presented only one devas-
tating “mitigation” witness, and secured their client a death
sentence, it is obvious that they were not merely being
sneaky; they were incompetent, and they failed miserably to

the evidence introduced at the guilt phase in seeking a death sentence, see
CAL. PENAL CODE § 190.3. At a minimum, counsel had a duty to investi-
gate Pinholster’s background or to make a reasonable, informed decision
that such an investigation was unnecessary. See Strickland, 466 U.S. at
691; Terry Williams, 529 U.S. at 396 (“trial counsel did not fulfill their
obligation to conduct a thorough investigation of the defendant’s back-
ground”).
   10
      Although Brainard failed to make up an excuse for his lack of prepara-
tion, the dissent gives him one, claiming that the attorney was employing
the tactic of “falling on your sword” to help his client on habeas. Diss. at
16130-32, 16132 n.10. This flight of fancy goes too far—the Sixth
Amendment guarantee of effective counsel, see Cuyler v. Sullivan, 446
U.S. 335, 344 (1980), would be rendered meaningless if every attorney
who is unable to explain his ineffective assistance is assumed to be effec-
tive because he is “falling on his sword.”
16078                 PINHOLSTER v. AYERS
discharge the duties they owed to their client at the penalty
phase of his murder trial.

   To be sure, in some cases counsel may have “sound reason
to think it would have been pointless to spend time and
money on . . . additional investigation,” thereby rendering
counsel’s failure to discover additional mitigating evidence
reasonable. See Rompilla, 545 U.S. at 383; see also, e.g., Bur-
ger, 483 U.S. at 792-95 (finding “counsel’s decision not to
mount an all-out investigation into petitioner’s background in
search of mitigating circumstances” reasonable where all
potential witnesses brought to his attention provided informa-
tion predominantly harmful to the defense). But such deci-
sions are reasonable only because counsel made them after an
investigation adequate enough to make an informed choice.
See Wiggins, 539 U.S. at 527 (“Strickland does not establish
that a cursory investigation automatically justifies a tactical
decision with respect to sentencing strategy. Rather, a review-
ing court must consider the reasonableness of the investiga-
tion said to support that strategy.”); Duncan v. Ornoski, 528
F.3d 1222, 1234 (9th Cir. 2008) (interpreting Strickland to
mean that “decisions that are made before a complete investi-
gation is conducted are reasonable only if the level of investi-
gation was also reasonable”), cert. denied, 129 S. Ct. 1614
(2009); Correll v. Ryan, 539 F.3d 938, 948 (9th Cir. 2008)
(“A decision by counsel not to present mitigating evidence
cannot be excused as a strategic decision unless it is supported
by reasonable investigations.”); Jennings v. Woodford, 290
F.3d 1006, 1014 (9th Cir. 2002) (“Although defense counsel
is empowered to make such strategic decisions, Strickland
demands that such decisions be reasonable and informed.”).

  [16] Here, defense counsel conducted no investigation into
Pinholster’s background at all, aside from interviewing his
mother. Not only was counsel’s investigation grossly inade-
quate; they also failed to look into any of the limited mitigat-
ing evidence that they did discover in their interview with
Pinholster’s mother, such as the evidence of Pinholster’s epi-
                          PINHOLSTER v. AYERS                        16079
lepsy. Since Pinholster’s counsel did not even attempt a
meaningful investigation, we can see no basis for concluding
that they could have had any “sound reason” to believe that
“additional investigation,” see Rompilla, 545 U.S. at 383
(emphasis added), would not have, as they termed it, “ma[d]e
a great deal of difference.”

   [17] Finally, the State’s attempt to excuse counsel’s failure
to conduct the requisite investigation because Pinholster
allegedly told them “not to put on a penalty defense” fails. As
noted, this approach has been rejected by the Supreme Court.
See Porter, No. 08-10537, slip op. at 10-11. Furthermore, in
support of this assertion, the State relies on an interview
report written by a defense investigator in July 1991. How-
ever, as the district court noted, because neither Pinholster nor
the defense investigator testified at the evidentiary hearing,
this statement is hearsay.11 Regardless of its truth, the record
demonstrates that the statement did not influence trial coun-
sel’s performance, because trial counsel did present a penalty
defense, albeit a constitutionally defective one. Moreover,
even assuming that the statement is true, it did not relieve
counsel of their constitutional duty to investigate. “A defen-
dant’s insistence that counsel not call witnesses at the penalty
phase does not eliminate counsel’s duty to investigate mitigat-
ing evidence or to advise the defendant of the potential conse-
quences of failing to introduce mitigating evidence, thereby
assuring that the defendant’s decision regarding such evi-
dence is informed and knowing.” Williams v. Woodford, 384
F.3d 567, 622 (9th Cir. 2004). Here, the State has failed to
present any evidence that Pinholster was counseled concern-
ing the possible repercussions of not introducing mitigation
evidence, thereby enabling him to make any kind of informed,
knowing decision on the matter. Counsel’s admissions on the
record instead reflect that they simply failed to prepare a miti-
  11
    Although the State alleges that “[t]he parties had already stipulated to
the admissibility of the report,” the State provides no record evidence to
that effect, nor can we find any.
16080                  PINHOLSTER v. AYERS
gation case because they did not expect a penalty phase to
occur, and then, out of apparent apathy or neglect of duty,
declined a continuance without an informed or strategic basis
for doing so.

   [18] It is prima facie ineffective assistance for counsel to
“abandon[ ] their investigation of [the] petitioner’s back-
ground after having acquired only rudimentary knowledge of
his history from a narrow set of sources.” Wiggins, 539 U.S.
at 524-25; see also Siripongs v. Calderon, 35 F.3d 1308, 1316
(9th Cir. 1994) (holding that counsel performed deficiently by
failing to “conduct more than a cursory investigation” and by
making “no attempt to humanize [the defendant] before the
jury”). Accordingly, we hold that counsel’s almost complete
failure to investigate the readily available mitigation evidence
in Pinholster’s case was objectively unreasonable under both
the prevailing norms of practice, as reflected in the ABA
Standards in place at the time of his trial, as well as the clearly
established federal law in Strickland.

    3.   Prejudice

   We also hold that trial counsel’s constitutionally deficient
performance prejudiced Pinholster’s defense. See Strickland,
466 U.S. at 687. As noted, to demonstrate prejudice, a peti-
tioner “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the out-
come.” Id. at 694.

   [19] Regarding prejudice at capital sentencing, “the ques-
tion is whether there is a reasonable probability that, absent
the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not
warrant death.” Id. at 695. This inquiry requires us to “re-
weigh the evidence in aggravation against the totality of avail-
able mitigating evidence.” Wiggins, 539 U.S. at 534. The
                      PINHOLSTER v. AYERS                  16081
“totality of the available mitigation evidence” includes “both
that adduced at trial, and the evidence adduced in the habeas
proceeding[s].” Terry Williams, 529 U.S. at 397. More partic-
ularly, given California’s requirement that a unanimous jury
impose any death sentence, see CAL. PENAL CODE § 190.4(b),
our inquiry is whether, based on the sum of this evidence,
“there is a reasonable probability that at least one juror
would have struck a different balance,” Wiggins, 539 U.S. at
537 (emphasis added).

       a.   Aggravating Evidence

   As the district court noted, there was substantial aggravat-
ing evidence in this case. The State presented evidence that
Pinholster beat both of the murder victims, stabbed one of
them with a knife, and took their wallets, all for a paltry gain
of $23 and a quarter-ounce of marijuana. Yet, when Pinhol-
ster took the stand at trial, he denied murdering the victims
and boasted that he had committed hundreds of robberies over
the previous six years, using a gun, but never a knife, to vic-
timize drug dealers. He was also openly disrespectful of the
deputy prosecutor, appeared unconcerned with the seriousness
of the underlying murders, and even laughed or smirked sev-
eral times during the deputy prosecutor’s cross-examination.

   In addition, the State introduced evidence of Pinholster’s
earlier conviction for kidnapping with a knife, of his threat to
kill the State’s lead witness, and of his assault of another indi-
vidual with a straight razor. Pinholster had a history of other
violent outbursts as well, including striking a bailiff after a
court proceeding, resisting arrest and assaulting several police
officers, and once, during an apparent epileptic seizure, hit-
ting his wife and breaking her jaw. The jury also heard evi-
dence of Pinholster’s juvenile gang activities and of his
substantial disciplinary record at the Los Angeles County
Central Jail, where his numerous infractions encompassed
throwing urine at guards, threatening and assaulting guards,
and initiating fights with other inmates. As a result of this
16082                     PINHOLSTER v. AYERS
behavior, jail officials classified him as a disciplinary problem
and gave him a low-calorie diet reserved for the most recalci-
trant inmates.

        b.        Available Mitigation Evidence

   [20] Although the State’s aggravating evidence was
severely detrimental to Pinholster’s case, the record reflects
that the harmful effect of that evidence could have been sig-
nificantly mitigated had Pinholster’s trial counsel performed
competently. Instead, the only mitigation evidence introduced
by defense counsel at the penalty phase was the inaccurate,
damaging testimony of Pinholster’s mother, Brashear. If
counsel had conducted even a minimally adequate investiga-
tion, however, they would have found a trove of additional
mitigation evidence that would have humanized Pinholster to
the jury and, at the same time, contradicted Brashear’s mis-
leading version of events. This omitted, but readily available,
evidence also would have done much to counter the State’s
aggravating evidence, which Brashear’s testimony failed to
rebut or even address.

             i.    Organic Brain Damage

   [21] First, counsel would have discovered evidence of the
organic basis for Pinholster’s mental health troubles that
developed as a result of his traumatic childhood head injuries.
During the penalty phase, Brashear testified that when Pinhol-
ster was two, she injured his head “quite badly” when she
accidentally ran over him with her car. The accident nearly
tore off one of his ears. She also testified that, when he was
four or five, she had a car accident in which his head went
through the windshield. Pinholster’s counsel, however, failed
to present any medical evidence regarding the consequences
of those injuries. As a result, the State argued to an unin-
formed jury that these injuries were insignificant:

    He was run over by a car when he was three years
    old. That’s very unfortunate. There is no evidence of
                        PINHOLSTER v. AYERS                      16083
       any brain damage. A lot of children get dropped, fall
       from their cribs or whatever. A couple of years later
       he went through a car window, not hospitalized, got
       medical care.

   In addition, Brashear wrongly testified that Pinholster’s
epilepsy began after a severe beating that he incurred in jail
at the age of eighteen. She then changed her story and claimed
that she discovered his epilepsy by witnessing the end of a
seizure, at which point he told her about his condition. Given
her confusing testimony, however, the State argued at the end
of the penalty phase that Pinholster did not have epilepsy at
all. The State also argued to the jury that if Pinholster truly
had epilepsy, “a doctor would have been brought in to tell you
that. Medical records, something.” In contrast, readily avail-
able mitigation evidence would have shown that Pinholster’s
childhood injuries likely had long-term effects on his mental
health.

   [22] The evidence demonstrates beyond a doubt that Pin-
holster suffered from epilepsy from a young age. Pinholster
was first diagnosed with epilepsy and treated with anti-seizure
medication when he was only nine years old, and he fre-
quently suffered complex partial and grand mal seizures
thereafter. Dr. Olson concluded that the two car accidents
damaged the frontal lobes of Pinholster’s brain, an injury that
frequently causes impulsive behaviors. This damage, Dr.
Olson explained, was evidenced both by Pinholster’s epilepsy
and by his abnormal EEG reading as a child.12 Dr. Vinogradov
similarly concluded that Pinholster’s childhood head injuries
resulted in organic, pre-frontal brain damage that changed his
  12
     The dissent spends some time arguing that Pinholster’s epilepsy is
irrelevant because he was not suffering a fit when he committed the
crimes. The point, however, is that Pinholster’s brain was so damaged by
his numerous head traumas that it caused epilepsy. In other words, epi-
lepsy is an indicator of pre-frontal brain damage, and pre-frontal brain
damage frequently leads to aggressive, impulsive behaviors. The jury did
not hear this evidence.
16084                 PINHOLSTER v. AYERS
personality and explained his aggressive, violent, and antiso-
cial behavior, while Dr. Stalberg characterized the injuries as
possibly “devastating” and likewise connected them to Pin-
holster’s epilepsy.

   [23] This additional medical evidence would have helped
counter the State’s aggravation case in three respects. First,
evidence that Pinholster’s brain damage may have influenced,
or even caused, his behavior at the time of the crime may
have led jurors to conclude that he was less morally culpable
at the time of the offense, and at least one juror may have
been inclined to refrain from voting in favor of a capital sen-
tence. See Wiggins, 539 U.S. at 537 (holding that prejudice is
established if “there is a reasonable probability that at least
one juror would have struck a different balance” between life
and death). Evidence of organic brain injury in other cases has
led juries to consider whether because a defendant’s “behav-
ior was physically compelled . . . his moral culpability would
have been reduced.” Caro v. Woodford, 280 F.3d 1247, 1257-
58 (9th Cir. 2002). For this reason, evidence of serious mental
health problems, including organic brain damage, is “pre-
cisely the type of evidence that we have found critical for a
jury to consider when deciding whether to impose a death
sentence.” Douglas v. Woodford, 316 F.3d 1079, 1090 (9th
Cir. 2003). Here, as in Porter, it “was not reasonable to dis-
count entirely the effect that [a psychiatrist’s] testimony might
have had on the jury or the sentencing judge.” No. 08-10537,
slip op. at 14.

   Second, properly presented evidence of Pinholster’s brain
injury, and its profound effect on his behavior, could have
altered the jury’s impressions of his detrimental guilt phase
testimony and of his boastful, disrespectful demeanor by indi-
cating an organic basis for his inappropriate expressions and
for his tendency to exaggerate his past. In this way, “in the
hands of a competent attorney,” the harmful evidence pro-
vided by Pinholster’s trial testimony and by his offensive
manner could actually “have been used to support [his] claims
                      PINHOLSTER v. AYERS                  16085
of dysfunctional upbringing and continuing mental disorder.”
See Correll, 539 F.3d at 955.

   [24] Third, evidence of Pinholster’s organic brain injury
would have humanized him in the eyes of the jury, even if the
jury concluded that his brain injury was not responsible for
his actions during his commission of the crime. It is not nec-
essary that there be a direct causal connection between a
defendant’s brain injury and the crime he commits for the
existence of that injury to serve as a humanizing and therefore
mitigating factor during sentencing. See, e.g., Skipper v. South
Carolina, 476 U.S. 1, 4-5 (1986) (“Although it is true that
[the evidence] would not relate specifically to petitioner’s cul-
pability for the crime he committed, there is no question but
that such [evidence] would be mitigating in the sense that [it]
might serve as a basis for a sentence less than death.” (cita-
tions and quotation omitted)). The very existence of organic
neurological problems may serve as mitigating evidence at
sentencing by eliciting sympathy or, at the very least, some
degree of understanding from the sentencer. See Douglas, 316
F.3d at 1090; see also Hendricks v. Calderon, 70 F.3d 1032,
1043 (9th Cir. 1995) (holding that mental health evidence
could be mitigating at the penalty phase “even though it is
insufficient to establish a legal defense to conviction in the
guilty phase”). Though the dissent mocks the fact that counsel
did not attempt to humanize Pinholster, diss. at 16115-16, the
Supreme Court clearly considers humanizing an important
part of penalty-phase mitigation in a death penalty case. See
Porter, No. 08-10537, slip op. at 12 (“The judge and jury at
Porter’s original sentencing heard almost nothing that would
humanize Porter or allow them to accurately gauge his moral
culpability.”).

         ii.   Abusive and Deprived Childhood

   [25] Second, if counsel had conducted an adequate investi-
gation, they would have found evidence of Pinholster’s abu-
sive and deprived upbringing. Brashear minimized and
16086                PINHOLSTER v. AYERS
distorted the true nature of Pinholster’s relationship with his
step-father when she testified at the penalty phase:

    Q: Did he get along with his stepfather, Mrs. Brash-
    ear? I am sorry, I know this is difficult for you.

    A: Well, at times. He would try to discipline him and
    sometimes I was objectionable to that. Scott has
    always — he had a mind of his own.

    ...

    Q: Do you feel that any of that punishment that was
    given to Scott was abusive or near abusive?

    A: Well, I think so at times. Scott would push to the
    limit. He was a boy that — he had his own way. My
    husband sometimes would lose his temper with him,
    yes. He always thought he was punishing him to
    make him see that wasn’t the thing he was supposed
    to be doing, and Scott rebelled even when he was
    quite young. We got in quite a bit of arguments and
    hassles.

    Q: What kind of relationship does Scott have with
    his stepfather today?

    A: Well, it’s okay. He just feels very bad for what
    has happened to Scott.

    Q: But is it a friendly relationship?

    A: Yes.

   [26] In stark contrast, the additional mitigation evidence
showed that Pinholster suffered violent and continuous physi-
cal abuse during his early years. His brother, Terry, described
this abuse as follows:
                          PINHOLSTER v. AYERS                        16087
       [Our step-father] frequently beat Scott while Scott
       was a child; these beatings continued until Scott left
       our home. Bud would use his fists, a belt, or any-
       thing else available, including on at least one occa-
       sion a two by four board. Of all the children, Scott
       suffered the most frequent and violent beatings. The
       situation grew worse the older we got; it was not
       long before Scott received nothing positive at all
       from Bud. There was so much violence in our home
       I dreaded coming home each day.

Pinholster’s half-sister, Tammy, likewise recalled:

       Scott as a child was frequently physically abused by
       Scott’s step-father, Bud Brashear. Bud hit Scott with
       his fists as often as several times within one week.
       Bud’s punishments were unpredictable and severe.
       For instance, Bud once was awakened early, and
       made all of us children run in circles in the back yard
       until we were near collapse. I have no recollection of
       Bud ever praising Scott or doing anything emotion-
       ally supportive for Scott.

Pinholster’s psychiatric records also indicated that his step-
father frequently used a paddle to hit him on the head, back,
and shoulders, knocking him out at times without subsequent
medical care. And relatives’ additional declaration testimony
showed that, beginning when Pinholster was one and a half
years old, his maternal grandmother “beat the hell out of” him
for resembling his biological father, whom she and her hus-
band detested as a “good for nothing.”13 Absent this available
  13
    The dissent minimizes this abuse, calling it “no more than spanking.”
Diss. at 16155. We think it safe to say that lifting a baby “up by his two
hands with one hand, hold[ing] him up in the air, and wail[ing] on him
with her other hand,” “beat[ing] the hell out of him” and “while hitting
him, yelling[ing] at [him] for being ‘just like your father’ ” goes far, far
beyond mere spanking.
16088                 PINHOLSTER v. AYERS
mitigation evidence, however, the State was free to summa-
rize Brashear’s misleading testimony as ordinary discipline,
arguing in its closing statement to the jury: “She said his step-
father disciplined him. So what? I am sure you have all disci-
plined your children. I was disciplined myself. I remember
trying to run from my mother when I was 16 years old, and
she couldn’t catch me any more.”

   Brashear also testified that Pinholster “never really wanted
for anything at home too much,” having had “everything nor-
mally materialwise that most people have,” and that although
the family “didn’t have lots of money,” he always had “a roof
over his head” and “decent clothes.” She even recalled his
supposed embarrassment at having friends over to the house
because it showed the family’s secure financial situation:
“[T]he more impoverished people . . . that he hung around
with, he wouldn’t bring them up to the house. He said it was
too nice a house and it ruined his image.”

   [27] As the available mitigation evidence would have
shown, however, the truth was that Pinholster and his siblings
suffered extreme deprivation. According to additional decla-
ration testimony from Brashear’s siblings, the family “re-
mained extremely poor” after Brashear’s second marriage,
and “[t]he kids did not get enough to eat.” Once, Brashear’s
sister stayed over and awoke in the middle of the night to see
“the boys in the kitchen mixing flour with water, trying to
make themselves something to eat. . . . The house was really
filthy. . . . Completely unsupervised,” the children “ran wild
and trashed wherever they were living. . . . They ruined apart-
ments, furniture, everything,” until the family would “skip out
on the rent and move somewhere else,” generally to another
“bad neighborhood[ ] with lots of crime.” All the while,
“when it came to spending money, Burnice always spent it on
herself first. . . . Although her kids looked like raga-muffins
and their clothes were always old and dirty, Burnice was
always dressed very nicely.” Without this evidence before the
jury, however, the State was able to argue that Pinholster
                      PINHOLSTER v. AYERS                  16089
“came from a good home. You heard that he was not a
deprived child. Had many things going for him, probably
more than many children.”

         iii.   Family’s Criminal and Mental History

   [28] Third, with an adequate investigation, Pinholster’s trial
counsel would have discovered a wealth of evidence regard-
ing his family’s significant criminal and mental history. In her
testimony, Brashear inaccurately distinguished Pinholster
from the rest of his siblings, portraying him as the most way-
ward of her children by far. She testified that his siblings had
been in “small trouble” with the law, and that they were “basi-
cally very good children”:

    Q: What kind of trouble?

    A: My younger son once was picked up on a drunk
    driving, driving under the influence, which was
    dropped. I guess he wasn’t really as intoxicated as
    they thought he was. The other was possession of
    some kind of drug. He got probation and was totally
    scared, not something you carry around in your car.

    Q: How about your daughter?

    A: She’s been in a little bit of trouble, yes. Mostly
    self-destructive to herself. She was a wild girl. She
    isn’t any more. She got picked up on a drunk arrest
    also.

When asked, “Generally speaking, was Scott like your other
children?,” she answered, “No, sir.”

  The available mitigation evidence would have established,
however, that each of Brashear’s children had severe prob-
lems. When Pinholster’s older brother, Alvin, was twenty
years old, the State charged him with the rape and sodomy of
16090                     PINHOLSTER v. AYERS
a fourteen-year-old. He later entered a state mental hospital,
where doctors diagnosed him with schizophrenia and deter-
mined that he was incompetent to stand trial. After several
unsuccessful attempts, Alvin ultimately committed suicide by
overdosing on drugs. Pinholster’s younger brother, Terry, was
diagnosed with mild depression and used drugs, and his half-
sister, Tammy, first began drinking when she was eleven. At
age seventeen, Tammy was charged with sexual battery and
oral copulation on a fourteen-year-old girl. Tammy also had
arrests for prostitution, public drunkenness, and possession of
marijuana. Guy, a half-brother, who was diagnosed with
manic depression and prescribed lithium, was admitted to two
different psychiatric hospitals. Gary, another half-brother, had
a history of alcoholism and a horrible temper.14

           iv.   Pinholster’s Substance Abuse

   [29] Fourth, had trial counsel conducted an adequate inves-
tigation, they would have discovered evidence of Pinholster’s
longstanding substance abuse. At the penalty phase, Brashear
testified that Pinholster grew up supported by his family, as
a member of “a family that sticks close together like you
would not believe,” and made no mention of his chronic drug
problems. According to the additional mitigation evidence,
however, the reality was that Pinholster started sniffing glue
and paint and using alcohol, nicotine, and marijuana between
ages ten and twelve; using secanol, or downers, between ages
thirteen and fourteen; and regularly using heroin and sporadi-
cally using cocaine between ages fourteen and sixteen. This
substance abuse continued into his adulthood.
  14
     According to relatives’ additional declaration testimony, Pinholster’s
biological father also “did nothing but drink and party,” had fits of anger
and mood swings, and “sometimes would stay up all night pacing the
house, yelling and screaming.” After undergoing a mental-health evalua-
tion for a custody hearing, he received a diagnosis as paranoid with narcis-
sistic personality disorder.
                     PINHOLSTER v. AYERS                 16091
         v.   State’s Exploitation of Brashear’s Testimony

   Finally, without any of the additional mitigation evidence,
the State was able to capitalize on the weakness of Brashear’s
testimony in its closing argument:

    What did the defendant proffer in this particular case
    as to ask you to come back with anything less than
    death? Not one person, ladies and gentleman, came
    into this courtroom, not one person, to tell you about
    anything nice this man has ever done. About any-
    thing good in his background, about anything posi-
    tive that you could consider as being something,
    maybe there is something salvageable. Not one per-
    son except his mother. A mother clearly loves her
    son, ladies and gentleman. Clearly not the most unbi-
    ased witness in the world.

The State argued that the defense offered “[n]othing except a
mother who loves her son. Even the most heinous person
born, even Adolph Hitler probably had a mother who loved
him,” and that “[i]t would probably be charitable to refer to
[Pinholster] as a member of the human species.” Given the
absence of a minimally adequate defense investigation, these
arguments went completely unchallenged, and Pinholster’s
counsel could only ask the jurors to be merciful, without pro-
viding any reason for them to do so. See Rompilla, 545 U.S.
at 393 (“This evidence adds up to a mitigation case that bears
no relation to the few naked pleas for mercy actually put
before the jury . . . .”).

   [30] Based on the vast differences between Brashear’s testi-
mony and the evidence presented at Pinholster’s habeas
proceedings—as well as on the mitigating effect the addi-
tional evidence would have had on the State’s aggravation
case—we conclude that it was objectively unreasonable for
the California Supreme Court to determine summarily that not
one of the twelve jurors would have voted against the death
16092                 PINHOLSTER v. AYERS
penalty. Wiggins, 539 U.S. at 537. We therefore find that
counsel’s deficient performance prejudiced the defense. See
Strickland, 466 U.S. at 687. We find this determination but-
tressed by the fact that, despite the brevity of defense coun-
sel’s penalty phase presentation, the jury deliberated for at
least two and a half days before finally returning a death ver-
dict.

   Even more important, we find that application of the con-
trolling precedent in Porter, Terry Williams, Wiggins, and
Rompilla—as those cases inform the meaning of Strickland—
admits of no other reasonable conclusion.

   In Porter, the Court found that counsel had incompetently
failed to present evidence of Porter’s abusive childhood, alco-
hol abuse, military service, and brain damage. Porter’s father
beat his children and wife and, like Pinholster, Porter was his
father’s “favorite target.” Porter, No. 08-10537, slip op. at 4.
Also like Pinholster, Porter had trouble in school and attended
special classes for slow learners. Id. Porter joined the military
to escape his family life and was honored for fighting in two
horrific battles. Id. at 4-5. Upon his return he developed a
severe drinking problem and was diagnosed with “brain dam-
age that could manifest in impulsive, violent behavior.” Id. at
6.

   In Terry Williams, had counsel conducted an adequate
investigation, they would have discovered additional mitiga-
tion evidence that “Williams’ parents had been imprisoned for
the criminal neglect of Williams and his siblings,” that “Wil-
liams had been severely and repeatedly beaten by his father,”
and that Williams “had been committed to the custody of the
social services bureau for two years.” 529 U.S. at 395. Wil-
liams’ counsel also would have found that he “was borderline
mentally retarded and did not advance beyond sixth grade,”
that he had “help[ed] to crack a prison drug ring,” and that he
was a peaceful inmate. 529 U.S. at 396 (internal quotation
marks omitted). The aggravating evidence, meanwhile, was
                     PINHOLSTER v. AYERS                 16093
that before the murder for which Williams received the death
penalty, he had been convicted of burglary, armed robbery,
and grand larceny, and that after the murder, he had commit-
ted “two auto thefts and two separate violent assaults on
elderly victims” and “had also been convicted of arson for set-
ting fire in the jail while awaiting trial.” Id. at 368.

   In Wiggins, the available mitigation evidence that compe-
tent counsel could have presented was that “Wiggins experi-
enced severe privation and abuse in the first six years of his
life while in the custody of his alcoholic, absentee mother,”
that “[h]e suffered physical torment, sexual molestation, and
repeated rape during his subsequent years in foster care,” and
that he spent a period of time homeless. 539 U.S. at 535. In
addition, Wiggins had “diminished mental capacities.” Id. The
only aggravating evidence, by contrast, was that he drowned
his elderly victim in a bathtub and ransacked her apartment;
he “d[id] not have a record of violent conduct that could have
been introduced.” Id. at 514, 537.
PINHOLSTER v. AYERS           16095
                      Volume 2 of 3
16096                PINHOLSTER v. AYERS




   Finally, in Rompilla, the additional mitigation evidence was
that Rompilla “was reared in [a] slum,” that his “parents were
both severe alcoholics,” and that he “was abused by his father
who beat him when he was young with his hands, fists,
leather straps, belts and sticks.” 545 U.S. at 390-92 (internal
quotation marks omitted). This evidence also showed that
Rompilla received “no expressions of parental love, affection
or approval,” that he and his siblings “were not given clothes
and attended school in rags,” that he drank too much alcohol,
that he “suffer[ed] from organic brain damage,” and that his
“IQ was in the mentally retarded range.” Id. at 392-93 (inter-
nal quotation marks omitted). The aggravating evidence, on
the other hand, was that Rompilla had prior convictions for
burglary, rape, and theft, and that “the murder was committed
by torture.” Id. at 378, 399; Rompilla v. Horn, 355 F.3d 233,
237 (3d Cir. 2004), rev’d by 545 U.S. 374.

   Here, the facts are remarkably similar. Like Porter, Wil-
liams, Wiggins, and Rompilla, who were all severely beaten
by their parents, Pinholster suffered vicious and repeated
physical abuse from both his step-father and his maternal
grandmother. All five men grew up deprived in extremely
poor households, lacking any meaningful parental guidance or
emotional support, and four of them spent parts of their child-
hood in various foster homes and other institutional environ-
ments. While Pinholster, Porter, and Rompilla incurred
organic brain damage as children or young adults that
impaired their mental health and influenced their behavior,
Williams and Wiggins had mental capacities that bordered on
or amounted to mental retardation. And Pinholster, Porter,
and Rompilla suffered from addictions to alcohol from an
early age.
                      PINHOLSTER v. AYERS                  16097
   Granted, the aggravating evidence in Wiggins and Porter
was not as strong as that here. Wiggins, unlike Pinholster,
lacked a record of violent behavior. Porter was a decorated
veteran who returned home a changed man. But the State’s
aggravation case against Pinholster was not materially
stronger than those in Terry Williams and Rompilla. While it
is true that Pinholster boasted at trial about the many past rob-
beries that he allegedly committed, as noted above, the avail-
able mitigation evidence of his brain damage and related
mental problems could have influenced the jury’s interpreta-
tion of that testimony by suggesting an organic origin for his
violent, aggressive behavior and for his penchant for exagger-
ation. Moreover, unlike Pinholster’s case, the aggravating evi-
dence in Terry Williams included actual convictions for arson,
burglary, armed robbery, and grand larceny; Williams’ con-
fession to two auto thefts and to two violent assaults on
elderly victims, where one of the victims “was [left] in a veg-
etative state and not expected to recover”; and testimony from
two experts that “there was a high probability that Williams
would pose a serious continuing threat to society.” 529 U.S.
at 368-69 (internal quotation marks omitted). Rompilla like-
wise had actual convictions of theft, burglary, and—more
serious than any of Pinholster’s pre-murder crimes—rape, in
which he slashed the victim with a knife. Rompilla, 545 U.S.
at 378; 355 F.3d at 237. Of even greater importance, however,
unlike Pinholster’s case, the jury found that Rompilla “com-
mitted the murder by means of torture.” 355 F.3d at 236
(emphasis added).

   On the other hand, the facts in Pinholster’s case are readily
distinguishable from those in Van Hook, Wong v. Belmontes,
and Visciotti. Nonetheless, we will discuss them in some
detail here because they involved ineffective assistance of
counsel and because Van Hook and Belmontes were decided
while this case was pending. In Van Hook, the defendant’s
attorney put vastly more effort into preparing a mitigation
case than did Pinhoster’s. Van Hook, No. 09-144, slip op. at
8. For example, Van Hook’s counsel presented eight mitiga-
16098                 PINHOLSTER v. AYERS
tion witnesses—so many that the court found that additional
“evidence from more distant relatives can reasonably be
expected to be only cumulative.” Id. Here, counsel presented
one witness, and that witness’s testimony was aptly described
by the district court as “brief . . . damaging, incomplete, and
inaccurate.” Additional witnesses would not have been
cumulative—indeed, they would have directly contradicted
the one witness who had been put on the stand, and would
have provided the only true mitigating evidence. Van Hook’s
attorneys also “looked into enlisting a mitigation specialist,”
id. at 6, presented information about Van Hook’s exposure to
domestic violence, drugs, and alcohol at a young age, id. at
7, and had experts testify that his mental health problems
likely “impaired his ability to refrain from the [crime]” and
caused his “explosion of senseless and bizarre brutality,” id.
(internal quotation marks omitted). This is precisely the type
of evidence that was kept from Pinholster’s jury. Despite the
Chief Judge’s best efforts to pose the dissent as a reflection
of current Supreme Court jurisprudence, Van Hook has very
little relevance to whether Pinholster’s attorneys made reason-
able efforts to represent him during the penalty phase of trial.

   The recent decision in Wong v. Belmontes is also uninstruc-
tive in this case. At the outset, the Court was careful to limit
the holding by stating that “[t]he challenge confronting Bel-
montes’ lawyer . . . was very specific.” 558 U.S. ___, No. 08-
1263 (2009). Substantial evidence (including his own boastful
admission) indicated that Belmontes had committed, and
escaped punishment for, a previous murder. Belmontes, No.
08-1263, slip op. at 3. The prosecution was desperate to get
that evidence in and Belmontes’s attorney “built his mitiga-
tion strategy around the overriding need to exclude it.” Id. He
had to “proceed cautiously, structuring his mitigation argu-
ments and witnesses to limit” the possibility that he would
open the door. Id. at 4. Perched on this tightrope, the attorney
still managed to “put on nine witnesses that he thought could
advance a case for mitigation, without opening the door to the
prior murder evidence.” Id. at 5. If anything, Belmontes’s
                      PINHOLSTER v. AYERS                  16099
attorney’s performance undermines the dissent’s argument
that Pinholster’s one, ineffective mitigation witness was suffi-
cient because his lawyers may have feared that other wit-
nesses would have opened the door to some aggravating
evidence. Diss. at 16166-69. Pinholster had not committed an
additional murder just waiting to be revealed, and the record
reveals no other such evidence. Nor did Pinholster’s counsel
assert that any such tactical reason existed for their failure to
introduce the crucial mitigation evidence that they failed to
uncover.

   Belmontes’s lawyer showed that putting on an effective
mitigation case is possible even in the face of potentially dev-
astating aggravating evidence. The mitigating evidence pre-
sented painted a complete picture of Belmontes’s past, and the
additional evidence that was not presented would have simply
been cumulative: that his sister had died when he was young,
that he exhibited signs of depression after her death, and that
he had a strong, likeable, and respectful character. Belmontes,
No. 08-1263, slip op. at 8. This evidence starkly contrasts
with the unheard evidence in Pinholster’s case: organic brain
damage, mental disease, childhood beatings, abandonment,
and a nuclear family filled with mental illness and violence.
Not only did Pinholster’s mother, the one mitigating witness,
fail to paint an adequate picture, she downplayed and under-
mined his story in order to make herself look better on the
stand.

   Finally, in Visciotti, the aggravating evidence was substan-
tially stronger, as Visciotti committed “a cold-blooded
execution-style killing of one victim and attempted execution-
style killing of another,” both after Visciotti and his accom-
plice had driven the victims to a remote area to rob them. 537
U.S. at 20, 26. Visciotti’s prior offenses, which included the
“stabbing of a pregnant woman as she lay in bed trying to pro-
tect her unborn baby,” were shockingly depraved. Id. at 26. At
the same time, the mitigation evidence in Visciotti was signifi-
cantly weaker than that in Pinholster’s case, as Visciotti’s
16100                 PINHOLSTER v. AYERS
“troubled family background” lacked any physical abuse or
privation comparable to that suffered by Pinholster as a child.
See id. (internal quotation marks omitted).

   Accordingly, we hold that the California Supreme Court’s
“postcard” denial of Pinholster’s penalty phase ineffective
assistance claim constituted an objectively unreasonable
application of the clearly established federal law in Strick-
land. Pinholster’s attorneys performed even more deficiently
than the lawyers in Terry Williams, Wiggins, and Rompilla;
and the balance between the available mitigating evidence and
the aggravating evidence, for purposes of showing prejudice,
is materially indistinguishable from that in Terry Williams and
Rompilla.

   [31] We therefore affirm the district court’s grant of habeas
relief on Pinholster’s penalty phase ineffective assistance
claim, finding such relief warranted when properly considered
under AEDPA’s deferential standards. Given the law and the
facts discussed above, we are fully persuaded that it was
objectively unreasonable for the California Supreme Court to
determine summarily that not one of the twelve jurors would
have voted against a death sentence, especially in light of the
fact that the jury deliberated for almost two and a half days
before finally returning a death verdict.

   In doing so, we in no way minimize the brutal nature of
Pinholster’s underlying crimes of conviction. As the district
court acknowledged, the murders were “heinous.” Neverthe-
less, Terry Williams, Wiggins, and Rompilla establish that a
habeas petitioner’s “excruciating life history,” Wiggins, 539
U.S. at 537, or “nightmarish childhood,” Terry Williams, 529
U.S. at 395, can provide mitigating evidence powerful enough
to outweigh the imposition of the death penalty for even the
most horrendous of crimes, and that we cannot lightly disre-
gard a capital lawyer’s inexcusable failure to find and intro-
duce such evidence.
                      PINHOLSTER v. AYERS                 16101
   Our paramount concern is not whether “few death sen-
tences are safe from federal judges,” diss. at 16103, but rather
that federal judges “acknowledge[ ] the uniqueness of the
punishment of death [and] ‘the corresponding . . . need for
reliability in the determination that death is the appropriate
punishment.’ ” McCleskey v. Kemp, 481 U.S. 279, 340 (1987)
(Brennan, J., dissenting) (quoting Woodson v. North Carolina,
428 U.S. 280, 305 (1976)). The guarantees of the United
States Constitution, as interpreted by the Supreme Court,
apply to our most troubled and our most upstanding citizens
alike, and our duty as Article III judges to fairly and impar-
tially apply those guarantees to all citizens compels us to rule
as we do today.

                    IV.   CONCLUSION

   [32] For the reasons explained above, we AFFIRM the dis-
trict court’s decision upholding Pinholster’s conviction but
granting habeas relief on his penalty phase ineffective assis-
tance claim. The case is REMANDED for the district court to
issue a writ vacating Pinholster’s death sentence, unless
within a reasonable time set by the court the State conducts
a new penalty phase trial or imposes a lesser sentence consis-
tent with applicable law.

  AFFIRMED and REMANDED.
16102                 PINHOLSTER v. AYERS
Chief Judge KOZINSKI, with whom Judges RYMER and
KLEINFELD join, dissenting:

   The California Supreme Court twice considered Pinhol-
ster’s claim that his death sentence be set aside because his
lawyers performed ineffectively, and twice rejected that claim
on the merits. Under AEDPA, those determinations come to
us encased in a double layer of deference: first, the substantial
deference to which lawyers are entitled under Strickland in
making judgments during the course of their representation;
and, second, the deference to which the state court is entitled
in determining whether the lawyers’ performance was ineffec-
tive and prejudicial. The first layer of deference may be over-
come only if counsel’s performance was objectively
unreasonable under prevailing norms at the time and place of
trial. The second layer may be overcome only if the state
supreme court’s determination is contrary to or an unreason-
able application of clearly established Supreme Court author-
ity. Pinholster comes nowhere close to flipping this “doubly
deferential” presumption. Knowles v. Mirzayance, 129 S. Ct.
1411, 1420 (2009).

   The majority reaches the contrary conclusion through a
series of mistakes that have, unfortunately, become far too
common in our circuit. First, the majority relies on evidence
never presented to the state courts and that we may therefore
not consider in federal habeas proceedings governed by
AEDPA. Contra Williams v. Taylor (Michael Williams), 529
U.S. 420, 437-40 (2000). Second, the majority applies retro-
spectively a standard for counsel’s performance that bears no
relationship to that prevailing in California at the time of Pin-
holster’s trial in 1984. Contra Bobby v. Van Hook, ___ S. Ct.
___, No. 09-144, slip op. at 3-8 (2009) (per curiam). Third,
and perhaps worst of all, the majority accords no deference to
the California Supreme Court’s superior expertise in deter-
mining what constitutes competent representation among the
members of its bar and the likely consequences (or lack
                      PINHOLSTER v. AYERS                  16103
thereof) of any deficient performance. Contra Schriro v. Lan-
drigan, 550 U.S. 465, 473-74 (2007).

   Few state court judgments can withstand even one such
error, see, e.g., Jones v. Ryan, ___ F.3d ___, 2009 WL
3152396 (9th Cir. Oct. 2, 2009); Libberton v. Ryan, ___ F.3d
___, 2009 WL 3152389 (9th Cir. Oct. 2, 2009); Gilley v. Mor-
row, 246 F. App’x 519 (9th Cir. 2007) (unpublished);
Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004); see
also cases cited pp. 16115-16, 16151-52 infra, but in combi-
nation they are deadly. I had hoped that our en banc court
would sweep away these mistakes and bring our caselaw into
conformity with AEDPA. Instead, the majority repeats and
magnifies the errors in these prior cases so that they will be
very difficult, probably impossible, for us to correct. This per-
petuates a habeas regime where few death sentences are safe
from federal judges who know ever so much better than those
ignorant state judges and lawyers how capital trials ought to
be conducted. Because I don’t believe we are the ultimate font
of wisdom on such matters, I must dissent.

                         Background

   Following his conviction and sentence, Pinholster (repre-
sented by two new lawyers) took a mandatory appeal to the
California Supreme Court. In a painfully thorough opinion
that takes up 62 pages of the Pacific Reporter, Justice Mosk,
writing for a unanimous court, affirmed. People v. Pinholster,
824 P.2d 571 (Cal. 1992). One of the numerous issues
addressed in that appeal was whether the state had given ade-
quate notice of its intent to present aggravating evidence dur-
ing the penalty phase. Id. at 618-20. The court was thus well
aware of Pinholster’s claims that his lawyers weren’t given
notice and failed to ask for a continuance when the trial court
offered it. Id. at 620.

   Leonard Tauman was appointed habeas counsel for Pinhol-
ster in February 1990, when the direct appeal was still being
16104                      PINHOLSTER v. AYERS
briefed. We know that Tauman began his investigation long
before the California Supreme Court affirmed the conviction
in February 1992, because we have declarations in the record
dating back to 1991. Yet Tauman did not file Pinholster’s first
state habeas petition until August 1993, more than three years
after he was appointed. This petition relied on many of the
witnesses that were eventually presented in the federal habeas
petition, and raised many of the facts the majority now says
Pinholster’s counsel should have discovered in preparing a
mitigation case. The centerpiece of the petition was a report
by a psychiatric expert, Dr. Woods, who diagnosed Pinholster
as suffering from a mental disease, namely bipolar disorder,
and a seizure disorder.

   The California Supreme Court did not summarily brush
aside this petition. Rather, it ordered that the state show cause
why Pinholster ought not be granted relief “on the ground that
petitioner received ineffective assistance of counsel [(IAC)] at
the penalty phase of trial,” in part because of counsel’s failure
“to ascertain that notice pursuant to Penal Code section 190.3
[of intent to provide aggravating evidence] had been provided
and to move for a continuance.” [Ex. C-4]* The state
responded at length, and Pinholster then filed a traverse. The
California Supreme Court thus had extensive evidence and
briefing on the central issue in our case and, as demonstrated
by its show-cause order, must certainly have focused its atten-
tion on the IAC claim. Yet, after seeing it all, in July 1995 the
court unanimously denied the petition “on the substantive
ground that it is without merit.” [Ex. C-7] A majority of the

   *Because the record is extensive, spanning multiple proceedings in dif-
ferent courts, I offer a legend for the cited sources. “ER” refers to the
excerpts of record filed in this court; lettered exhibits, e.g., “Ex. B,” are
exhibits from the record of state habeas proceedings; numbered exhibits,
e.g., “Ex. 40-1,” are exhibits from the federal habeas proceeding; “DT”
refers to the transcript of the evidentiary hearing in federal court; “TR”
refers to the transcript of Pinholster’s original trial in state court; and “CT”
is the Clerk’s transcript from the original trial in state court.
                        PINHOLSTER v. AYERS                      16105
justices also denied various claims (not relevant here) on pro-
cedural grounds.

   At that point, Tauman took a bow and exited stage left. The
scene moved to federal court which, in April 1996, appointed
Pinholster his second team of post-conviction lawyers,
Michael Snedeker and Michael Abzug (the Michaels). A year
later, the Michaels filed Pinholster’s federal habeas petition,
relying on a new mental health expert named Dr. Stalberg—
a psychiatrist who just happened to be the same expert Pinhol-
ster’s counsel had consulted at trial and who had found Pin-
holster to be sane and sober on the night of the crime. Dr.
Woods, with his discredited theory that Pinholster suffers
from bipolar disorder, was jettisoned, never to be seen again.1

   Because Dr. Stalberg disavowed Dr. Woods’ opinion (and
vice versa), the parties recognized that the state court had to
be given first crack at Dr. Stalberg’s evidence. So, pursuant
to stipulation, the federal petition was held in abeyance while,
in August 1997, the Michaels filed a second habeas petition
in the California Supreme Court. Its major difference from the
first state petition was the omission of Dr. Woods and the
inclusion of Dr. Stalberg, who said that he now saw lots of
mitigating evidence that hadn’t been brought to his attention
when he was consulted at trial. Notably, Dr. Stalberg stopped
well short of recanting his diagnosis that petitioner is a sane
psychopath.

   The state supreme court denied the second petition “on the
substantive ground that it is without merit.” [Ex. B] In addi-
tion, a substantial majority of the justices denied most of the
claims on various procedural grounds (that they were
untimely, successive or barred by res judicata). This is not
  1
    The reasons for dropping Dr. Woods, who maintains a cottage special-
ity in diagnosing criminal defendants as psychotic, are obvious. None of
the other experts to examine Pinholster on behalf of either side thought
much of his diagnosis.
16106                PINHOLSTER v. AYERS
surprising, as the second state petition presented nothing new
—not even a new psychiatric opinion purporting to absolve
Pinholster of moral responsibility for the heinous acts he had
committed.

   The matter then went back to federal court where it was lit-
igated for four more years, including cross-motions for sum-
mary judgment and preparations for an evidentiary hearing
(generating over 110 docket entries), all on the assumption
that Dr. Stalberg would opine that Pinholster was mentally
impaired—which Dr. Stalberg would have figured out at trial
if Pinholster’s lawyers had only provided him with the infor-
mation habeas counsel dug up. This plan backfired in July
2001 when the state deposed Dr. Stalberg, who testified that
none of the new evidence changed his diagnosis that Pinhol-
ster does not suffer from a mitigating mental illness. Oops.

   Two months later, the Michaels followed Tauman off-stage
and the Federal Public Defender’s office was substituted as
Pinholster’s third team of post-conviction lawyers. New coun-
sel fired the radioactive Dr. Stalberg and found two new psy-
chiatric experts (Drs. Olson and Vinogradov) who, in
September 2002—18 years after the trial—came up with a
diagnosis that Pinholster suffers from a mitigating mental ill-
ness: “organic personality syndrome” as a result of head
trauma he sustained as a child.

   All the while, the district court and the parties labored
under the mistaken impression that Pinholster’s case was not
covered by AEDPA because he had filed his request for coun-
sel and a stay of execution before AEDPA’s effective date.
See Calderon v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 163
F.3d 530, 533, 540 (9th Cir. 1998) (en banc). The parties pro-
ceeded to an evidentiary hearing and the district court made
findings while Calderon was still law of the circuit. This
means that the district court did not limit petitioner to evi-
dence that he first presented in state court, as required by
AEDPA 28 U.S.C. § 2254(e); nor did the district court apply
                      PINHOLSTER v. AYERS                 16107
AEDPA’s standard of substantial deference to state court
determinations of law and fact. See, e.g., Mirzayance, 129 S.
Ct. at 1420; Landrigan, 550 U.S. at 473-74; Yarborough v.
Gentry, 540 U.S. 1, 11 (2003) (per curiam); Woodford v. Vis-
ciotti, 537 U.S. 19, 27 (2002) (per curiam).

   As fate would have it, on the very day the district court
issued its ruling, the Supreme Court cut the ground from
under it by holding that AEDPA does apply to cases such as
Pinholster’s. Woodford v. Garceau, 538 U.S. 202, 206-07
(2003). Belatedly, the district court filed an order “finding”
that petitioner had been diligent in developing the record in
the state court, and that he was therefore entitled to present
evidence in federal court that he had not presented in state
court. The district court also erroneously held that it owed no
deference to the state supreme court under AEDPA.

                          Discussion

   A claim that defense counsel in a criminal case was ineffec-
tive under Strickland calls for an inquiry into whether the law-
yer’s performance was worse than would have been rendered
by minimally competent counsel practicing in the same com-
munity at the same time. The Supreme Court has repeatedly
cautioned that we must step into that lawyer’s shoes before
attempting to judge his performance. We can’t use hindsight
or import standards from a different time and place. Even if
we find that a lawyer was incompetent, we may not vacate the
conviction unless it’s clear that the defendant was actually
prejudiced by the lawyer’s performance; that is, unless we are
convinced there is a reasonable probability that the outcome
would have been different.

  When AEDPA governs, we are constrained by yet another
measure of deference, one that we owe to the state courts
which first examined and ruled on the issue. Deference in the
IAC context is particularly appropriate because the state
courts, and state supreme courts in particular, are most famil-
16108                  PINHOLSTER v. AYERS
iar with the type of inquiry we must undertake under Strick-
land. State court judges have an intimate familiarity with the
local standards of practice and know far better than federal
judges what could reasonably have been expected of compe-
tent counsel at the time and place of trial. State courts are also
far more likely to understand the behavior of local juries, and
thus can best figure out whether a hypothetical strategy,
invented by habeas counsel years or decades after the trial,
would have changed the outcome.

   It is for such reasons AEDPA requires that we defer to the
determinations of the state court unless they are contrary to
or an unreasonable application of Supreme Court authority.
28 U.S.C. § 2254(d)(1). This extraordinarily high standard has
teeth. See, e.g., Brown v. Payton, 544 U.S. 133, 148-49
(2005) (Breyer, J., concurring) (“[T]his is a case in which
Congress’ instruction to defer to the reasonable conclusions of
state-court judges makes a critical difference. Were I a Cali-
fornia state judge, I would likely hold that [the] penalty-phase
proceedings violated the Eighth Amendment. . . . Nonethe-
less, in circumstances like the present, a federal judge must
leave in place a state-court decision . . . .” (citations omitted)).
It is not merely a magic spell, the sing-song invocation of
which can make the state court’s decision disappear into thin
air.

   AEDPA limits federal courts in another important way: We
may only consider evidence that was first presented to the
state courts. 28 U.S.C. § 2254(e). This, too, makes perfect
sense: Whether the state court has correctly—or reasonably—
interpreted Supreme Court precedent depends on the facts. It
makes no sense to say that a state court unreasonably applied
clearly established Supreme Court law to facts it didn’t know
existed. The state court might well have ruled differently had
petitioner presented different facts.

  Through a pernicious combination of these errors, the
majority runs roughshod over the perfectly reasonable deter-
                      PINHOLSTER v. AYERS                 16109
mination, twice unanimously made by the state’s supreme
court, that Pinholster did not suffer prejudicial Strickland
error. And it does so based on facts Pinholster never presented
to the state court. This is nothing like deference.

A.   Our review is limited to the record presented in the
     state habeas petitions

   According to the majority, 28 U.S.C. § 2254(e)(2), which
requires development of the record in state court, is inapplica-
ble because “Pinholster exercised diligence in pursuing an
evidentiary hearing in state court regarding his mitigation
ineffective assistance claim. By withdrawing its order to show
cause and dismissing Pinholster’s habeas petition on the mer-
its, the state court denied Pinholster any further opportunity
to develop the factual record in state court.” Maj. op. at
16070.

   The majority double-faults. First, Pinholster has not been
diligent in presenting the diagnosis of Drs. Olson and
Vinogradov—the two experts on whom he now relies—in his
state habeas petitions. If Pinholster’s trial counsel could have
presented such expert opinions (or any expert opinion to the
same effect) at the penalty phase, then Pinholster’s habeas
counsel could easily have presented such declarations in his
first state habeas petition some 9 years after trial. And they
certainly should have done so in his second state habeas peti-
tion, which was filed 13 years after trial.

  Maybe the majority believes that was impossible because
Drs. Vinogradov and Olson weren’t available. But if not these
particular doctors, there must have been some doctors who
could have come up with the same diagnosis in 1993 or 1997
when Pinholster brought his state habeas petitions. If that was
not possible, it would destroy Pinholster’s claim that his trial
counsel were ineffective by failing to come up with a Vino-
gradov and Olson-like diagnosis in 1984.
16110                 PINHOLSTER v. AYERS
   Pinholster is thus caught in a finger trap: He cannot claim
trial counsel were incompetent in 1984 for failing to do that
which diligent habeas counsel didn’t do in 1993 or 1997. If
competent trial counsel should have come up with this diag-
nosis at trial, then diligent habeas counsel should easily have
come up with it in the state habeas petitions. But if diligent
habeas counsel couldn’t do it 9 years after trial, then trial
counsel certainly couldn’t have been incompetent in failing to
do so at trial. The 18 year delay in presenting the diagnosis
of “organic personality syndrome” must mean either that
habeas counsel was not diligent or trial counsel was not inef-
fective. There’s no escape.

   The majority seems to think that Michael Williams, 529
U.S. at 430-32, Bradshaw v. Richey, 546 U.S. 73, 79 (2005),
and Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per
curiam), authorize Pinholster’s habeas-by-sandbagging, but
they don’t. Michael Williams excused petitioner’s failure to
present evidence to the state courts only when “the factual
basis of the claims was not reasonably available to petition-
er’s counsel during state habeas proceedings.” Id. at 442. The
claim in Michael Williams that could not have been presented
to the state courts was based on information that only the
prosecutor possessed, and petitioner’s lawyers couldn’t have
discovered it until the case got to federal court. Id. at 440-43.
By contrast, a different claim, one based on evidence that was
available to petitioner while in state court—but which he
failed to present there—was held precluded. Id. at 438-40.

   In our case, nothing prevented Pinholster’s counsel from
presenting expert declarations with the same diagnosis as Drs.
Olson and Vinogradov to the state supreme court. There was
no problem with paying for such experts: Petitioner did pre-
sent reports from two other psychiatrists, Drs. Wood and Stal-
berg, so his lawyers obviously had sufficient funding. Com-
pare Michael Williams, 529 U.S. at 442 (state court denied
funding for an investigator). Nor did the state hide anything
from Pinholster; his own mental condition was hardly some-
                      PINHOLSTER v. AYERS                  16111
thing the state could have concealed in any event. Compare
id. at 441-42. Nor did Pinholster need the court’s subpoena
power to obtain the expert reports. Compare id. at 439-40.
Nor can Pinholster claim that such expert opinions weren’t
available at the time of the state habeas petitions, because that
would make them irrelevant for purposes of evaluating the
trial lawyers’ performance back in 1984. The reports of Drs.
Olson and Vinogradov are just like the evidence in Michael
Williams that the Supreme Court said couldn’t be used
because it was not first presented in state court.

   Holland and Bradshaw help petitioner even less than
Michael Williams. Holland states bluntly: “In this and related
contexts we have made clear that whether a state court’s deci-
sion was unreasonable must be assessed in light of the record
the court had before it.” 542 U.S. at 652 (citing Yarborough,
540 U.S. at 6, Miller-El v. Cockrell, 537 U.S. 322, 348
(2003), and Bell v. Cone, 535 U.S. 685, 697 n.4 (2002)).
Bradshaw, like Holland, was another reversal of a court of
appeals that had relied on extrinsic evidence without first
determining whether the habeas petitioner had been diligent
in developing it in state court. We could be next.

   But there are two reasons the majority is wrong, not just
one. The second is that petitioner hasn’t shown he couldn’t
have returned to state court to present the Vinogradov and
Olson evidence. He returned to state court once already after
swapping out psychiatric experts. See pp. 16105-06 supra.
The California Supreme Court may not have been thrilled to
receive the second petition, but it did decide it on the merits
and did not preclude further filings. Pinholster could have
gone back—could still go back, so far as we know—to pres-
ent the evidence from Drs. Vinogradov and Olson to the Cali-
fornia Supreme Court. Our case is thus different from Michael
Williams, where “state postconviction relief was no longer
available at the time the [hidden] facts came to light, [and] it
would have been futile for petitioner to return to the Virginia
courts.” 529 U.S. at 444.
16112                 PINHOLSTER v. AYERS
   Diligence under Michael Williams at least required Pinhol-
ster to try to go back to state court and present the expert
opinions of Drs. Vinogradov and Olson. By failing either to
present his newfangled theories to the state court or to show
that such an effort would have been futile, petitioner has
indulged in a double dose of non-diligence. Our consideration
of his new evidence is clearly barred by section 2254(e)(2).

   This is the most dangerous part of the majority opinion as
it blots out a key component of AEDPA. The statute was
designed to force habeas petitioners to develop their factual
claims in state court. See Michael Williams, 529 U.S. at 436-
37. The majority now provides a handy-dandy road map for
circumventing this requirement: A petitioner can present a
weak case to the state court, confident that his showing won’t
justify an evidentiary hearing. Later, in federal court, he can
substitute much stronger evidence and get a district judge to
consider it in the first instance, free of any adverse findings
the state court might have made. I don’t believe that AEDPA
sanctions this bait-and-switch tactic, nor will it long endure.

   The majority also says that none of this matters because
excluding the two expert reports “would not affect our result.”
Maj. op. at 16071. If the majority means that, it should avoid
making such terrible law and reach its result without relying
on Pinholster’s new psychiatric evidence. But I don’t believe
the majority does mean it. The majority must rely heavily on
the new experts, see, e.g., maj. op. at 16057, 16082-85,
because everything else Pinholster’s lawyers managed to dig
up—after sifting through the rubble of his life for close to two
decades—is so piddling. It’s hardly the stuff that would jus-
tify finding the state court unreasonable. See pp. 16148-62
infra. The proof is in the pudding: If the expert declarations
didn’t matter, the majority would leave them out and avoid
making an obvious error under Michael Williams. That it
won’t tells us something important.
                      PINHOLSTER v. AYERS                16113
B.   The California Supreme Court did not twice unrea-
     sonably apply established Supreme Court precedent
     in concluding that Pinholster’s trial counsel were
     competent

  Strickland v. Washington, which was decided shortly after
Pinholster’s trial, had a number of important caveats that the
majority today seems to have forgotten:

     No particular set of detailed rules for counsel’s con-
     duct can satisfactorily take account of the variety of
     circumstances faced by defense counsel or the range
     of legitimate decisions regarding how best to repre-
     sent the criminal defendant. Any such set of rules
     would interfere with the constitutionally protected
     independence of counsel and restrict the wide lati-
     tude counsel must have in making tactical decisions.
     ...

        Judicial scrutiny of counsel’s performance must
     be highly deferential. It is all too tempting for a
     defendant to second-guess counsel’s assistance after
     conviction or adverse sentence, and it is all too easy
     for a court, examining counsel’s defense after it has
     proved unsuccessful, to conclude that a particular act
     or omission of counsel was unreasonable. Cf. Engle
     v. Isaac, 456 U.S. 107, 133-134 (1982). A fair
     assessment of attorney performance requires that
     every effort be made to eliminate the distorting
     effects of hindsight, to reconstruct the circumstances
     of counsel’s challenged conduct, and to evaluate the
     conduct from counsel’s perspective at the time.
     Because of the difficulties inherent in making the
     evaluation, a court must indulge a strong presump-
     tion that counsel’s conduct falls within the wide
     range of reasonable professional assistance; that is,
     the defendant must overcome the presumption that,
16114                 PINHOLSTER v. AYERS
    under the circumstances, the challenged action
    “might be considered sound trial strategy.” . . .

       The availability of intrusive post-trial inquiry into
    attorney performance or of detailed guidelines for its
    evaluation would encourage the proliferation of inef-
    fectiveness challenges. Criminal trials resolved unfa-
    vorably to the defendant would increasingly come to
    be followed by a second trial, this one of counsel’s
    unsuccessful defense.

466 U.S. 668, 688-90 (1984) (emphases added). More pro-
phetic words have seldom been spoken.

   The opinion here illustrates just how far we’ve strayed
from the Court’s wise cautions in Strickland. Rather than
looking to the standards of practice applicable in the commu-
nity at the time trial was held, we have now adopted a
national standard embodied in the ABA Guidelines, which are
read rigidly to require a certain kind of investigation and a
certain kind of mitigation defense (what is known as “human-
izing” the defendant) in every capital case. Contra Strickland,
466 U.S. at 689. No attention is paid to whether these stan-
dards reflect the contemporary norms in the community.
Rather, current notions of a proper mitigation defense are tele-
scoped back across the decades and retroactively imposed on
counsel who had no way of knowing that this is what was
expected of them. Contra id. This is exactly what the
Supreme Court summarily reversed the Sixth Circuit for
doing in Van Hook: “Judging counsel’s conduct in the 1980s
on the basis of [later ABA Guidelines]—without even pausing
to consider whether they reflected the prevailing professional
practice at the time of the trial—was,” the Court held, “error.”
Van Hook, No. 09-144, slip op. at 5. It’s the same error the
majority commits today.

   Also contrary to Strickland, the majority pays hardly any
attention to the facts and circumstances of this particular case,
                      PINHOLSTER v. AYERS                  16115
or the reasons Pinholster’s counsel may have had for proceed-
ing as they did. Strickland’s twice-iterated caution that “coun-
sel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reason-
able professional judgment,” id. at 690, is stitched into win-
dow dressing; the “strong presumption” is treated like the
cantankerous relative who gets an occasional Christmas card
but is never invited to dinner.

   Perhaps most troubling is our total disregard of Strickland’s
admonition that we not interfere with the independence of
counsel and the latitude they must have in making tactical
decisions. 466 U.S. at 688-89. The current infatuation with
“humanizing” the defendant as the be-all and end-all of miti-
gation disregards the possibility that this may be the wrong
tactic in some cases because experienced lawyers conclude
that the jury simply won’t buy it. Not all defendants are capa-
ble of rehabilitation, and not all juries are susceptible to such
a plea. Counsel, who are in the courtroom and can observe the
jurors and their reaction to various witnesses (including the
defendant), may have good reason for pursuing other avenues
of mitigation, such as sympathy for the defendant’s family.

   According to our case law, as amplified by today’s opinion,
any trial lawyer who fails to worship at the altar of “human-
ization,” will be labeled an incompetent boob by later counsel
and federal judges who all think they know how to represent
the capital defendant better than his own trial lawyers. No
self-respecting lawyer wants to be berated in a published
opinion—as today’s opinion does to Pinholster’s trial counsel
—so their self-interest will cause them to pursue the safe
course for themselves rather than the course that best serves
the client’s interests. Current and future capital defendants
will pay with their lives for preserving Pinholster’s. Cf. Van
Hook, No. 09-144, slip op. at 8.

  The majority’s methodology, which reflects the received
wisdom in our court, has become an unstoppable engine for
16116                 PINHOLSTER v. AYERS
setting aside death sentences. See, e.g., Hamilton v. Ayers,
___ F.3d ___, 2009 WL 2973231, at *15 (9th Cir. Sept. 18,
2009) (requiring counsel to retain a mental health expert);
Belmontes v. Ayers, 529 F.3d 834, 857-58 (9th Cir. 2008)
(requiring counsel not merely to investigate mitigating mental
health evidence, but to present it), rev’d sub nom., Wong v.
Belmontes, 558 U.S. ___, No. 08-1263 (2009) (per curiam);
Lambright v. Schriro, 490 F.3d 1103, 1119 (9th Cir. 2007)
(requiring counsel to “humanize” the defendant at sentenc-
ing). These cases, like the majority here, systematically fail to
take Strickland seriously. That Belmontes was unanimously—
and unceremoniously—reversed seems to have made no
impression around here.

   1. The Standard of Care. Petitioner has presented no evi-
dence as to the standard of professional competence in capital
cases that prevailed in Los Angeles in 1984. Rather, he relies
on—and the majority accepts—the ABA Guidelines as the
governing standard. The Supreme Court disagrees with this
approach: “Restatements of professional standards . . . can be
useful as ‘guides’ to what reasonableness entails, but only to
the extent they describe the professional norms prevailing
when the representation took place.” Van Hook, No. 09-144,
slip op. at 3. For the ABA Guidelines to be relevant, they
“must reflect prevailing norms of practice and standard prac-
tice.” Id. at 5 n.1 (internal quotation marks, alterations and
citations omitted). Pinholster, who has the burden of proof,
offers no evidence that the 1982 ABA Guidelines meet this
standard for a capital trial in Los Angeles in 1984.

   Moreover, at the time of Pinholster’s trial, the ABA had no
guidelines specifically applicable to capital cases (those didn’t
come about until 1989), and the guidelines pertaining to crim-
inal cases were quite general. They certainly did not impose
anything like the straightjacket the majority retroactively
imposes on counsel today. The most relevant portion of the
1982 Guidelines consists of a single sentence buried in a para-
graph of “Commentary.” This sentence does no more than
                     PINHOLSTER v. AYERS                  16117
point out that various aspects of the defendant’s background
“will be relevant” to an effective defense. That’s a far cry
from a commandment that lawyers leave no stone unturned
when investigating the defendant’s background. As the Court
recently explained:

    The ABA standards in effect in 1985 described
    defense counsel’s duty to investigate both the merits
    and mitigating circumstances in general terms . . . .
    Quite different are the ABA’s 131-page “Guide-
    lines” for capital defense counsel . . . . Those direc-
    tives expanded what had been (in the 1980
    Standards) a broad outline of defense counsel’s
    duties in all criminal cases into detailed prescriptions
    for legal representation of capital defendants.

Van Hook, No. 09-144, slip op. at 4. The Court here was dis-
cussing the version of the guidelines in effect during Pinhol-
ster’s trial, which occurred about a year before Van Hook’s.

   The Supreme Court, our court and the California Supreme
Court have all held that competent counsel need not, and
often will not, exhaust every avenue of investigation. Strick-
land itself held that counsel need not conduct an exhaustive
investigation of a defendant’s background. Instead, counsel
only has “a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations
unnecessary.” 466 U.S. at 691 (emphasis added). “[T]here
comes a point at which evidence . . . can reasonably be
expected to be only cumulative, and the search for it distrac-
tive from more important duties.” Van Hook, No. 09-144, slip
op. at 8. At least in 1984, counsel was only required to “cover
several broad categories of mitigating evidence,” id., some-
thing Pinholster’s trial counsel did by any measure.

  Van Hook is only the latest in a long line of similar cases.
Burger v. Kemp noted that “[t]he record at the habeas corpus
hearing does suggest that [counsel] could well have made a
16118                 PINHOLSTER v. AYERS
more thorough investigation than he did,” but the Court held
he wasn’t required to. 483 U.S. 776, 794 (1987). We follow
a slightly stricter rule: “[C]ounsel is not deficient for failing
to find mitigating evidence if, after a reasonable investigation,
nothing has put the counsel on notice of the existence of that
evidence”—but even we acknowledge there is some limit on
counsel’s duty to investigate. Babbitt v. Calderon, 151 F.3d
1170, 1174 (9th Cir. 1998) (internal quotation marks omitted).
The California Supreme Court is of the same mind. See, e.g.,
In re Ross, 892 P.2d 1287, 1304-05 (Cal. 1995) (collecting
cases).

   Instead of rehashing the ABA Guidelines, the majority
should be asking whether the investigation by Pinholster’s
counsel comported with the standards for counsel in a capital
case in California in the mid-1980s. Van Hook, No. 09-144,
slip op. at 5. The clearest evidence that it did comes from
Hendricks v. Calderon, a capital case where we discussed the
standard of care prevailing in California around the time of
Pinholster’s trial:

    Hendricks argues “that by 1981 [the time of trial] it
    was the recognized duty of defense counsel in capital
    cases to obtain social history evidence relevant to a
    client’s mental condition where there was an indica-
    tion of mental disturbance and to provide such evi-
    dence to an expert in order for the client’s condition
    to be properly evaluated.” Under Hendricks’ 1995
    view, Berman was duty bound to interview Hen-
    dricks’ family members and friends, to obtain medi-
    cal, school, and employment records, to otherwise
    verify Hendricks’ autobiography and pass this infor-
    mation on to his mental health experts. “Without
    such background material,” Hendricks continues,
    “the expert’s diagnosis of the client’s condition
    could not be meaningful.” Hendricks’ argument,
    then, is not that examination by two mental health
    experts was per se inadequate. Rather, Hendricks
                      PINHOLSTER v. AYERS                  16119
    argues that trial counsel had a duty to provide the
    experts with his client’s family social history, even
    absent any request from the experts. He argues that
    counsel’s failure to do so undermines the expert’s
    conclusions to such an extent that they cannot pro-
    vide an adequate basis on which the attorney could
    make strategic choices.

       Neither reason nor the existing authority would
    lead one to conclude that an attorney in 1980 had
    such an affirmative constitutional duty.

70 F.3d 1032, 1038 (9th Cir. 1995) (emphasis added). The
state relied on Hendricks as proof of the standard of care in
its brief before us and in the district court.

   Pinholster asks us to adopt a different standard of care
based on the ABA Guidelines, but the Hendricks panel, writ-
ing in 1995—just about the time the California Supreme
Court was ruling on Pinholster’s state habeas petitions—
specifically rejected Pinholster’s interpretation of those guide-
lines:

    Certainly, in 1981, Hendricks’ attorneys did not
    believe they had any duty to investigate Hendricks’
    social history in the face of the unanimous opinions
    of their own experts that there was no basis for a
    mental defense.

       The legal authority Hendricks cites offers meager
    support for his argument. Hendricks’ cited authority
    merely discusses the basic duty under Strickland to
    investigate potential defenses before making strate-
    gic decisions. See ABA Standards Relating to the
    Administration of Criminal Justice, Standard 4-4.1;
    U.S. v. DeCoster, 487 F.2d 1197 (D.C. Cir. 1973);
    Rummel v. Estelle, 590 F.2d 103 (5th Cir. 1979).
    Hendricks’ authority that touches upon the duty to
16120                 PINHOLSTER v. AYERS
    investigate mental defenses for the most part deals
    with an attorney’s failure to investigate the possibil-
    ity of a mental defense. See People v. Frierson, 25
    Cal.3d 142, 162 (1979); People v. Pope, 23 Cal.3d
    412, 428 (1979); Deutscher v. Whitley, 884 F.2d at
    1160. At most, these cases establish a duty to seek
    out psychiatric evaluation of a client where the
    grounds of a mental defense are apparent, a duty
    Berman clearly discharged. Hendricks’ cases make
    no comment on an attorney’s alleged duty to investi-
    gate material relevant to a mental defense in the face
    of expert advice that there is no basis for such a
    defense. See also Evans v. Lewis, 855 F.2d 631, 637
    (9th Cir. 1988) (failure to investigate defendant’s
    mental condition when there is evidence of impair-
    ment constitutes deficient performance, and is preju-
    dicial when it hampers later presentation of evidence
    of mental impairment).

Hendricks, 70 F.3d at 1039.

   Since our own court, considering the very issue only 11
years after Pinholster’s trial, said that no such duty existed in
California at the time, how can we now—a quarter century
removed from the trial and with no evidence on point—say
that such a duty did exist after all? More, how can we say in
2009 that the California Supreme Court in the mid-1990s
unreasonably applied established Supreme Court precedent by
rejecting a standard of professional competence that we unan-
imously held at the same time did not apply to counsel in the
1980s?

   The majority reaches its unjustified conclusion by misread-
ing three oft-invoked and oft-misinterpreted Supreme Court
cases: Williams v. Taylor (Terry Williams), 529 U.S. 362
(2000), Wiggins v. Smith, 539 U.S. 510 (2003), and Rompilla
v. Beard, 545 U.S. 374 (2005). My colleagues seem to think
that these opinions create a nationwide, retroactive code of
                      PINHOLSTER v. AYERS                  16121
professional conduct for capital cases. (Never mind that Str-
ickland says, and Van Hook confirms, there’s no such thing.)
The majority’s exegesis on these cases is but one more in a
series of inapt methodologies that this en banc court should
have put to rest.

   Terry Williams has little to say about the source or scope
of the standard for professional competence in capital cases.
While it cites the ABA Guidelines in passing, 529 U.S. at
396, there was no real dispute that counsel there had been
ineffective. The same state trial judge who sentenced Wil-
liams concluded that counsel’s performance was deficient, id.
at 370, a conclusion the Virginia Supreme Court accepted and
that the State “barely disputed” before the U.S. Supreme
Court. Id. at 395. There was evidence, as there is not in this
case, that counsel’s performance did not comport with the
standard of care in the community at the time and place of
trial.

   The only real dispute in Terry Williams was whether the
state court had properly applied the prejudice prong of Strick-
land. The Virginia Supreme Court wrongly believed that
Lockhart v. Fretwell, 506 U.S. 364 (1993), modified Strick-
land’s prejudice inquiry, and the U.S. Supreme Court set it
straight. Insofar as the Supreme Court passed on the compe-
tency of counsel, it was to confirm the state court’s judgment,
not overrule it as unreasonable. Terry Williams has nothing to
say about the standard under AEDPA when the state court
finds the lawyer has been competent and the federal court dis-
agrees.

   Wiggins is hardly better for Pinholster. First, the trial judge
there “observed from the bench that he could not remember
a capital case in which counsel had not compiled a social his-
tory of the defendant, explaining, ‘[n]ot to do a social history,
at least to see what you have got, to me is absolute error.’ ”
Wiggins, 539 U.S. at 517. Thus, the Wiggins Court had a find-
ing by a state judge who was experienced in local practices
16122                 PINHOLSTER v. AYERS
that Wiggins’ lawyer had performed incompetently. The
Supreme Court expressly relied on this time- and place-
specific determination: “As [the trial judge] acknowledged,
standard practice in Maryland in capital cases at the time of
Wiggins’ trial included the preparation of a social history
report.” Id. at 524.

   Second, insofar as the ABA Guidelines are relevant, Wig-
gins’ trial took place after the ABA issued its 1989 Guidelines
providing specific standards for capital cases, and it is that
version of the ABA Guidelines on which the Wiggins Court
relied. But the 1989 Guidelines are far more mandatory and
specific than the 1982 Guidelines that were in force at the
time of Pinholster’s trial. Whereas the 1982 Guidelines con-
tained only a single sentence in the “Commentary,” pointing
out certain types of inquiries that “will be relevant” in all
criminal cases, the 1989 Guidelines outline capital counsel’s
affirmative duties at some length, including an investigation
that “ ‘should comprise efforts to discover all reasonably
available mitigating evidence and evidence to rebut any
aggravating evidence that may be introduced by the prosecu-
tor.’ ” 539 U.S. at 524 (quoting ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty
Cases 11.4.1(C) (1989)) (emphasis added by the Court).
Although I doubt that Wiggins turned the ABA Guidelines
into a constitutional code of conduct for lawyers, see Van
Hook, No. 09-144, slip op. at 5 & n.1, even if I’m wrong, it’s
irrelevant; in Wiggins a newer, more exacting edition of the
guidelines applied and those standards cannot be ported back
to Pinholster’s case.

   Finally, there’s Rompilla, which says nothing about the
general scope of investigation required for defense counsel in
capital cases. The Rompilla majority found a single flaw in
defense counsel’s performance, namely the failure to examine
the case file of a prior conviction that counsel knew the prose-
cution would rely on in aggravation, 545 U.S. at 383, 387-90,
a point emphasized in Justice O’Connor’s linchpin concur-
                     PINHOLSTER v. AYERS                 16123
rence. Id. at 393-94. And Justice O’Connor saw no need to
cite the ABA Guidelines at all. Rompilla’s holding does not
support the view, adopted by the majority here and by a num-
ber of other recent cases, that some version of the ABA
Guidelines is the minimum standard of practice the Constitu-
tion imposes on all 50 States. I would be surprised to learn
that the Supreme Court in Rompilla had meant to give the
ABA the constitutional authority to set the standard of care
for all criminal cases across the nation. And I wouldn’t be
alone. See Van Hook, No. 09-144, slip op. at 1 (Alito, J., con-
curring).

   Terry Williams, Wiggins and Rompilla rely on the ABA
Guidelines as background support where they overlap with
local standards (Terry Williams and Wiggins) or where the
proposition is so obvious that it’s a matter of common sense
(Rompilla). See Van Hook, No. 09-144, slip op. at 8. These
cases don’t establish the ABA as the final authority on how
lawyers must conduct criminal trials, with the power to over-
ride contrary determinations by the state courts about the law-
yers they admit to practice. And yet the majority relies
entirely on the ABA Guidelines without any evidence that the
Guidelines reflect local standards in the community at the
time of Pinholster’s trial. This is what the Sixth Circuit got
summarily reversed for in Van Hook.

   Here we have more than petitioner’s failure of proof. We
have evidence going the other way: a determination by our
court in Hendricks and other cases, see pp. 16147 infra, that
the duty to investigate at the time was not what petitioner now
claims it to be. This is Van Hook on stilts.

   2. The Facts of This Case. Justice O’Connor’s concur-
rence in Rompilla emphasized “our longstanding case-by-case
approach to determining whether an attorney’s performance
was unconstitutionally deficient under Strickland.” 545 U.S.
at 394. The majority here does very little to determine what
competent counsel could realistically have done to help Pin-
16124                    PINHOLSTER v. AYERS
holster at the penalty phase. Not even lip service is paid to the
“strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689. Rather, the majority is satisfied with pointing
out that counsel were surprised by the need to put on mitiga-
tion evidence, that they turned down an offered continuance
and that they “billed a total of only 6.5 hours in preparation
for the penalty phase of the trial.” Maj. op. at 16051 (footnote
omitted). The majority is wrong on all counts.

   I might as well start with the most obvious error. The “only
6.5 hours” has been brandished by petitioner’s able habeas
counsel like a smoking gun: concrete proof that Pinholster’s
trial lawyers must have been incompetent because they spent
less than a work-day preparing for such an important hearing.
Problem is, the “only 6.5 hours” is a myth.2

   The 6.5 hour figure comes from the time records of Brai-
nard, who was just one of Pinholster’s trial lawyers, and
includes only time that bore the notation “prep. for penalty
phase.” See Maj. op. at 16051 n.2. But the defense team
clearly spent a lot more time on mitigation. Under California
law, the prosecution didn’t have to put on penalty-phase evi-
dence at all in order to ask for the death penalty; it could have
relied entirely on the evidence presented during the guilt
phase. Thus, it doesn’t matter whether the prosecution has
given, or the defense has received, notice of an aggravation
hearing. In preparing for trial, counsel in California must nec-
essarily consider both guilt and penalty, and try to work as
much mitigation evidence as possible into the guilt phase.

   Pinholster’s trial counsel did precisely this. They put on
Pinholster’s brother, Terry, to support his alibi defense, but
also elicited from him the following mitigation evidence: (1)
  2
   Building such mythology appears to be one of the tools of the trade for
habeas counsel. See Van Hook, No. 09-144, slip op. at 6. There must be
a CLE course by that name.
                      PINHOLSTER v. AYERS                  16125
that Pinholster “was more or less in institutions all his life”
[TR 6015]; (2) that Pinholster suffered from epilepsy and
Terry had seen him have two seizures in a single evening [TR
6015-18, 6031-32]; and (3) that Pinholster was drunk on the
night of the murders. [TR 6036]

   Terry was examined at trial by Brainard, and Brainard must
have prepped him or he couldn’t have learned about those
mitigating facts to begin with. Yet an examination of Brai-
nard’s time records makes no mention of speaking to Terry,
and certainly doesn’t say that this was time spent on mitiga-
tion.

   It is possible that the prep work on Terry was done by Dett-
mar, Pinholster’s other trial counsel, or that it was included in
one of Brainard’s more cryptic notations, such as “Interview-
ing defense witnesses” (3/28/84), “Brainard & Dettmar inter-
view of witness” (3/6/84) or “Brainard & Dettmar interview
with” (3/7/84). [Ex. 71-2] Or, perhaps Brainard was not dili-
gent about time records. One way or the other, some of the
time spent preparing Terry must be counted as time counsel
spent on mitigation and the 6.5 hours, all of which were spent
after Terry testified, obviously don’t include that.

   There are other hours logged on Brainard’s time sheets that
were clearly devoted to mitigation. For example, on February
23, 1984, he billed for “Conf. with Burnice Brashear, Pinhol-
ster’s mother,” and two days later for “Research re; epilepsy
and conf. with nurse.” [Ex. 71-2] There was nothing Burnice
could have possibly said about the crime, so the time spent
with her must have been entirely on mitigation. The time
spent on epilepsy was also obviously mitigation-related. Brai-
nard’s time records show that he spent about 700 hours on
Pinholster’s case and much of that time is described in fairly
general terms. Just because there were only 6.5 hours that he
specifically described as preparation for the penalty phase
doesn’t mean that’s all the time he spent on mitigation.
16126                    PINHOLSTER v. AYERS
   The majority claims that Pinholster’s counsel admitted
“that they spent almost no time preparing for the penalty
phase hearing,” maj. op. at 16074,3 but I’ve found no such
admission in this very hefty record. Nor is the majority right
in claiming that “[b]illing records confirm” such an admis-
sion. The only time sheets and declarations they reference are
Brainard’s. Maj. op. at 16051 n.2, 16074. Yet, according to
Brainard, it was Dettmar who was primarily in charge of the
penalty phase. [ER 182, 337, 350, SER 122] We don’t have
a complete set of Dettmar’s time records; we have only those
through March 15, 1984, which does not include the 8-week
period leading up to and including the penalty phase, when
Dettmar most likely would have been preparing for that por-
tion of the trial. What we do have of Dettmar’s time sheets
indicates that he spent considerable time preparing for mitiga-
tion.

  Thus, on January 13, 1984, we have the notation “phone
call to defendant’s mother re medical history”; on February
21 there is “Penal Code research on capital punishment”; on
February 23 there is “conference with defendant’s mother re
childhood problems”; on February 25 there is “Research on
Pen. C. 190.3”;4 on February 29, there are notations for vari-
ous mitigation-related items, including “Further research on
Pen. C. 190.3” and “Phone call to appointed psychiatrist.” On
February 26, Dettmar spent six hours on “preparation argu-
ment, death penalty phase” (emphasis added).

  There are other, more cryptic notations that might or might
not go to mitigation, such as “Visit to client, L.A. County
  3
     In the same paragraph, the majority states: “One week before the pen-
alty hearing, counsel told the judge that they ‘did not prepare a case in
mitigation’ because they ‘felt there would be no penalty phase hearing.’ ”
Maj. op. at 16074. These statements are not from the transcript of Pinhol-
ster’s trial. What the majority is quoting are Brainard’s self-inculpatory
declarations, dozens of which he dutifully signed seven years after the
trial. See pp. 16130-32 & nn.6-9 infra.
   4
     Penal Code § 190.3 deals with mitigation in capital cases.
                      PINHOLSTER v. AYERS                 16127
Jail” (February 10), but such as we have of Dettmar’s time
sheets shows that the defense team was keenly aware of the
need to show mitigation and was vigorously investigating mit-
igation evidence. Dettmar’s time records stop abruptly on
March 15, 1984, which was in the midst of the guilt phase, so
we don’t know what else he did to prepare for the “death pen-
alty phase,” but we do know he was active because he made
further court appearances and his name is referenced in Brai-
nard’s time sheets.

   For all we know, Dettmar did just about everything Pinhol-
ster claims should have been done on his behalf, like examin-
ing his medical and school records, talking to school
authorities, prison guards, friends and neighbors, all in a vain
effort to find someone who would say a good word about him.
We know that Dettmar was the contact point for Dr. Stalberg,
the defense team’s psychiatrist, and that Dettmar provided
him with the information the doctor used in forming his diag-
nosis. (Dr. Stalberg’s opinion letter is addressed to Dettmar,
and Dr. Stalberg mentions in his declaration that his dealings
were with Dettmar.) This activity clearly went to mitigation,
yet (except for a phone call on February 29) the time spent is
not accounted for on any time-sheet Pinholster has supplied.
There is no lawyer’s case file documenting the activity, and
there’s no testimony about it; we know virtually nothing
about it. Dettmar’s activities in the two months leading up to
and including the penalty phase are a complete blank. There
may be mitigation-related activities about which we know
nothing at all.

  Which brings us back to the burden of proof, which rests
on petitioner, and the “strong presumption that counsel’s con-
duct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. Pinholster fails to
shoulder his heavy burden of overcoming that presumption.
Inasmuch as Pinholster has been unwilling or unable to docu-
ment the actions of half his trial team during a crucial two
months in the proceedings, he has failed to carry the ordinary
16128                    PINHOLSTER v. AYERS
burden of any habeas petitioner. And he certainly comes
nowhere near carrying the especially heavy burden in ineffec-
tiveness cases, where he must overcome the “strong presump-
tion” that counsel were diligent and competent in advancing
his interests.

   We know, based on the documentation we do have, that the
lawyers engaged in activities that were highly relevant to mit-
igation, such as retaining a psychiatrist who examined Pinhol-
ster, talking to the defendant’s mother and brother and
educating themselves about epilepsy. We also know from
Dettmar’s time sheets that he was preparing for the “death
penalty phase” as early as February. See 16126 supra. It
therefore isn’t remotely consistent with the record and the
“strong presumption” to say, as the majority does, that Pinhol-
ster’s trial team spent “less than an average workday” prepar-
ing for the penalty phase. Maj. op. at 16076.

   Petitioner bears the burden of proof, so if he wants to claim
that his lawyers didn’t spend enough time on mitigation, he
must account for all the time they did spend before we can say
they didn’t spend enough. It’s not fair—or consistent with
AEDPA—for petitioner to present partial time records for the
first time in federal court, pp. 16126 supra; p. 16130 n.6 infra,
and then claim—Tada!—my lawyers only spent 6.5 hours on
mitigation. This gambit didn’t work in Van Hook, No. 09-144,
slip op. at 6, and it shouldn’t work here.

   In addition to the supposedly short time Pinholster’s
defense team spent on mitigation, the majority’s other “proof”
that his lawyers must have been incompetent is the fact that
they were taken by surprise at the end of trial when they
learned there would be a penalty phase and yet refused a con-
tinuance offered to them by the trial court.5 The decision to
  5
   I’ll assume, like the majority, that the lawyers were in fact surprised
that the state planned to put on aggravation evidence at the penalty phase,
but the record can also be construed otherwise. As noted, Dettmar’s time
                          PINHOLSTER v. AYERS                        16129
decline a continuance only seems incompetent if the defense
lawyers hadn’t already conducted an adequate investigation
into mitigation. But if they had been looking for mitigation
evidence all along, they would already have decided what
mitigation strategy to pursue. And if their decision was to
present only Pinholster’s mother in mitigation, then turning
down a continuance was perfectly reasonable; “strategic
choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.”
Strickland, 466 U.S. at 690.

   The record is clear that the defense team was quite busy
preparing mitigation evidence, and specifically preparing for
the capital penalty phase, long before the jury came back with
a guilty verdict. We know that they consulted a psychiatrist,
but only after the trial started, suggesting that his testimony
wasn’t intended for guilt-phase issues (which involved an
alibi defense), but for mitigation. They talked to the mother

records show him billing for the “death penalty phase” as far back as Feb-
ruary. Brainard too has a notation in his time records, “Start prep. for pen-
alty phase” on April 11, two weeks before the defense team was
supposedly surprised that the prosecution planned to put on aggravation
evidence. Maj. op. at 16051 n.2. If the defense lawyers truly had no idea
there would be a penalty phase, why were both of them billing time as pre-
paring for it?
   The defense team did claim in court they weren’t aware of the state’s
notice, but how else were they going to have a shot at precluding the state
from putting on an aggravation case? Claiming that they had actual notice,
but the notice was somehow defective because it had been sent directly to
Pinholster, certainly wasn’t going to be persuasive. So the defense claimed
they hadn’t seen the notice—which may have been literally true. But what
was certainly not true for two experienced criminal lawyers in California
is that they expected the prosecution wouldn’t try to put on aggravation
witnesses in a capital murder case. Being experienced, the lawyers must
certainly have known that if the jury came back with guilty, the prosecu-
tion would have witnesses lined up to support their demand for the death
penalty. So they may have done their best to stop them by telling the judge
they didn’t know it was coming.
16130                    PINHOLSTER v. AYERS
about his emotional problems and medical history, and they
educated themselves on epilepsy, all matters not relevant to
the alibi defense. Pinholster’s lawyers clearly investigated the
“several broad categories of mitigating evidence” they should
have considered. Van Hook, No. 09-144, slip op. at 8. They
were required to do no more than that.

   For all we know, this is just the tip of the iceberg of what
the defense team did in pursuing mitigation evidence since
Dettmar’s time records for the crucial period from March 15
until the end of trial are missing. Dettmar’s case file is also
missing, which could have given us pretty good insight into
the activities of Pinholster’s “death penalty phase” lawyer as
the defense team was in full swing preparing for the penalty
phase. Dettmar was dead by the time of the first habeas peti-
tion, so we have no statements from him, but his case file
would almost certainly still have been in existence at the time
Pinholster’s first habeas lawyer commenced his investiga-
tions. Yet there is no explanation for why the case file wasn’t
retrieved and presented in the state habeas petition. Most
likely it’s because Pinholster’s first two habeas teams didn’t
pursue this line of inquiry; even Brainard’s time records were
never presented to the state courts.6

   In the absence of any evidence as to what the defense team,
and particularly Dettmar, actually did in investigating mitiga-
tion evidence, the majority relies on a series of non-denial deni-
als7 from Pinholster’s surviving counsel, Brainard. Maj. op. at
  6
     Which means we shouldn’t be considering the time records at all
because Pinholster was not diligent in presenting them to the state courts.
See pp. 16109-12 supra. Nor did he raise the “only 6.5 hours” argument
in his state petitions. Had he done so, I doubt the state judges would have
been gulled by the bogus “only 6.5 hours” figure.
   7
     Non-denial denial is a phrase that became popular in the wake
     of the Watergate scandal, referring to an equivocal denial, partic-
     ularly one made by an official to the press. London’s The Sunday
     Times has defined it as “an on-the-record statement, usually
                           PINHOLSTER v. AYERS                         16131
16051-52. These statements, stamped out by the dozen at the
behest of habeas counsel 7 years after the trial, seem to say
a great deal but, in fact, say nothing at all. Thus, Brainard had
“no recollection” that Dettmar had reviewed any medical or
school records; he did “not recall” interviewing or attempting
to interview family members or any other persons regarding
penalty phase testimony; he had “no recollection of seeing or
attempting to secure Scott’s school records.” Within a single
paragraph the majority quotes Brainard as not recollecting or
having no recollection or stating “so far as [he] recollect[ed]”
no fewer than 5 times. Maj. op. at 16051-52 (second alteration
in original).8 There is not a single categorical statement attest-
ing that Brainard and Dettmar failed to do any of these things.

   Failure to recall can be very useful because it avoids the
risk of contradiction or perjury. Who, after all, can dispute
that someone else doesn’t recall something? But when evi-
dence is needed to carry the burden of proof, a lack of recol-
lection is worth absolutely nothing. Indeed, a failure to recall
does not even satisfy the burden of production, because it
does not prove or disprove the fact not recalled.9 Brainard’s

    made by a politician, repudiating a journalist’s story, but in such
    a way as to leave open the possibility that it is actually true.”
      A “non-denial denial” is a statement that seems direct, clearcut
    and unambiguous at first hearing, but when carefully parsed is
    revealed not to be a denial at all, and is thus not untruthful. It is
    a case in which words that are literally true are used to convey
    a false impression; analysis of whether or when such behavior
    constitutes lying is a long-standing issue in ethics.
Wikipedia, Non-denial denial, http://en.wikipedia.org/wiki/Non-denial_
denial (last visited November 22, 2009).
   8
     The majority doesn’t quote it, but Brainard also did not recall why he
failed to ask for a continuance when the trial court offered it. [ER 367]
   9
     The majority is right that Brainard’s failure to recall also doesn’t prove
he did perform a reasonable investigation, maj. op. at 16075, but it doesn’t
matter because the state need not prove that counsel performed a reason-
16132                     PINHOLSTER v. AYERS
accommodating statements, no doubt made to try to help a
former client, prove zilch. See also p. 16128-29 n.5 supra.10

   If we assume, as the majority plainly does, that Pinholster’s
trial lawyers couldn’t walk and chew gum at the same time,
then no degree of idiocy on their part would surprise us. But
we must indulge in the contrary “strong presumption that
[they made choices] for tactical reasons rather than through
sheer neglect.” Yarborough, 540 U.S. at 8 (citing Strickland,
466 U.S. at 690). What this means for us is that we must pre-
sume, consistent with the time records we do have, that Pin-
holster’s trial lawyers were fully aware that they would have
to deal with mitigation sometime during the course of the
trial, did spend considerable time and effort investigating ave-
nues for mitigation and made a reasoned professional judg-
ment that the best way to serve their client would be to rely
on the fact that they never got notice and hope the judge
would bar the state from putting on their aggravation wit-
nesses. Nevertheless, the time sheets show that both lawyers
were busy preparing for the penalty phase long before they

able investigation. It is petitioner who must prove the opposite. Porter met
this burden through the affirmative statements of his only trial counsel.
Porter v. Crosby, 2007 WL 1747316, at *2, 25 (M.D. Fla. 2007). Pinhol-
ster has no evidence at all from one of his lawyers and the other one
doesn’t remember.
   10
      Brainard’s forgetfulness is just another example of counsel “falling on
his sword,” something trial counsel are known to do to help their clients
on habeas. See, e.g., LaGrand v. Stewart, 133 F.3d 1253, 1276 (9th Cir.
1998); Hendricks, 70 F.3d at 1039. Because counsel usually suffer few if
any consequences for being found ineffective, many see no harm in this
tactic; some may even see it as their duty. See generally Lawrence J. Fox,
Making the Last Chance Meaningful: Predecessor Counsel’s Ethical Duty
to the Capital Defendant, 31 Hofstra L. Rev. 1181 (2003). Laudable or
not, this tendency on the part of counsel seriously distorts our ineffective
assistance jurisprudence; competent counsel are found ineffective because
they effectively concede the point. Our jurisprudence then fills up with
descriptions of perfectly adequate performance that is assumed to be defi-
cient.
                      PINHOLSTER v. AYERS                  16133
supposedly knew for sure there would be a penalty phase
hearing. [CT 798, 844, 864, 1160]

   Had this strategy succeeded, it would have been quite a
coup. It almost did succeed; the trial judge had to think long
and hard before ruling against the defense’s motion to pre-
clude aggravation evidence, and the California Supreme Court
had to work hard to affirm. Pinholster, 824 P.2d at 618-20.
We’ll never know, of course, but the burden of proof, Strick-
land’s presumption of competence and AEDPA deference
each require us to presume that the lawyers did the smart
thing, not the dumb one.

   The fact that Pinholster’s lawyers tried to bar the state from
putting on aggravation evidence does not mean they were not
also preparing for the alternate possibility; their time sheets
(such as we have) clearly show they were. This would explain
why, when offered a continuance, the defense chose not to
accept the offer. They had already done the necessary investi-
gation and knew how they were going to proceed. If we
“strongly presume,” as Strickland commands, that the defense
lawyers were competent, then they would have had no need
for a continuance because they had already considered all the
available possibilities and concluded that the best strategy was
to put only Pinholster’s mother on the stand.

   This obviously isn’t a view shared by the majority here, but
that’s because my colleagues view the case through the “dis-
torting lens of hindsight.” Sims v. Brown, 425 F.3d 560, 585
(9th Cir. 2005) (internal quotation marks omitted); Turner v.
Calderon, 281 F.3d 851, 873 (9th Cir. 2002) (internal quota-
tion marks omitted); Hendricks, 70 F.3d at 1036. If we step
into the defense lawyers’ shoes and look at the case from
ground zero, the decision to rely on Pinholster’s mother is
entirely plausible, perhaps inevitable. It was certainly plausi-
ble enough that the California Supreme Court didn’t unrea-
sonably apply Supreme Court precedent by determining the
lawyers were competent.
16134                 PINHOLSTER v. AYERS
   The majority seems to overlook the very difficult position
defense counsel found themselves in after the jury came back
with guilty. This wasn’t a case where defendant sat doe-eyed
at counsels’ table looking sad and contrite while others spoke
for him. Instead, he took the stand and protested his innocence
aggressively and at length. While we don’t have video of Pin-
holster’s testimony, the transcript gives strong indications that
he was arrogant to the point of smirking at the prosecution’s
questions. Equally important, the transcript reveals that he
was lucid and entirely coherent. He presented himself as a
violent and highly aggressive criminal. He claimed that he
used only guns but then had to admit he had used knives in
other crimes. He tried to snow the jury about his whereabouts
on the night of the crime, but the jurors were not taken in.
During the hour or two he testified, Pinholster doubtless made
a deep impression on the jury and this would have made it dif-
ficult or impossible to “humanize” him in their eyes. Brainard
and Dettmar were there to see all of this and their mitigation
strategy was constrained by this reality. My colleagues see
only a paper record.

  Trial counsel were limited in their choices in other signifi-
cant ways. They had hired a competent psychiatric expert, Dr.
Stalberg, and his opinion was devastating:

    1. When examined, Mr. Pinholster did not manifest
    any significant signs or symptoms of mental disorder
    or defect other than his antisocial personality disor-
    der by history. Although he allegedly has epilepsy,
    he has not been taking medication for the past year
    at County Jail and has not had a seizure. Addition-
    ally, it does not appear that he suffers brain damage
    as he was cognitively intact on mental status exami-
    nation.

      He has a history of hyperactivity as a youngster
    and hospitalization at Camarillo State Hospital at the
    age of 14 for incorrigibility. He was not medicated
                 PINHOLSTER v. AYERS                  16135
there and just received 90 day observation. He spent
time in the Youth Authority and in various state pris-
ons without requiring psychiatric treatment or medi-
cation.

   He has a lengthy history of drug dependency of
the narcotic variety, but his drug dependency has not
resulted in any brain damage.

2. As for the alleged offenses, the defendant denies
any involvement other than directing an individual to
burglarize the residence with Mr. Pinholster collect-
ing 1/3 of the money from sale of the stolen loot. He
is able to describe his actions on the night in ques-
tion in great detail, omitting of course any direct
involvement with the victims. It would not appear
therefore he was significantly intoxicated or
impaired on the night in question.

   Additionally, considering the statements attributed
to the defendant by witnesses, it would also appear
he was fully aware of what he was doing at the time
of the offenses. He allegedly stated, “I’ll take care of
finding out where the dope is. I’ll handle Kumar.”
This was some days before the offenses occurred.

  On the night of the offense Mr. Pinholster appar-
ently planned his robbery and was aware of what he
was doing. This is by inference as he did not provide
any subjective information other than his directing
an individual to burglarize Kumar’s home.

3. As for mitigation, it does not appear Mr. Pin-
holster’s epilepsy, hyperactivity as a child, or incor-
rigibility were related to the offenses except the
incorrigibility reflects upon his psychopathic person-
ality traits. He was not under the influence of
extreme mental or emotional disturbance, nor did he
16136                 PINHOLSTER v. AYERS
    have impaired ability to appreciate the criminality or
    conform his conduct to the requirements of the law.
    ...

      Also, because of Mr. Pinholster’s personality dis-
    order it is likely he would be recalcitrant and a
    security problem while in custody.

[ER 797-98] (emphases added).

  Years later, in 2002, when presented with the additional
evidence gathered by habeas counsel, the same Dr. Stalberg
found it of marginal significance and did not change his diag-
nosis:

    As set forth in my declarations of April 19, 1997;
    January 24, 2000; and June 5, 2001, the additional
    documents I have reviewed since 1997 did contain
    some information that might conceivably be mitigat-
    ing within the very broad definition of California
    Penal Code section 190.3(k). On the other hand, as
    I testified at my deposition in July 2001, the addi-
    tional materials I reviewed did not alter my conclu-
    sion that Mr. Pinholster suffers from Antisocial
    Personality Disorder, as that term is defined in the
    DSM-III.

[ER 793] (emphases added).

   Given Dr. Stalberg’s expert opinion, trying to develop a
psychiatric mitigation case at the time of trial would have
been extraordinarily difficult. He told the lawyers that Pinhol-
ster was entirely sane and sober on the night of the murder
and that, in general, he’s a psychopath. Unlike un-rebutted
evidence of brain damage or post-traumatic stress disorder,
Porter v. McCollum, 558 U.S. ___, No. 08-10537, slip op. at
6-7 & nn.4-5 (2009) (per curiam), what Dr. Stalberg had to
say would hardly have been the stuff of mitigation; most
                          PINHOLSTER v. AYERS                         16137
likely it would have been aggravating. Daniels v. Woodford,
428 F.3d 1181, 1204-05 (9th Cir. 2005); Gerlaugh v. Stewart,
129 F.3d 1027, 1034-35 (9th Cir. 1997); see also Graham v.
Collins, 506 U.S. 458, 500 (1993) (Thomas, J., concurring).
Had Dr. Stalberg testified, see pp. 16165-68 infra, Pinholster
would be here arguing that his lawyers were incompetent for
putting him before the jury. See, e.g., People v. Hines, 15
Cal.4th 997, 1064-65 (1997). Moreover, counsel practicing
criminal law in California back then would have been aware
of a number of capital cases where psychiatric testimony
backfired with devastating effect. See, e.g., Harris, 949 F.2d
at 1505; People v. Williams, 44 Cal.3d 883, 934-35 (1988);
People v. Robertson, 33 Cal.3d 21, 44 n.11 (1982).11

   With no realistic possibility of a psychiatric mitigation
defense, what could Pinholster’s lawyers do? Unlike habeas
counsel, who have years of time, unlimited resources and the
power to conjure imaginary mitigation cases with which to
mesmerize federal judges, trial counsel are stuck with the hard
realities that are the lot of the trial lawyer. One such reality
is the client’s wishes and preferences. Pinholster did not tes-
tify at his own evidentiary hearing in district court, so we
don’t know first-hand what instructions he might have given
    11
       Harris is especially instructive because of the uncanny parallels to
Pinholster. Harris, like Pinholster, was charged with two murders and a
robbery. Harris raised an alibi defense and testified during the guilt phase,
admitting to robbery but denying the two murders. (Pinholster, too, admit-
ted robbery.) At the penalty phase, Harris’s mother and sister testified that
he’d been born prematurely and had suffered abuse from his father
because the father believed Harris was someone else’s son. They testified
that, as a result of this abuse, Harris suffered a head injury when his father
knocked him off his high chair, an injury that resulted in “convulsions,
blood coming out of his mouth, nose and ears.” 949 F.2d at 1506. The jury
also heard that “Harris’s father[ ] tried to choke Harris with a table cloth
. . . [and that he] beat Harris and other children ‘into unconsciousness sev-
eral times when they were kids,’ and that Harris was abused from the time
he was a little baby.” Id. Harris’s father “was eventually sent to prison for
child abuse and molestation.” Id. After hearing all this, the jury sentenced
Harris to death and he was long ago executed.
16138                     PINHOLSTER v. AYERS
his lawyers, but we do have a pretty good idea: The record
contains the report of Sheryl Duvall, who was an investigator
for Pinholster’s first habeas counsel, a document the majority
wrongly refuses to consider.12

   Duvall interviewed Pinholster in July 1991, about 7 years
after the trial. She reports that Pinholster, at that time,
“[wa]sn’t enthused about attempting to get a reversal on pen-
alty alone” and “had instructed his trial attorney not to put on
a penalty defense.” [Ex. 40-1] Of course, it is entirely rational
not to want to spend decades as an inmate in a maximum
security prison, and quite a few capital defendants have cho-
sen not to try to have death sentences “reduced” to life behind
bars. E.g., Demosthenes v. Baal, 495 U.S. 731, 732-34
(1990); Gilmore v. Utah, 429 U.S. 1012, 1013 n.1 (1976)
(Burger, C.J., concurring). Pinholster’s lawyers would have
been entitled—maybe required—to respect that choice.

   Duvall also reported that Pinholster’s “most significant
  12
     The majority shuts its eyes to this document because it is supposedly
hearsay. Maj. op. at 16078-79. But Pinholster’s own statements to Duvall
aren’t hearsay; they’re an admission by a party-opponent, which the fed-
eral rules specifically exclude from the definition of hearsay. Fed. R. Evid.
801(d)(2). As for Duvall herself, her report was admitted as Exhibit 238
by stipulation. [ER 1412] Pinholster reserved no hearsay objection (or any
other objection), so it is part of the record and there is no obstacle to con-
sidering it. See United States v. Foster, 711 F.2d 871, 877 (9th Cir. 1983).
Pinholster, in fact, never objected on hearsay or any other grounds to the
state’s use of the Duvall report below; the hearsay argument was raised
sua sponte by the district judge, who must have found the Duvall report
inconvenient to deal with. [ER 1449] Petitioner does not defend the
judge’s hearsay ruling on appeal. There is something very wrong with the
court sua sponte—and selectively—raising an objection that both parties
have bypassed. If the Duvall report is hearsay and cannot be considered,
why didn’t the district court raise similar objections to other out-of-court
statements, such as the declarations of Pinholster’s siblings and the reports
of Drs. Vinogradov and Olson? The parties obviously relied on mutual
waiver of hearsay objections in order to streamline the hearing; we have
no business upsetting that arrangement just to help out one side.
                     PINHOLSTER v. AYERS                16139
relationships appear to have been with his mother, step-father
and maternal grandfather.” The report continues:

    Scott told me he has always felt very close to his
    mother for whom he had nothing but praise. “She’s
    always been supportive of all the kids. She’s always
    the first there and the last to leave. She always had
    a hot dinner on the table.” Further, Scott said to his
    knowledge his mother has never abused drugs or
    alcohol. She always treated her children kindly, was
    never abusive.

       Scott continues to stay in close contact with his
    mother. She visits him nearly every month in San
    Quentin. Scott told me he was upset by his mother
    testifying at his trial. He thought it was unnecessar-
    ily hard on her.

[Ex. 40-3] (emphasis added). Pinholster also reported that he
had no recollection at all of his natural father, Garland.

   And this is what Duvall revealed about Pinholster’s stepfa-
ther:

    Bernice [sic] [Pinholster’s mother] has told me Mr.
    Brashear [Pinholster’s stepfather] abused her boys,
    particularly Scott, as they were growing up. Scott
    doesn’t concur. He said while his stepfather was
    hard on them, in his opinion he and his brothers ben-
    efitted from Mr. Brashear’s discipline—“it tough-
    ened us up.” He had a home made paddle which he
    used freely on the boys. According to Scott, this
    worked to their benefit as they lived in tough neigh-
    borhoods so they needed to get used to rough treat-
    ment.

[Ex. 40-3]
16140                 PINHOLSTER v. AYERS
  Pinholster also had positive things to say about his grand-
parents:

    When Scott was small Mr. and Mrs. Baumback [sic]
    had a chicken farm in Sunland. Scott used to spend
    his summers there. He and his grandfather were very
    close. Mr. Baumback [sic] was affectionate with the
    boys. He made them work hard on the farm but he
    was quick to praise their efforts. It seems that he
    made them feel good about themselves.

[Ex. 40-4]

   Seen through the looking-glass of a quarter-century of
hindsight pigs might fly, but in the here and now, when a law-
yer has to make hard decisions about his client’s case, not
every theoretical possibility can be turned into a reality.
Counsel can try to cajole or persuade, but experienced law-
yers know that pushing a client too far can backfire. Pinhol-
ster was not enthusiastic about putting on a mitigation case,
and he probably did instruct his lawyers not to do so, as he
told Duvall. The lawyers may have persuaded him to let them
put his mother on the stand, but he was reluctant and resent-
ful. Still, the lawyers must have reminded him that everyone
has a mother and the jurors may take pity on her even if they
feel no pity for the son. Pinholster went along but, years later,
he still didn’t like it. That tells us something about the stiff
resistance counsel could have expected from Pinholster had
they proposed trashing his mother in open court, as the major-
ity does today.

   Is it possible, is it even conceivable, that Pinholster, who
was not enthusiastic about life in prison, would have allowed
his lawyers to put his estranged—and strange—relatives on
the stand to tarnish his grandparents? To say that his stepfa-
ther was a monster, to besmirch his beloved mother as a self-
ish, uncaring, neglectful crone who wore mink while the
children had no food? Even if Pinholster had allowed this—
                      PINHOLSTER v. AYERS                  16141
and I can’t imagine he would have—what good would it have
done? It certainly wouldn’t have worked for the mother to tes-
tify, and then to be followed to the stand by the sister, brother,
son and daughter calling her a selfish liar. Such a family food
fight would have done Pinholster only harm. Had the lawyers
decided to go with the other relatives, and had Pinholster let
them do so, they would have had to give up the mother, for-
feiting the inherently sympathetic bond they hoped to estab-
lish between her and the jurors. It’s not clear to me that this
would have been a wise trade-off. See pp. 16161-63 infra.

   If we assume, as the majority does, that Pinholster’s law-
yers were Laurel and Hardy, all such calculations might seem
far-fetched. But we are required to presume—strongly
presume—that the lawyers were competent, and we must look
at the situation through their eyes. We know that the lawyers
talked to Pinholster and his mother; they also talked to Pinhol-
ster’s brother Terry and had a trial run at using him as a miti-
gation witness—with no success. See pp. 16124-25 supra.
Not only did the jury disbelieve Terry’s testimony, but the
prosecutor managed to insinuate that he was the conduit of the
first death threat against Art Corona. [TR 6030] Maybe my
colleagues in the majority would put Terry the Enforcer on
the stand to help “humanize” Pinholster and soften the jury in
his favor, but a competent lawyer might think better of it. The
other erstwhile family witnesses had serious disabilities too.
Burnice’s brother Keith was so estranged over an inheritance
dispute that he didn’t even know Pinholster was on trial for
murder. Pinholster’s sister had a serious criminal record.
PINHOLSTER v. AYERS           16143
                      Volume 3 of 3
16144                 PINHOLSTER v. AYERS




   One need only read the declarations and testimony of the
various Pinholster relatives to see that they aren’t exactly the
Osmonds. A competent lawyer talking to Pinholster, his
mother and Terry would have quickly figured out that parad-
ing the family members through the courtroom to snipe at
each other would do Pinholster no earthly good. See pp.
16161-63 infra. Lawyers are hired to make those judgments
and, best I can tell, Pinholster’s lawyers called this one right.
At any rate, we certainly can’t say that the California
Supreme Court was unreasonable for not second-guessing
them. That one of Pinholster’s lawyers, years after the trial,
wouldn’t offer tactical reasons for the defense team’s choices,
maj. op. at 16155-58, does not undermine the California
Supreme Court’s judgment. See Strickland, 466 U.S. at 688;
Murray v. Carrier, 477 U.S. 478, 484, 487-88 (1986); p.
16131-32 n.9 supra.

   The majority also forgets that there are no free-throws in
criminal trials. See Belmontes, No. 08-1263, slip op. at 5-6,
10-12. If the defense has a witness testify about Pinholster’s
peaceable tendencies, then the state gets to cross-examine that
witness about all of Pinholster’s misdeeds. If Pinholster puts
on evidence about his medical or mental problems, this opens
the door to evidence that he’s a remorseless psychopath. Pin-
holster’s counsel faced a serious risk that a mitigation case
could turn out to be aggravating. See Belmontes, No. 08-1263,
slip op. at 2-3.

   Burnice Brashear might not have been the ideal mitigation
witness; then, again, Mother Theresa probably wasn’t avail-
able. But a mother—one obviously devoted to her son, and
vice versa—has a pretty good chance of arousing the jury’s
sympathy while not giving the prosecution many openings to
                      PINHOLSTER v. AYERS                  16145
inflict damage through cross-examination or rebuttal. Burnice
provided many details about Pinholster’s head injuries, abuse
by his step-father, problems in school, problems with his sib-
lings, his being beaten badly in jail and she confirmed Terry’s
account of Pinholster’s epilepsy. Sure, Burnice could have
been more effective in her testimony, but not everyone is
lucky enough to have Joan Crawford for a mother.

   My colleagues miss the point entirely when they refer to
Burnice’s testimony as “misleading,” “self-serving,” “inaccu-
rate” or “devastating.” Maj. op. at 16076, 16077, 16081,
16085-86, 16088, 16098. The main point of Burnice’s testi-
mony was to create sympathy for herself and the other mem-
bers of Pinholster’s family in the hope that the jury would
take pity on them and spare them the agony of losing a son
and brother to the executioner. That’s what’s known as the
“family sympathy” mitigation defense and other lawyers in
California used it at the time. People v. Cooper, 53 Cal.3d
771, 801, 844 (1991); In re Visciotti, 14 Cal.4th 325, 336-37
(1996). Is this a perfect strategy? Probably not, but there prob-
ably is no perfect strategy for mitigating a bloody double-
murder by a smug, violent and remorseless psychopath.

   Defense counsels’ strategy kept Pinholster’s jury from
coming back with a swift death verdict: The jury deliberated
for two days before making its decision. Do my colleagues
really think that Pinholster would have done better if his law-
yers had put on the child-molesting sister, the extortionist
brother, the persnickety aunt and the greedy uncle to tell the
jury that Burnice was a terrible mother who deserved to see
her son executed? A competent lawyer might think otherwise.

  3. Deference to the State Supreme Court. The district
court did not defer in the least to the California Supreme
Court for the simple reason that it, and the parties, mistakenly
believed that AEDPA deference did not apply. See Calderon,
163 F.3d at 540. No sooner had the district court finished its
work than the Supreme Court disabused it of this notion in
16146                 PINHOLSTER v. AYERS
Garceau. 538 U.S. at 206-07. But the district court refused to
be disabused: It did not reconsider its ruling in light of
AEDPA’s clear mandate that we defer to the state courts—
and their factual findings in particular—in all but the most
unusual circumstances. We therefore owe the district court no
deference at all. Rather, we should be suspicious of its find-
ings as arrived at using the wrong standard and stubbornly
persisted in despite clear contrary guidance from the Supreme
Court. Unlike the Supreme Court in Porter, we don’t have a
reliable finding by a federal or state trial court that counsels’
performance was deficient.

   Perhaps led astray by the district court’s cavalier attitude,
the majority doesn’t give much deference to the state court
either. The opinion recites all the right verbal formulae,
although it does twice denigrate the California Supreme
Court’s action as a “postcard” denial, maj. op. at 16055 n.3,
16099, suggesting perhaps that the state court didn’t look at
Pinholster’s petition very closely or carefully and therefore
isn’t entitled to a full measure of deference.

   In fact, it’s abundantly clear that the California Supreme
Court looked at this case closely. By the time it got Pinhol-
ster’s first habeas petition, the justices were already familiar
with his case. Only three years earlier, they had written an
exhaustive opinion dealing with a host of issues in Pinhol-
ster’s trial, including whether the state had given timely notice
of a penalty-phase hearing. On receiving Pinholster’s volumi-
nous first petition, the justices did not dismiss it out of hand.
Rather, they asked for a response from the state on three spe-
cific claims of ineffectiveness, all dealing with counsel’s per-
formance at the penalty phase. The state filed a response and
petitioner filed a traverse. After this briefing was complete,
the justices unanimously denied the petition on the merits, and
some of the claims on procedural grounds. Justice Mosk
would have denied the petition solely on the merits.

  Although the process was more abbreviated for the second
petition, the justices issued a reasoned order dismissing all
                      PINHOLSTER v. AYERS                  16147
counts on substantive grounds and some on various proce-
dural grounds. This time Justice Mosk was joined by Justice
Brown in believing that the petition should be dismissed on
substantive grounds only.

   In light of this record, we are bound to presume that the
denial of Pinholster’s state petitions represented the reasoned
view of the unanimous California Supreme Court. And we
must then ask ourselves whether we can say that their collec-
tive judgment about the performance of two members of their
bar was truly unreasonable. In doing so, we must keep in
mind that the California Supreme Court not only is the ulti-
mate arbiter of the conduct, performance and ethics of law-
yers admitted to practice in the state, but that it has far more
experience with IAC claims than we do. In the 15 years pre-
ceding Pinholster’s habeas petitions, the California Supreme
Court resolved no fewer than 177 such cases.

   Based on their vast experience with criminal trials in gen-
eral and capital trials in particular, the California justices had
any number of reasons for finding that Brainard and Dettmar
weren’t incompetent. For example, they may have relied on
cases where they’d held that “[a] defendant appearing in pro-
pria persona is held to the same standard of knowledge of law
and procedure as is an attorney.” People v. Clark, 50 Cal.3d
583, 625 (1990). If so, they would have held Pinholster
responsible for failing to give his lawyers notice of the state’s
intent to hold a penalty-phase hearing, along with any resul-
tant failure to adequately prepare for it.

   The justices may have also reasonably believed that what-
ever continuance the superior court would have allowed after
Pinholster’s counsel were notified of the penalty phase would
amount to, at most, a few days or a week; the jury that had
just rendered the guilty verdict could not be forced to return
many weeks or months later. So the court could have con-
cluded that there just wasn’t that much else a competent law-
yer could have done in such a short time. Or the justices may
16148                PINHOLSTER v. AYERS
have believed that a lawyer is entitled to rely on a competent
expert to request information if the materials provided by the
lawyer are insufficient. And, as Dr. Stalberg did not ask for
further materials in making his diagnosis, the court may have
concluded that competent counsel were not required to pro-
vide any such additional materials. E.g., Turner, 281 F.3d at
876; Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir. 2001);
Harris, 949 F.2d at 1525. Or the court may have had in mind
the bad experiences of other defense lawyers who put on psy-
chiatric testimony in capital cases around that time, and con-
cluded that a lawyer who got an aggravating psychiatric
report would be foolish to raise a psychiatric mitigation
defense. See, e.g., Thompson v. Calderon, 86 F.3d 1509, 1525
(9th Cir. 1996) (since overruled); Hines, 15 Cal.4th at 1064-
65; Williams, 44 Cal.3d at 934-35; Robertson, 33 Cal.3d at 43
n.11.

   The California Supreme Court acted much closer in time to
the trial and generally has a much better feel for what is rea-
sonably expected of a competent criminal trial lawyer in Cali-
fornia. Having twice looked at Pinholster’s claims of
ineffectiveness, the justices—with not a single dissent among
them—concluded that counsel were effective, or that Pinhol-
ster was not prejudiced, or both. It takes considerable hubris
to say that all of the justices were not merely wrong, but so
egregiously wrong that they unreasonably applied clearly
established Supreme Court precedent. Justice Mosk, were he
still with us, would be surprised and, I believe, hurt by such
a suggestion.

C.   The California Supreme Court did not twice
     unreasonably apply established Supreme Court
     precedent in concluding that Pinholster was not
     prejudiced by any deficiency on the part of his trial
     counsel

  Under the heading “Available Mitigation Evidence,” the
majority throws in every scrap of even potentially mitigating
                      PINHOLSTER v. AYERS                 16149
evidence gathered by Pinholster’s habeas counsel during the
course of two decades of investigation and expert-shopping.
Maj. op. at 16082-90. It then concludes that Pinholster was
prejudiced because his trial counsel didn’t present this evi-
dence on his behalf. But much of the evidence the majority
relies on isn’t properly considered, either because it was not
presented to the state courts or because it could not possibly
have been found by diligent trial counsel back in 1984.
Almost all the rest of the evidence was disclosed to the jury
during the penalty phase.

   At best, the majority focuses on some minor differences in
emphasis that don’t amount to a hill of beans. See Van Hook,
No. 09-144, slip op. at 9. At worst, the majority dramatically
overreads Terry Williams, Wiggins and Rompilla, cases that
are irrelevant to the prejudice inquiry under AEDPA, in a way
that will hamstring the states in our circuit for decades to
come. The controlling case is Visciotti, and it clearly requires
us to accept the California Supreme Court’s determination
that Pinholster wasn’t prejudiced.

  Below I review the mitigation evidence in the order listed
by the majority.

   Organic Brain Damage. There are three separate and
independent reasons we may not consider the expert reports
that purport to diagnose Pinholster with brain-damage-related
mental illness caused by childhood head injuries. First, evi-
dence of this supposed relationship was neither presented nor
diligently pursued in the state courts. It was not presented in
the first state habeas petition, which relied on Dr. Woods as
the psychiatric expert, and it was not presented in the second
state habeas petition, where Pinholster relied on Dr. Stalberg
—who later let him down and testified for the state. Nor, for
the reasons I explained earlier, was Pinholster diligent in
developing the theories of Drs. Olson and Vinogradov. Thus,
we can’t consider them. See 28 U.S.C. § 2254(e)(2); pp.
16134-36 supra.
16150                     PINHOLSTER v. AYERS
   Second, petitioner has presented no evidence that a compe-
tent lawyer in 1984 could or would have found an expert to
advance the theory that organic brain damage caused Pinhol-
ster to commit two cold-blooded murders. In fact, the record
speaks loudly to the contrary: It wasn’t until Pinholster’s sev-
enth legal team, 18 years after the trial, worked with a third
set of psychiatric experts that they came up with this dubious
theory.13

   Moreover, Pinholster’s trial lawyers had an expert, and a
very good one: Dr. Stalberg. Pinholster thought so highly of
him that he re-hired him as the expert for his second state
habeas petition. Even when he fired Dr. Stalberg for coming
up with the wrong opinion, Pinholster didn’t dispute his com-
petence. And what did Dr. Stalberg tell Pinholster’s trial law-
yers in very clear terms? Their client is sane, wasn’t drug- or
alcohol-impaired at the time of the murder and is a garden-
variety psychopath. See pp. 16134-36 supra.

   We and the California Supreme Court have clearly held
that a competent lawyer may rely on the opinion of a compe-
tent expert and need not go expert-shopping until he finds one
whose opinion he likes. Harris, 949 F.2d at 1525; In re
Fields, 51 Cal.3d 1063, 1075 (1990); People v. Grant, 45
Cal.3d 829, 863 (1988); Williams, 44 Cal.3d at 945-46. So,
   13
      The diagnosis proffered by Drs. Vinogradov and Olson is vigorously
disputed by the state’s experts, who cast serious doubt on the notion that
any reputable psychiatrist would have reached the same diagnosis at the
time of Pinholster’s trial. Dr. Vinogradov’s theory, in a nutshell, is that
Pinholster must be suffering from brain damage caused by his childhood
injuries because that is the simplest explanation for his behavior. [ER 730-
41, 1273-1316] Neither she nor Dr. Olson performed a CT scan, MRI or
any other test that actually showed the existence of brain damage, or sug-
gested that such tests would have been available to reveal injuries at the
time of trial. The state’s experts held firmly to the view that Pinholster’s
childhood injuries weren’t responsible for his antisocial behavior. [ER
754, 795] Indeed, Dr. Rudnick maintained that one of the two accidents
caused no head trauma at all, injuring only Pinholster’s shoulder and ear.
[ER 768]
                      PINHOLSTER v. AYERS                  16151
even if experts like Drs. Vinogradov and Olson could have
been found in 1984, which petitioner has never proven, a
competent lawyer would have had no duty to go looking for
them. Until today, that was the settled law of our circuit. It
should still be the law for AEDPA purposes because the
United States Supreme Court has not held otherwise.

   The majority might be under the mistaken impression that
Dr. Stalberg would have come up with the organic-damage
theory at trial if only he’d known about the head injuries, the
epilepsy and all the other “mitigating” evidence that teams of
habeas counsel have dredged up over the last two decades.
But Dr. Stalberg did know about the head injuries (they are
in the probation report the lawyers gave him) and about the
epilepsy (he mentions it twice in his 1984 letter to Dettmar)
at the time of trial, neither of which he thought was relevant.
[ER 798; Ex. 10-2]

   And what about the rest of the stuff that is supposedly so
essential in assessing Pinholster’s sanity? We need not specu-
late because Dr. Stalberg is here to tell us. He looked at it all
and reached exactly the same diagnosis as in 1984: Pinholster
is a sane psychopath. [ER 793] It’s a pipe dream to imagine
that a competent trial lawyer in 1984 who went to his compe-
tent expert with all this evidence and got this diagnosis would
have nonetheless searched for (much less found) a Dr. Vino-
gradov to reach the opposite conclusion—all in the week or
two the trial judge might have been willing to continue the
penalty phase.

   There is a third reason the majority shouldn’t rely on Dr.
Vinogradov’s and Dr. Olson’s evidence: It says it doesn’t
need to. Maj. op. at 16071. By representing that it would
reach the same conclusion without their reports, the majority
is holding that what remains is sufficient, standing on its own,
to show that the California Supreme Court unreasonably
applied Strickland. If this is what the majority means to hold,
it should have the courage of its convictions and drop its dis-
16152                  PINHOLSTER v. AYERS
cussion of the psychiatric evidence. It can only cause confu-
sion in the law of the circuit for the majority to say in one part
of its opinion that the psychiatric evidence is superfluous but
then later rely so heavily on it.

  In fact, the majority can’t possibly let go of the psychologi-
cal evidence because, once we remove the diagnosis that Pin-
holster suffers from trauma-induced mental illness, there is
very little left with which to impugn the judgment of the law-
yers, far less the judgment of the California Supreme Court.

   Even if it were proper to consider this evidence, the major-
ity gives it far too much weight by relying on law that has no
place in a federal court’s review of a state court decision
under AEDPA. The majority’s infatuation with the suppos-
edly magical effect of evidence of organic mental illness, as
opposed to merely psychological mental illness, see maj. op.
at 16084-89, is another area where our court has gotten out in
front of the Supreme Court. But see 28 U.S.C. § 2254(d)(1).
I therefore need not engage the majority in a protracted debate
about the wisdom of Caro v. Woodford, 280 F.3d 1247 (9th
Cir. 2002), and Douglas v. Woodford, 316 F.3d 1079 (9th Cir.
2003). Nor need I argue that the en banc court should take this
opportunity to overrule Caro and Douglas, although it should
because there is no principled distinction between “organic”
mental illness and “mental” mental illness. All I need point
out is the undebatable: Under AEDPA, we may rely only on
law clearly established by the Supreme Court. Circuit prece-
dent, which is all Caro and Douglas are, isn’t enough for
granting relief under AEDPA. That the majority is unable to
cite a single Supreme Court case in support of this distinction
is itself proof that it has no lawful basis for reversing the Cali-
fornia Supreme Court.

   Epilepsy. The majority spends some time discussing epi-
lepsy, and whether it was caused in childhood by Pinholster’s
head injuries or (as his mother speculated) as a result of a
prison beating. It doesn’t matter: Epilepsy is a seizure disor-
                      PINHOLSTER v. AYERS                  16153
der. If not controlled by drugs, it causes the afflicted person
to drop to the ground with stiff arms and legs, clenched fists
and often foaming at the mouth. To those who have seen an
individual in the midst of an epileptic fit, it is an unforgetta-
ble, scary experience. But when not in the throes of a fit, the
individual behaves normally; it is not a mental illness and his
faculties are not impaired.

   No one has suggested, and it would make no sense to sug-
gest, that Pinholster robbed, beat and stabbed two people to
death while having an epileptic fit. Indeed, Dr. Stalberg, who
interviewed Pinholster about the events on the night of the
murders, remarked how good Pinholster’s memory was and
concluded that he hadn’t been impaired or intoxicated. [ER
798] Dr. Stalberg knew of the epilepsy and mentioned it in his
report, but observed it was irrelevant. And Dr. Stalberg tells
us today that, even with all the new evidence, he stands by his
original diagnosis. Trial counsel had educated themselves as
to epilepsy as well, see p. 16125 supra, and must have been
convinced it was a dead end. We’re in no position to second-
guess that judgment.

   Abusive and Deprived Childhood. The majority tries to
make Pinholster’s childhood seem like hell on earth by using
alarmist phrases like “abusive and deprived upbringing,” maj.
op. 16085, and “suffered extreme deprivation,” maj. op. at
16088. The majority also tries hard to create the impression
that the evidence presented on habeas was wildly different
from what the jury heard, characterizing the mother’s testi-
mony as “misleading,” maj. op. at 16076, 16082, 16088, and
the testimony of the other family members as standing “[i]n
stark contrast,” maj. op. at 16086, and being vastly different
from hers. Maj. op. at 16091. In fact, what’s remarkable is
how little support the family members provide for Pinhol-
ster’s theory of extreme abuse and deprivation.

   Pinholster’s mother testified at trial that the punishment
inflicted by her husband, Scott’s stepfather, was “abusive or
16154                  PINHOLSTER v. AYERS
near abusive.” Maj. op. at 16086. In what the majority claims
is “stark contrast,” Pinholster’s siblings testified that the step-
father “frequently beat Scott while Scott was a child . . . . Bud
[the stepfather] would use his fists, a belt, or anything else
available, including on at least one occasion a two by four
board.” Maj. op. at 16087 (Terry Pinholster). And, “Scott as
a child was frequently physically abused by Scott’s step-
father, Bud Brashear. Bud hit Scott with his fists as often as
several times within one week. Bud’s punishments were
unpredictable and severe.” Maj. op. at 16087 (Tammy Pinhol-
ster). While Pinholster’s siblings give somewhat more detail
than the mother, what they have to say is no different from—
much less “in stark contrast” to—the mother’s description.
What they describe is abuse or near-abuse; their testimony
confirms, rather than contradicts, the mother’s testimony.

   Then there is the suggestion that Pinholster’s grandmother
abused him because he looked like his father, whom Pinhol-
ster’s grandparents despised. What’s remarkable here is just
how weak this testimony actually is. Both Pinholster’s aunt
and uncle make it clear that they are talking about nothing
more than severe spankings. The aunt, Lois Fosberg, is quite
explicit about this:

    Q:    “And at times, your mother would spank him?”

    A:    “Yeah.”

    Q:    “How many times did you see your mother
          spank Scott?”

    A:    “Quite a few.”

    Q:    “Can you give me an estimate?”

    A:    “No . . . . She was very rough with him and not
          so with the other ones.”
                          PINHOLSTER v. AYERS                        16155
       Q:   “And how did she spank him? Did she punch
            him or hit him with her palm, backhand him, or
            what?”

       A:   “Hit him with her hand or jerk his arm or—”

       Q:   “With her palm?”

       A:   “Yeah, things like that.”

[2 DT 53-54]

The uncle also leaves no doubt that what the grandmother
supposedly did to Pinholster was no more than spanking:

       A:   “[I]t occurred—often she would pick him up
            out of the playpen by one or two arms and just
            spank him across the back and butt and the legs.
            And I mean, more than once. I don’t know how
            many times. It was enough to make an impres-
            sion on me.”

[2 DT 125] Pinholster himself says he enjoyed his summers
at the grandparents’ chicken farm; the grandfather “made [the
children] feel good about themselves.” [Ex. 40-4]

   That’s it—that’s all the evidence of “abuse” that Pinhol-
ster’s lawyers have been able to come up with after nearly
two decades of digging and investigating.14 Is what the record
  14
     The majority also says that Pinholster’s stepfather used a paddle on
him, occasionally knocking him out. Maj. op. at 16087. This is not based
on evidence in the record. It’s a “fact” related by a psychiatrist’s report
that is based entirely on what Pinholster told him. [ER 767] While the
psychiatrist can use the information he gathers as a basis for forming his
opinion (which can then be undermined, to the extent the facts on which
he relies are unsupported), his report can’t be used to sneak into the record
evidence that was not presented by the usual means, i.e., through sworn
testimony subject to cross-examination. The majority is thus wrong to rely
on this “evidence.”
16156                 PINHOLSTER v. AYERS
does support really a “stark contrast” with what Pinholster’s
mother had to say? To me, it seems like more of the same.

   Pinholster himself describes the situation in terms much
closer to those of his mother. See pp. 16138-39 supra (Duvall
interview). Accusing Burnice of misleading the jury by pro-
viding an inaccurate picture of Pinholster’s home situation is
wholly unjustified. Had Pinholster’s trial counsel decided to
go that route, they might have been able to coax a bit more
mileage out of some relatives, but would it really have given
them something to suggest an “abuse excuse” for brutally
murdering two strangers decades later? I don’t think so.

   Let’s turn now to the majority’s claim that Pinholster suf-
fered “extreme deprivation.” Maj. op. at 16088. The entire
support for this version of events, which the majority for
some reason believes to be “the truth,” comes from the testi-
mony of Pinholster’s aunt and uncle, and mostly the aunt.
Aunt and uncle were visitors to the household, but their decla-
rations disclose that their observations were infrequent. The
aunt makes a general statement that the children didn’t get
enough to eat, and supports it with a single instance where she
saw them mixing flour and water. In the same breath, how-
ever, she says that the children were fed “canned food like
spaghetti” and the kids would “start throwing food at each
other during meals”—awfully strange behavior for starving
children. [ER 687] In general, the aunt’s testimony borders on
the picayune, as she criticizes her sister for not disciplining
the children sufficiently, for keeping a dirty house and for liv-
ing in bad neighborhoods. One next expects her to accuse
Burnice of forgetting to weed the lawn. The uncle testifies
only that his sister (Pinholster’s mother) took good care of
herself while the children looked like ragamuffins; he says
nothing about food. [ER 682] If this is “extreme deprivation”
then there are few defendants in the criminal justice system
who are not extremely deprived and deserving of a pass.

   Neither of Pinholster’s siblings, who spent far more time in
the house than his aunt and uncle, say that they didn’t get
                      PINHOLSTER v. AYERS                  16157
enough to eat or that they suffered economic deprivation.
Indeed, Pinholster himself says exactly the opposite, praising
his mother for always having a hot meal on the table. See p.
16139 supra (Duvall interview).

   The simple fact is, there’s nothing supporting the theory of
abuse or deprivation, in stark contrast to the evidence in many
other cases. There was no evidence of broken bones, concus-
sions, bleeding, hospitalization or any kind of serious or last-
ing injury resulting from Pinholster’s so-called abuse. E.g.,
Wiggins, 539 U.S. at 517; Terry Williams, 529 U.S. at 370;
Harris, 949 F.2d at 1505-06. Pinholster’s father didn’t try to
shoot him. Porter, No. 08-10537, slip op. at 4. None of the
children were gang-raped. Wiggins, 539 U.S. at 517. In fact,
there was no evidence of incest or any kind of sexual abuse.
E.g., id.; Hendricks, 70 F.3d at 1037. Nor was there evidence
that the children had to be removed from the home and placed
in foster care because they were abused or neglected. E.g., id.;
Terry Williams, 529 U.S. at 395. There was no evidence that
either parent was convicted of child abuse or neglect, or was
even charged with such behavior. Terry Williams, 529 U.S. at
395; Harris, 949 F.2d at 1506. Home wasn’t a “combat zone.”
Van Hook, No. 09-144, slip op. at 7. There was no evidence
that the children were exposed to promiscuous sex by the par-
ents, were encouraged or forced to commit crimes to sustain
themselves or were denied the basic necessities of life. E.g.,
id.; Wiggins, 539 U.S. at 517; Moore v. Johnson, 194 F.3d
586, 613 (5th Cir. 1999). The children weren’t locked “in a
small wire mesh dog pen that was filthy and excrement
filled.” Rompilla, 545 U.S. at 392. Pinholster didn’t grow up
in a one-bedroom house described as a “chicken coop.” Bel-
montes, No. 08-1263, slip op. at 6. The children didn’t live in
a home where “someone had had a bowel movement” several
places on the floor and “[u]rine was standing in several places
in the bedrooms.” Terry Williams, 529 U.S. at 395 n.19. The
parents didn’t violently assault each other in front of the chil-
dren. In re Visciotti, 14 Cal.4th at 336. Pinholster’s father
didn’t beat his mother so severely that she was hospitalized
16158                 PINHOLSTER v. AYERS
and lost a baby. Porter, No. 08-10537, slip op. at 4. There’s
no evidence the children had to be hospitalized for drinking
when they were very young. Terry Williams, 529 U.S. at 395
n.19.

   It is true that the family was poor; the stepfather was abu-
sive; the mother was more permissive than some would con-
done; and some of the familial bonds were not particularly
warm or caring. But there is absolutely nothing in this record
that suggests Pinholster’s experience growing up differed
from that of millions of other young men from broken homes
with parents who have a hard time making ends meet. Hyper-
bolic language cannot force from the record something it
doesn’t contain. And what it doesn’t contain is anything that
could conceivably have swayed a jury to go easy on Pinhol-
ster because of his childhood.

   We must remember that this jury had just convicted Pinhol-
ster of two brutal murders and heard convincing evidence that
this was just the last in a long pattern of brutal crimes. He had
previously broken his wife’s jaw, seriously wounded someone
with a straight-razor, kidnapped someone else at knife-point
and on multiple occasions kicked, spit and thrown bodily flu-
ids on police officers. He proudly admitted to having commit-
ted hundreds of robberies at gunpoint. The jurors also heard
that Pinholster twice threatened the life of key prosecution
witness Art Corona, most recently just a few days earlier.
When Sgt. Barrett saw Pinholster after he returned from court,
Pinholster boasted that he’d snowed the jury on the murder
charge and “when he got out he’d have to kill [Art Corona].”
[TR 7384-85] Van Hook reminds us that we must focus on
the weight of the aggravating factors, not merely on their
number. No. 09-144, slip op. at 10. Would these jurors, who
had just convicted Pinholster of a double murder, take a
chance that this uncontrollably violent defendant would make
good his threat to arrange for the murder of Art Corona? Not
bloody likely.
                      PINHOLSTER v. AYERS                 16159
   Family Criminal and Mental History. As the majority
recognizes, Pinholster’s mother did disclose that her other
children had difficulties with the law, difficulties with drugs
and alcohol and that Tammy had engaged in self-destructive
behavior. Beyond that, the record on habeas does go into
more depth regarding the mental, substance-abuse and crimi-
nal problems of the Pinholster siblings and of his biological
father.

   Whether, and to what degree, this is mitigating is highly
debatable. Perhaps a mental health expert might have argued
from this evidence that Pinholster suffered from some genetic
mental defect, but none here have. As noted, Dr. Stalberg
always believed Pinholster was fundamentally a sane psycho-
path. The same is true of Drs. Rudnick and Geiger. Drs. Olson
and Vinogradov, whose evidence we may not consider, see
pp. 16109-12 supra, believed that Pinholster’s “organic per-
sonality syndrome” was induced by childhood head trauma
which, of course, cannot possibly be inherited and thus bears
no relationship to whatever mental problems his siblings had.
He never knew his biological father, so any bad behavior on
the father’s part wouldn’t have affected the son. See p. 16138
supra (Duvall interview). And, of course, providing evidence
that Pinholster’s brother and sister are nuts would have under-
mined their usefulness as abuse and neglect witnesses.

   Without a psychiatric expert to relate the mental and
substance-abuse problems of Pinholster’s siblings to his
behavior, this evidence could have just as easily been aggra-
vating as mitigating—more likely the former. As experienced
trial lawyers know, jurors are not always in a forgiving or
generous mood, especially after they have just convicted a
defendant of multiple first-degree murders. Having learned
that all of his siblings and his biological father suffered from
mental problems, they might well have concluded that Pinhol-
ster was a bad apple from a bad tree and there was no hope
for rehabilitation or redemption. It’s not as if such ideas are
16160                 PINHOLSTER v. AYERS
unheard of, even in the pages of the United States Reports.
See, e.g., Buck v. Bell, 274 U.S. 200, 207 (1927).

   Pinholster’s Substance Abuse. Much of Pinholster’s his-
tory of substance abuse was newly presented on habeas,
although the jury did hear some of it through his brother
Terry’s testimony during the guilt phase. We’ve held before
that “juries are unlikely to favor defenses based on abuse of
dangerous drugs in evaluating a defendant’s culpability for
violent behavior.” Mayfield v. Woodford, 270 F.3d 915, 931
n.17 (9th Cir. 2001). Telling the jury a lot more about what
a druggie Pinholster was would probably have hurt him rather
than helped him.

   There is no evidence, much less clear and convincing evi-
dence, that Pinholster’s substance abuse had anything to do
with his actions on the night of the murders. At the end of the
trial, after the jury returned its death verdict, the trial court
made certain findings, including the following: “[T]he defen-
dant’s capacity to appreciate the criminality of his conduct
and his capacity to conform his conduct to the requirements
of law were in no way impaired as a result of mental disease,
defect, or the effect of any intoxicants or drugs or a combina-
tion thereof.” [CT 1185] Under AEDPA, this finding is enti-
tled to a presumption of correctness and can only be
overturned if Pinholster rebuts it by clear and convincing evi-
dence. 28 U.S.C. § 2254(e)(1).

                             ***

  So here is where we stand with the mitigation evidence:


                   Evidence Heard by the Jury

    Pinholster’s stepfather was abusive, or nearly so.
    Pinholster was in boys homes and juvenile halls after
                 PINHOLSTER v. AYERS                  16161
age 10 or 11.
Pinholster’s mother ran over him with a car at age 2
or 3, badly injuring his head and requiring treatment
at a hospital.
At age 4 or 5, Pinholster was in a car accident where
he flew through the window and hit his head badly.
Pinholster started failing at school in the first grade,
and has learning problems dating back to kindergar-
ten.
In third grade, Pinholster’s teacher suggested that he
was “something more than just a disruptive child.”
In third or fourth grade, Pinholster was sent to a
class for emotionally handicapped children where his
performance improved.
Pinholster had a difficult childhood, often getting
into fights with his brothers.
A psychiatrist recommended Pinholster be hospital-
ized at age 10.
At age 12, Pinholster was institutionalized for six
months in a psychiatric hospital.
Throughout childhood Pinholster stole things and
had a blustery personality.
At age 18, Pinholster was badly beaten in jail.
Pinholster’s personality changed after he was impris-
oned in his late teens; he became withdrawn and had
difficulty adjusting to life on the outside.
Pinholster has epilepsy, for which he’s taken medi-
cation, and has had several serious seizures.
The Pinholster siblings had trouble with drugs and
alcohol, and his sister was a self-destructive wild
girl.
Pinholster’s brother Alvin died and was in consider-
16162                PINHOLSTER v. AYERS
    able trouble with the law.
    Pinholster’s family “sticks close together like you
    would not believe.”
    Pinholster was intoxicated on the night of the mur-
    ders.



New Evidence on Habeas That Was Not Presented to the State Courts

    The diagnosis of organic brain damage promoted by
    Drs. Vinogradov and Olson.
    Testimony from Pinholster’s uncle about his child-
    hood and Pinholster’s mother and grandparents.



 New Evidence on Habeas That Was Presented to the State Courts

    Pinholster’s aunt thought that his mother was selfish
    and neglectful, a poor housekeeper, a poor discipli-
    narian and deprived the children of proper nutrition.
    Pinholster’s grandmother spanked him, possibly for
    looking like his biological father.
    Alvin’s death was by suicide.
    Pinholster’s biological father may have been men-
    tally ill.
    A teacher found Pinholster’s mother unreceptive to
    guidance about how she should handle his learning
    disabilities and emotional problems.

   Only the evidence in the third category was not presented
to the jury but could have been. There just ain’t much there.

  I suppose counsel could have presented this evidence, but
one thing is clear: It would not have been possible to present
                      PINHOLSTER v. AYERS                  16163
the mother’s testimony, which painted a relatively rosy pic-
ture of the family, and particularly her role in it, and also the
testimony of the brother, sister, aunt and uncle, which painted
their family life as terrible and the mother as neglectful and
selfish. Assuming that counsel had all this evidence available
to present at the penalty phase, they would have had to make
a choice: They could go with the mother and try to develop
sympathy for her and the family, or they could paint Pinhol-
ster’s parents as villains and try to work up sympathy for him
personally. They absolutely could not do both without having
the sides collapse on the middle; the two approaches are not
“consistent . . . theor[ies] of mitigation.” Porter, No. 08-
10537, slip op. at 15.

   Now let’s consider the situation counsel found themselves
in. The jury had just convicted their client—a white suprema-
cist gang member who boasted of having little regard for oth-
ers and of committing hundreds of armed robberies—of two
bloody murders. He had lied to the jury on the stand and gen-
erally behaved badly. His testimony would have given the
jury a pretty good impression of who they were dealing with.
They had also heard, and were about to hear more, about Pin-
holster’s long history of violent and abusive behavior towards
just about everyone. The jurors had also heard that Pinholster
had threatened prosecution witness Art Corona in an effort to
keep him from testifying. Pinholster’s own competent psychi-
atrist was telling his lawyers that their client was sane and
sober at the time of the crime and committed the crime
because he’s a violent psychopath. For reasons I explained
earlier, it’s not irrational or incompetent for lawyers in that
situation to conclude that it would be best to have the mother
paint a rosy picture of Pinholster’s family life and herself as
a mother, in hopes that the jury would take pity on her and
spare her son’s life to avoid causing her and the rest of the
family additional pain.

   My colleagues disagree. They believe that there is only one
strategy here, namely trying to “humanize” the defendant by
16164                 PINHOLSTER v. AYERS
trashing the mother and stepfather. I think they’re wrong. But
let’s apply the Belmontes methodology anyhow, No. 08-1263,
slip op. at 5-6, 10-11, turn the clock back to 1984 and try to
figure out how far Pinholster’s lawyers could have gotten
with trying to humanize him.

   Imagine this: Counsel leave off the mother and lose what-
ever sympathy she may have gained for Pinholster. They put
on the persnickety aunt who criticizes her sister for neglecting
the kids, for failing to discipline them, for looking after her-
self while the kids were wearing rags and not giving them
enough to eat. She also says that the grandmother spanked
Pinholster very hard because he looked like his father. They
put on Terry—the brother who may have delivered the threat
to Art Corona—to say that the stepfather was violent and Pin-
holster caught the worst of it, and they put on the sister to say
the same. Then they put on evidence that their own mitigation
witnesses (the brother and sister) suffer from mental illness
and are drug addicts and child molesters. And they put on the
teacher to say that Pinholster was bright and she recom-
mended mental treatment, but the evil mother didn’t listen to
her.

   Beyond this it gets difficult. They have no commanding
officer to testify to Pinholster’s decorations and valor during
“two of the most critical—and horrific—battles of the Korean
War.” Porter, No. 08-10537, slip op. at 12. Pinholster’s per-
sonal troubles didn’t result from trauma he suffered while
shedding blood for his county. Id. at 14. There is no evidence
that Pinholster “struggle[d] to regain normality,” id. at 12, or
that he ever did anything at all to turn away from a life of
crime, violence and abuse of everyone he came in contact
with. Pinholster’s is not “a crime of passion” or one motivated
by “emotionally charged, desperate, frustrated” desire. Id. at
3. Pinholster did not commit these murders in a drunken stu-
por. Id. at 2-3. Rather, Pinholster’s murders grew out of a
long-planned burglary, driven entirely by economic motives,
and he robbed his victims before stabbing them to death. He
                      PINHOLSTER v. AYERS                  16165
doesn’t own up to the crimes by pleading guilty, id. at 2, but
brazenly lies to the jury, claiming that this just isn’t his type
of crime because he likes guns. Counsel can’t point to any-
thing Pinholster has done in his life that was useful, construc-
tive, generous or courageous—nothing at all that might
redeem him in the eyes of a rational juror.

   Nor do counsel have a psychiatric expert who can testify
that Pinholster suffers from mental illness and there’s no evi-
dence that such a mental health expert even existed in 1984.
So they have to go forward without an expert, in which case
they have very little. Or they can go forward with the expert
they do have—Dr. Stalberg.

   So let’s say they put on Dr. Stalberg to tell the jury that
there is a bunch of mitigating evidence from Pinholster’s past.
So far, so good. But the prosecution then gets to cross-
examine Stalberg, and it goes something like this:

    Prosecutor:     Dr. Stalberg, based on your examina-
                    tion of the defendant, did you form an
                    opinion as to whether he suffers from
                    a mental illness?

    Dr. Stalberg:    Yes I did.

    Prosecutor:     Did you diagnose him as being bipo-
                    lar?

    Dr. Stalberg:    No, I did not.

    Prosecutor:     Is he paranoid?

    Dr. Stalberg:    No.

    Prosecutor:     Is he a schizophrenic?

    Dr. Stalberg:    No, he’s not.
16166                  PINHOLSTER v. AYERS
    Prosecutor:     Does he suffer from any other recog-
                    nized form of psychosis?

    Dr. Stalberg:    No, he does not.

    Prosecutor:     Would you say that he is completely
                    sane?

    Dr. Stalberg:    As sane as you and me.

    Prosecutor:     And do you believe he was sane on the
                    night of the murders?

    Dr. Stalberg:    Yes I do.

    Prosecutor:     Did you form an opinion about
                    whether he was impaired by drugs or
                    alcohol on the night of the murder?

    Dr. Stalberg:    Yes I did.

    Prosecutor:     Was he?

    Dr. Stalberg:    It is my professional opinion that he
                     was not.

    Prosecutor:     Dr. Stalberg, you testified that Mr. Pin-
                    holster suffers from epilepsy?

    Dr. Stalberg:    I believe he may have suffered from
                     epilepsy sometime in the past. There
                     have not been any recent manifesta-
                     tions.

    Prosecutor:     Do you believe he suffered an epileptic
                    fit on the night of the murders?

    Dr. Stalberg:    I have no reason to believe this.
                   PINHOLSTER v. AYERS                   16167
Prosecutor:     Would suffering from epilepsy impair
                his mental faculties, the same as schiz-
                ophrenia or paranoia might?

Dr. Stalberg:    No it would not.

Prosecutor:     Can epileptic fits be faked?

Dr. Stalberg:    Very easily.

Prosecutor:     Is it possible to tell a real epileptic fit
                from a fake one?

Dr. Stalberg:    Perhaps a doctor could, but I doubt
                 most lay people would be able to tell
                 the difference.

Prosecutor:     Did you form any other professional
                opinion as to Mr. Pinholster’s mental
                condition?

Dr. Stalberg:    Yes I did.

Prosecutor:     And can you tell us what that is?

Dr. Stalberg:    He has antisocial personality disor-
                 der.

Prosecutor:     Is that what’s known, in common
                speech, as being a psychopath?

Dr. Stalberg:    Yes it is.

Prosecutor:     And what does this mean?

Dr. Stalberg:    It means he feels no empathy for the
                 suffering of others. He has no con-
                 science.
16168                   PINHOLSTER v. AYERS
       Prosecutor:   Thank you very much. You may step
                     down.

   Counsel, of course, would have known that if they opened
the door to psychiatric evidence, the state would be entitled
to put in such evidence as well. So, if Pinholster put on Dr.
Stalberg, the state would have presented its own expert, some-
one like Dr. Geiger, who examined petitioner on June 19,
1984, and gave his diagnosis as follows:

       The subject was not impaired by mental disease or
       defect in such a way that he could not appreciate the
       criminality of his conduct or conform his conduct to
       the requirements of the law. This man’s conduct
       showed a high degree of cruelty, callousness and
       viciousness. . . . DIAGNOSIS: Antisocial personality
       disorder . . . . CONCLUSION: This diagnosis is
       related to the commitment offenses in the sense that
       this man showed no responsible regard for the rea-
       sonable rights of other people and throughout the
       many years prior to this most recent conviction this
       character trait was apparent. [Ex. 41] (emphasis
       added).

   Given this reality, competent counsel, as in Belmontes,15
would have been careful to avoid any possibility that the state
would put in such damaging psychiatric evidence, and so
would have been forced to make do without Dr. Stalberg.
That would have left counsel with only the brother, the sister,
the aunt, the uncle—all sniping at each other while trashing
Pinholster’s mother, grandparents and step-father—and the
school teacher.
  15
    The opinion’s paean to counsel’s performance in Belmontes, maj. op.
at 16098-99, must come as a surprise to certain members of the majority
who are particularly familiar with that case. Then again, such re-
characterizations of a matter in a habeas case are not so uncommon. Bel-
montes, No. 08-1263, slip op. at 7.
                     PINHOLSTER v. AYERS                 16169
   This assumes, for the sake of argument, that Pinholster
would have allowed a mitigation defense which publicly dis-
graced his mother and stepfather. Is this likely to have led
even a single juror to change his mind about the penalty? I
seriously doubt it. Far more likely, the jury would have seen
this as just one more effort by Pinholster to manipulate them,
like his lying and self-aggrandizing on the stand.

   The Superior Court here made findings about the weight of
the aggravating evidence: “The Court finds that the evidence
concerning the truth of the Special Circumstances is over-
whelming, and the jury’s assessment of the evidence that the
aggravation outweighs the mitigation as to the selection of the
proper penalty to be ‘death,’ is supported overwhelmingly by
the weight of the evidence.” (emphases added). [CT 1184]
“Considering all of the evidence, the Court finds that the fac-
tors in aggravation beyond all reasonable doubt outweigh
those in mitigation.” (emphasis added) [CT 1186] These are
the findings by the judge who saw the entire trial and the jury
that convicted Pinholster; neither was set aside on appeal or
otherwise. Under AEDPA these findings are entitled to a near
irrebuttable presumption of correctness. In light of such over-
whelming evidence, it would be impossible to conclude that
even one juror would have been swayed by this paltry show-
ing.

   My colleagues disagree, but that’s not the test. What we
should ask is whether the justices of the California Supreme
Court unreasonably applied clearly established Supreme
Court precedent in concluding otherwise. My colleagues hold
that they did by comparing the mitigating evidence here with
that in Terry Williams, Wiggins and Rompilla, but those cases
are not on point because not a single one of them required the
Court to hold that a state court’s determination on prejudice
was unreasonable. Rather, in each case, the Court reviewed a
state court decision that either applied a standard contrary to
Supreme Court precedent or failed to address prejudice at all.
Rompilla, 545 U.S. at 390; Wiggins, 539 U.S. at 534; Terry
16170                 PINHOLSTER v. AYERS
Williams, 529 U.S. at 395-96. Comparison with the facts of
those cases is irrelevant because the Court there wasn’t
required to apply AEDPA deference. The same is true of Bel-
montes and Van Hook, both of which resulted in summary
reversals even under pre-AEDPA law.

   The case on point is Visciotti, which did involve a state
court determination regarding prejudice, to which the
Supreme Court unanimously deferred. 537 U.S. at 22-27. The
majority mishandles Visciotti as well. It doesn’t matter
whether we think the prejudice here is probably greater than
in Visciotti; the Court did not say that Visciotti was a particu-
larly close case, nor were there differing views about how
Visciotti should come out, so nothing can be learned from that
comparison. Indeed, Visciotti was a summary reversal, which
tells us the Court didn’t even think the case was close enough
to merit argument. Visciotti thus hardly marks the outer
boundary of what deference the Supreme Court believes we
owe state courts in deciding whether a criminal defendant was
prejudiced by ineffective assistance of counsel.

   Visciotti is actually remarkably similar to our case. The
same California Supreme Court decided Pinholster’s second
habeas petition as Visciotti’s state habeas petition; they were
decided by the state supreme court about 10 months apart. In
Visciotti, as in our case, the defense lawyer chose to rely on
the family sympathy defense rather than “humanizing” the
defendant because “[i]t was his opinion that any attempt to
gain sympathy for petitioner would have failed.” In re Visci-
otti, 14 Cal.4th at 334. Counsel therefore did not pursue—and
was not aware of—a large “trove” of facts like the majority
believes is the case here.

  At the federal habeas hearing, Visciotti presented evidence
of the

    discordant atmosphere in the Visciotti family home
    created by an unending series of physical and verbal
                       PINHOLSTER v. AYERS                16171
      confrontations between petitioner’s parents; physical
      punishment of petitioner and his siblings; threats of
      violence; impermanence caused by the family’s
      numerous moves and its impact on school attendance
      and the ability to make lasting friendships; the chil-
      dren’s efforts to escape the household turmoil by
      hiding, leaving the house, early marriage, and resort
      to drugs as “self-medication.” Social workers, psy-
      chologists, and other witnesses testified regarding
      the impact of these events on petitioner’s develop-
      ment and ability to function in society.

Id. at 336. Visciotti’s lawyer explained his strategy as fol-
lows:

      He decided prior to jury selection in the Visciotti
      trial, when he saw petitioner’s videotaped reenact-
      ment of the murder, that he would attempt to elicit
      sympathy for petitioner’s family as his penalty phase
      strategy. He believed that, although sympathy for
      petitioner could not be expected, sympathy for peti-
      tioner’s parents might be. His defense would there-
      fore suggest that the parents were nice people whose
      son should not be killed.

Id.

   While the California Supreme Court justices were thrice
unanimous as to Pinholster—once on direct appeal, twice on
habeas—they were twice divided in Visciotti’s. Notably, Jus-
tice Mosk, who wrote the opinion in Pinholster’s direct
appeal, dissented on the IAC issue in Visciotti’s direct appeal
and was in deep dissent on Visciotti’s habeas petition; he even
invited the federal courts to set aside the death sentence. Id.
at 359-62 & n.1. Justice Brown also dissented, and explained
—in terms not so different from those employed by the major-
ity today—the many ways in which Visciotti’s lawyer failed
him, and how this must have prejudiced him:
16172                PINHOLSTER v. AYERS
    The penalty phase proceedings against petitioner, the
    subject of this court’s order to show cause, are a
    textbook example of a process gone awry. Simply
    put, Agajanian [Visciotti’s lawyer] failed petitioner
    at every stage of the proceedings. I offer several of
    many, many examples that could be given.

       During his pretrial preparation, Agajanian “did not
    send for the police report [of the Cusack incident] or
    go through the prosecutor’s file to read it in advance
    of trial and thus was surprised and unprepared to
    face that [aggravating] evidence.” Likewise, he
    “failed to investigate and discover mitigating evi-
    dence as a result of his ignorance of the types of evi-
    dence a jury might consider mitigating.”

       During the penalty phase of the trial itself, Aga-
    janian “failed to present readily available evidence
    that would have revealed to the jury the extent to
    which petitioner was subjected to psychological and
    physical abuse as a child, the impact the dysfunc-
    tional and peripatetic family life had on petitioner’s
    development, and the correlation between these
    events and petitioner’s resort to drugs.” Also during
    the penalty phase of the trial, Agajanian “delivered
    an unfocussed closing argument, during which he
    undercut his client’s own case by telling the jury that
    the evidence of petitioner’s mental and emotional
    problems was not mitigating.”

        ....

       In the context of the penalty phase of the trial, it
    is clear that Agajanian “entirely fail[ed] to subject
    the prosecution’s case to meaningful adversarial test-
    ing.” This court had it all wrong when, on direct
    appeal, it characterized Agajanian’s penalty phase
    closing argument as “a rambling discourse, not tied
                 PINHOLSTER v. AYERS                 16173
to particular evidence.” In fact, during the course of
the so-called “rambling discourse,” Agajanian sys-
tematically conceded nine of the eleven aggravating
and mitigating factors set forth in Penal Code section
190.3 to the prosecution.

   Agajanian conceded “[t]he facts and circum-
stances of the case in my opinion do not have to be
reviewed. There is no way to make light of those
types of things just like there’s no way to make light
of any kind of murder, whether or not there’s a rob-
bery involved . . . .” He conceded “past violence”
was a factor in aggravation. He conceded “[w]ith
respect to the prior conviction for assault with a
deadly weapon, there’s no way to make light of that
either.” He conceded “[w]ith respect to emotional
disturbance, there’s no evidence of that. That isn’t
even a factor to be considered.” He conceded “[w]ith
respect to the next one . . . victim participated or
consented. That’s not applicable. There’s no evi-
dence of that.” He conceded “same situation” with
respect to justification. He conceded “[e]xtreme
duress, there was no evidence of that either.
Although defense lawyers would like to have that
present, it’s not fair.” He conceded “with respect to
diminished capacity, when you ladies and gentlemen
returned this verdict of first degree murder and found
special circumstances, you indicated to all of us that
you did not find diminished capacity. So if you did
not find diminished capacity, how can I argue that as
a factor of aggravation or mitigation? It just does not
apply. It’s not there.” And he conceded “the indica-
tion here was that [petitioner] was not an accomplice
or that his participation was minor-exactly the oppo-
site. [Petitioner] is, as the People said, the trigger
man.”

  Certainly, as the majority states, “[t]he aggravat-
ing factors were overwhelming” and the mitigating
16174                PINHOLSTER v. AYERS
    factors were “minimal in comparison.” Even in such
    a case, though, counsel must hold the prosecution to
    its heavy burden. Agajanian did not rise to the occa-
    sion. Although his abortive attempts to construct a
    family sympathy defense exposed some of the miti-
    gating evidence to the jury, Agajanian undermined
    its effectiveness by “conceding that the jury could
    find that all of the possibly aggravating factors were
    present, and none of the mitigating.” Indeed, the ref-
    eree specifically found, and the majority agrees, that
    Agajanian “had no intention of introducing any evi-
    dence in an attempt to draw sympathy to his client.”

Id. at 364-66 (internal citations and footnote omitted).
According to Justice Brown, Agajanian did far more damage
to Visciotti’s case than Brainard and Dettmar did to Pinhol-
ster’s.

   No doubt swayed by the strong dissents of these well-
respected state justices, the district court granted habeas and
we affirmed. The United States Supreme Court was not
impressed:

    The [Ninth Circuit] Court of Appeals disagreed with
    [the majority of the California Supreme Court,] sug-
    gesting that the fact that the jury deliberated for a
    full day and requested additional guidance on the
    meaning of “moral justification” and “extreme
    duress” meant that the “aggravating factors were not
    overwhelming.” Perhaps so. However, under
    § 2254(d)(1), it is not enough to convince a federal
    habeas court that, in its independent judgment, the
    state-court decision applied Strickland incorrectly.
    The federal habeas scheme leaves primary responsi-
    bility with the state courts for these judgments, and
    authorizes federal-court intervention only when a
    state-court decision is objectively unreasonable. It is
    not that here. Whether or not we would reach the
                      PINHOLSTER v. AYERS                 16175
    same conclusion as the California Supreme Court,
    we think at the very least that the state court’s con-
    trary assessment was not unreasonable. Habeas relief
    is therefore not permissible under § 2254(d).

Visciotti, 537 U.S. at 26-27 (internal citations and quotation
marks omitted).

   In our case, unlike Visciotti, the same state supreme court
justices were unanimous in denying the habeas petition. As
Visciotti shows, this was not a court whose members played
“follow the leader.” Justices Mosk and Brown clearly had
minds of their own; Justice Kennard wrote separately to
explain why she agreed with the majority. In re Visciotti, 14
Cal.4th at 357-59. But in Pinholster’s case they were unani-
mous, with the firebrand dissenter, Justice Mosk—who had
spent decades on the California Supreme Court championing
the rights of criminal defendants—fully on board. Indeed, Jus-
tices Mosk and Brown did show a difference of opinion in
Pinholster’s case; they both would have denied the petition
entirely on the merits and not on procedural grounds as well.
[Exs. B, C-7] One can’t say this was a case where the justices
brushed aside the habeas petitions without giving them their
full attention.

   Putting Pinholster’s case next to Visciotti’s, how can we
possibly say that the California Supreme Court unreasonably
applied established Supreme Court precedent in the former,
when a unanimous Supreme Court summarily reversed us for
saying that in the latter? The cases are remarkably similar,
down to the fact that the trial lawyer in both cases was disbar-
red after the trial. Pinholster’s lawyers were no worse than
Visciotti’s and probably better; at least they didn’t concede
nine of the eleven aggravating and mitigating factors set forth
in the death penalty statute. Can we truly say that we are giv-
ing Pinholster’s state habeas determination on prejudice the
same degree of deference that the unanimous Supreme Court
gave to Visciotti’s case? I think not.
16176                 PINHOLSTER v. AYERS
                         Conclusion

   The trial in this case took place over a quarter century ago.
Pinholster’s lawyers are both dead. Justice Mosk, who wrote
the California Supreme Court’s unanimous opinion in Pinhol-
ster’s direct appeal and participated in both of his habeas peti-
tions, is also dead. Pinholster’s two victims are long dead and
forgotten; whatever hopes and aspirations they may have had
were cut short because they had the misfortune of getting in
the way of Pinholster’s greed and anger.

   Meanwhile, prison has been good to Pinholster. He sits in
his cell reading Machiavelli, Voltaire “and all the philoso-
phers” [ER 704], drawing pictures to sell over the internet. He
enjoys the gravitas, authority and mentoring opportunities that
come with being an elder in his prison gang, and has surgery
performed on his knees at taxpayer expense. He still stabs
people whenever he can, without passion or regret; “it was
just business,” he explains. [ER 704] His conscience doesn’t
trouble him about the fact that he took the lives of two fellow
human beings; he has never expressed the least remorse for
his killings. The people of California are entitled to put an end
to Pinholster’s paid vacation and insist that the punishment
lawfully imposed on him be carried out.

   I have no doubt that my colleagues sincerely believe they
are following the Supreme Court’s directions. Admittedly, the
Court has been less than clear in this area. See, e.g., Rompilla,
545 U.S. at 377 (majority), 395 (Kennedy, J., dissenting);
Wiggins, 539 U.S. at 514 (majority), 538 (Scalia, J., dissent-
ing); Terry Williams, 529 U.S. at 367 (majority), 416-17
(Rehnquist, J., dissenting). But I believe it’s been clear
enough, and Pinholster’s death sentence must be reinstated. If
we do not do it ourselves, it will surely be done for us.
