               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MICHAEL APELT,                      Nos. 15-99013
          Petitioner-Appellee/           15-99015
             Cross-Appellant,
                                        D.C. No.
              v.                   2:98-cv-00882-ROS

CHARLES L. RYAN,
         Respondent-Appellant/           ORDER
               Cross-Appellee.


                Filed October 11, 2018

     Before: Jerome Farris, Consuelo M. Callahan,
          and John B. Owens, Circuit Judges.

                        Order;
                Dissent by Judge Paez
2                          APELT V. RYAN

                            SUMMARY*


                          Habeas Corpus

   The panel filed an order denying a petition for panel
rehearing and a petition for rehearing en banc, in a case in
which the panel vacated the district court’s judgment granting
a writ of habeas corpus on a claim of ineffective assistance of
counsel at sentencing.

    Dissenting from the denial of rehearing en banc, Judge
Paez, joined by Judges W. Fletcher and Berzon, wrote that
the case should have been reheard en banc to correct serious
legal errors committed by the panel in evaluating the
prejudice that resulted from the glaring ineffective assistance
of counsel provided at the penalty phase of a capital trial.


                               ORDER

    The panel has voted to deny the petition for panel
rehearing and petition for rehearing en banc. The full court
was advised of the petition for rehearing en banc. A judge
requested a vote on whether to rehear the matter en banc.
The matter failed to receive a majority of the votes of the
nonrecused active judges in favor of en banc consideration.
Fed. R. App. P. 35. The petition for panel rehearing and the
petition for rehearing en banc are denied.




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

PAEZ, Circuit Judge, joined by W. FLETCHER and
BERZON, Circuit Judges, dissenting from the denial of en
banc rehearing:

    This case should have been reheard en banc to correct the
serious legal errors committed by the panel in evaluating the
prejudice that resulted from the glaring ineffective assistance
of counsel provided at the penalty phase of a capital trial.1
Given his death sentence, Michael Apelt was entitled to
appellate review that meaningfully engaged with the
significant mitigation evidence developed in state court post-
conviction proceedings and that adjudicated each of his
claims for relief. As a result of our failure to go en banc, we
have left in place an opinion that not only misconstrues well-
established Supreme Court precedent about the humanizing
effect of mitigation evidence, but also employs dehumanizing
language to condemn Apelt in a manner that does not belong
in a court of law. Accordingly, I respectfully dissent from the
denial of rehearing en banc.

                                    I.

    The district court granted habeas relief on one issue,
ineffective assistance of counsel (“IAC”) at sentencing. Apelt
v. Ryan, 148 F. Supp. 3d 837 (D. Ariz. 2015), vacated,
878 F.3d 800 (9th Cir. 2017). Apelt was represented by
Michael Villarreal at his trial for the first-degree murder and
conspiracy to commit first-degree murder of Cindy
Monkman, his wife of a few months. Villarreal also
represented Apelt in his first unsuccessful post-conviction


    1
       In fact, we recently granted en banc review in a death penalty case
that raises similar legal errors. See Andrews v. Davis, 866 F.3d 994 (9th
Cir. 2017), reh’g en banc granted by 888 F.3d 1020 (9th Cir. 2018).
4                          APELT V. RYAN

relief (“PCR”) petition. In his second PCR petition, in which
he was represented by new counsel, Apelt argued that
Villarreal’s failure to investigate and present mitigating
evidence during sentencing denied Apelt effective assistance
of counsel in violation of the Sixth Amendment. In response
to the state’s appeal, and in support of the district court’s
judgment, Apelt argued that the Arizona superior court’s
conclusion that he did not suffer from Villarreal’s alleged
deficient performance at sentencing was objectively
unreasonable under 28 U.S.C. § 2254(d)(1). In the
alternative, he raised a second issue: that the Arizona superior
court’s decision—reached without an evidentiary hearing
despite significant evidence of a childhood filled with
pervasive physical and sexual abuse that left Apelt “mentally
disturbed” and suicidal—was objectively unreasonable under
28 U.S.C. § 2254(d)(2).

    The panel held, correctly, that Villarreal was grossly
ineffective for failing to meaningfully investigate any
mitigation evidence that could spare his client’s life.2 Apelt
v. Ryan, 878 F.3d 800, 828–31 (9th Cir. 2017). As the district
court aptly summarized:




    2
       I also agree with the panel that Apelt satisfied the cause and
prejudice requirements of Coleman v. Thompson, 501 U.S. 722 (1991),
based on Villarreal’s additional ineffectiveness in the first PCR
proceeding under Martinez v. Ryan, 566 U.S. 1 (2012). My concern here
is with the panel’s prejudice analysis of Apelt’s IAC at sentencing claim.
I do not question the merits of the panel’s other determinations regarding,
among other issues, Apelt’s intellectual disability claim under Atkins v.
Virginia, 536 U.S. 304 (2002).
                           APELT V. RYAN                                5

         Villareal3 did not collect records from social
         service agencies, welfare agencies, doctors,
         hospitals, or employers. Villareal did not
         interview potential mitigation witnesses,
         including Apelt’s family members, or consult
         with any mental health experts. Villareal did
         not obtain Apelt’s readily-available medical
         health records from the Pinal County jail
         which described Apelt receiving various
         medications as well as Apelt’s placement on
         suicide watch. And Villareal did not present
         a single witness at the sentencing hearing.
         This was deficient performance.

Id. at 820. The record shows that Villarreal knew about
Apelt’s “difficult childhood” in Germany and other indicia of
psychiatric issues, but did not take the steps necessary to
investigate his client’s background for sentencing. Id. at
829–31. Villarreal also acknowledged that his failure to
investigate mitigation evidence was not a strategic choice. Id.
at 830. Thus, the panel rightly agreed with the district court
that Villarreal’s performance “‘fell below an objective
standard of reasonableness,’ even in 1989.” Id. at 831.

    Given the extent of Villarreal’s deficient performance in
his representation of Apelt, the panel seriously erred in
concluding that Apelt did not suffer prejudice as a result of
his counsel’s IAC at sentencing. Id. at 831–34. The panel’s




   3
     While Apelt’s first attorney spells his last name “Villarreal,” it is
sometimes spelled “Villareal” in the record.
6                          APELT V. RYAN

discussion in the third step of the Strickland analysis4 gravely
misapprehends the role of mitigation evidence in capital
cases. The panel’s approach cannot be squared with the
Supreme Court’s longstanding emphasis on the humanizing
effect of such evidence—no matter the underlying the
offense—for individuals like Apelt.




    4
      Under Strickland v. Washington, 466 U.S. 668 (1984), Villarreal’s
deficient performance would have prejudiced Apelt if there was a
“reasonable probability that, absent the errors, the sentence . . . would
have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695. As the panel noted,
there are three steps to this prejudice inquiry:

         First, the court evaluates and weighs the totality of the
         available mitigating evidence; second, it evaluates and
         weighs ‘the aggravating evidence and any rebuttal
         evidence that could have been adduced by the
         government had the mitigating evidence been
         introduced’; and third, it reweighs ‘the evidence in
         aggravation against the totality of available mitigating
         evidence . . . 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.”’

Apelt, 878 F.3d at 832 (quoting Andrews v. Davis, 866 F.3d 994, 1020 (9th
Cir. 2017), reh’g en banc granted by 888 F.3d 1020 (9th Cir. 2018)
(quoting Strickland, 466 U.S. at 695)). And, under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), which applies to Apelt’s
habeas petition, the state court’s finding of no prejudice must have been
“objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520–21
(2003).
                      APELT V. RYAN                         7

                             A.

    The panel’s first error was to conflate legal culpability
with moral culpability, thereby minimizing the role of
mitigation evidence. To the extent the panel refers to
mitigation in its analysis, it is to conclude that the record
evidence does not provide sufficient “explanation” for
Apelt’s conduct. Id. at 834. The panel insists: “none of the
proffered mitigating evidence excuses Apelt’s callousness,
nor does it reduce Apelt’s responsibility for planning and
carrying out the murder.” Id. (emphasis added). Mitigation
evidence, however, is not consigned to such a limited role.

    At the guilt phase of a capital murder trial, a central
question is whether the defendant had the capacity to
understand what he was doing when he acted. At the penalty
phase, the defendant’s mitigation evidence asks in addition
whether there is something humanizing about the defendant
and his background such that the judge or a member of the
jury would be inspired to spare the defendant’s life in an act
of mercy. See Kansas v. Carr, 136 S. Ct. 633, 642 (2016);
Porter v. McCollum, 558 U.S. 30, 41 (2009) (per curiam).
Mitigation evidence can be used to excuse or explain a
heinous crime. See, e.g., Perry v. Lynaugh, 492 U.S. 302,
319 (1989), abrogated on other grounds by Atkins v. Virginia,
536 U.S. 304 (2002). However, “while demonstrating such
a causative ‘nexus’ between painful life experiences and the
commission of the offense is one way in which mitigating
evidence can be expected to alter a sentencing outcome, it is
certainly not the only one.” Doe v. Ayers, 782 F.3d 425, 462
(9th Cir. 2015) (citing Tennard v. Dretke, 542 U.S. 274, 286
(2004)). Mitigation evidence also functions to allow the jury
to make a “reasoned moral judgment” about whether a
defendant deserves mercy in spite of his conduct. Doe,
8                      APELT V. RYAN

782 F.3d at 462 (quoting Sawyer v. Whitley, 505 U.S. 333,
370 (1992)).

    Capital crimes are by their nature horrific, but not all
defendants who commit such crimes are sentenced to death.
Some are spared. This exercise of mercy could stem from a
defendant’s tragic past and his endurance of unconscionable
abuse, his cognitive defects, or some other personal,
humanizing characteristic that has nothing to do with
undermining or rebutting the prosecution’s case. See, e.g.,
Williams v. Taylor, 529 U.S. 362, 398 (2000) (“Mitigating
evidence unrelated to dangerousness may alter the jury’s
selection of penalty, even if it does not undermine or rebut the
prosecution’s death-eligibility case.”). The panel’s decision,
however, acknowledges none of the humanizing effects of
mitigation evidence.

                              B.

    Rather than substantively engage with the mitigating
evidence that Apelt presented, the panel characterizes him as
an irredeemable “monster” and suggests that no amount of
mitigation could have outweighed the nature of the
premeditated murder of his wife. Apelt, 878 F.3d at 834.
This approach contravenes well-established Supreme Court
precedent that the prejudice analysis is meant to be one of
fact-specific balancing. See Wiggins v. Smith, 539 U.S. 510,
534 (2003) (“In assessing prejudice, we reweigh the evidence
in aggravation against the totality of available mitigating
evidence.” (emphasis added)).

   Indeed, the Supreme Court has described the Strickland
inquiry as requiring a “probing and fact-specific analysis.”
Sears v. Upton, 561 U.S. 945, 955 (2010). Like the state
                      APELT V. RYAN                         9

court’s analysis in Sears, the panel’s prejudice analysis here
was “truncated.” Id. Apelt pointed to cases like Wiggins and
Williams for instances when courts have found prejudice,
notwithstanding the brutality of the underlying murder. The
panel, however, rejected this argument, emphasizing that
Apelt’s situation can be distinguished because the murder he
committed “was premeditated and calculated.” Apelt,
878 F.3d at 833. Such a flawed prejudice analysis
erroneously suggests that defendants convicted of
premeditated murder can never demonstrate prejudice for
purposes of their IAC claims.

    I do not dispute that the premeditated murder and death of
Cindy was horrible. Apelt and his brother arrived in the
United States from Germany and almost immediately began
lying to women, in an attempt to marry a woman for her
money. A few months after Apelt met Cindy, they married
and applied for life insurance policies at Apelt’s insistence.
The day after the policies were approved, Apelt and his
brother took Cindy to the desert and killed her, leaving stab
wounds on her chest and back, bruises on her face and body,
and nearly severing her head. After Cindy’s death, Apelt
acted as though nothing had happened: he went to a restaurant
where he claimed not to know of her whereabouts, cried in
front of police officers and at Cindy’s funeral, and flew to
Los Angeles where he paid a homeless man to record a fake
threatening voicemail on Cindy’s answering machine. After
rehashing this evidence of premeditation, the panel
concluded—without any reference to the specific mitigation
evidence developed in Apelt’s second state post-conviction
proceeding—that “[n]othing in the record indicates that any
explanation for why Apelt became a monster would have
changed the sentence.” Id. at 834.
10                          APELT V. RYAN

    But Supreme Court precedent is clear: “the reviewing
court must consider all the evidence—the good and the
bad—when evaluating prejudice.” See Wong v. Belmontes,
558 U.S. 15, 26 (2009) (per curiam) (citing Strickland v.
Washington, 466 U.S. 668, 695–96 (1984)). By focusing on
the premeditated nature of the murder, to the exclusion of the
mitigating evidence Apelt presented, the panel skirts Supreme
Court precedent.5 The panel’s approach creates the functional
equivalent of a categorical bar to demonstrating prejudice
when a defendant is convicted of premeditated murder. This
would contravene decades of Supreme Court precedent and
this court’s understanding of the fact-specific inquiry required
in capital cases. See, e.g., Porter, 558 U.S. at 42 (concluding
that the state court was objectively unreasonable for finding
no prejudice in case involving murder that was “premeditated
in a heightened degree” in light of extreme child abuse and
heroic military service); Bemore v. Chappell, 788 F.3d 1151,
1170, 1174, 1176 (9th Cir. 2015) (holding that even though
there was evidence “that the killing was done in a calculated
manner,” it was objectively unreasonable for the state court
to have concluded that the “compelling” mental health
evidence would not have persuaded at least “one juror . . . to
show mercy and vote against a capital sentence.”).




     5
       Although the panel described the mitigation evidence presented by
Apelt in recounting the facts and procedural history of the case, see Apelt,
878 F.3d at 815–16, this is not the same as weighing it in the substantive
discussion of prejudice, sixteen pages later. Indeed, the panel opinion
makes no mention of Apelt’s considerable mitigation evidence—“the
other side of the ledger,” Porter, 558 U.S. at 41—in the prejudice section
at all, focusing exclusively on the aggravating nature of a “premeditated
and calculated” murder. Apelt, 878 F.3d at 833.
                            APELT V. RYAN                               11

                                    II.

    Giving full effect to Apelt’s mitigation evidence, the
district court correctly determined that the Arizona superior
court’s finding of no prejudice was an unreasonable
application of Strickland under § 2254(d)(1). “This is not a
case in which the new evidence ‘would barely have altered
the sentencing profile presented to the sentencing judge.’”
Porter, 558 U.S. at 41 (quoting Strickland, 466 U.S. at 700)).
As in Porter, the sentencing judge at Apelt’s “original
sentencing heard almost nothing that would humanize [Apelt]
or allow [the judge] to accurately gauge his moral
culpability.” Id. A constitutionally sufficient mitigation case
would have considered the following6:

    Apelt grew up in “crass poverty” in Germany. He was the
youngest of seven children and an unwelcomed surprise; after
the birth of her sixth child, Apelt’s mother underwent an
unsuccessful sterilization procedure, and Apelt believed “his
father had hated him from the beginning.” All of Apelt’s
siblings “immediately after reaching emancipation, left home
in order to escape the abusive, sexually abusive and violent
situations” in their household. The record describes Apelt’s
father as “tyrannical” and an alcoholic who used “brutal
force” and beat his family “with an iron rod.” Apelt’s father
subjected his wife to “continuous marital rape,” and made
sexual advances on his daughters as well. A social worker


    6
      Pursuant to § 2254(d)(1), our review is limited to the record that was
before the Arizona superior court that adjudicated Apelt’s penalty-phase
IAC claim, which he advanced in his second PCR petition. See Cullen v.
Pinholster, 563 U.S. 170, 181–82 (2011). As discussed infra, there was
further mitigating evidence uncovered during Apelt’s later Atkins
proceedings.
12                    APELT V. RYAN

reported from co-workers’ observations “how bad the
situation really was in the family.”

    As a young boy, Apelt was raped twice by older men.
The first time occurred when he was seven years old: he was
abducted from his backyard and driven to another house
where he was raped by an older man. Apelt was raped a
second time when he was thirteen, when he was tricked by an
older man on the way home from school and lured into a
cellar where he was then raped at knifepoint.

    According to Apelt’s mother, her son had “physically and
mentally extremely suffered during his compete childhood.”
She recollected that Apelt’s school reported that he “was
mentally disturbed.” The record also indicates that Apelt had
“attempted to slash his wrists” at a young age and that mental
conditions “abounded in this family.”

    The Supreme Court has long recognized the “powerful”
mitigating effect of a defendant’s “severe privation and
abuse,” “physical torment, sexual molestation, and repeated
rape” during his childhood years—all of which were present
here and none of which go to causation of the murder.
Wiggins, 539 U.S. at 534–35; see also Eddings v. Oklahoma,
455 U.S. 104, 112 n.7 (1982) (“A process that accords no
significance to relevant facets of the character and record of
the individual offender or the circumstances of the particular
offense excludes from consideration in fixing the ultimate
punishment of death the possibility of compassionate or
mitigating factors stemming from the diverse frailties of
humankind.” (quoting Woodson v. North Carolina, 428 U.S.
280, 304 (1976)) (emphasis added)). In fact, the Supreme
Court has repeatedly emphasized how it is objectively
“unreasonable to discount to irrelevance the evidence of [an]
                       APELT V. RYAN                        13

abusive childhood.” Porter, 558 U.S. at 41, 43 (holding it
was error for the Florida Supreme Court to discount the
mitigation evidence from post-conviction hearing because the
“kind of troubled history” involving extreme abuse at the
hands of a parent and subsequent alcohol abuse and brain
damage is extremely “relevant to assessing a defendant’s
moral culpability”).

    The panel reasoned that “presenting Apelt’s upbringing
and activities in Germany to explain how Apelt became a
calculating killer arguably could weigh in favor rather than
against the death penalty.” Apelt, 878 F.3d at 834. In other
words, the panel suggests that given how utterly horrific
Apelt’s life was growing up, he is simply beyond
rehabilitation. Id. (citing Cullen v. Pinholster, 563 U.S. 170,
201 (2011)). This kind of reasoning contravenes the well-
established understanding of mitigating evidence. See Porter,
558 U.S. at 43 (noting that “the jury might find mitigating the
intense stress and mental and emotional toll” that defendant
faced). Moreover, the Supreme Court has emphasized that
the fact that some “adverse evidence” may come “along with
this new mitigation evidence” does not mean the petitioner
cannot demonstrate prejudice. Sears, 561 U.S. at 951. “This
evidence might not have made [Apelt] any more likable to the
[sentencing judge], but it might well have helped the [judge]
understand [Apelt], and his horrendous acts.” Id. (emphasis
added).

    Due to trial counsel’s deficient performance in failing to
investigate Apelt’s background, the sentencing judge never
heard the details of Apelt’s childhood. The judge heard no
testimony as to the “gross poverty, alcoholism, and violence
which included emotional, physical and sexual abuse” Apelt
endured, nor his “history of mental illness,” including
14                         APELT V. RYAN

“attempted suicide” in Germany. Apelt, 878 F.3d at 815. The
evidence developed in Apelt’s second PCR proceeding “adds
up to a mitigation case that bears no relation to the few naked
pleas for mercy actually put before the [sentencing judge].”
Rompilla v. Beard, 545 U.S. 374, 393 (2005). While “it is
possible that [the judge] could have heard [all of the
mitigating evidence] and still have decided on the death
penalty, that is not the test.” Id. Rather, the test is one of
“reasonable probability,” in other words, “probability
sufficient to undermine confidence in the outcome.”7
Strickland, 466 U.S. at 694. It was objectively unreasonable
for the Arizona superior court to conclude there was not a
reasonable probability that the sentencing judge would have
made a deliberate moral judgment to impose life in prison
rather than death after hearing evidence regarding Apelt’s
horrific childhood.

                                   III.

    At the very least, rehearing en banc was necessary to
correct the panel’s failure to address Apelt’s claim under

     7
      When analyzing the prejudice prong, the panel suggests that the
review of the state court decision is “doubly deferential.” Apelt, 878 F.3d
at 832 (citing Pinholster, 563 U.S. at 190). However, the Supreme
Court’s “doubly deferential” language emerged exclusively in the context
of assessing counsel’s performance. See Yarborough v. Gentry, 540 U.S.
1, 6 (2003) (“Judicial review of a defense attorney’s summation is
therefore highly deferential-and doubly deferential when it is conducted
through the lens of federal habeas.” (emphasis added)); see also Hardy v.
Chappell, 849 F.3d 803, 825 (9th Cir. 2016) (“Double deference
references to the layering of the reasonableness test from § 2254(d) on top
of another reasonableness test, such as the deficiency prong of
Strickland’s two part standard. Because only the prejudice prong is at
issue here, double deference does not apply.” (emphasis added)). To the
extent that the panel asserts the opposite is also legal error.
                            APELT V. RYAN                                15

28 U.S.C. § 2254(d)(2): that the Arizona superior court’s
decision—reached without holding an evidentiary
hearing—was based on an unreasonable determination of
facts. Inexplicably, the panel’s decision completely omits
mention, let alone analysis, of Apelt’s § 2254(d)(2)
argument.8 The panel had an obligation to address Apelt’s
argument—one which he did not waive—on its merits rather
than expecting the parties to read some sort of conclusion
from the opinion’s silence on the issue.

    Under Arizona Rule of Criminal Procedure 32, a
petitioner is entitled to an evidentiary hearing on any
colorable claim for relief. The bar to obtaining an evidentiary
hearing under Arizona law is therefore lower than that
required for a showing of prejudice under Strickland—it
requires only that, taking the petitioner’s allegations as true,
the outcome “might have changed.” Compare Strickland,
466 U.S. at 694 (“The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.”) with State v. Schrock, 719 P.2d 1049, 1057 (Ariz.
1986) (“A defendant is, however, entitled to a hearing when

    8
       Contrary to the state’s assertion, Apelt clearly preserved this claim.
Apelt raised the claim in district court that “the state court’s denial of
relief without granting an evidentiary hearing rendered the court’s
decision procedurally unreasonable, thereby satisfying § 2254(d)(2).”
There is also no procedural issue under Harrington v. Richter, 562 U.S.
86 (2011): the state court adjudged the merits of Apelt’s request for an
evidentiary hearing with respect to his IAC claim when it concluded that
he failed to “allege [a] colorable claim[]” because he had “fail[ed] to make
a preliminary showing” of deficient performance and prejudice. The state
court’s alternative determination that Apelt had procedurally defaulted his
request for an evidentiary hearing based on his IAC claim does not bar our
review because his default is excused under Martinez, supra at 4 n.2. See
Apelt, 878 F.3d at 824–28.
16                    APELT V. RYAN

he presents the trial court with a colorable claim, that is a
claim which if his allegations are true might have changed the
outcome.”).

    In his second PCR petition, Apelt sought an evidentiary
hearing for, among other claims, his IAC in sentencing claim.
That PCR petition relied on the same evidence discussed
above: that Apelt had endured a horrific childhood of
physical and sexual abuse at the hands of both his alcoholic
father and the two adult men who raped him, leaving him
mentally disturbed to the point of attempting suicide. The
state court denied Apelt’s request, concluding primarily that
the claim was defaulted under Arizona Rule of Criminal
Procedure 32.2(a)(3). The state court concluded in the
alternative that his IAC claims were not “colorable” because
Apelt did not “make a sufficient preliminary showing” of
deficient performance and prejudice. This conclusion, that
Apelt did not present even a colorable claim, however, was
objectively unreasonable under 28 U.S.C. § 2254(d)(2), for
the same reason that the state court’s decision denying
Apelt’s IAC claim was objectively unreasonable under
§ 2254(d)(1). See Atwood v. Ryan, 870 F.3d 1033, 1050 (9th
Cir. 2017) (“The ‘ultimate question’ is whether a state court
was ‘unreasonable in holding that an evidentiary hearing was
not necessary in light of the state court record.’”) (quoting
Hibbler v. Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012)).

    It was especially unreasonable to fail to hold an
evidentiary hearing because Apelt’s post-conviction evidence
in his second PCR petition strongly suggested that there was
more mitigating evidence to be discovered. See Apelt,
878 F.3d at 814–16; supra at 11–12; cf. Woods v. Sinclair,
764 F.3d 1109, 1127–28 (9th Cir. 2014) (concluding “there
was no defect in the state supreme court’s factfinding
                       APELT V. RYAN                        17

process” under § 2254(d)(2) where the court denied an
evidentiary hearing to develop a Brady claim based on a
DNA report because “there [was] nothing . . . in the record to
suggest that such a report existed” and “all [Woods] could
offer was speculation that an evidentiary hearing might
produce testimony” helpful to the claim).

    Lastly, we know that there was in fact much more
mitigating evidence to be discovered. Because the Arizona
superior court’s denial of Apelt’s IAC claim without an
evidentiary hearing was an unreasonable determination of the
facts under § 2254(d)(2) and an unreasonable application of
Strickland under § 2254(d)(1), we may review Apelt’s
penalty-phase IAC claim de novo. This means we are no
longer “limited to the record that was before the state court
that adjudicated the claim on the merits.” Cullen, 563 U.S. at
181. The full record clearly illustrates that Apelt was
prejudiced by Villarreal’s failure to investigate and present
mitigating evidence regarding his harrowing childhood and
the lasting effects of the abuse he endured.

    In April and May 2007, the Arizona superior court
conducted an evidentiary hearing on Apelt’s separate Atkins
claim, which separately established these facts after the court
had denied his IAC claim:

    Apelt was the product of rape, and his parents referred to
him as an unwanted “hate child.” Apelt’s “birth was terribly
difficult,” and he was born bluish green, probably due to
asphyxia. He was extremely undernourished as a child,
during which time he suffered daily abuse at the hands of his
father, Rudi Sr., a former Nazi and alcoholic. Apelt’s father
beat his wife and seven children “with anything he could get
his hands on,” and frequently beat Apelt to the point of
18                     APELT V. RYAN

unconsciousness. He and a group of men dressed in dark
uniforms would tie up Apelt and his brother Rudi in the
basement and torture them, beating them on their genitals.
Once, when Apelt’s friends tattooed a rose on his arm, Rudi
Sr. burned it off with a red-hot iron. When Apelt started
screaming, his father punched him in the mouth. Apelt still
has a scar from the burn.

    In addition to physical abuse, Rudi Sr. drugged his
children with sleeping pills, tranquilizers and alcohol. He
chained his children up in the basement, leaving them for
multiple days, sometimes without food or water. He also
force-fed Apelt’s mother sleeping pills, causing permanent
damage to her throat, and raped Apelt’s sisters when they
were young teens.

    While there was one reference to a suicide attempt in the
second PCR record, the Atkins record reveals that Apelt had
attempted suicide multiple times growing up. The first time
was when Apelt was seven years old, right after he was raped.
He mixed pills and alcohol because he feared his father would
beat him to death out of shame. Similarly, Apelt cut his right
wrist after being raped again at age thirteen. He was
hospitalized multiple times and recommended for treatment
at a special institution for the seriously mentally disturbed.

    Apelt suffered from delayed development as well. He
was sent to a “Sonderschule” or special education school for
intellectually disabled children, and his own brother described
him as having “zero IQ” growing up. A registered nurse
working at the psychiatric hospital in which Apelt was treated
in 1985 and 1986 explained that Apelt suffered from severe
nightmares, memory loss, and deep depression as a result of
the “abusive treatment he endured as a child.”
                       APELT V. RYAN                         19

    These are just a few details to provide a window into
Apelt’s traumatic childhood and the lasting effects of the
persistent campaign of abuse he suffered. The role such
mitigation evidence could have played at sentencing cannot
be minimized or overlooked as the panel has done. While
there was substantial evidence of premeditation in Apelt’s
case, “there is clearly a reasonable probability” that “[h]ad
the judge . . . been able to place [Apelt]’s life history on the
mitigating side of the scale,” the sentencing judge “would
have struck a different balance.” Porter, 558 U.S. at 42
(quoting Wiggins, 539 U.S. at 537).

                              IV.

    Instead of substantively engaging with Apelt’s arguments,
the panel simply concluded that “[n]othing in the record
indicates that any explanation for why Apelt became a
monster would have changed the sentence.” Apelt, 878 F.3d
at 834. Once the panel characterized Apelt as a monster, the
result was inevitable. This was no true balancing analysis by
the panel. This was judicial condemnation.

    As my final point, I do not believe that it is ever
appropriate to disparage the parties who come before us as
“monsters,” regardless of the circumstances. See Darden v.
Wainwright, 477 U.S. 168, 180 (1986) (remarking that the
prosecutors’ “use of the word ‘animal’” to describe the
defendant was “undoubtedly . . . improper”); see also Kellogg
v. Skon, 176 F.3d 447, 452 (8th Cir. 1999) (observing that
characterizations of the defendant as a “monster” “have no
place in a courtroom”). To my knowledge, no other circuit
court has referred to a death-sentenced prisoner in this
manner before. Indeed, we should strive to treat all
individuals who come before us with basic respect and
20                    APELT V. RYAN

courtesy as parties of the court. It was unnecessary for the
panel to address Apelt in a dehumanizing manner. Such
language, in my view, does not belong in a court of law.

   For all the reasons above, I respectfully dissent from the
denial of rehearing en banc.
