                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RICHARD ALLEN BENSON,                     No. 13-99004
             Petitioner-Appellant,
                                             D.C. No.
                 v.                       2:94-cv-05363-
                                               AHM
KEVIN CHAPPELL, Warden, San
Quentin State Prison,
               Respondent-Appellee.         OPINION


     Appeal from the United States District Court
         for the Central District of California
     Alvin Howard Matz, District Judge, Presiding

        Argued and Submitted December 5, 2017
         Submission Vacated February 7, 2019
              Resubmitted April 24, 2020
                 Pasadena, California

                      Filed May 1, 2020

     Before: Consuelo M. Callahan, Carlos T. Bea,
         and Mary H. Murguia, Circuit Judges.

               Opinion by Judge Callahan;
Partial Concurrence and Partial Dissent by Judge Murguia
2                      BENSON V. CHAPPELL

                            SUMMARY*


                Habeas Corpus / Death Penalty

    The panel affirmed the district court’s denial of Richard
Allen Benson’s habeas corpus petition challenging his
California conviction and death sentence for murder and other
crimes.

    Benson raised two certified claims on appeal: (1) that his
confessions should have been suppressed, and (2) that his trial
counsel was ineffective at sentencing. Reviewing under the
Antiterrorism and Effective Death Penalty Act, the panel held
that Benson did not show that the California Supreme Court’s
denials of his claims were unreasonable determinations of the
facts or contrary to clearly established federal law.

   Observing that – as Benson admits – he confessed after he
was given his Miranda warnings, acknowledged the
warnings, and waived them, the panel held that the California
Supreme Court reasonably determined that an officer’s
misstatement during Benson’s interrogation that there was
no death penalty in California did not prompt Benson’s
confessions; and that Benson did not show that his statements
were not knowing, voluntary, and intelligent.

     The panel held that even if Benson were able to show that
trial counsel was ineffective in not fully investigating his
abuse as a child or his alleged organic brain injury, the
California Supreme Court could reasonably have determined

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

that any shortcoming in trial counsel’s investigation was not
prejudicial.

   The panel granted a Certificate of Appealability on
Benson’s two uncertified issues and determined that the state
court reasonably rejected his claims that (1) his trial counsel
was ineffective at the guilt phase of the trial, and (2) the
prosecutor withheld material, exculpatory evidence.

    Concurring in the majority’s decision on the first certified
issue and on the uncertified claims, Judge Murguia dissented
from the majority’s opinion with respect to Benson’s penalty-
phase ineffective-assistance claim. She wrote that significant
and readily-available evidence that Benson was subjected to
grotesque sexual and physical abuse, which was never
discovered by Benson’s lawyer and never introduced at the
penalty phase, has a substantial probability of convincing at
least one juror to vote for life rather than death, and that the
California Supreme Court’s conclusion to the contrary is
fundamentally unreasonable.


                         COUNSEL

Marcia A. Morrissey (argued), Santa Monica, California;
John R. Grele (argued), San Francisco, California; for
Petitioner-Appellant.

David F. Glassman (argued) and A. Scott Hayward, Deputy
Attorneys General; James William Bilderback II, Supervising
Deputy Attorney General; Lance E. Winters, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant Attorney
4                   BENSON V. CHAPPELL

General; Xavier Becerra, Attorney General; Attorney
General’s Office, Los Angeles, California; for Respondent-
Appellee.


                          OPINION

CALLAHAN, Circuit Judge:

    In 1986, Richard Allen Benson confessed to sexually
molesting two little girls and murdering the girls, their
mother, and their baby brother. He was tried and convicted
for murder and other crimes and sentenced to death. After his
conviction and sentence were affirmed and the California
Supreme Court had denied several habeas petitions, Benson
filed a federal habeas petition with the United States District
Court for the Central District of California. The district court
denied the petition and Benson has appealed.

    On appeal Benson raises two certified claims: (1) his
confessions should have been suppressed, and (2) his trial
counsel was ineffective at sentencing because he failed to
investigate and present evidence of Benson’s severe physical,
sexual, and emotional abuse in early childhood. In addition,
Benson raises two uncertified claims: (3) trial counsel was
ineffective at the guilt phase in failing to impeach the state’s
case, and (4) the prosecutor withheld material and
exculpatory evidence (a claim pursuant to Brady v. Maryland,
373 U.S. 83 (1963)).

   Because Benson’s claims are subject to review under the
Antiterrorism and Effective Death Penalty Act (AEDPA),
28 U.S.C. § 2254, to be granted relief, he must show that the
California Supreme Court’s denials of his claims were
                    BENSON V. CHAPPELL                         5

unreasonable determinations of the facts or contrary to clearly
established federal law. Benson has not done so. He
confessed after he was given his Miranda warnings,
acknowledged the warnings, and waived them. The
California Supreme Court reasonably determined that an
officer’s misstatement during Benson’s interrogation that
there was no death penalty in California did not prompt
Benson’s confessions. Furthermore, Benson has not shown
that his statements were not knowing, voluntary, and
intelligent. In addition, even if Benson were able to show
that trial counsel was ineffective in not fully investigating his
abuse as a child or his alleged organic brain injury, the
California Supreme Court could reasonably have determined
that any shortcoming in trial counsel’s investigation was not
prejudicial. Finally, we grant the Certificate of Appealability
on Benson’s two uncertified issues and determine that the
state court reasonably rejected Benson’s claims that (a) his
trial counsel should have impeached the government’s case,
and (b) the prosecutor withheld material, exculpatory
evidence. Accordingly, we affirm the district court’s denial
of the writ.

                  I. The Underlying Facts

    A. Benson’s Criminal Activities

    There is overwhelming evidence that Benson deliberately
murdered Laura Camargo and her two-year old son, and
sexually molested her four-year-old and three-year-old
daughters, before brutally murdering both girls. He then set
the family’s home on fire and fled the scene.

    The California Supreme Court’s opinion provides this
recitation of the underlying facts:
6              BENSON V. CHAPPELL

    On the evening of Saturday, January 4, 1986,
    Laura Camargo set out to visit Barbara Lopez
    and Katrina Flores. The three women were
    close friends. Laura lived in Nipomo with her
    children, Stephanie Camargo, age four,
    Shawna Camargo, age three, and Sterling
    Gonzales, age twenty-three months, in a
    small, two-room shack that shared an
    unattached bathroom with another unit.
    Barbara and Katrina lived with their children
    in an apartment in Oceano, which was about
    10 miles away. Just before Thanksgiving of
    1985, defendant had moved into the
    apartment; he was a jeweler by trade. Over the
    following weeks, he became acquainted with
    Laura and her children.

    On the evening in question, Laura secured a
    baby-sitter to care for Stephanie, Shawna, and
    Sterling, and then obtained a ride to Oceano.
    She socialized with Barbara, Katrina, and
    defendant. Before long, she decided to return
    home. Defendant arranged for a ride. Taking
    measures to conceal his destination from
    Barbara and Katrina, he accompanied Laura
    to Nipomo, carrying with him a heavy
    briefcase. As he later admitted, he “went out
    there with the intention of doing something to
    the kids.”

    Around midnight, defendant and Laura
    arrived at the shack, and the baby-sitter
    departed. Shortly thereafter, defendant took
    up a claw hammer he found in the shack,
            BENSON V. CHAPPELL                     7

apparently positioned himself behind Laura,
and repeatedly and violently struck her in the
head, as he subsequently acknowledged, “to
take her out.” Laura fell; defendant thought
she was dead; she gurgled loudly; he stuffed
socks into and over her mouth; she soon
expired. From that point on, he took pains to
make it appear to Laura’s neighbors that no
one was in the shack. He proceeded to
sexually assault Stephanie and Shawna.

Throughout Sunday, January 5, defendant
continued to molest the two girls. A number
of times that day, neighbors came by the
shack and the common unattached bathroom.
More than once, Sterling coughed and cried;
more than once, defendant quieted the child.
After nightfall defendant—in words he later
used—“realized . . . that it was inevitable”: in
order to avoid discovery, he decided to kill
Sterling. Although he met with resistance
from the child as he attempted to smother and
strangle him to death, he finally succeeded.
With Laura and Sterling dead, he found
himself in what he later described as “a
molester’s type of heaven”: in the paraphrase
of the police psychiatrist to whom he
confessed, “it was like being in heaven, and
being completely able to get what he wanted
with no interference.”

As Monday, January 6, approached, defendant
continued to molest Stephanie and Shawna.
At the same time, he began to consider
8                  BENSON V. CHAPPELL

       whether he should kill the girls. As he later
       described his thoughts: “I knew it couldn’t be
       put off and uh, in the state of mind that I was
       in at that time, the best thing, no I can’t say it
       like that, the only option I had was to go
       ahead and finish the job and uh, try to keep
       from being implicated in it, okay. Uh, I had
       trouble bringing myself to do it. . . . [A]nd uh,
       you know, three, four times I set them up for
       it and I, I just couldn’t do it. . . .” As the sky
       began to lighten, however, defendant found
       himself able to carry through. He took up a
       heavy steel jeweler’s mandrel which he
       carried in his briefcase; he repeatedly struck
       Stephanie and Shawna in the head; seeing that
       death did not come immediately, he seized the
       claw hammer and used the instrument to
       dispatch the children. As he subsequently
       admitted, he killed Stephanie and Shawna,
       and Laura and Sterling before them, “to
       protect my freedom.” To cover his crimes, he
       proceeded to start a fire in the shack. About 8
       a.m., just before the flames began to rage, he
       fled.

People v. Benson, 802 P.2d 330, 336–37 (Cal. 1990).

    On Monday morning, January 6, 1986, Mike Owen
stopped by a liquor store in Nipomo. Benson approached him
and asked for a ride to Oceano. Owen agreed. Benson
retrieved his briefcase and was dropped off in Oceano just
after 8:00 a.m. At around this time, smoke was seen coming
from Laura’s home and the fire department was called. The
                   BENSON V. CHAPPELL                       9

home was heavily damaged and charred. According to the
district court:

       Laura’s three children, Stephanie, Shawna,
       and Sterling, were all dead, on the floor in the
       middle of this room, which the fire had
       heavily damaged. A lot of burnt and partially
       burnt debris was under and around the girls’
       bodies and on the floor of the second room. A
       pink and black, wire-ribbed female corset was
       next to Stephanie’s body.

       A partially-burnt claw hammer was lying on
       top of Stephanie’s shoulder. Petitioner’s ring
       mandrel was lying next to Shawna. Another
       hammer was hanging on the wall next to the
       kitchen sink.

       Investigators found pornographic magazines,
       newspapers, and a photo album under the two
       girls’ bodies. . . .

       The arson investigator . . . examined the fire,
       and determined someone had deliberately set
       on fire the surface of a four foot wide pile of
       magazines, paper goods, clothing, and toys, in
       the middle of the children’s room next to and
       underneath the bodies of Stephanie and
       Shawna, allowing it to burn down into the
       pile.

   On Tuesday, January 7, Benson asked a friend of a friend,
K.S., for a ride to Los Osos, a town north of San Luis Obispo.
K.S. agreed to give him a ride as far as San Luis Obispo,
10                        BENSON V. CHAPPELL

Benson picked up his belongings, and they left for San Luis
Obispo around 6:30 p.m. They drove to an apartment
complex where Benson got out and asked K.S. to wait while
he went inside. When Benson returned, he started gathering
his belongings, then he grabbed K.S. from behind, put a knife
to her throat, and ordered her to drive to Los Osos. K.S.
panicked and offered Benson her car. He rejected the offer
and “took out a cylinder with something like a needle sticking
out of it and told her it would kill her if he pricked her with
it.”

    Benson made K.S. drive to a liquor store in San Luis
Obispo where he forced her to buy a bottle of whiskey and
pornographic magazines. They returned to the car and
Benson forced her to continue driving to Los Osos. When
they got there, Benson said he was on a mission to rescue a
family in Los Osos.1 They talked in the parked car for more
than an hour until Benson made a phone call. K.S. was
terrified of Benson, who remained within reach of her.
Benson made K.S. drive to an abandoned house, where he
eventually got his things out of the car and went inside. K.S.
drove straight home to San Luis Obispo and called the police.



     1
         The district court noted:

            Petitioner claimed he knew a police officer in Los Osos
            who had been suspended for molesting an 11 year-old
            girl, and was producing and filming a home-made
            pornographic movie in which he was forcing his wife
            and two daughters to participate. Petitioner claimed he
            had borrowed some pornographic magazines from the
            policeman, and, under the guise of returning them, he
            would go to the policeman’s house to rescue the two
            girls.
                      BENSON V. CHAPPELL                            11

   Later that night, K.S. accompanied the police to the
abandoned house in Los Osos. The police went to the house
and arrested Benson. Benson was booked at around
11:30 p.m. on Tuesday, January 7, in connection with the
kidnaping of K.S.

    On Wednesday, January 8, Benson’s parole agent, Felix
Martel, was notified of Benson’s arrest. Benson had four
prior felony convictions for abducting minors. Martel went
to the San Luis Obispo County Sheriff’s Office to discuss the
matter with detectives. He authorized the breaking of the
lock on Benson’s briefcase to conduct a parole search, and he
placed a parole hold on Benson. Law enforcement officers
spent Wednesday consolidating and reviewing the evidence
they had concerning the murders.2 On Thursday morning,
based on evidence pointing toward Benson as responsible for
the murders, the Sheriffs Office called someone with the
FBI’s Behavioral Science Unit to discuss how best to
approach a pedophile like Benson.

    B. Benson’s Confessions

    Detective Bolts and Investigator Hobson began
interviewing Benson in an office at the San Luis Obispo
County Detective Bureau around 11:00 a.m. on Thursday,
January 9, 1986. Benson was initially detained on a parole
hold based on his kidnaping of K.S. At the beginning of the
interview, Bolts read Benson his Miranda rights, and Benson
indicated that he understood his rights and waived them. A
portable transmitter in the room monitored the conversation
and relayed it to another room where other investigators

     2
       Benson had been interviewed briefly at his home on the afternoon
of January 6, 1986.
12                  BENSON V. CHAPPELL

could listen to, and record, the interview. All but the initial
one and one-half hour to two hours of the almost twelve-hour
interview was tape-recorded.

    The officers initially focused on a charge of kidnapping
K.S. but then shifted their focus to the events that occurred at
Laura Camargo’s home in Nipomo. Bolts commented: “I
think we could perhaps start anew and talk about some things
that occurred Saturday night and talk some straight turkey.”
Bolts continued, “I think you only realize too well that we
didn’t call you in here without having done our homework.”
Benson responded that he had “known that for quite awhile”
and that, “as it looks right now, I’m a very suspected man.”
The following colloquy ensued:

       Hobson: What’s going through your head
       right now Richard?

       Benson: I don’t think you’d believe it.

       Hobson: I’d like to believe it, try me. We sat
       here with you all this time and that’s why
       we’re still here with you, because we care
       also.

       Bolts: We’re caring, feeling, human beings
       and we have compassion for a lot of things
       and we’ve seen a lot worse, believe me, this is
       not the end of the line by any means.

       Hobson: Richard, if we didn’t care, we
       wouldn’t be sitting here.
            BENSON V. CHAPPELL                  13

Benson: I don’t see, I don’t see how you can
say it’s not the end of the line.

Bolts: It’s not.

Benson: It is for me.

Bolts: Why? There’s no death penalty here.

Benson: That doesn’t matter.

Hobson: Wait a minute, before we talk about
that, we don’t know what happened in that
house . . . [.]

Bolts: Exactly. We know what kind of a
person Laura could be.

Hobson: Laura had a temper. We know that.
Maybe you were put into a position where you
had to make a choice.

Benson: It doesn’t matter what choices I had.

Hobson: Sure it does.

Benson: No, because nothing justifies the
outcome.

Hobson: Well, why don’t you tell us and let
us decide that.

Benson: The thing ot [sic] it is, I can’t.
14                  BENSON V. CHAPPELL

       Hobson: Why?

       Benson: I don’t know.

       Hobson: You don’t know what?

       Benson: I don’t know what happened.

Benson, 802 P.2d at 841 n.3.

     Benson claimed he could not tell the officers what
happened because he could not remember. However, after
telling the officers a number of lies, Benson admitted he
committed all the murders and sexually molested Stephanie
and Shawna for 30 hours before he killed them. Benson’s
admissions were laced with inconsistencies about how and
why he committed the acts. The officers finally terminated
the interview around 11:00 p.m., returned Benson to jail, and
booked him on murder and other related charges.

    Later that night, Benson was placed on “suicide watch”
and placed naked into a small empty cell with foam rubber
padded walls and a bare concrete floor—a so-called “rubber
room.” Id. at 346. He was told by a jailer that he would not
be released until he was cleared by “Mental Health.” Id.

    On the morning of January 10, 1986, Dr. Gordon of the
Sexual Assault and Response Team visited Benson.
Dr. Gordon testified that he told Benson that he was a doctor
and he advised him of his constitutional rights including the
right to remain silent and the right to an attorney. Dr. Gordon
stated that Benson agreed to talk to him and that Benson
proceeded to describe his sexual molestation of the two girls
in some detail.
                    BENSON V. CHAPPELL                       15

    On January 13, 1986, Bolts and Hobson interviewed
Benson for another three hours. Benson was again advised of
his Miranda rights and waived them. During the interview he
provided further details of the crimes. Near the end of the
interview, the following dialogue transpired:

       Bolts: . . . [J]ust so that I’m clear, is there
       something that we’ve said uh, as far as, you
       know, threats that we’ve made to you,
       promises or any promises of leniency,
       anything that has caused you to tell us what
       you’ve told us?

       Benson: No. I’m surprised that that came up.

       Bolts: Well, I, it’s something that uh, you
       know, I’ve thought of, that maybe something
       that we said you interpreted as some kind of
       threat or promise or some . . .

       Benson: You know what, if you guys started
       whipping me with billy clubs right now, you’d
       see me smile, so you know that’s not uh, a . . .
       now, no, you guys are good at your job, I
       complimented you to your lieutenant about it
       as a matter of fact, uh, I’m glad you are,
       because it served in getting me off the street,
       you know, I feel that in some sick twisted way
       I helped a little, but you guys still . . . you did
       your job.
16                  BENSON V. CHAPPELL

                  II. Judicial Proceedings

     A. The Indictment and Appointment of Counsel

    On January 14, 1986, Benson was arraigned. He was
charged in a 14-count complaint with murder, child
molestation, arson, and kidnapping. That afternoon he
appeared in court and was advised of his right to counsel.
Although Benson initially said he did not want an attorney,
the court appointed counsel, and advised Benson that the
charges carried the possibility of the death penalty. After
conferring with counsel, when Benson was again asked
whether he wanted counsel, he responded:

        I do desire counsel, your honor. It turns out,
        in my interrogation with the deputies, I was
        led to believe that, according to them,
        California no longer had a death penalty.
        Because of that, we were just talking years,
        not life. Because of that, I didn’t feel that the
        expenditure of the court was warranted in
        something that was inevitable to happen.

     B. The Motion to Suppress

    On February 26, 1987, the first day of trial, the court ruled
on Benson’s motion to suppress his confessions to the
officers. The court first rejected his arguments that:
(1) Benson’s arraignment had been delayed in order to elicit
incriminating statements; and (2) Benson was entitled to a
second Miranda warning when the subject of the questioning
changed from kidnapping to homicide.
                   BENSON V. CHAPPELL                      17

    Benson testified at his suppression hearing. Benson
explained that when Detective Bolts commented that there’s
“no death penalty here,” Benson thought Bolts meant that
“the death penalty was dormant in California, and that they
weren’t seeking the death penalty as far as what the
interview, what the case was going to.” When asked to
explain his response “that doesn’t matter” to Bolts’s
statement about the death penalty, Benson testified that “[a]t
the time, the incidents were very fresh and vivid in my mind,
and I was having a lot of trouble dealing with the whole
situation.” Benson further stated that his “primary thought
was nothing was going to change the effect of the people that
died. Nothing was going to bring them back.” When asked
why he gave information to the police, Benson testified that
“there’s no one answer to that.”

    The judge carefully considered the possible impact on
Benson of Bolts’s indication that there was no death penalty.
The judge noted that Benson “is very articulate, very well-
spoken, seems to the Court having read this transcript, that
he’s an intelligent young man,” and that, by his own account,
he is experienced in the criminal justice system. The court,
having reviewed the transcript of the interrogation, opined
that Benson had been focusing on the horror of the situation
and did not rely on the officer’s statement. The judge also
noted the passage of time between the officer’s statement and
Benson’s eventual admission of what he had done. The judge
concluded that he was “persuaded beyond a reasonable doubt
that Mr. Benson’s statements were not coerced by promise of
leniency, but rather were made freely and voluntarily.”
18                  BENSON V. CHAPPELL

     C. The Motion to Exclude Dr. Gordon’s Testimony

   When Dr. Gordon was called as a witness, Benson’s
counsel moved to exclude Benson’s statements to Dr. Gordon
as involuntary. The district court described counsel’s
argument as follows:

        the reason that Mr. Benson was so willing to
        speak to Dr. Gordon was his desire to vacate
        the - - what we have referred to as the rubber
        room. And in an effort to get out of that
        confinement, he was willing to open up and
        speak to Dr. Gordon. That that was, in effect,
        a ruse or a scam on behalf of the police in that
        there was a suggestion that he would be
        speaking to someone from Mental Health, and
        that they substituted in that person’s stead
        Dr. Gordon who came in and then proceeded
        to ask and obtain - - ask questions and obtain
        incriminating statements.

The trial court denied the motion to exclude and noted that it
seemed clear “that Mr. Benson was going through some
terribly draining emotional feelings,” and “that in his own
heart and mind he felt it was necessary to get this off of his
chest and to speak to somebody about it.”

     D. The Guilt Phase

   The guilt phase of the trial began on February 26, 1987,
and took less than four days. Defense counsel examined two
                    BENSON V. CHAPPELL                       19

prosecution witnesses out of order in an attempt to show that
Benson was a regular drug user, but offered no affirmative
defense once the prosecution rested. Defense counsel told the
trial judge, out of the jury’s presence, that once Benson’s pre-
trial statements were admitted, their tactical decision was to
concentrate on the penalty phase because they thought the
result of the guilt phase was a foregone conclusion. On
March 4, a jury found Benson guilty of the charges.

    E. The Penalty Phase

    At the penalty stage, the prosecution presented the
kidnapping of K.S. as aggravating subsequent criminal
activity. They also presented Benson’s four prior felony
convictions. In 1971, when Benson was 24 years old, he was
convicted of committing a lewd and lascivious act on a nine-
year-old girl he had kidnapped as she was walking down the
street. In 1975, Benson was convicted of kidnapping an
eight-year-old girl from her bedroom where she was sleeping.
In 1975, he was also convicted of lewd and lascivious acts on
a three-year-old girl that he had taken from her mother’s
house. In addition, in 1980, Benson was convicted of
kidnapping a four-year-old girl he had taken from her
bedroom while she was sleeping. As part of its case, the
prosecution played the tapes of Benson’s January 9 and
13 confessions in full for the jury.

    The tapes revealed that Benson had made a number of
statements to the officers about how Laura had encouraged
20                     BENSON V. CHAPPELL

him to sexually abuse her daughters3 and how his inhibitions
had been overcome by his use of methamphetamine.4




     3
      Benson stated that Laura encouraged him to molest the children,
possibly in return for payment of money. When asked what Laura would
allow him to do, Benson stated:

         Anything that didn’t hurt them. You know, they were
         too small for penetration or anything like that.
         Basically fondle, you know, and uh, I, you know,
         what’s important . . . this is believe it or not kind of
         funny, uh, I was the one that told her, you know what,
         I don’t want any of this to come out to where it leaves
         any lasting bad memories on the kids. And uh, she
         goes, what do you mean and I says . . . if for some
         reason, you know, they’re uncooperative, we drop it
         and she goes, well, my kids will do what I tell them to.
         And I said, that is what I’m saying, you know, I don’t
         want to talk, coerce or anything into something that
         later they will, you know, and, uh, she goes, man,
         you’re weird and uh, you know, I tell her that that was
         right . . . .
     4
     In responding to questions about the pornography in his briefcase
and Laura encouraging him to molest her daughters, Benson commented:

         Yeah, you know, and uh, the pictures have been what
         has been keeping me out of trouble, okay, the only time
         I have problems with this is when I do crank, okay,
         needless to say, if I had any sense at all, I’d quit doing
         crank. Alright, uh, I like doing crank. I don’t like the
         end result, you know, and sometimes I get wired and
         start thinking about little girls and stuff like this and
         that’s when the briefcase comes in, you know, it keeps
         me off the streets, okay. Uh, the only thing I can say is
         it’s worked, you know, and I have cut back my use of
         crank. Okay.
                        BENSON V. CHAPPELL                              21

    In response to the prosecution’s presentation, Benson’s
counsel called a number of witnesses to show that Benson
had a very difficult childhood and was addicted to drugs.
Counsel called Benson’s brothers Dale Snow and Brad
Benson.5 Dale testified that, when he was one year old, he
was sent to live on a ranch near Petaluma run by Marjorie
Buchanan, and that all his brothers were also sent to the
ranch. Dale identified a photo of the brothers taken at Easter
at Aunt Grace’s home in San Francisco when Benson was
seven or eight. He described Aunt Grace as being “very
supportive of the family and instrumental in having holidays
for all of us.” Dale then testified that when he was ten, and
Benson nine, the brothers were returned to the custody of
their alcoholic father. Brad also testified that all the brothers
had lived on Marjorie Buchanan’s ranch until their father
instituted proceedings to have them returned to his custody.
Neither Dale nor Brad offered any criticism of life on the
ranch in their testimony.

    Both Dale and Brad described the difficulties of the
approximately three years they lived with their father before
the state removed them from his custody. They first went to
an apartment where their father, their “stepmother,” and their
sister lived. The district court noted that within weeks the
family was evicted, and for the next three years they lived “in
seedy, skid row hotels, houses, apartments and shanties,
including a converted chicken coop, never staying in any one
place more than a few months or the time it took for the
manager or landlord to realize that no rent was forthcoming.”
The father, a chronic alcoholic, was always unemployed and


    5
       To avoid confusion the brothers, Dale and Brad, are referred to by
their first names, and the petitioner, Richard Benson, is referred to by his
last name.
22                 BENSON V. CHAPPELL

looking for money. The boys continually attended different
schools, and worked at whatever odd jobs they could find.
Dale and Brad testified that they were alcoholics and that
their brothers, Bill, David, and Teddy Joe were also
alcoholics.

    The defense also called Benson’s sister, Sandra Bradley,
who testified that both their father and mother were
alcoholics and confirmed that when her brothers came to live
with them they “moved a great deal.” In three years she
attended three or four different schools.

   Defense counsel had Grace Ehlig O’Brien, a retired high
school principal and teacher, testify that she remembered
Benson when he was in seventh grade for three-to-four
months before being sent to juvenile hall. She identified a
summary paragraph from Benson’s school records that read:

       Boy told vice-principal and later grade
       counselor that no one cared for him or wanted
       to listen to his problems. He said that no one
       believed him when he told the truth. He
       wants to be with his brothers and sister. He
       says he blames his parents for many of his
       present problems and he feels quite strongly
       about this.

The note concluded that Benson “[w]ants to be an electrician.
Likes to take radios apart, likes reading, dislikes math.”

    Counsel called Holmes R. Benson, Benson’s uncle, as a
witness.   He testified that Benson’s father was an
alcoholic—who was secretive, unreliable, and would at times
                        BENSON V. CHAPPELL                              23

ask for financial assistance.6 On cross-examination, Holmes
testified that he had arranged for Benson to get a job and
outfitted him “with the necessary welding equipment, helmet,
a jacket, gloves,” but he was employed only for three-to-six
months.

    In addition, Mary Pat Degroodt, a chemical dependency
nurse who had worked with Dale Snow, testified that
alcoholism can run in families, that Benson was a member of
a dysfunctional family, and that she thought that he had a
chemical dependency.

    Defense counsel recalled Officer Bolts to the stand to
testify that a person who knew Benson and had previously
testified, had told the officer: “[Benson] often goes up to
Katrina’s room long periods of time, stares [sic] out window.
Often gets up, leaves early in a.m. [sic], does crank often dash
every day.”7

    Dr. Gregory Hayner, a pharmacist at the Haight-Ashbury
Free Medical Clinic, testified that he had interviewed Benson
for two hours. Dr. Hayner expressed the opinion that at the
time of the murders, Benson was “very, very paranoid.” He
continued:




    6
      In addition, the defense called Mr. Gunville, a social worker with the
State of Washington, who testified that Benson’s father was an alcoholic
and had refused to address his alcoholism. He further testified that the
father had been in a documentary film about the homeless in Seattle.
    7
      Officer Bolts also testified that the person used “crank” to refer to
methamphetamine.
24                     BENSON V. CHAPPELL

         And by the effects of the drug and lack of
         sleep, being very disoriented and unable to
         think very clearly, or really formulate many
         cogent plans about what he was going to do at
         any given time, and tended to react to the
         situation at hand rather than acting out on a
         set-out plan.

Dr. Hayner concluded that Benson’s ability to conform his
conduct to the requirements of the law was “definitely
impaired,” that he heard and saw things that were not there,
and that he was “suffering a toxic psychosis at the time due
to chronic intoxication with amphetamines.”

    Dr. Gene Abel, a neurologist and psychiatrist and an
expert in sexual violence and the evaluation and treatment of
sex offenders, also testified for the defense. At counsel’s
request, Dr. Abel had first examined Benson in August 1986.
Dr. Abel had reviewed approximately 280 pages of
information on various evaluations of Benson, had given
Benson a variety of tests, and had interviewed him for about
12-to-13 hours. Dr. Abel opined that Benson had a number
of psychiatric disorders, including paraphilia, which in his
case is a sexual deviation of pedophilia. He explained in
some detail that Benson’s ability to conform his behavior had
been impaired by his paraphilia.8 In reviewing Benson’s

     8
     Dr. Abel explained that a person suffering from paraphilia surrounds
himself with cognitive distortions.

         “Molesting the child won’t hurt child.” That is a faulty
         belief. “I can predict if I molest a child, which child
         will be hurt in the future.” That is a faulty belief. That
         isn’t true. “If I’m not using force, it’s no harm to the
         child.” That’s a false belief. There are a variety of
                      BENSON V. CHAPPELL                           25

records, Dr. Abel was very critical of the prior psychiatric
treatment of Benson, opining that when “talk therapy” failed
to help Benson to overcome his psychiatric problems, Benson
“should have been placed on a medication to eliminate his
arousal.”

    Dr. Abel also opined that Benson had a drug dependency
with a variety of drugs, particularly amphetamines. He
explained that for Benson the effect of amphetamines “starts
from starting to feel good to misperceiving the realities of the
situation, feeling that you have skills that you do not have,
feeling that you have abilities that you do not have. You start
getting frightened and scared to what would be called
delirium.”

    Dr. Abel admitted that, based on his prior convictions,
Benson was clearly dangerous and was likely to molest
children. However, because Benson was manipulative and
could “access children easily,” he didn’t “need to kill
somebody.” He opined that the murders were “out of
character” and the result of the combination of Benson’s
pedophilia and drug dependency.

   Benson’s counsel also played a video of a program on San
Quentin from the television series, “Two on the Town,”
“which depicted the gas chamber, described how it operates,
explained how one sentenced to die is executed, and provided
background.”

   The jury returned a verdict that the aggravating factors
outweighed the mitigating factors and fixed the penalty at


        these cognitive distortions that the offender surrounds
        himself with and begins to think and really believes in.
26                      BENSON V. CHAPPELL

death. The jury provided no written statement in support.
Benson, 802 P.2d at 365. On April 30, 1987, Benson was
given the death sentence.

     F. Direct Review

     On appeal, the California Supreme Court struck two
witness-killing special circumstances, but otherwise
confirmed Benson’s conviction and death sentence. Benson,
802 P.2d at 366. The court reviewed the voluntariness of
Benson’s confession “independently in light of the record in
its entirety.” Id. at 343. It concluded that the trial court did
not err in denying the motion to suppress and that “the court
properly concluded that the confessions were voluntary
beyond a reasonable doubt.” Id. at 344. The California
Supreme Court concluded that even “[e]xamined de novo,
each of the [trial] court’s crucial determinations is sound.”
Id. The court explained, first, “the police activity here was
clearly not coercive.” Id. “Second, Detective Bolts’s
comment about the death penalty did not constitute a
promise of benefit.”9 Id. “Third, Detective Bolts’s comment




     9
      The court reasoned: “Hobson’s words effectively ‘withdrew’ the
remark. And as defendant himself conceded at the hearing, the remark
was not ‘renewed’: the officers ‘[n]ever again discuss[ed] the matter of the
death penalty with’ him.” Benson, 802 P.2d at 345.
                          BENSON V. CHAPPELL                             27

about the death penalty did not operate as an inducement.”10
Id. at 345.

    The California Supreme Court also rejected Benson’s
argument that his statements to Dr. Gordon should have been
suppressed. Reviewing the record de novo, the court agreed
with the trial court’s implicit determination that Benson’s
confession was voluntary. Id. at 346. It reasoned:
(1) “defendant was properly advised of, and effectively
waived, his Miranda rights - - nor does he claim otherwise”;
(2) “of crucial importance, the necessary element of coercion

    10
         The California Supreme Court explained:

           On this record, it is difficult to conclude that the remark
           was even a cause-in-fact of the confessions. To Bolts’s
           observation, “There’s no death penalty here,” defendant
           immediately responded, “That doesn’t matter.” The
           evidence practically compels the inference that insofar
           as the confessions were concerned, the comment in fact
           “didn’t matter.” We recognize that the remark
           preceded defendant’s confessions. The intervening
           period of time, however, was not insubstantial.
           Moreover, temporal priority does not establish causal
           force: it is a logical fallacy to reason post hoc ergo
           propter hoc. In any event, the evidence simply does
           not support an inference that the causal connection
           between Bolts[’s] comment and defendant’s
           confessions was more than “but for.” As explained
           above, however, causation-in-fact is insufficient.

           Again, it is true that defendant testified that he was
           indeed induced to confess by the comment. But again,
           the court clearly, albeit impliedly, found his testimony
           lacking in credibility. Again, on this record we must
           agree.

Benson, 802 P.2d at 345.
28                  BENSON V. CHAPPELL

on the part of the authorities is lacking”; (3) “there was no
promise or deception by the authorities”; and (4) “defendant
made his confession freely out of compunction.” Id.
at 346–47.

     G. Post-Conviction Proceedings

    Benson filed his first state habeas petition in January 1993
with the California Supreme Court. He argued that his
confessions to the police and Dr. Gordon were involuntary
based on “severe psychological, neurological and
developmental impairments.” He relied on psychologists and
psychiatrists who opined that Benson had brain damage
caused by “in utero toxin exposure, anoxia, head trauma, and
solvent inhalation,” as well as voluntary drug use, and also
head injuries from physical abuse and a near drowning
incident. Experts also asserted that Benson suffered from dis-
associative disorder and Post-Traumatic Stress Disorder.
Dr. Abel, who testified on Benson’s behalf at trial,
supplemented his prior diagnoses and now opined that
Benson’s neurological and psychiatric impairments rendered
him an unreliable witness and that all of Benson’s statements
should be viewed skeptically.

    In addition, the habeas petition alleged ineffective
assistance of counsel at the penalty phase based on counsel’s
failure to investigate and present evidence that Benson’s two-
to-three years on the Buchanan farm were horrible, and that
Benson suffered from an organic brain injury. In support of
this claim, Benson alleged that on the Buchanan farm he and
his brothers were subject to sexual, emotional, and physical
abuse. He was beaten until bloody with various objects,
including a belt buckle, his hand was intentionally burned on
a stove, and soap and cayenne pepper were forced into his
                       BENSON V. CHAPPELL                              29

mouth. Allegedly, Benson “developed psychotic behavior (in
response to the beatings), which, for example included his
withdrawing and becoming quiet, banging his head against
the wall, and eating dirt and live bugs.” The petition alleged
that Benson was “fondled, sodomized, beaten in the genitals,
given frequent and repeated enemas, and forced to perform
sexual acts with the farm animals.” The petition further
alleged that David, Marjorie Buchanan’s son, caused Benson
to be “fondled, sodomized, digitally raped, orally copulated,
forced to orally copulate David, raped with foreign objects
including a cattle prod and tied to a tree or a chair, molested,
and then left naked and tied for hours.”11 However, the
habeas petition also alleged that Benson had “no memory of
the torture, and sexual, psychological and emotional abuse he
suffered on the Petaluma farm.”

   On May 12, 1994, the California Supreme Court denied
the habeas petition “on the merits,” with no further
explanation.

   In February 2001, Benson filed a third habeas petition
with the California Supreme Court.12 In this petition, Benson
argued his Fourth Amendment rights were violated because
he was not arraigned within 48 hours of his arrest as required
by County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
The court denied the petition on its merits without
explanation.


    11
      In addition, the petition asserted that David was a Boy Scout leader,
and in 1956, the year Benson left the farm, David was convicted of
sexually molesting members of a Boy Scout troop.
     12
        A second habeas petition was denied in August 1997, but none of
the claims asserted therein are at issue in this federal petition.
30                  BENSON V. CHAPPELL

              III. District Court Proceedings

    Benson filed his federal habeas petition with the United
States District Court for the Central District of California in
April 1997, and amended it in August 1997. After California
moved for summary judgment, Benson was allowed to file a
second amended petition. On February 28, 2013, the district
court issued a 373-page memorandum and order granting
summary judgment in favor of California and denying
Benson’s request for an evidentiary hearing.

    Because Benson filed his habeas petition after April 24,
1996, the district court reviewed the petition under AEDPA’s
deferential standards. See Woodford v. Garceau, 538 U.S.
202, 207 (2003). Accordingly, relief is available only if the
last-reasoned state court decision was “contrary to, or
involved an unreasonable application of, clearly established
Federal law,” or was “based on an unreasonable
determination of the facts.” 28 U.S.C. § 2254(d). See Ylst v.
Nunnemaker, 501 U.S. 797, 803–04 (1991). The district
court described the standard of review: where “a state court
adjudicates the merits of an issue without providing its
underlying reasoning, as it did here in the case of petitioner’s
four state habeas petitions, the federal court conducts an
independent review of the record to determine whether the
state court’s resolution of the issue constitut[es] an
objectively unreasonable application of clearly established
federal law.” It further noted that where a state court “has not
decided an issue, the federal court reviews that question de
novo.” However, it recognized that in Harrington v. Richter,
562 U.S. 86, 101 (2011), the Supreme Court held that a
federal court may not grant relief just because it would have
reached a different conclusion; rather, a “state court’s
determination that a claim lacks merit precludes federal
                    BENSON V. CHAPPELL                      31

habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the state court’s decision.” See also
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

   A. The Admissibility of Benson’s Confessions

    The district court first addressed Benson’s challenges to
the admissibility of his statements to Detective Bolts,
Investigator Hobson, and Dr. Gordon. Benson argued that the
tape recordings of his statements to Bolts and Hobson were
unreliable and inaccurate. The district court rejected this
contention, noting that Benson had identified no clearly
established federal law that required complete accuracy in
tape-recordings and transcriptions of uncoerced admissions.
The district court found that “the California Supreme Court
could reasonably have concluded, on the record before it, that
petitioner’s claim here fails because, although petitioner has
pointed out numerous errors and omissions in the tapes and
transcripts, he has not identified any errors or omissions
which are materially prejudicial to him.”

    Second, Benson claimed that his statements to Bolts,
Hobson, and Dr. Gordon were involuntary. The district court
noted that the California Supreme Court had found that
(1) Bolts’s statement (no death penalty) did not constitute a
promise of leniency, (2) Hobson’s following statement
effectively countered the death penalty statement,
(3) Benson’s testimony that Bolts’s comment induced him to
confess lacked credibility, and (4) Benson’s true motivation
for confessing was “a compunction arising from of his own
conscience.” Based on its review of the record, the district
court held that these findings were “reasonable in light of the
evidence presented in state court,” and were entitled to a
presumption of correctness under § 2254(e)(1). The court
32                 BENSON V. CHAPPELL

further found that Benson “[had] failed to rebut these factual
findings with any evidence at all, let alone evidence that is
‘clear and convincing.’” The court concluded:

       All of this evidence supports the California
       Supreme Court’s finding that police coercion
       played no role in causing petitioner to make
       his statements to Detective Bolts and
       Investigator Hobson on January 9 and 13,
       1986, or his statements to Dr. Gordon on
       January 10 and 12, 1986. This court “cannot
       conclude that there is no possibility that
       fairminded jurists could agree with the state
       court’s interpretation” of the record on this
       issue.

    Third, Benson asserted that his waiver of his Miranda
rights was not voluntary, knowing, and intelligent. In
rejecting this argument, the district court noted it was
undisputed that Benson had been read his Miranda rights
before the interviews and had agreed to speak. The court
further reasoned that the California Supreme Court could
reasonably have concluded that Benson’s waivers of his
Miranda rights were motivated by the same “compunction
arising from his own conscience.” The district court
concluded that the California Supreme Court could
reasonably have concluded that Benson’s waivers were
voluntary, knowing, and intelligent, particularly as Benson
“acknowledged that he understood his rights and expressly
stated that he waived them,” and “demonstrated during the
interviews that he had extensive, prior experience with law
enforcement.”
                        BENSON V. CHAPPELL                             33

    Although Benson claimed his waivers were not knowing
due to his mental condition and incompetence, the district
court noted that none of his “experts’ declarations include an
opinion that petitioner’s waiver of Miranda rights was not
knowing or intelligent due to his mental condition or that he
was incompetent to waive those rights.” Accordingly, the
California Supreme Court could reasonably have concluded
that Benson’s proffer of “conclusory evidence was
insufficient to establish a prima facie case that his waiver of
Miranda rights was not knowing or intelligent.”

    Fourth, Benson argued that the seven-day delay between
his arrest and his arraignment violated his Fourth Amendment
rights as set forth in McLaughlin, 500 U.S. at 57, as well as
his rights to due process and counsel. He argued that the
delay tainted his confessions. The district court rejected this
claim and ruled that because Benson had been subject to a
parole hold, no clearly established federal law required
compliance with the 48-hour time frame set forth in
McLaughlin. Recognizing that there was no copy of the
parole hold in Benson’s file, the district court, nonetheless,
credited the 2002 deposition of Benson’s parole officer that
he had placed a parole hold on Benson.13


   13
        The district court commented:

          [T]here is no affirmative evidence demonstrating that
          Martel failed to place a parole hold on petitioner; in
          fact, all of the affirmative evidence supports the
          conclusion that Martel did place the parole hold when
          he testified he did. The only “evidence” to which
          petitioner points in support of the contrary contention is
          the absence of a document from a file where it should
          appear and Martel’s lack of an explanation for the
          document’s absence. This is insufficient to justify the
34                    BENSON V. CHAPPELL

     B. Incompetence

    The district court also rejected Benson’s claim of
incompetence. The district court concluded that Benson’s
“claim he was actually incompetent to stand trial does not
survive review under [28] U.S.C. § 2254(d), and must be
DENIED. The full record establishes that he was unusually
focused and responsive, and was acutely aware of the
proceedings.”

     C. Ineffective Assistance of Counsel (IAC) at the
        Penalty Phase

     1. Benson’s Childhood

    In its memorandum order the district court reviewed the
relevant filings and then described Benson’s childhood. He
was the fourth child in a family of six boys and a girl. His
mother was a drug addict, and both she and his father were
alcoholics. Benson and his brothers were sent to live on a
farm near Petaluma with a foster mother, Marjorie Buchanan.
Life on the farm was represented at trial as relatively normal,
aside from the fact that the boys seldom saw their natural
parents. When Benson was nine years old, his father obtained
physical custody over him, and Benson and his brothers went
to live with his father and a stepmother in a motel in Long


        further delay of this action that granting a stay under
        Gonzalez [v. Wong, 667 F.3d 965 (9th Cir. 2011)]
        would entail. Also weighing against the grant of a stay
        is the fact that petitioner has apparently made no effort
        until now to present the alleged new evidence to the
        California Supreme Court even though he has had the
        deposition transcript where the “evidence” appears
        since 2002.
                    BENSON V. CHAPPELL                       35

Beach. Within weeks the family was evicted, and for the next
three years they lived “in seedy, skid row hotels, houses,
apartments and shanties, including a converted chicken coop,
never staying in any one place more than a few months or the
time it took for the manager or landlord to realize that no rent
was forthcoming.” The father, a chronic alcoholic, was
always unemployed and looking for money. The boys
continually attended different schools, and worked at
whatever odd jobs they could find.

    The district court noted:

        The county protective services agency
        sometimes intervened to remove the Benson
        children from their father’s custody and place
        them in various foster and group homes. Off
        and on, the boys were reunited with their
        father, only to be repeatedly split up and
        placed in foster and group homes again.
        Finally when petitioner was 11 or 12, after
        three years of sporadically living with their
        father, the children were permanently taken
        from their father, and they were never
        together again as a family. All of the boys
        turned to alcohol to escape from reality, but
        Sandy [the daughter] did not.

    Benson lived in group homes and institutions from age 11
onward and had difficulty adjusting to society. He began
drinking alcohol and using marijuana at age 15. He was
arrested a number of times for drunk driving and began using
amphetamines and barbiturates around age 18. He went to
junior high school in Los Angeles, and although he missed
the last three weeks of school because he was placed in
36                  BENSON V. CHAPPELL

juvenile hall, all of his grades were passing and some were
excellent. He told a school counselor that no one cared, no
one believed him, he wanted to be with his brothers and
sisters, and it was all his parents’ fault.

    Benson was first arrested at age 10, and was first
committed to the California Youth Authority (CYA) at age
13. He was removed from one foster home after he engaged
in sexual activity with a younger female there. The district
court further noted that Benson also had molested a four-
year-old girl, but it was not reported to the authorities, he had
a number of window-peeping charges, and he was a
pedophile from age 14.

    Between June 1967, when he was released from the CYA,
and his arrest in 1971, Benson had 13 run-ins with the law
and spent a year in custody. After his 1972 conviction,
Benson was confined at Atascadero State Hospital until 1974.
Due to his criminal activity and convictions, Benson was out
of custody for less than a year between 1975 and 1985.

     2. Denial of Relief on IAC

     The district court noted that trial counsel’s strategy at the
penalty stage had been to argue that Benson “was a ‘normal’
little boy on the Buchanans’ Petaluma farm, who was not
born evil, but was a poor child taken from a normal life at the
ranch and exposed to severe deprivation when his father took
him and his brothers away from the ranch.” The court then
reviewed the mitigating evidence that Benson contends
should have been presented including his predisposition to
mental illness, exposure to alcohol in his mother’s womb, the
physical, sexual, and psychological abuse inflicted on Benson
                   BENSON V. CHAPPELL                    37

by the Buchanans, and his numerous serious and longstanding
mental deficiencies.

   The district court nonetheless denied relief on Benson’s
IAC claim, reasoning:

       Having before it, as it did, petitioner’s
       complete social history and the psychiatric
       diagnoses of Drs. Able [sic] and Foster, the
       California Supreme Court could reasonably
       have concluded that the additional
       information provided in connection with
       petitioner’s first state habeas petition would
       have been insufficient to establish a
       reasonable probability that at least one juror
       would be persuaded to sentence petitioner to
       life without parole instead of the death
       penalty.     Although petitioner’s current
       account of his history is sordid and awful, his
       crimes were heinous, and the aggravating
       evidence presented by the prosecution was
       also sordid. The state court could reasonably
       have concluded that presenting petitioner as a
       normal little boy who was removed from a
       nurturing environment on the Buchanan farm
       and exposed to severe deprivation while living
       with his father might have benefitted
       petitioner, and that such a person would be
       more worthy of sympathy and a life sentence
       than someone who was environmentally and
       genetically damaged beyond rehabilitation
       from the beginning.
38                        BENSON V. CHAPPELL

    The district court distinguished the then-most-recent
Ninth Circuit case, Stankewitz v. Wong, 698 F.3d 1163 (9th
Cir. 2012). The court noted that unlike counsel in Stankewitz,
Benson’s counsel did present mitigating evidence,14 and that
Benson had “committed four murders which, however
callous, were far from impulsive.” The district court
concluded that Benson’s claim of IAC at the penalty stage
“[did] not survive review under AEDPA.”

                              IV. Discussion

    On appeal, Benson challenges four aspects of the district
court’s 373-page decision. The two certified issues are:
(1) whether Benson’s statements to the officers and
Dr. Gordon should have been suppressed, and (2) whether
Benson’s counsel was ineffective at the penalty phase

     14
          The court noted that the evidence included:

            (1) that his mother was a prostitute and drug addict and
            his father an alcoholic; (2) that he was placed into
            foster care almost immediately after birth; (3) that his
            natural mother visited him only once during the first
            eight years of his life; (4) that upon reaching the age
            nine, his father obtained physical custody and within a
            few weeks of that Petitioner was forced to endure a
            years-long travail of bouncing around skid row hotels,
            shanties (including a chicken coop) and different
            schools; (5) that he experienced chronic hunger (he was
            forced to steal food); (6) that he was subjected to
            periodic placements into foster and group homes;
            (7) that petitioner and his several brothers all turned to
            alcohol; and (8) that he was first arrested at age 10,
            spent 4 of the 7 years between age 13 and 20 in the
            custody of the California Youth Authority, started using
            drugs at age 15, and between 1975 and 1985 was out of
            prison for a total of less than one year.
                       BENSON V. CHAPPELL                             39

because he failed to investigate and present evidence of
Benson’s “severe physical, sexual and emotional abuse in
early childhood at the hands of a foster family.” Benson also
raises two uncertified issues: (3) whether trial counsel was
ineffective at the guilt stage in failing to impeach the state’s
case, and (4) whether the prosecutor withheld material and
exculpatory evidence.15

    A. Standard of Review

    As the district court noted, and Benson concedes, his
federal habeas petition is reviewed under AEDPA, 28 U.S.C.
§ 2254. Woodford, 538 U.S. at 210 (“Because respondent’s
federal habeas corpus application was not filed until after
AEDPA’s effective date, that application is subject to
AEDPA’s amendments.”). Accordingly, we can grant relief
only upon a showing that the state court decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law,” or was “based on an
unreasonable determination of the facts.” 28 U.S.C.
§ 2254(d). The Supreme Court has directed that “review
under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits,” Cullen
v. Pinholster, 563 U.S. 170, 181 (2011), and that “[a] state
court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.”
Richter, 562 U.S. at 101. Moreover, even “[w]here a state


    15
       We requested and received a responding brief from California. See
9th Cir. R. 22-1(f). We then accepted Benson’s oversized reply brief. We
now issue a Certificate of Appealability for these two issues and consider
the merits of Benson’s contentions. See Buck v. Davis, 137 S. Ct. 759,
773–74 (2017).
40                      BENSON V. CHAPPELL

court’s decision is unaccompanied by an explanation, the
habeas petitioner’s burden still must be met by showing there
was no reasonable basis for the state court to deny relief.” Id.
at 98.

     B. Benson’s Statements were Properly Admitted

    The record shows, and Benson admits, that he was
advised of his Miranda rights prior to each of his police
interviews and he indicated that he understood those rights
and waived them. Nonetheless, Benson argues his statements
should not have been admitted because: (1) his confession
was tainted because he was not presented with the probable
cause which supported his arrest within 48 hours as required
by McLaughlin, 500 U.S. 44; (2) his statements were not
voluntary because he relied on the officer’s statement that
there was no death penalty and the interrogations were
coercive; and (3) he has mental impairments which were
exacerbated by his use of drugs, necessitating the suppression
of his confessions. None of Benson’s arguments merit relief.16



     16
       Benson also appears to advance as a separate argument that it was
clear error and an abuse of discretion for the district court not to hold an
evidentiary hearing. This argument fails in light of the Supreme Court
direction in Pinholster, 563 U.S. 170, that review under 28 U.S.C.
§ 2254(d)(1) is limited to the record in existence before the state court. Id.
at 181. Our review of the record shows that the district court considered
Benson’s evidence of mental impairment, was aware of the allegations
concerning the interrogation procedures, and rejected Benson’s
McLaughlin claim. Thus, it appears that all of Benson’s factual and legal
allegations that were before the state courts were also before the district
court, and we perceive no factual issue that required the district court to
hold an evidentiary hearing. Benson has not carried his burden of
showing that he was denied due process by the district court declining to
hold an evidentiary hearing.
                    BENSON V. CHAPPELL                      41

   1. Benson is not entitled to any relief under McLaughlin

       a. Because a parole hold was put in place,
          McLaughlin does not apply.

     Benson gave multiple detailed confessions regarding the
murders. However, each of the confessions was made during
the period of time between Benson’s arrest for kidnapping on
January 7, 1986 and January 14, 1986, when he was arraigned
and presented with the probable cause for his arrest for the
first time. The Supreme Court ruled in County of Riverside
v. McLaughlin, 500 U.S. 44, 57 (1991) that an arrestee is
entitled under the Fourth Amendment to a hearing at which
he is presented with the probable cause of his arrest within
forty-eight hours of the arrest. Benson argues that his
confessions were tainted due to the delay in his arraignment.

    Benson raised his McLaughlin claim in his third state
habeas petition, which was denied by the California Supreme
Court on February 28, 2001. Accordingly, he is entitled to
relief on this claim only if “there was no reasonable basis for
the state court to deny relief.” Richter, 562 U.S. at 98.

    A Fourth Amendment claim resulting from a McLaughlin
violation would be cognizable on habeas corpus review.
Anderson v. Calderon, 232 F.3d 1053, 1071–72 (9th Cir.
2000), overruled in part on other grounds by Bittaker v.
Woodford, 331 F.3d 715, 728 (9th Cir. 2003). However, the
State argues that the 48-hour rule described in McLaughlin
does not apply to the Fourth Amendment rights of a parolee
who is held pursuant to a “parole hold.” Generally, a parole
hold authorizes a person suspected of violating his parole to
be detained while authorities investigate the alleged parole
violation. As we have already noted, Benson’s parole officer,
42                     BENSON V. CHAPPELL

Felix Martel, placed a parole hold on Benson immediately
after Benson’s arrest for the kidnaping.

    Benson argues that evidence gathered since his trial calls
into question whether a parole hold was, in fact, put in place.
In particular, he asserts that as early as 2002, in connection
with his third state habeas petition, the actual paper parole
hold could not be located. However, Benson’s parole officer
Martel testified at the initial suppression hearing in June
1986, and at his deposition on May, 2002, that he had placed
a parole hold on Benson on Wednesday, January 8, 1986.

    Although the district court accepted the 2002 deposition
of Benson’s parole officer, the information in the deposition
is not properly before us. See 28 U.S.C. § 2254(d)(2)
(making clear that a writ of habeas corpus will not be granted
unless the State court’s adjudication on the merits “resulted
in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding”) (emphasis added). We have
held that Pinholster prohibits consideration of new evidence
“for the purpose of determining whether the last reasoned
state court decision was contrary to or an unreasonable
application of clearly established law or an unreasonable
determination of the facts.” Crittenden v. Chappell, 804 F.3d
998, 1010 (9th Cir. 2015). In other words, new evidence may
not be used to determine whether the California Supreme
Court’s decision was an unreasonable determination of the
facts before it. Accordingly, we are precluded from
considering the evidence.17


     17
      In any event the newly proffered evidence does not raise a material
issue of fact. All the affirmative evidence in Benson’s state court
proceedings shows that a parole hold was placed on Benson on
                        BENSON V. CHAPPELL                                43

     The existence of a parole hold obviated the Fourth
Amendment requirement that Benson be arraigned within
48 hours. In Morrissey v. Brewer, 408 U.S. 471, 483 (1972),
the Supreme Court noted that “the State has an overwhelming
interest in being able to return the individual [on parole] to
imprisonment without the burden of a new adversary criminal
trial,” commended a two stage process,18 and recognized that
there is “typically a substantial time lag between the arrest
and the eventual determination by the parole board whether
parole should be revoked.” Id. at 485. In Pierre v.
Washington State Board of Prison Terms and Parole,
699 F.2d 471, 473 (9th Cir. 1983), we upheld a preliminary
probable cause determination held 21 days after parole was
suspended. Moreover, the California Supreme Court has
declined to require a probable cause hearing for a parolee
within ten days of arrest. People v. DeLeon, 399 P.3d 13 ,26
(Cal. 2017). McLaughlin therefore does not apply to
Benson’s situation, and there is no clearly established law that
a parolee subject to a parole hold must be presented with the
probable cause within 48 hours of his arrest.




Wednesday, January 8, 1986. Indeed, multiple documents that were
produced at the 2002 deposition confirm the parole hold. For example,
both an incident report written by Benson’s parole officer and a teletype
message sent to the sheriff’s office attest to the placing of a parole hold on
Benson. Benson’s presentation does not come near showing that the
California Supreme Court’s denial of relief was “based on an unreasonable
determination of the facts.” 28 U.S.C. § 2254(d)(2).
    18
       The Supreme Court explained: “The first stage occurs when the
parolee is arrested and detained, usually at the direction of his parole
officer. The second occurs when parole is formally revoked.” 408 U.S. at
485.
44                  BENSON V. CHAPPELL

        b. Even if McLaughlin applied, Benson’s
           confessions would not be suppressed.

    In Anderson, 232 F.3d at 1071, we held that the
appropriate remedy for a McLaughlin violation “is the
exclusion of the evidence in question—if it was ‘fruit of the
poisonous tree.’” We noted that this test “ensures that courts
will not suppress evidence causally unrelated to the Fourth
Amendment violation,” and “protects the arraignment right in
question by barring any exploitation of the delay that causally
produces a statement.” Id.

    Here, Benson was detained late at night on Tuesday,
January 7, 1986, and he voluntarily confessed to the murders
and sexual assaults in disturbing and graphic detail to the
officers on January 9, 1986, within 48 hours of his detention.
Thus, the “delay” of his arraignment until Monday, January
13, in no way created or influenced his first confession.

    In addition, Benson’s assertion that the delay in his
arraignment was specifically to deny him counsel and thus
violated his Sixth Amendment right to counsel is not
meritorious. Benson suggests that because his name was on
the lists of individuals to be taken to court for arraignment on
January 8, 9, and 10, and he was taken to the court on Friday,
January 10, but not arraigned, he was held for an improper
purpose. However, Officer Bolts explained that the “daily
prisoner transportation list” was created every morning by the
booking clerk and included the names of all those in custody
who have not yet appeared in court. Officer Bolts indicated
that Benson was transported to the court on Friday, January
10 and not arraigned, but did not know why. There is no
evidence in the record that the delay in arraignment was
designed to frustrate or prevent the provision of counsel. We
                   BENSON V. CHAPPELL                      45

need not inquire further into the reasons for Benson not being
arraigned on Friday in terms of abridging his Fourth
Amendment rights because it is not causally related to his
prior confessions. Furthermore, as Benson points to no case
law indicating that a failure to arraign an individual within
48 hours represents a per se violation of that individual’s
Sixth Amendment right to counsel, there is no clearly
established law which compels a contrary result.

   2. The California Supreme Court reasonably concluded
      that Benson’s confessions were voluntary

    Benson asserts that the confessions he made to Bolts and
Hobson were not “voluntary,” and that the state court’s
determinations that they were voluntary represented an
unreasonable determination of the facts. In his opening brief,
Benson claims that the “officers’ plan was to make
Mr. Benson believe they were dealing with him, but to not do
so – the exact type of ‘trickery’ that is impermissible when
leading one to believe in an inducement.”

    The trial court held a suppression hearing regarding
Benson’s confessions, and the California Supreme Court
upheld the trial court’s decision not to suppress the
confessions. Before us Benson makes two arguments
regarding the voluntariness of the confessions. First, he
argues that the confession was coerced because of Detective
Bolts’s incorrect statement that “there is no death penalty
here.” Second, Benson argues that his mental defects
prevented him from being able to confess voluntarily. The
Supreme Court of California, after a review of the record,
determined that Benson’s confession was “voluntary beyond
a reasonable doubt.” People v. Benson, 802 P.3d at 345.
46                  BENSON V. CHAPPELL

    In denying the motion to suppress the statements, the trial
court found that the police officers had not been coercive and
that their statement regarding the death penalty did not
function as an inducement. The trial court described the
interview as “totally aboveboard,” and noted that there was
“no mention of the degree of any charge pending . . . [or] an
implied promise of a reduced charge.” The trial court further
found that there had been no false promises. It found that
there was no deception, as “there’s no suggestion of different
treatment if Mr. Benson chose to make any confessions or
admissions” and no “implied promise of leniency.” The trial
court concluded that “Mr. Benson’s statements were not
coerced . . . but rather were made freely and voluntarily.”

    The California Supreme Court, upon a full review of the
record, agreed and found that there was “[n]o coercion, no
harassment. To the contrary, [the police interview] was
strangely cordial and somewhat light, and not at all heavy-
handed in the approach that was taken.” Benson, 802 P.3d at
344. The California Supreme Court also noted that there was
a “not insubstantial” period of time between Detective Bolts’s
statement about the death penalty and Benson’s ultimate
confession, and that Benson’s statement “it doesn’t matter”
in response to Bolts’s comment “practically compels the
inference that insofar as the confessions were concerned, the
comment in fact ‘didn’t matter.’” Id. at 345.

    In the case of a coerced confession, we have observed that
the “pivotal question . . . is whether the defendant’s will was
overborne when the defendant confessed.” United States v.
Miller, 984 F.2d 1028, 1031 (9th Cir. 1993). The California
Supreme Court was presented with evidence that Benson
understood the questions being asked of him and volunteered
a confession. Benson stated that the existence of a death
                       BENSON V. CHAPPELL                            47

penalty “didn’t matter” and the interrogation was not
coercive. Benson testified that his “primary thought was
nothing was going to change the effect of the people that
died. Nothing was going to bring them back.” He noted that
there was “no one answer” to explain why he decided to
confess, and he indicated on several occasions that he felt
relieved by admitting his actions. The California Supreme
Court’s conclusion that Benson’s will was not overborne by
the misstatement about the law regarding the death penalty in
California was neither “an unreasonable application, of
clearly established Federal law, as determined by the
Supreme Court of the United States,” nor “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)–(2).19

    3. Benson has not shown that his mental condition
       rendered his confession involuntary

    Benson claims that he “suffers from diffuse organic brain
damage and frontal lobe damage which severely affects his
mental functioning.” He contends that these impairments
“create irrational belief systems and behavior,” and deny him
“the capacity to recall accurately the events that he
recounted.” He argues that the California Supreme Court, in
denying this claim, “unreasonably determined the facts, and
unreasonably applied Supreme Court precedent.”


    19
       Benson’s argument that his confession to Dr. Gordon should have
been suppressed because he was misled by Dr. Gordon, or confused, also
fails because it is not compelled by the evidence. Benson admits that Dr.
Gordon properly introduced himself and advised him of his Miranda
rights. Thus, even if Benson was confused as to the purpose of Dr.
Gordon’s visit, this was not Dr. Gordon’s or the state’s fault.
48                     BENSON V. CHAPPELL

    Benson raised this argument in his first habeas petition,
which the California Supreme Court, on May 12, 1994,
denied on the merits without further explanation. We review
the record to determine whether “there was no reasonable
basis for the state court to deny relief.” Richter, 562 U.S.
at 98.

    Benson has not met this standard. The district court
carefully reviewed the evidence of Benson’s behavior during
pretrial proceedings and at trial, concluded that Benson “was
unusually focused and responsive, and was acutely aware of
the proceedings.” This determination is a fair reading of the
record of the state court proceedings. Benson was verbose
and elaborate in his confession providing excruciating
descriptions of how he molested the children and eventually
killed them. He did not simply agree to suggestions from the
police officers. Although Benson began his interview by
dissembling, after becoming caught in lies, he made detailed
confessions. Indeed, during the hearing on the motion to
suppress, Benson’s trial attorney did not argue that Benson’s
psychological state made him incapable of rendering a
voluntary confession.20 Further, none of the experts presented
to the California Supreme Court in Benson’s habeas filings
specifically opined that Benson’s neurological defects made


     20
        The district court noted in reviewing Benson’s participation in the
initial phases of his trial:

          These passages make it clear petitioner was well-aware
          of the nature of the proceedings against him.
          Significantly, in argument on the motion to suppress,
          petitioner’s attorney made no argument that petitioner
          was incompetent to render a voluntary confession, nor
          did counsel suggest a doubt existed as to petitioner’s
          competence to proceed with the hearing or with trial.
                    BENSON V. CHAPPELL                      49

it likely that his confessions were false or otherwise made
Benson incapable of truthfully inculpating himself in a
confession.

    We agree with the district court that it was reasonable for
the California Supreme Court to conclude that Benson was
aware of the nature of the proceedings against him, and that
he understood the consequences of his statements to the
officers.

    C. Trial Counsel Was Not Ineffective at the Penalty
       Phase

    In Strickland v. Washington, 466 U.S. 668 (1984), the
Supreme Court set forth the now well-established two-prong
test for ineffective assistance of counsel.

        First, the defendant must show that counsel’s
        performance was deficient. This requires
        showing that counsel made errors so serious
        that counsel was not functioning as the
        “counsel” guaranteed the defendant by the
        Sixth Amendment. Second, the defendant
        must show that the deficient performance
        prejudiced the defense. This requires showing
        that counsel’s errors were so serious as to
        deprive the defendant of a fair trial, a trial
        whose result is reliable. Unless a defendant
        makes both showings, it cannot be said that
        the conviction or death sentence resulted from
        a breakdown in the adversary process that
        renders the result unreliable.

Id. at 687.
50                  BENSON V. CHAPPELL

     In addition to setting forth the Strickland two-prong test,
the Supreme Court has further directed that where a federal
habeas petitioner challenges his state trial counsel’s
performance, the question in federal court “‘is not whether a
federal court believes the state court’s determination’ under
the Strickland standard ‘was incorrect but whether that
determination was unreasonable—a substantially higher
threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123
(2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). Thus, our review of the state court decision on
ineffective assistance of counsel is “doubly deferential.”
Pinholster, 563 U.S. at 190 (quoting Knowles, 556 U.S.
at 123).

     The Supreme Court emphasized that federal courts should
defer to the state court’s decision. “Pinholster must
demonstrate that it was necessarily unreasonable for the
California Supreme Court to conclude: (1) that he had not
overcome the strong presumption of competence; and (2) that
he had failed to undermine confidence in the jury’s sentence
of death.” 563 U.S. at 190. The Court further commented on
the deference due counsel who “confronted a challenging
penalty phase with an unsympathetic client,” and held that
we, the Ninth Circuit, had “misapplied Strickland and
overlooked ‘the constitutionally protected independence of
counsel and . . . the wide latitude counsel must have in
making tactical decisions.’” Pinholster, 563 U.S. at 193, 195
(citing Strickland, 466 U.S. at 689).

    Accordingly, “[w]hen § 2254(d) applies, the question is
not whether counsel’s actions were reasonable. The question
is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Richter, 562 U.S.
at 105.
                    BENSON V. CHAPPELL                      51

   1. The record does not compel a finding that counsel
      was ineffective

    Benson argues that trial counsel was ineffective in failing
to investigate and then present evidence of the physical,
mental, and sexual abuse Benson endured at the Buchanan
ranch. He also claims that counsel should have investigated
whether he had an organic brain injury.

       a. Counsel’s “failure” to investigate further
          Benson’s childhood.

    The strategy at trial was to humanize Benson, and to point
to at least one moment in time when Benson appeared happy,
normal, and relatable. Benson’s counsel presented a
photograph of Benson on the Buchanan farm: Benson was
nine years old, smiling, and bottle-feeding a calf. Defense
counsel then asked the question, “How did a little boy who
got from – that darling little boy in that photograph with the
bottle of milk feeding the calf – one wonders how did he get
from there to where we are today?” Counsel then described
the relative deprivation Benson experienced. Mitigating
evidence was presented that (1) Benson’s mother was a
prostitute and father an alcoholic; (2) he was placed into a
foster home immediately after birth; (3) there was hope for a
nice life due to his time on the Buchanan farm; (4) Benson
was ripped from the farm at age nine, and within weeks was
forced to endure a years-long travail of bouncing around
seedy hotels, shanties (including a chicken coop) and
different schools; (5) Benson experienced chronic hunger;
(6) Benson was placed periodically in other foster homes;
(7) Benson and his brothers turned to alcohol and drugs;
(8) Benson was first arrested at age 10 and between 13 and 20
was in and out of custody; (9) Benson was diagnosed with
52                 BENSON V. CHAPPELL

“early-onset pedophilia,” which made it difficult for him to
conform his behavior to social norms; and (10) Benson had
mental impairment due to drug use.

     Benson now contends that the strategy used by Benson’s
trial counsel was deficient. He proffers evidence that life on
the Buchanan farm was far from idyllic. Evidence has come
to light indicating that Marjorie Buchanan beat Benson with
a rubber hose, willow tree branches, a belt, and a large
shovel. She held Benson’s hand to the stove, and punished
him by filling his mouth with cayenne pepper. She gave the
boys enemas of hot, soapy water. Her adult son would
routinely sexually abuse Benson and his brothers, and forced
Benson to do unnatural acts with animals. According to
Benson’s brother Bill, “[i]t happened so much that we all
thought it was normal.” The abuse allegedly led to strange
behavior: Benson would bang his head against the wall and
eat dirt, live bugs, and beetles. Benson was also hit on the
head repeatedly as a child and at one point nearly drowned.
To deal with the abuse, the Benson brothers abused various
substances, including drinking cough syrup and sniffing glue
to the point of hallucinations. Dr. Jonathan Pincus who
examined Benson well after the trial, determined that Benson
evinces signs indicative of brain damage.

    Benson argues that counsel should have been on notice to
investigate his time on the Buchanan farm. He points to a
February 1994 declaration by Dorothy Ballew, a private
investigator and the defense investigator for Benson in
1986–87. She stated that: (a) she was the only person on the
defense team to meet regularly with Benson; (b) she “realized
early on that many of his memories, especially of his
childhood, were inaccurate and incomplete”; (c) she
suspected trauma in Benson’s past; and (d) she had
                    BENSON V. CHAPPELL                       53

“requested trial counsel’s assistance in pursuing specific
avenues of investigation and was met with no response or was
rebuffed.” Ballew asserted that she told trial counsel that
there “were several extremely important investigative tasks
that needed to be completed before commencing [the] penalty
phase,” but counsel did not request a continuance. Ballew
further asserted that when she interviewed Brad Benson,
“immediately after the penalty phase had begun,” he told her
that Marjorie Buchanan disciplined him and his brothers “by
putting red pepper in their mouths and beating them with a
rubber hose,” and that from the age of nine to twelve, he
(Brad) “was routinely sodomized by his older foster brother,
David Buchanan.” Ballew reported what Brad had told her to
trial counsel but he declined to request a continuance of the
penalty phase.

     Benson also points to a December 1992 declaration by
Terry Kellogg, “a family systems therapist and Certified
Chemical Dependency Practitioner.” Kellogg stated that he
was contacted by Ballew in early 1987 and was retained by
trial counsel as an expert to testify at trial. Kellogg traveled
to Santa Barbara in March 1987 to consult with trial counsel.
He informed counsel that he “was quite certain that
Mr. Benson had suffered significant physical and/or sexual
abuse in his formative years and advised him that further
investigation of Mr. Benson’s childhood was necessary if the
jury was to be provided an accurate picture of Mr. Benson’s
mental state at the time of the crimes.” Kellogg asked
counsel for an opportunity to meet with Benson, but counsel
denied the request, and seemed to ignore Kellogg’s
suggestions.

   Reasonable minds could conclude that Benson’s trial
counsel’s decision not to investigate Benson’s life on the
54                    BENSON V. CHAPPELL

farm further was reasonable. Benson himself did not recall
the abuses he endured at the Buchanan ranch. Indeed,
Benson’s first habeas petition to the California Supreme
Court noted that Benson “[had] no memory of the torture, and
sexual, psychological and emotional abuse he suffered on the
Petaluma farm.” Dr. Gordon testified that Benson told him
that “until [Benson] was nine and a half years of age in that
first foster home (the Buchanan ranch), he had the nicest life
he has ever known.” Testimony from Benson’s siblings
corroborated Dr. Gordon’s report about Benson’s life on the
farm. Brad testified that he and his siblings were “displaced
from the farm” after their father won custody. Brad then
described his father’s alcoholism, the difficulties the family
experienced after their time on the farm, and his own
alcoholism. He further testified that when at age 15 he left a
home for boys where he was temporarily placed, “the only
thing . . . . I could think of was to return to the farm, to the
only woman that cared about me . . . Marjorie Buchanan.”21

    Benson has provided no evidence that trial counsel was
informed that Benson was seriously abused at the Buchanan
ranch. The only mistreatment at the Buchanan ranch that trial
counsel appears to have been aware of was that Marjorie
Buchanan had disciplined the Benson boys with red pepper
and a rubber hose. The California Supreme Court could
reasonably have decided that such disciplinary measures did
not put trial counsel on notice that Benson had been tortured
during his stay on the Buchanan ranch, especially given the



     21
       According to Ballew’s declaration, when she spoke to Brad after
the penalty phase had begun, Brad mentioned that he had been sodomized
by David Buchanan, but apparently did not state that Benson also had
been sodomized.
                        BENSON V. CHAPPELL                               55

countervailing evidence which indicated that his time at the
ranch was positive.

    Furthermore, counsel had a reasonable explanation for
Benson’s aberrant behavior – Benson’s traumatic experiences
living with his alcoholic father after the age of nine. Thus,
with no suggestion from either Benson or his siblings that
Benson suffered trauma on the Buchanan ranch, counsel
cannot be faulted for not investigating a suspicion of
suppressed past trauma. Reasonable minds could conclude
that competent trial counsel would not have investigated
Benson’s treatment during his two-to-three-year stay at the
Buchanan ranch.22

    This is not an instance in which trial counsel did not
proffer a defense at the penalty stage. Counsel called two of
Benson’s brothers and his sister to establish that they all had
endured horrible childhoods. Counsel called a retired high
school principal to testify that in junior high school Benson
was capable but misunderstood. Counsel called Benson’s
uncle and a social worker to testify that Benson’s father was
a secretive, unreliable alcoholic who refused to address his
alcoholism. Counsel called a pharmacist who testified that
Benson was “very very paranoid” and that his judgment was
compromised by his addiction to methamphetamine. Several
months before trial, counsel retained Dr. Abel who testified
that Benson had a number of psychiatric disorders, including

    22
        Although the defense investigator and the family systems therapist
stated in 1992 and 1994 that, in 1986, they thought “that Mr. Benson had
suffered significant physical and/or sexual abuse in his formative years,”
it does not appear that they focused on Benson’s two-and-a-half year stay
at the Buchanan ranch. In light of Benson’s and Brad’s favorable
testimony in 1986 concerning the Buchanan Ranch, there was little reason
for trial counsel to investigate that period of Benson’s troubling childhood.
56                  BENSON V. CHAPPELL

paraphilia, that he had a drug dependency, and that he
generally did not need to kill. Counsel even recalled one of
the officers to support the argument that Benson was addicted
to methamphetamine at the time of the murder. In sum, trial
counsel presented a cogent theory supported by the testimony
of several witnesses against the imposition of the death
penalty

     This defense, although unsuccessful, was a reasonable
strategy. Portraying Benson as a normal boy until he was
nine or ten seems just as likely, perhaps more likely, to tug on
the heart-strings of the jury as explaining that mental health
problems ran in Benson’s family and that he was mistreated
all his life rather than after he was nine and a half years old.
Indeed, the suggestion that Benson’s perversion was a result
of a traumatic period in his childhood allowed for the
possibility that he could change, that he could reform.
Arguing that Benson’s depravity emanated from sexual and
physical abuse throughout the entirety of his childhood, while
perhaps reducing a perception of his responsibility for his
actions, might also make it appear less likely that Benson
could change. This was a material concern in light of the
admitted evidence of Benson’s multiple prior abductions of
children. In addition, this approach would be slightly
inconsistent with counsel’s argument, through Dr. Abel, that
Benson did not need to kill and could conform his behavior
to acceptable standards if incarcerated for life.

    Benson’s counsel’s efforts are clearly distinguishable
from those cases in which defense counsel have been found
ineffective at the penalty stage. See Rompilla v. Beard,
545 U.S. 374, 389 (2005) (“It flouts prudence to deny that a
defense lawyer should try to look at a file he knows the
prosecution will cull for aggravating evidence, let alone when
                    BENSON V. CHAPPELL                       57

the file is sitting in the trial courthouse, open for the
asking.”); Wiggins v. Smith, 539 U.S. 510, 524 (2003)
(holding that “[c]ounsel’s decision not to expand their
investigation beyond [the pre-sentence report] fell short of the
professional standard that prevailed in 1989”); Porter v.
McCollum, 558 U.S. 30, 39–40 (2009) (per curiam) (holding
that counsel’s failure to investigate any evidence of Porter’s
mental impairment, family background, or military service
was not a reasonable professional judgment). Similarly, in
Stankewitz v. Wong, 698 F.3d 1163, 1166 (9th Cir. 2012),
relief was based, in part, on counsel’s failure to hire “an
investigator or interview[ ] Stankewitz’s teachers, foster
parents, psychiatrists, psychologists or anyone else who may
have examined or spent significant time with him during his
childhood and youth.” Id. at 1171 (internal quotation marks
and citations omitted).

    Benson’s trial counsel in 1986 investigated Benson’s
background and put on a comprehensive defense to the death
penalty. Perhaps different trial counsel might have employed
different tactics, but on this record we agree with the district
court that the “California Supreme Court could reasonably
have concluded that ‘the egregious nature of [Benson’s]
offenses’ and the sordid nature of the other evidence the
prosecution proffered in aggravation were sufficient to
‘overcome any alleged prejudice resulting from counsel’s
‘failure’ to introduce mitigating evidence.’”

        b. Counsel’s failure to investigate organic brain
           injury.

    Benson also argues that his counsel was ineffective
because he did not investigate whether Benson suffered from
an organic brain injury. He points to a declaration by Terry
58                  BENSON V. CHAPPELL

Kellogg, the “family systems therapist” retained by Benson’s
attorneys, who stated that he advised Benson’s counsel to
look for symptoms of serious head injuries. Benson contends
that the neurological impairments were apparent because he
had difficulty in school, and his problems with concentration
and attention were “apparent to teachers, social workers and
probation officers.” Benson asserts that his neurological
impairment has been confirmed by subsequent testing:
Dr. Jonathan Pincus, a neurologist, stated in a declaration
dated January 7, 1993, that testing has confirmed that Benson
has organic brain injury.

    Benson objects that “the jury never knew . . . that [he]
suffers from frontal and temporal lobe impairment [or]
corresponding neurological impairment.” Benson further
argues that the mitigating evidence which his trial counsel
failed to present is “explanatory mitigation . . . . [it] does
precisely what trial counsel in this case admitted he cannot do
– it explains crimes.” According to Dr. Pincus, Benson’s
“neurological damage in combination with the extreme abuse
and sexual abuse to which [he] was subjected as a child were
the cause of [his] bizarre sexual impulses. With the brain
damage he sustained after birth, [his] ability to control these
impulses is severely compromised and non-existent at times.”

    However, the California Supreme Court could have
concluded that trial counsel was not on notice of organic
brain injury, and therefore not required to investigate it. The
only possible evidence of organic brain injury which was
known to Benson’s trial counsel was that (1) Benson had
trouble in school, and (2) a statement by Kellogg to the effect
                        BENSON V. CHAPPELL                               59

that counsel should look for a history of head injuries.23 But
Benson’s trial counsel had employed the aid of a mental
health expert, Dr. Gene Abel, a board certified psychiatrist.
According to his trial testimony, Dr. Abel examined
approximately 280 “pages of information regarding various
evaluations that [Benson] has had,” and met with Benson for
approximately twelve to thirteen hours. Dr. Abel also
administered “a variety of paper and pencil tests that he
completed when [Dr. Abel] wasn’t there talking with him.”
Dr. Abel testified that he received Benson’s “medical records
from Atascadero and various other institutions in California
as part of [his] preparation for examining [Benson].”
Dr. Abel diagnosed Benson with pedophilia and serious drug
dependency. He explained that Benson’s pedophilia should
have been treated with hormonal injections but was not.
Dr. Abel explained that these disorders made it difficult for
Benson to conform his conduct to the requirements of the
law. Dr. Abel did not diagnose Benson with having
experienced severe head trauma.24




    23
       Kellogg’s declaration does not indicate his education. He describes
himself as a “family systems therapist and Certified Chemical
Dependency Practitioner.” He asserts that over the past 23 years he had
“treated literally thousands of patients, including hundreds of people
convicted of sex offenses,” has “created and consulted for sexual offender
treatment programs throughout the country,” and “lectured extensively at
continuing education seminars for mental health professionals.” The
record does not indicate that he is a neurologist, psychologist, or any other
kind of board certified professional.
    24
       In his 1992 declaration, Dr. Abel explained that after interviewing
Benson in 1986, he diagnosed Benson with depression. However, he did
not state in that affidavit that, after interviewing Benson in 1986, he
suspected that Benson had experienced organic brain injury.
60                  BENSON V. CHAPPELL

    Accordingly, trial counsel was not on notice that further
examination of Benson with the specific goal to uncover
organic brain injury was necessary. This was not a case
where counsel failed to have the defendant examined by a
psychological professional. Quite the opposite. The
psychological professional who examined Benson, Dr. Abel,
testified for the defense, diagnosed Benson with a medical
disorder, and did not opine that Benson suffered a brain
injury. Indeed, trial counsel reported to Benson’s state
habeas counsel that “the mental health professionals . . .
retained for Mr. Benson’s trial did not report that Mr. Benson
suffered from organic brain damage,” and noted that had such
brain damage been reported, he “‘would have seized upon it’
and would have used the information at trial.”

    The California Supreme Court could reasonably have
concluded that counsel did what investigation was necessary
in terms of organic brain injury. We are aware of no clearly
established law that shows otherwise.

     2. The record does not compel a determination that
        counsel’s performance, if ineffective, was prejudicial

    The ultimate step in determining whether counsel’s
deficient performance prejudiced the defendant at the penalty
phase is reweighing the evidence in aggravation against the
totality of the mitigating evidence in order to determine
“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.” Strickland, 466 U.S. at 695; see also Sears v.
Upton, 561 U.S. 945, 956 (2010); Wiggins, 539 U.S. at 534.
Reasonable probability is a level that “undermine[s]
confidence in the outcome,” Strickland, 466 U.S. at 694;
                    BENSON V. CHAPPELL                       61

however, counsel’s deficient performance is not prejudicial
just because the court cannot “rule out” the possibility that
the sentencer would have imposed a life sentence instead of
the death penalty. Wong v. Belmontes, 558 U.S. 15, 20, 27
(2009). Rather, “[t]he likelihood of a different result must be
substantial, not just conceivable.” Richter, 562 U.S. at 112
(citing Strickland, 466 U.S. at 693).

    Here, the record fully supports the California Supreme
Court’s implicit determination that counsel’s performance,
even if it were deficient, did not prejudice Benson. See
Richter, 562 U.S. at 98 (commenting “[a]s every Court of
Appeals to consider the issue has recognized, determining
whether a state court’s decision resulted from an
unreasonable legal or factual conclusion does not require that
there be an opinion from the state court explaining the state
court’s reasoning,” and holding that “[w]here a state court’s
decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief”).

    Benson’s trial counsel presented the jury with evidence
that Benson’s aberrant behavior had been brought about by
his horrendous childhood, that he was unable to control his
pedophilia when he was high on amphetamines, and that he
had taken methamphetamine during the weekend in issue.
Thus, much of the proffered evidence offered in the post-
conviction petition was cumulative. Benson’s childhood was
not just horrible after he was nine years old, but also horrible
between the ages of seven and nine. His pedophilia was not
just the consequence of an appalling childhood, but might be
partially genetic or due to in utero trauma.
62                  BENSON V. CHAPPELL

    The proffered evidence in Benson’s post-conviction
petition included evidence of his sexual abuse while living at
the Buchanan farm. We have recognized that “[c]hildhood
sexual abuse can be powerful evidence in mitigation,
particularly when it is not an isolated event.” Wharton v.
Chappell, 765 F.3d 953, 977 (9th Cir. 2014). Absent the
considerable aggravating evidence, the proffered information,
including evidence of sexual abuse, might have made Benson
more sympathetic to the jury, but it also might have made
him seem less likely to be rehabilitated. Furthermore, the
information does not explain or justify Benson’s murder of
Laura and her three children, particularly as, according to
Benson, she was willing to indulge his pedophilia.

    Moreover, the evidence in aggravation was damning. The
heinous nature of Benson’s crimes was overwhelming: killing
Laura, sexually abusing two little girls for a day before
murdering them, and killing a two-year old boy because he
cried (he could hardly have been a witness). In addition,
Benson had four prior felony convictions over a ten-year
period of time for abusing little girls, including two instances
in which he had taken the girls from their bedrooms when
they were sleeping. In this context, additional evidence of
Benson’s past abuse and possible genetic make up might not
have assisted his attorneys’ argument for a life sentence as
the evidence tends to suggest that Benson was not able to, and
never would be able to, control his pedophilia.

    We do not fault the California Supreme Court for denying
Benson’s relief. To grant relief, we would have to conclude
that the California Supreme Court’s denial of relief was
unreasonable. Pinholster, 563 U.S. at 190; Knowles,
556 U.S. at 123. But, on this record, in light of Benson’s
horrific crimes, past felony convictions, and the mitigating
                    BENSON V. CHAPPELL                       63

evidence offered by trial counsel, we cannot conclude that
there is no reasonable argument that the additional
information would not have changed Benson’s conviction or
sentence. See Richter, 562 U.S. at 105.

     Benson’s argument with respect to his organic brain
injury is similarly unavailing. According to Dr. Pincus, the
brain damage from which Benson suffers could lead to
difficulty in impulse control and rational thinking. But the
crime, as Benson himself described it in his confession, was
for the most part not “impulsive.” Benson did not kill the
Camargo family in a fit of rage. He killed Laura, and then,
over the course of the next day, proceeded to molest the two
daughters. He described killing the baby Sterling because he
wanted to quiet him to avoid detection. Benson described
hesitating before finally striking the killing blows on the two
little girls. After it was all over he attempted to cover up his
crime. He set the house on fire and fled. The crime was not
“impulsive”: it was deliberate, and took place over
approximately thirty hours. Benson has not shown that
evidence of neurological damage which gave rise to problems
with “impulse control” would have significantly aided his
showing for mitigation.

    In sum, given the heinous nature of the crime and the
mitigating evidence presented by trial counsel, we cannot
conclude that it would have been unreasonable for the
64                     BENSON V. CHAPPELL

California Supreme Court to determine that the alleged
deficient performance of Benson’s trial counsel at the penalty
stage of his trial, did not prejudice Benson.25

     D. Benson Has Not Shown that Trial Counsel Was
        Ineffective at the Guilt Phase of the Trial

    The first of Benson’s newly certified claims is that trial
counsel was ineffective at the guilt phase of the trial. Benson
supports his claim with a smorgasbord of assertions. He
argues that trial counsel should have: (1) further investigated
the officers’ conduct in soliciting his confession;
(2) presented expert opinions raising factual questions as to
the timing of Laura’s death, whether Stephanie was alive
when the fire began, and how Sterling died; (3) presented
evidence that a test performed several days after the weekend
revealed methamphetamine in Benson’s urine; (4) obtained
and presented evidence of the absence of semen on the girls,
and that Laura may have been breathing at the time of the
fire; (5) investigated whether Dr. Gordon had, in bad faith,


     25
       The dissent, focusing on the abuses Benson suffered during his stay
at the Buchanan Ranch, concludes that “no fair-minded judge objectively
reviewing the unintroduced mitigating evidence . . . could conclude, with
confidence, that the outcome would have been the same.” Dissent at 82.
We, of course, disagree. As noted, the jury was presented with evidence
of Benson’s horrendous childhood, much of it occurring after he left the
Buchanan ranch, that Benson had multiple criminal convictions, including
several for kidnapping young children, that he was unable to control his
pedophilia when high on amphetamines, that he had taken amphetamines
during the weekend at issue, and that his abhorrent actions over that
weekend could not fairly be considered impulsive. Considering all the
evidence, the California Supreme Court could reasonably determine, with
confidence, that evidence that a portion of Benson’s childhood was
considerably more horrendous than initially presented would not have
changed the outcome.
                   BENSON V. CHAPPELL                      65

intentionally destroyed exculpatory evidence in a prior case
and had previously concealed evidence in violation of a court
order; and (6) investigated evidence that a witness had told
police she was at the Camargo residence on Sunday and that
Laura was alive. In addition, Benson argues that counsel
should have further investigated his impairments that
rendered his statements involuntary as that would have
undermined the credibility of his confession and made it less
likely that the jury would have convicted him or given him
the death penalty.

   1. Benson has not shown that further investigation and
      presentation of evidence could have affected the
      conviction or sentence

    Benson’s claim of ineffective assistance of counsel at the
guilt phase cannot overcome the uncontroverted evidence that
he arrived at the Camargo home on Saturday night when
Laura and her children were alive, that nobody else was seen
entering or leaving the home on Sunday, and that on Monday
morning, when the home was found to be on fire and Laura
and her children dead, Benson was not there. Moreover,
Benson’s heavy ring mandrel, which had been used to strike
Laura and her daughters, was found at the scene, along with
pornography on which Benson’s fingerprints were found.
Add to this Benson’s confession to sexually abusing the girls
and murdering Laura and her children, and trial counsel’s
decision to concentrate on the penalty phase of the trial was
certainly reasonable.

    The assertion that trial counsel should have further
investigated the officers’ conduct leading to Benson’s
confession is not well taken. The matters Benson now
suggests deserve further investigation—the lack of the tape
66                  BENSON V. CHAPPELL

recording for the first two hours of interrogation, Benson’s
nine hours of equivocation, and the officers’ leading
statements and questions —were all thoroughly considered in
the litigation over the admission of Benson’s confessions.
Even if the officers had engaged in some improprieties—and
there is nothing in the record to suggest they did—the
improprieties would be insignificant in light of Benson’s
detailed, disturbing confessions.

    Furthermore, in light of the physical evidence and
Benson’s confession, the actual sequence of events during the
thirty hours that Benson was in the home is of little
consequence. Even accepting that Benson’s experts could
raise questions as to the timing of Laura’s death, whether
Stephanie was alive when the fire began, and how Sterling
died, those questions would not make Benson any less
responsible for the murders and the sexual abuse of the girls.
Indeed, such presentations may have led a jury to conclude
that Laura and her children had suffered even more than as
described in the state’s case. Also, the contention that there
was an absence of semen on one of the daughters is not
particularly probative under these circumstances. Nor would
these factors necessarily undermine Benson’s narrative,
which was full of contradictions and inconsistencies based on
what he claimed he did, and did not, recall. Trial counsel
may reasonably have determined that contesting the grisly
details of the sexual abuse and murders, which would not
have exonerated Benson, might have weighed against the jury
sentencing him to life without the possibility of parole.

   Even accepting that trial counsel did not obtain the lab
report indicating methamphetamine in Benson’s urine, and
should have done so, Benson has failed to show that this
deprived him of a fair trial. Strickland, 466 U.S. at 687. Trial
                      BENSON V. CHAPPELL                             67

counsel presented evidence and argued that Benson was high
on methamphetamine over the weekend, that
methamphetamine compromised his ability to think and
control his actions, and that the use of methamphetamine had
a lingering effect. Indeed, the state did not really contest that
Benson used methamphetamine. The lab report would have
been cumulative evidence.

    2. Trial counsel’s alleged failure to investigate
       Dr. Gordon was not prejudicial

    In a different case involving child molestation in the
Superior Court of San Luis Obispo, Dr. Gordon was found to
have participated in the destruction of evidence and to have
acted in bad faith.26 Accepting that the revelation of
Dr. Gordon’s prior misconduct was important information
which should have been turned over to the defense by the
state, it does not follow that trial counsel was ineffective.
Although the evidence would have impeached Dr. Gordon’s
credentials, it would not have been evidence that
Dr. Gordon’s testimony as to what Benson said, or even his
impressions of Benson, were not sound. Critically, Benson
had already confessed his sexual abuse and the murders to the
officers before he met with Dr. Gordon and did so again after
his meeting with Dr. Gordon. Attempting to impeach
Dr. Gordon on the basis of his misconduct in an unrelated
proceeding might have been difficult and of minimal value,
suggesting that even if trial counsel should have discovered
Dr. Gordon’s judicial reprimand, the failure to do so was not
prejudicial. Moreover, we are not aware of any case where


    26
       The case was People v. Nurss, No. 13655 in the Superior Court of
California for the County of San Luis Obispo. The superior court’s order
stating that Dr. Gordon acted in bad faith was entered on July 29, 1986.
68                  BENSON V. CHAPPELL

counsel was deemed ineffective for failing to conduct a
thorough analysis of each of the cases in which a proffered
expert had previously testified. Benson has not shown that
the state courts’ refusal to entertain his ineffective assistance
of counsel claim based on Dr. Gordon’s alleged bias and
incompetence was unreasonable.

     3. Benson’s allegation that trial counsel failed to
        investigate the statement of a lay witness is not
        persuasive

     Benson’s assertion that a witness had told the police that
she was at the Camargo residence on Sunday and that Laura
was alive is of little weight when placed in context. It
appears that the alleged statement by a teenage neighbor was
known to trial counsel or should have been known to trial
counsel. The police had discounted the report because the
girl was “an airhead or something like that.” Moreover, any
trial testimony by the girl would have been undercut by
testimony from others who saw no signs of activity in Laura’s
residence on Sunday, the testimony of the forensic
pathologist that by Monday Laura had been dead for several
days, and Benson’s own statement that he had murdered
Laura on Saturday night. Accordingly, we agree with the
district court that “it would have served no purpose other than
to diminish the defense’s credibility to attempt to inject [the
girl’s] faulty memory into the proceedings to challenge the
prosecution’s case that petitioner committed the crimes, a
tactic defense counsel reasonably decided not to pursue in
any event.”

   Given the murder of four persons, Benson’s confession,
and the lack of any suggestion that anyone other than Benson
was responsible for the murders, trial counsel reasonably
                    BENSON V. CHAPPELL                        69

could have concluded that further investigation into the
details of the underlying crimes and Dr. Gordon’s credentials
would not be in Benson’s best interest. Benson has not
shown that the state courts’ refusal to entertain his claim of
ineffective assistance of counsel at the guilt stage of his trial
was an unreasonable determination of fact or contrary to
established federal law.

    E. Benson has not shown that there was a prejudicial
       violation of Brady

    Benson’s second previously uncertified claim is that the
prosecution failed to disclose (1) information tending to
impeach Dr. Gordon, (2) a lab report showing that Benson
had methamphetamine in his urine three days after his arrest,
(3) that three witnesses had their pending criminal charges
reduced, and (4) officer notes showing that a teenage
neighbor visited Laura on Sunday. Benson raised these
claims in his first state habeas petition and the California
Supreme Court denied the habeas petition on the merits
without any explanation.

    There are three components to a true Brady violation:
“[t]he evidence at issue must be favorable to the accused,
either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281–82 (1999). A Brady
violation is “material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine
confidence in the outcome.” Amado v. Gonzalez, 758 F.3d
70                        BENSON V. CHAPPELL

1119, 1139 (9th Cir. 2014) (quoting United States v. Bagley,
473 U.S. 667, 682 (1985)).

     1. The failure to disclose Dr. Gordon’s judicial
        reprimand was not prejudicial

    In a prior case involving child molestation,27 Dr. Gordon,
as part of the Sexual Assault Response Team, interviewed a
child who had allegedly been sexually assaulted. The
interview was taped, but the tape was destroyed. The court
determined that the tape recording had contained exculpatory
statements, and declared that it was “utterly unconvinced that
Dr. Gordon failed to recognize that the statement was
exculpatory at the time it was made.” In an order entered
approximately six months before Benson’s trial, the court
ruled that “law enforcement including Dr. Gordon, acted in
bad faith regarding the tape.”

    The minute order meets the first prong for a Brady
violation. It tends to show that Dr. Gordon is an unreliable
witness who may obfuscate or lie in order to convict an
alleged sex criminal. On this record, we accept that the
prosecution did not bring the minute order to the attention of
Benson’s counsel, and that it was suppressed.28


     27
          See footnote 26, supra.
     28
         The state argues that there is “no evidence [the impeaching
evidence] was not available as part of the prosecution’s open file
discovery policy.” The state’s argument is not persuasive. Although the
state had an open file policy, Benson’s trial counsel reported that he
“made a strategic decision that [he] would not relieve the prosecution of
its obligation to provide discovery by inspecting the District Attorney’s
files themselves to determine whether they had been provided everything
to which they were entitled.” Moreover, while the information was
                       BENSON V. CHAPPELL                            71

    Nonetheless, we affirm the denial of relief on the alleged
Brady violation. To set aside Benson’s conviction and
sentence, there must be a “reasonable probability” that
impeaching Dr. Gordon with evidence of his prior judicial
reprimand would have altered the jury’s “conclusion that the
aggravating circumstances outweighed the mitigating
circumstances.” Strickland, 466 U.S. at 700. Benson has not
made such a showing.

    The evidence both of guilt and of aggravation was so
overwhelming that there is no reasonable probability of a
different result had Dr. Gordon’s testimony been impeached.
The evidence of guilt included not only Benson’s confessions
to Bolts and Hobson but also the presence of his fingerprints
at the scene and evidence that he owned the steel jeweler’s
mandrel found at the home. The aggravating evidence is
similarly overwhelming. Dr. Gordon was tasked with
presenting forensic evidence of molestation, and he recounted
Benson’s description of his acts. But Benson also admitted,
in graphic detail, to the police officers his molestation of both
young girls as well as his killing of all four members of the
family. Thus, Dr. Gordon’s testimony was cumulative.
Given the overwhelming nature of the aggravating evidence,
and that Benson’s confession to Dr. Gordon was not the only
evidence of molestation, it was reasonable for the California
Supreme Court to conclude that the conviction and sentence
would have been the same had Dr. Gordon been impeached
or his testimony excluded.


contained in a public record, we have held that under some circumstances,
this does not diminish the state’s obligation to produce documents under
Brady. Milke v. Ryan, 711 F.3d 998, 1017–18 (9th Cir. 2013). Here, the
record indicates that the information regarding Dr. Gordon was not
produced and that counsel would have used it if he had had it.
72                  BENSON V. CHAPPELL

     2. Benson has failed to show that the suppression of the
        lab report was prejudicial

    Benson claims that the government withheld “a lab report
[which] indicated Mr. Benson had methamphetamine in his
urine three days after his arrest and during the time he was
being interrogated.” This is the whole of Benson’s argument.
He does not explain why the report matters or how this
information could have been used at trial. That Benson had
been a drug addict and had used methamphetamine was not
in dispute. Benson’s counsel had presented evidence and had
argued at trial—without dispute by the state—that Benson
was under the influence of drugs over the weekend in
question. The inclusion of a lab report showing the presence
of methamphetamine in Benson’s urine three days after his
arrest would not have significantly added to the information
that was before the jury.

     3. Benson has failed to show that the reduction of
        pending charges against three witnesses had any
        effect on his conviction or sentence

    Benson argues that prosecutors failed to disclose criminal
charges against several lay witnesses and suggests that their
charges were subsequently reduced. The criminal records of
the witnesses were of marginal relevance because none of the
witnesses testified as to where Benson was or what he did
over the weekend in question. Benson does not indicate what
the defense would have accomplished with this information,
how it would have aided the defense at trial, or even that the
information was unknown to trial counsel. Benson has not
made the requisite showing of prejudice for relief on this
issue.
                    BENSON V. CHAPPELL                      73

   4. Benson has not shown that the failure to disclose a
      statement by a lay witness was prejudicial

    Finally, Benson argues that the prosecution withheld
notes from a police officer indicating that a teenage lay
witness had stated that she visited Laura Camargo and her
three children on Sunday evening. Benson’s assertion that
the witness had told the police that Laura and the children
were alive on Sunday is of little weight when placed in
context. It appears that Benson knew of the statement
because during his discussion with the officers, he described
having heard that a teenage girl claimed that she had “talked
to Laura about 8:15 the night before the fire.” Benson
intimated to police that the girl should not be believed,
because she was a “champion airhead.”

    Moreover, as noted, any testimony by the witness would
have been undercut by testimony from others who saw no
signs of activity in Laura’s residence on Sunday, the
testimony of the forensic pathologist that by Monday Laura
had been dead for several days, and Benson’s own statement
that he murdered Laura on Saturday night. Accordingly, we
agree with the district court that “it would have served no
purpose other than to diminish the defense’s credibility to
attempt to inject [the girl’s] faulty memory into the
proceedings to challenge the prosecution’s case that petitioner
committed the crimes, a tactic defense counsel reasonably
decided not to pursue in any event.”

   In sum, on this record, even if some Brady materials were
withheld, Benson’s claim must be rejected because he cannot
show prejudice from the alleged non-disclosures. The
Supreme Court recently explained:
74                  BENSON V. CHAPPELL

       Petitioners and the Government, however, do
       contest the materiality of the undisclosed
       Brady information. “[E]vidence is ‘material’
       within the meaning of Brady when there is a
       reasonable probability that, had the evidence
       been disclosed, the result of the proceeding
       would have been different.” “A ‘reasonable
       probability’ of a different result” is one in
       which the suppressed evidence “‘undermines
       confidence in the outcome of the trial.’” In
       other words, petitioners here are entitled to a
       new trial only if they “establis[h] the
       prejudice necessary to satisfy the ‘materiality’
       inquiry.”

Turner v. United States, 137 S. Ct. 1885, 1893 (2017)
(internal citations omitted). Benson has failed to show a
“reasonable probability” that presentation of any or all of the
alleged suppressed materials—the prior judicial reprimand of
Dr. Gordon, the lab report, the witnesses’ criminal records,
and the teenage girl’s statement—would have changed his
conviction or sentence. Accordingly, even though the state
court denied Benson’s Brady claims without explanation, a
review of the record reveals sound reasons for the denial.

                       V. Conclusion

   It has been over thirty years since Benson murdered Laura
and her toddler son and sexually abused and murdered her
two young daughters. He has been ably represented by his
counsel. After reviewing his conviction and sentence
pursuant to AEDPA, as we must, we affirm the district
court’s denial of Benson’s petition for a writ of habeas
corpus. The California Supreme Court reasonably could have
                    BENSON V. CHAPPELL                        75

determined that Benson’s confessions to the police should not
have been suppressed. Because Benson was a parolee subject
to a parole hold, his Fourth Amendment rights were not
violated by the delay in his arraignment. Benson’s additional
evidence concerning his background, mental problems, and
horrendous childhood do not compel a determination that he
did not knowingly and intelligently waive his Miranda rights.

    Similarly, the additional evidence of a predisposition to
mental illness, exposure to alcohol in his mother’s womb, and
physical, sexual, and psychological abuse inflicted on him
during the two-to-three years he lived at the Buchanan ranch,
does not compel a determination that he is entitled to relief
under AEDPA. In light of the fact that at the time of his trial
neither Benson nor his siblings informed counsel of any
abuses at the Buchanan ranch, there is no compelling
evidence that trial counsel’s performance was deficient. See
Strickland, 466 U.S. at 687. Moreover, even if counsel’s
performance were deficient, reasonable jurists could conclude
that, in light of the defense offered by trial counsel, the
gravity of Benson’s offenses, and Benson’s prior offenses,
counsel’s errors were not “so serious as to deprive [Benson]
of a fair trial.” Id.

     Finally, Benson’s claims that trial counsel was ineffective
at the guilt stage of the trial and that the prosecution withheld
materials do not merit relief. Benson’s confessions,
combined with all the circumstantial evidence that confirm
his responsibility for the murders and sexual abuse, render
trial counsel’s decision not to further contest guilt reasonable,
if not wise. Viewed in the light of the whole record, there is
no probability that production of the so-called Brady
materials would have produced a different result. See Turner,
137 S. Ct. at 1893.
76                  BENSON V. CHAPPELL

    The district court’s denial of Benson’s petition for a writ
of habeas corpus is AFFIRMED.



MURGUIA, Circuit Judge, concurring in part and dissenting
in part:

    I agree with the majority’s decision on the first certified
issue and on the uncertified claims. I cannot, however, join
the majority’s opinion with respect to Benson’s penalty-phase
Strickland claim.       The California Supreme Court
unreasonably determined that Benson’s counsel provided
constitutionally adequate representation at the penalty phase.
Even under AEDPA’s deferential standard, 28 U.S.C.
§ 2254(d), Benson is entitled to penalty-phase relief.

    Make no mistake, Benson’s crimes are brutal and
reprehensible. He senselessly murdered Laura Camargo and
her three young children—Stephanie, Shawna, and Sterling.
He repeatedly sexually assaulted Stephanie and Shawna
before killing them. And he ruthlessly burned the bodies of
his victims to hide the crimes.

    But whether or not Benson’s crimes are abhorrent does
not determine whether he is entitled to constitutionally
adequate representation. At the penalty phase of his trial,
Benson’s attorney had a professional duty to explain those
crimes, and the person who committed them, to the jury.
Indeed, his counsel’s job—and that of any lawyer defending
a client facing the death penalty—was to explain what, in
Benson’s life, might have driven him to commit such heinous
acts so as to shed some amount of human light on his
behavior. This means, concretely, that Benson’s attorney was
                   BENSON V. CHAPPELL                      77

duty-bound to investigate and present mitigating evidence
that could give the jury a reason to exercise some measure of
mercy for crimes that otherwise warrant none.

     Significant evidence of that nature existed here. From
infancy until the age of nine, Benson was subjected to
grotesque sexual and physical abuse at the hands of his foster
family, the Buchanans. And although readily available, this
evidence was never discovered by Benson’s lawyer and was,
therefore, never introduced at the penalty phase of Benson’s
trial. Mitigating evidence of this magnitude clearly has a
substantial probability of convincing at least one of twelve
jurors to exercise mercy and vote for life rather than death.
The California Supreme Court’s conclusion to the contrary is
fundamentally unreasonable.

   I must, therefore, respectfully dissent.

                              I

    Benson’s biological parents abandoned him at birth and
sent him to live with the Buchanan family on a ranch in rural
Petaluma, California. Each of Benson’s six brothers was
eventually sent to the ranch, which the boys referred to as
their foster home. Their foster parents, Marjorie Buchanan
and her husband Jack, ran the ranch. Marjorie’s son, David,
also lived on the ranch.

   According to the declarations submitted by two of
Benson’s brothers, life on the Buchanan ranch was a veritable
78                    BENSON V. CHAPPELL

hell.1 All of the boys were physically, sexually, and
psychologically abused while living there. The physical
abuse was extreme. Marjorie beat at least one of the boys
every day. She beat them with a rubber hose, branches, and
a belt. She even hit Benson, at around the age of six, over the
head with a shovel. She would punish the boys by placing
their hands on a hot stove; filling their mouths with cayenne
pepper; and holding their heads underwater to stop their
crying. At least once, Marjorie held Benson’s head
underwater until he lost consciousness. Another time, as
punishment for leaving a gate open, Marjorie tied Benson’s
limbs spread-eagle across the gate and beat his genitals with
a rubber hose and ping pong paddle. Benson was seven or
eight years old at the time.

    Jack, Marjorie’s husband, also beat the boys. He would
use the buckle-end of a belt to hit the children and would
“kick [Benson] in the head and ribs when [he] fell down
during a beating.” On one occasion, he beat Benson for so
long and so severely that Benson’s brother, William, feared
for Benson’s life.

    According to his brothers, Benson was subjected to the
worst of the beatings. At times, Benson was beaten so badly
that he could not walk, nor could he go to school. After
beatings, Benson’s face and body would be so severely
bruised and swollen that his brothers were embarrassed to go
to school with him. Benson would withdraw and would


     1
     The evidence of Benson’s life on the ranch comes from declarations
from Benson’s brothers, Brad and William. These declarations were
presented to the California Supreme Court, but Benson was never afforded
an evidentiary hearing to further develop his penalty-phase Strickland
claim.
                       BENSON V. CHAPPELL                              79

refuse to speak after severe beatings. He would bang his head
against a wall and eat dirt and live bugs.

    Benson and his brothers were also routinely sexually
abused on the ranch by David, their older “foster brother.”
According to William Benson, the sexual abuse “happened so
much that we all thought it was normal.” David would fondle
the boys and orally copulate them. He would take the boys
into a treehouse, away in a car, or tie them to a chair or tree
and sexually abuse them. He forced the boys to have anal
intercourse with him and inserted foreign objects into their
anuses, including an electric cattle prod.

    In addition to sexual abuse, David forced the boys to
engage in bestiality and wanton torture of animals. He made
the boys put their penises in calves’ mouths and pigs’
vaginas. He would put the electric cattle prod in the cows’
throats and pigs’ rectums and turn the electricity on. He
made the boys watch as he sledgehammered animals to death,
and he would make the boys clean up the animals’ feces after
they were killed. He made the boys bite the testicles off
sheep and drink the animals’ blood. When the boys did not
comply, David would beat them.2

     Though it should have been, the jury was not informed of
all of these monstrous details regarding Benson’s life on the
ranch.




    2
      Benson’s brothers’ declarations describe additional deviant acts that
occurred on the ranch—including forced enemas, forced sexual contact
with adults, and witnessing other acts of bestiality.
80                      BENSON V. CHAPPELL

                                    II

    In short, Benson’s childhood on the ranch was remarkably
horrific. Benson’s counsel, nevertheless, failed to discover
the abuse despite being put on notice by a mental health
expert and his own investigator that physical and sexual
abuse—specifically, on the ranch—likely occurred during
Benson’s childhood.3 Counsel therefore failed in his duty to
perform a reasonable investigation, rendering his
performance at the penalty phase patently deficient. Williams
v. Taylor, 529 U.S. 362, 396 (2000); Andrews v. Davis,
944 F.3d 1092, 1108–10 (9th Cir. 2019) (en banc). It was
unreasonable for the California Supreme Court to conclude
otherwise. Wiggins v. Smith, 539 U.S. 510, 520–34 (2003);
Andrews, 944 F.3d at 1115–16.4


     3
       The majority errs when it suggests that the only abuse of which
Benson’s counsel was aware was that Marjorie “disciplined” the boys with
pepper and hit them with a rubber hose. Maj. Op. at 54. I assume,
although skeptically, that those punishments—specifically, filling a child’s
mouth with cayenne pepper and striking a child with a rubber
hose—would not trigger counsel’s duty to investigate that abuse more
thoroughly. But Benson’s counsel knew more than that. He also knew
that his mental health expert suspected Benson had been sexually abused
in the past and that Benson’s brother had been sexually abused by David,
who was later convicted of molesting children. Any reasonably competent
attorney aware of those two facts would have undertaken further
investigation of Benson’s relationship with David and, more generally, of
Benson’s life on the ranch.
     4
       Because Benson’s counsel failed in his duty to investigate, it is
irrelevant whether the strategy counsel adopted at the penalty phase was
reasonable. That is, counsel’s performance can still be deficient under
Strickland based on the failure to adequately investigate, even if the
strategy counsel ultimately settled on was superficially reasonable.
Wiggins, 539 U.S. at 521–22. The majority thus errs by crediting
counsel’s strategy. See Maj. Op. at 53–57. The relevant question is
                       BENSON V. CHAPPELL                             81

                                   III

    The admittedly more difficult question relates to
prejudice. See Strickland v. Washington, 466 U.S. 668,
694–96 (1984). Indeed, the question the California Supreme
Court had to answer—and the decision we review under
AEDPA for substantive unreasonableness—was whether
there was a “reasonable probability” that the omitted evidence
would have altered the outcome of the penalty phase.
Wiggins, 539 U.S. at 537. That is, whether there was a
reasonable probability that the omitted mitigating evidence
would persuade a single juror that—despite the violence and
suffering Benson inflicted on others—he should be sentenced
to life in prison rather than death. Id. The California


whether counsel’s investigation was reasonable under the circumstances.
Wiggins, 539 U.S. at 523; Andrews, 944 F.3d at 1111–16.

     Additionally, although Benson himself had no memory of the abuse
he suffered on the ranch, the Supreme Court has recognized that a client’s
representations, or lack thereof, do not excuse counsel’s investigatory
responsibilities. For example, a client facing the death penalty may be
“fatalistic or uncooperative,” but that does not relieve counsel of his
independent duty to investigate the client’s background. Porter v.
McCollum, 558 U.S. 30, 40 (2009) (per curiam).

    Simply put, counsel had a duty to investigate Benson’s life on the
ranch—not to make assumptions about what his life was like. Had
counsel fulfilled that duty, he would have discovered evidence of the
abuse Benson suffered. And any reasonably competent attorney would
have presented that mitigation evidence at the penalty phase.

    Accordingly, Benson’s counsel had an independent duty to
investigate and—contrary to the majority’s inaccurate characterization of
the record, see Maj. Op. at 55 n.22—was sufficiently aware of facts
pointing to a probability that Benson had been severely abused on the
ranch, see supra note 3.
82                  BENSON V. CHAPPELL

Supreme Court concluded such a reasonable probability did
not exist. That determination is objectively unreasonable.

    The question is not whether jurors, presented with the
evidence, would nonetheless have voted for death. Rather,
the question is whether the omitted evidence was of such a
magnitude that there was a reasonable probability the
outcome would have been different. See Buck v. Davis,
137 S. Ct. 759, 776 (2017) (applying Strickland’s prejudice
prong). No fair-minded jurist objectively reviewing the
unintroduced mitigating evidence in this case could conclude,
with confidence, that the outcome would have been the same.
See Strickland, 466 U.S. at 694. There is simply “too much
mitigating evidence that was not presented to now be
ignored.” Porter, 558 U.S. at 44 (internal quotation marks
omitted).

     The majority’s most severe error is its conclusion that the
evidence of Benson’s life on the ranch was “cumulative” of
other mitigating evidence. Maj. Op. at 61, 64 n.25. Contrary
to the majority’s conclusion, the mitigating evidence actually
presented at the penalty phase pales in comparison to the
evidence of the suffering imposed on Benson at the ranch. It
is not a difference in magnitude, but a difference in kind. The
unintroduced mitigating evidence of unprovoked, grotesque
abuse inflicted on Benson as a child is precisely the type of
mitigating evidence that could have moved the jury to
sentence Benson to life in prison rather than death. See
Wiggins, 539 U.S. at 535; Boyde v. California, 494 U.S. 370,
382 (1990); Andrews, 944 F.3d at 1116–18. It is the type of
evidence that “alter[s] the entire evidentiary picture,” and its
omission undermines confidence in the penalty phase verdict.
Strickland, 466 U.S. at 696; see Andrews, 944 F.3d at 1121.
                    BENSON V. CHAPPELL                      83

    Given Benson’s attorney’s inadequate representation, the
jury that sentenced him to death was unable to fully evaluate
Benson’s moral culpability for his actions. Unless certain
crimes are beyond the reach of prejudicial error—or we view
jurors as immovable and incapable of exercising mercy—then
the omission of the mitigating evidence here must be
considered prejudicial.

    The aggravating factors in this case are substantial, to be
sure. But so, too, is the mitigating evidence that was not
introduced. Although I cannot say with certainty that the
penalty-phase result would have been altered had counsel
investigated and introduced evidence of Benson’s childhood
on the ranch, the evidence is sufficiently significant that my
confidence in the penalty is undermined. Any fair-minded
jurist would agree.

   I respectfully dissent.
