                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

MAXWELL HOFFMAN,                     
             Petitioner-Appellant,
                                          No. 02-99004
               v.
                                            D.C. No.
ARVON J. ARAVE, Warden, Idaho           CV-94-00200-S-
Maximum Security Institution,                 BLW
Department of Correction, State of
                                           OPINION
Idaho,
             Respondent-Appellee.
                                     
       Appeal from the United States District Court
                 for the District of Idaho
        B. Lynn Winmill, District Judge, Presiding

                Argued and Submitted
        November 22, 2005—Pasadena, California

                    Filed July 5, 2006

     Before: Harry Pregerson, William A. Fletcher, and
             Ronald M. Gould, Circuit Judges.

               Opinion by Judge Pregerson




                           7331
                     HOFFMAN v. ARAVE                   7335


                        COUNSEL

Joan M. Fisher, (argued and brief) Federal Defenders of East-
ern Washington and Idaho, Moscow, Idaho, and Ellison Mat-
thews (brief), Boise, Idaho, for the petitioner-appellant.
7336                     HOFFMAN v. ARAVE
L. LaMont Anderson, Deputy Attorney General, Boise, Idaho,
for the respondent-appellee.


                             OPINION

PREGERSON, Circuit Judge:

   The petitioner, Maxwell Hoffman, appeals the denial of his
28 U.S.C. § 2254 habeas petition based on ineffective assis-
tance of counsel during pre-trial plea bargaining and during
the guilt phase of his trial for the murder of Denise Williams.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
We affirm in part and reverse in part.

I.       Factual Background

   The facts of the murder of Denise Williams have been
recounted in numerous prior decisions in state and federal
courts,1 and are recited only briefly here. Hoffman was
employed by Richard Holmes, a drug dealer. Williams, a
police informant, initiated a controlled buy with Holmes, and
as a consequence, Holmes was arrested for distributing con-
trolled substances. After Holmes was released on bail, Sam
Longstreet and Jeff Slawson, two of Williams’s friends, went
to meet with Holmes to assure him that they had nothing to
do with his arrest. Holmes brokered a deal for these two
friends to deliver Williams to Holmes at a camp in Idaho.

  Longstreet and Slawson dropped Williams off and left her
with Ron Wages, one of Holmes’s associates. Thereafter,
Hoffman and Holmes went to the camp and met up with
Wages and Williams. Holmes kicked Williams in the head,
     1
   See Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001); Hoffman v. Arave,
73 F. Supp. 2d 1192 (D. Idaho 1998); Hoffman v. Arave, 973 F. Supp.
1152 (D. Idaho 1997); Hoffman v. State, 121 P.3d 958 (Idaho 2005); State
v. Hoffman, 851 P.2d 934 (Idaho 1993).
                      HOFFMAN v. ARAVE                   7337
and told Williams that she was “a dead bitch.” Holmes told
Hoffman and Wages, “You know what to do,” and left.

   Hoffman, Wages, and Williams drove around for several
hours. Hoffman and Wages forced Williams to write letters
exonerating Holmes of the controlled substances charges. At
some point, Hoffman stopped the car and took Williams into
a cave. He cut her throat while Wages waited in the car. As
Hoffman was coming back to the car, Williams began to
crawl up an embankment near the cave. Wages ran over to
Williams, and stabbed her with the knife Hoffman was carry-
ing. Wages then began to bury her with rocks, and Hoffman
joined in. The evidence showed that Williams might have
eventually died either from the original cut by Hoffman or
from the wound inflicted by Wages, but that the actual cause
of death was a blow from a rock.

   Hoffman and Wages then drove to Wages’s sisters’ house,
where the two cleaned the car, and burned their clothes and
Williams’s clothes. Later, at Holmes’s house, Hoffman cut up
the knife with a cutting torch.

  A.   Idaho State Proceedings

   On August 22, 1988, Hoffman was charged with first-
degree murder. The court appointed William Wellman as
counsel. Wellman had never tried a murder case, and had no
formal training on defending capital cases. At the time he was
selected to represent Hoffman, Wellman had done contract
work with the Owyhee County public defender’s office for
several years, and criminal defense work constituted about
half of his practice.

   Five weeks before trial, the State offered Hoffman a plea
bargain: If Hoffman would plead guilty to first-degree mur-
der, the State would not pursue the death penalty. The State
also made clear that it intended to seek the death penalty if
Hoffman rejected the plea agreement. Wellman advised Hoff-
7338                      HOFFMAN v. ARAVE
man that he should reject the plea agreement. Wellman
believed that the Idaho death penalty scheme was unconstitu-
tional based on Adamson v. Ricketts, 865 F.2d 1011, 1023-28
(9th Cir. 1988) (en banc), abrogated by Walton v. Arizona,
497 U.S. 639 (1990), where this court found Arizona’s death
penalty scheme unconstitutional. Wellman saw no material
difference between Arizona’s death penalty scheme and the
death penalty scheme in Idaho. He thus recommended that
Hoffman reject the plea agreement because he believed it was
only a matter of time until Idaho’s death penalty scheme
would be declared unconstitutional as well. Hoffman took
Wellman’s advice and rejected the plea agreement.

  In February 1989, only three weeks before trial, the court
appointed co-counsel Charles Coulter. Coulter had tried two
vehicular manslaughter cases, but that was the extent of his
homicide experience. He had no experience with capital
cases.

   The guilt phase of Hoffman’s trial commenced on March
7, 1989. The jury heard eight days of testimony. Defense
counsel presented no evidence of Hoffman’s mental capacity
on the night of Williams’s murder. Instead, Wellman and
Coulter’s central strategy was to paint Wages as the more cul-
pable of the two.2 After five hours of deliberation, the jury
returned a conviction for first-degree murder and found a sen-
tencing enhancement, making Hoffman “death eligible.”

  The sentencing phase of the trial began on June 9, 1989.
After weighing the aggravating and mitigating circumstances,
  2
   At trial, Wages was one of the principle witnesses against Hoffman; in
exchange for Wages’s testimony, the prosecution agreed not to seek the
death penalty against Wages. Both Longstreet and Slawson pleaded to
second-degree kidnaping charges. The prosecution recommended a sen-
tence of at least six months in jail, and each received a sentence of only
one year in jail. Holmes was originally charged with kidnaping as well,
but was killed in prison before he was brought to trial. Thus, in the end,
the State pursued the death penalty only against Hoffman.
                           HOFFMAN v. ARAVE                           7339
the court imposed the death penalty.3 On July 25, 1989, Hoff-
man filed a post-conviction petition in state court. The state
court denied the petition. On January 29, 1993, the Idaho
Supreme Court affirmed Hoffman’s sentence. See Hoffman,
851 P.2d at 945.

  B.    Federal Habeas Proceedings

   Hoffman filed an initial habeas petition in the United States
District Court for the District of Idaho on December 1, 1994.
On June 13, 1997, the district court dismissed several claims
on the grounds of procedural default. On December 28, 1998,
the district court dismissed the remainder of the claims on
their merits. On January 3, 2001, we concluded that Hoff-
man’s ineffective assistance of counsel claims were not proce-
durally barred. See Hoffman, 236 F.3d at 535-36. We also
held that Hoffman’s pre-sentencing interview conducted by
the state probation officer was a “critical stage” of the pro-
ceeding, during which the Sixth Amendment right to counsel
attached. See id. at 540-41. We remanded for further evidenti-
ary hearings on Hoffman’s ineffective assistance of counsel
claims, and for a finding whether the deprivation of counsel
during the pre-sentencing interview was harmless. See id. at
542-43. We affirmed dismissal of the remainder of Hoffman’s
claims. See id.

   On remand, the district court held a five-day evidentiary
hearing. The court heard substantial expert testimony about
Hoffman’s mental capacity, and testimony from Hoffman’s
trial counsel. After hearing oral argument by both parties, the
district court granted Hoffman’s habeas petition in part and
  3
   The Idaho death penalty scheme in existence at the time of Hoffman’s
sentencing called for the judge, not a jury, to decide whether the death
penalty was warranted. See State v. Charboneau, 774 P.2d 299, 315-17
(Idaho 1989), withdrawn and superseded by 861 P.2d 67 (Idaho 1993). To
impose the death penalty, the court had to find that the mitigating factors,
considered cumulatively, did not outweigh the gravity of each aggravating
factor, considered separately. See id.
7340                   HOFFMAN v. ARAVE
denied it in part. The district court rejected three of Hoff-
man’s ineffective assistance of counsel claims, specifically
that counsel: (a) failed to challenge Hoffman’s competency to
stand trial; (b) advised Hoffman to reject a plea agreement
that would have foreclosed the State from seeking the death
penalty; and (c) failed to investigate or present evidence of
Hoffman’s diminished capacity at trial.

   But the district court did accept one of Hoffman’s ineffec-
tive assistance of counsel claims: that Hoffman had received
ineffective assistance of counsel during sentencing. The dis-
trict court found that Wellman and Coulter had not suffi-
ciently investigated and presented mitigation evidence at
sentencing that might have kept the trial judge from imposing
a death sentence. The district court also found that the state
trial judge’s decision to deprive Hoffman of counsel during
the pre-sentence interview was not harmless because it “dic-
tated” trial counsels’ sentencing strategy. The district court
granted the habeas petition on these two claims and ordered
the State to re-sentence Hoffman within 120 days of its order.

   On April 4, 2002, after the district court issued its decision,
the court issued a separate order stating that it had “fulfilled
the mandate of the Ninth Circuit Court of Appeals” and there-
fore denied several motions Hoffman had filed after the evi-
dentiary hearing, including a motion to amend his habeas
petition and to expand the record. Hoffman requested, and
was granted, a Certificate of Appealability (“COA”) on his
claim that he received ineffective assistance before and during
trial. The district court denied a COA with respect to its denial
of Hoffman’s post-hearing motions to amend the habeas peti-
tion and to expand the record.

   Both parties appealed. Before us, Hoffman argued, again,
that he received ineffective assistance of counsel before and
during trial, and requested that we grant a COA with regard
to the denial of his post-hearing motions. The State cross-
appealed the district court’s grant of the habeas petition for
                       HOFFMAN v. ARAVE                     7341
ineffective assistance of counsel at the sentencing phase. The
State subsequently withdrew its cross-appeal, leaving in place
the district court’s order granting the habeas petition as to the
sentencing phase.

   Thus, the only questions remaining for this court are: (a)
whether Hoffman was denied effective assistance of counsel
during the plea-bargaining stage or during the guilt phase of
trial; and (b) whether a COA should be granted with regard
to Hoffman’s post-hearing motions.

II.   Ineffective Assistance of Counsel Claims

   Hoffman initiated federal review of his state conviction and
sentence on May 2, 1994, before the effective date of the
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Thus, the more stringent review requirements of
AEDPA do not apply. See Caswell v. Calderon, 363 F.3d 832,
836 n.3 (9th Cir. 2004). Under pre-AEDPA standards, an
ineffective assistance of counsel claim is a mixed question of
law and fact that we review de novo. See Dubria v. Smith, 224
F.3d 995, 1000 (9th Cir. 2000) (en banc).

   [1] An ineffective assistance of counsel claim has two com-
ponents. First, the defendant must show that counsel’s con-
duct was not “ ‘within the range of competence demanded of
attorneys in criminal cases.’ ” Strickland v. Washington, 466
U.S. 668, 687 (1984) (quoting McMann v. Richardson, 397
U.S. 759, 770 (1970)). Under this standard, we review only
whether “counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688.
There is a “strong presumption that counsel’s conduct [falls]
within the wide range of reasonable representation.” United
States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir.
1987) (as amended) (citations omitted). Because there exist
“countless ways to provide effective assistance in any given
case,” we will not second-guess tactical decisions made by
counsel. Strickland, 466 U.S. at 689 (citations omitted). Nor
7342                      HOFFMAN v. ARAVE
will we evaluate counsel’s conduct through “the distorting
lens of hindsight.” Hendricks v. Calderon, 70 F.3d 1032, 1036
(9th Cir. 1995) (as amended) (citations omitted). Rather, we
review counsel’s actions based on the facts as known to the
attorney, or as reasonably could have been known to the attor-
ney, at the time he or she acted. See Strickland, 466 U.S. at
690.

   [2] Second, the defendant must show that counsel’s defi-
cient performance caused prejudice. Counsel’s deficient per-
formance must be so significant “as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at 687. The
defendant need not prove definitively that the outcome would
be different, but only a “reasonable probability” of a different
result. Id. at 693-94. A reasonable probability is a probability
“sufficient to undermine confidence in the outcome,” a show-
ing less than a preponderance of evidence. Id.

   Under this rubric, we consider Hoffman’s ineffective assis-
tance of counsel claims. On appeal, Hoffman contends that
his trial counsel was ineffective for three distinct reasons: (a)
for failing to investigate and challenge, during the guilt phase
of trial, Hoffman’s capacity to form the intent to commit the
crime of first-degree murder;4 (b) for failing to investigate and
to challenge his competency to stand trial; and (c) for recom-
mending that he reject the plea bargain offer. We will con-
sider each in turn.
  4
    As discussed in more detail below, Idaho does not have an affirmative
defense based on either diminished capacity or intoxication. See Idaho
Code § 18-207(a) (1989); compare id. § 18-207(c) (1989). Instead, a
defendant’s capacity to commit a crime is folded into the element of
intent: the State must show, beyond a reasonable doubt, that the defendant
had the capacity to form the intent to commit the crime for which he is
charged. See id. § 18-4003; State v. Beam, 710 P.2d 526, 621-22 (Idaho
1985). For ease of discussion, however, we refer to Hoffman’s claim that
his counsel should have challenged his intent to commit the first-degree
murder as a “diminished capacity defense.”
                       HOFFMAN v. ARAVE                     7343
  A.   Ineffective Assistance in Failing to Investigate and
       to Present a Diminished Capacity Defense

   Hoffman contends that his attorneys were deficient in fail-
ing to investigate and to raise a diminished capacity defense.
We agree with Hoffman that trial counsel were deficient in
failing to investigate a diminished capacity defense, and
therefore that Hoffman has met the first prong of the Strick-
land test. We hold, however, that no prejudice resulted from
his trial counsels’ deficient performance.

   [3] To meet the first prong of Strickland, Hoffman must
show that his counsel had reason to know that Hoffman’s
mental capacity might be at issue in the case. See Hendricks,
70 F.3d at 1043 (“[W]here counsel is on notice that his client
may be mentally impaired, counsel’s failure to investigate his
client’s mental condition . . . without a supporting strategic
reason, constitutes deficient performance.”). We do not expect
counsel to be trained in psychology or mental health. In this
case, however, Wellman and Coulter’s interactions with Hoff-
man provided them significant clues that would put a reason-
able lawyer on notice that Hoffman’s capacity to form the
intent to commit first-degree murder was at issue.

   [4] Both Wellman and Coulter recognized that Hoffman
had some level of cognitive difficulty. Both testified that their
communications with Hoffman were stinted, and that Hoff-
man had difficulty answering questions. Wellman testified
that he recognized that Hoffman had a “pretty low” IQ and
that he had difficulty understanding their discussions. He
stated: “[G]enerally speaking, as I sit here today and try to put
myself back into that time period of the five months or so
prior to trial, it was fairly — it should have been evident to
me that there were some serious psychiatric problems with
Max [Hoffman].” Coulter similarly explained: “[O]ver a
period of a week or two or however many weeks it was . . .
I came to realize, just based on my own lay experience, that
[Hoffman] had a problem.” In fact, Hoffman’s counsel testi-
7344                   HOFFMAN v. ARAVE
fied that part of the reason they decided not to have Hoffman
testify at the guilt phase of trial was because of his mental
limitations. Surely, then, Hoffman’s attorneys were on notice
that Hoffman’s mental capacity might be at issue.

   [5] In addition, Hoffman’s explanation as to why he slit
Williams’s throat was facially illogical and should have indi-
cated to counsel that Hoffman was not entirely well. Hoffman
told Wellman and Coulter that when he took Williams into the
cave and slit her throat, he was trying to save her life. He
claimed that he believed that if he slit her throat superficially,
she would stay in the cave, he could get Wages to leave, and
that she could take herself to safety. The logic is, of course,
faulty, given that Williams would be left bleeding in the mid-
dle of nowhere with no means of communication. This illogi-
cal explanation should have put Hoffman’s trial attorney on
notice that Hoffman’s mental capacity might be at issue.

   [6] Third, counsel knew that Hoffman had a history of drug
abuse. Wellman testified that he remembered “clear indication
of fairly steady, regular use of crank,” or methamphetamine,
by Hoffman. In addition, counsel knew that Hoffman had
ingested significant amounts of drugs on the night of Wil-
liams’s murder. The amount of drugs alone probably should
have led counsel to investigate whether Hoffman might have
been intoxicated and whether this intoxication might have
affected Hoffman’s ability to form the intent to commit first-
degree murder.

   [7] Based on these facts, we believe that counsels’ perfor-
mance fell below an objective standard of reasonableness
because reasonable counsel in this situation would have rec-
ognized that Hoffman’s capacity on the night of Williams’s
murder might have been affected by mental health problems,
by drug use, or by some combination of the two. Once coun-
sel was on notice that Hoffman’s capacity on the night of Wil-
liams’s murder was at issue, counsel had an absolute duty “to
make reasonable investigations or to make a reasonable deci-
                       HOFFMAN v. ARAVE                     7345
sion that [made] investigations unnecessary.” Strickland, 466
U.S. at 668, 691; see also Douglas v. Woodford, 316 F.3d
1079, 1085 (9th Cir. 2003) (“Trial counsel has a duty to
investigate a defendant’s mental state if there is evidence to
suggest that the defendant is impaired.”). In this case, both
Wellman and Coulter admitted that they did not conduct a
factual investigation into Hoffman’s mental capacity, nor did
they research the viability of a diminished capacity defense.
Wellman himself admitted that he “probably didn’t give the
[diminished capacity] defense due consideration.” This failure
fell below the objective standard of reasonableness.

   We cannot agree with the district court that such failure
was tactical or that counsel made a “reasonable decision that
[made] investigations unnecessary.” See Strickland, 466 U.S.
at 668, 691. The record does not reflect a calculated decision
by counsel not to investigate a diminished capacity defense.
Wellman testified that he was “not sure [they] really had a
good cogent theory of defense.” To the extent that counsel
had a theory, the theory was that Wages was the principal per-
petrator of the offense because Wages had engaged in sexual
intercourse with Denise Williams on the night of the murder
and was trying to cover it up. That is, the theory was that
because Hoffman was less culpable than Wages, then Hoff-
man, like Wages, should be spared the death penalty. Well-
man, however, was unable to sufficiently develop this theory.
And even if counsel had been able to develop this theory, the
theory is not a defense to first-degree murder where an aider
and abetter is just as criminally liable as the one who deals the
fatal blow. See Idaho Code § 18-204 (1989); State v. Gonza-
lez, 12 P.3d 382, 384 (Idaho Ct. App. 2000). A diminished
capacity defense in Idaho could have negated the intent ele-
ment required for first-degree murder, and, if successful,
could have spared Hoffman’s life. Thus, counsels’ decision —
if it can be called that — to forego a diminished capacity
defense to pursue a strategy that would not result in a lesser
charge falls outside the range of tactical decisions.
7346                   HOFFMAN v. ARAVE
   Moreover, pursuing a diminished capacity defense is not
inconsistent with trial counsels’ theory of the case. Rather, a
showing that Hoffman was suffering from psychosis or intoxi-
cation would have furthered counsels’ argument that Wages
was the more culpable of the two, and could only have sup-
ported counsels’ sentencing strategy. We can see no tactical
disadvantage to investigating a diminished capacity defense,
a defense with a plausible factual basis that might have
allowed Hoffman to escape first-degree murder and would
have, in any event, furthered counsels’ strategy.

   The State tries to paint counsels’ behavior as a strategic
decision of where to focus money and resources. This is con-
tradicted by counsels’ own admissions that they did not have
a clear theory of defense, and that they were “just kind of
spinning” in the weeks and months before trial. Moreover, if
Wellman and Coulter failed to develop a diminished capacity
defense because they lacked funds, this evidences a more seri-
ous deficiency: a failure to understand controlling law. Well-
man testified that they did not ask for an investigator or for
a mental health expert because they did not think the judge
would have granted such a request. But in Ake v. Oklahoma,
470 U.S. 68, 83 (1985), the Supreme Court held that where
an indigent defendant can demonstrate that his mental capac-
ity is likely to be a “significant issue” at trial or capital sen-
tencing, he has an absolute right to be provided with
psychiatric and psychological expert assistance. We agree
with the district court, then, that “standards of professional
competent assistance required [counsel] to request funds
which would allow for adequate investigation or to preserve
the issue for appeal.” Thus, the failure to investigate and pre-
sent a diminished capacity defense at trial cannot be forgiven
based on the lack of resources available to Wellman and
Coulter.

   For these reasons, we conclude that Hoffman has met the
first prong of Strickland; he has shown that it was objectively
                      HOFFMAN v. ARAVE                    7347
unreasonable for counsel not to investigate a diminished
capacity defense.

   [8] But this is not enough for Hoffman to succeed on his
ineffective assistance of counsel claim. He must also show a
“reasonable probability” that the outcome of the trial would
have been different had counsel investigated his mental
capacity. Strickland, 466 U.S. at 693-94. Where counsels’
deficiency involves the failure to investigate a possible
defense, we evaluate whether there is a “reasonable probabili-
ty” that a competent investigation would have turned up evi-
dence bearing on that defense that would have affected the
outcome of trial. See Stankewitz v. Woodford, 365 F.3d 706,
717-19 (9th Cir. 2004) (focusing the prejudice inquiry on the
information that a reasonable investigation would have
unearthed).

   It is apparent that Hoffman suffered and continues to suffer
some degree of mental disability. Eight years before Williams
was murdered, Hoffman was committed for six days in the
Metropolitan State Hospital in Norwalk, California, where he
was diagnosed as suffering from “psychosis manifested by
delusional and violent behavior.” At the habeas hearing,
before the district court, Hoffman offered the expert testi-
mony of three doctors who each testified that Hoffman likely
had some degree of psychotic thought disorder in 1989. The
doctors also agreed that this illness might affect Hoffman’s
ability to reason. As Dr. Merikangas, a psychiatrist and neu-
rologist, explained, psychosis is a “formal thought disorder
where the person’s thinking is not consistent with reality and
with logical thought as experienced by normal people. It is
generally characterized by problems with logic, problems
with abstracting ability, sometimes with hallucinations.” More
important for our purposes, Dr. Merikangas testified that con-
genital brain damage visible on MRIs taken in 1996 and in
2001 could have been detected had an MRI been taken of
Hoffman’s brain in 1989.
7348                  HOFFMAN v. ARAVE
   This expert testimony of these three doctors is supported by
the testimony of Dr. Sanford, the psychologist who examined
Hoffman before his sentencing hearing in 1989. Dr. Sanford
wrote, in his 1989 report, that his initial meeting with Hoff-
man left him with the impression that “some brain damage or
neurological problem [might be] responsible for the types of
difficulties he was showing on the initial assessment,” espe-
cially his difficulty in communicating. After further testing,
Dr. Sanford concluded that Hoffman’s symptoms were con-
sistent with “brain damage to the left hemisphere.” This report
is as close to a contemporaneous mental health evaluation as
exists, and indicates that a reasonably competent investigation
in 1988 could have adduced evidence to support a diminished
capacity defense during the guilt phase.

   The State presented the testimony of Dr. Smith, a neurosur-
geon, who opined that the MRI scans fell within the normal
range. At the same time Dr. Smith admitted that he rarely read
MRIs and that it was not his specialty. While the evidence is
somewhat ambiguous, we believe Hoffman probably could
have presented some evidence that would have supported a
finding that he suffered from some degree of psychosis at the
time of Williams’s murder.

   In addition to evidence of psychosis, there is significant
evidence that Hoffman’s IQ fell within the range of mental
retardation. The clinically-accepted range of mental retarda-
tion is an IQ score of 70, with a five point margin of error.
See Atkins v. Virginia, 536 U.S. 304, 309 n.5 (2002). Hoff-
man’s IQ has fluctuated between 72 when tested in 1989 and
74 when tested in 2001. The district court properly concluded,
then, that Hoffman was “borderline retarded.” This evidence
could have been presented in 1989.

  In addition, Hoffman had a significant history of drug
abuse. Counsel knew that Hoffman used methamphetamine
and cocaine at least four times on the day of Williams’s mur-
der. Expert testimony was presented in the district court about
                      HOFFMAN v. ARAVE                    7349
the effect of drug use on a person with psychosis: that drug
use frequently induces a person with psychosis to have more
“florid psychosis and delusions.” This evidence also could
have been presented at the guilt phase of trial in 1989.

   But even if we were to assume that all of the above testi-
mony could have been presented at trial, there is not a “rea-
sonable probability” that such evidence would have altered
the outcome of the guilt phase of Hoffman’s trial. Idaho’s law
is more demanding than most states’ laws on the question of
mental capacity. In Idaho, at the time of Hoffman’s trial (as
now) there was no “diminished capacity,” “intoxication,” or
“insanity” defense. See Idaho Code § 207(a) (1989). Rather
mental capacity was folded into the element of intent: the
prosecution was required to prove, beyond a reasonable
doubt, that the defendant had the mental capacity to form the
intent to commit the crime charged. See State v. Card, 825
P.2d 1081, 1085-86 (Idaho 1991). Section 18-115 of the Idaho
Code, as it existed at the time of Williams’s murder, states
that intent is “manifested by the circumstances connected with
the offense, and the sound mind and discretion of the
accused.” Idaho Code § 18-115 (1989) (emphasis added).
Thus, diminished capacity and intoxication are not “general
excuse[s]” for crime, but the jury can consider such factors as
they relate to whether the defendant was able to form the
intent to commit the crime for which he was charged. See
State v. Hall, 727 P.2d 1255, 1262-63 (Idaho Ct. App. 1986).

   Hoffman was charged with first-degree murder and with
aiding and abetting first-degree murder, and the jury was
instructed on both theories. Accordingly, to find prejudice, we
would have to conclude that there is a reasonable probability
that evidence of Hoffman’s mental capacity would negate not
only the intent to murder Williams, but would also negate the
intent to “knowingly assist [or] facilitate” Williams’s murder.
See State v. Paradis, 676 P.2d 31, 40 (Idaho 1983). We can-
not do so.
7350                   HOFFMAN v. ARAVE
   First, we note that Hoffman had the mental capacity to
complete several intentional acts on the night of the murder.
Hoffman drove around for several hours, and he changed a
flat tire on a car. While there was testimony presented to the
district court that a person in a drug-induced psychosis can
perform certain simple motor functions, this is nonetheless
good evidence that Hoffman had some level of mental func-
tioning on the night of Williams’s murder. In addition, on that
same night, Hoffman destroyed evidence of the murder: he
burned his, Williams’s, and Wages’s clothing, he helped to
clean the car, and he cut up the weapon. Such behavior indi-
cates some level of cognitive planning — a recognition of
criminal behavior — and cuts against a diminished capacity
defense.

   Second, Hoffman bragged about the murder to his cohorts.
Hoffman told Ricky Williams, a cellmate, that he had
“slashed” Williams’s throat, and that he had killed Williams.
Hoffman also told Kenneth Hunnicutt, a friend and cellmate,
that he cut Williams’s throat, and that because she “wouldn’t
die” Wages threw a rock at her. Victor Gezzi, another friend,
testified that Hoffman told him that Williams “was took care
of” and that he had cut Williams’s throat. Hoffman’s act of
telling others that he was the perpetrator of the crime is incon-
sistent with his testimony that he was trying to help Williams
by slitting her throat. Thus, Hoffman’s admissions would
likely have discredited a diminished capacity defense in the
jury’s mind.

    Third, if Hoffman had contested his capacity to form the
intent to participate in Williams’s murder, evidence of a sub-
sequent crime that Hoffman committed could have been
admissible. Four months after Denise Williams was mur-
dered, Hoffman, Holmes, and Wages together kidnaped a man
named Ricky Simonis. On that occasion, Hoffman drove the
car, and later held Simonis while Wages beat him. Hoffman
then held a gun to Simonis’s head while Simonis signed the
title of his car over to Holmes. See State v. Hoffman, 776 P.
                           HOFFMAN v. ARAVE                           7351
2d 1199 (Idaho Ct. App. 1989). Evidence of this kidnaping
was excluded at the trial, but might have been admitted under
Idaho law if Hoffman had challenged the element of intent in
the instant case. See State v. Dayley, 531 P.2d 1172, 1173-74
(Idaho 1975) (holding that where a defendant challenges his
mental capacity to form criminal intent, other criminal actions
may be admissible to prove the defendant’s intent or “ratio-
nality” at the time of the crime); see also Idaho R. Evid.
§ 404(b); State v. Pizzuto, 810 P.2d 680, 688-89 (Idaho 1991),
rev’d on other grounds by State v. Card, 825 P.2d 1081
(Idaho 1991) (affirming admission of both prior and subse-
quent bad acts under Idaho R. Evid. 404(b)). Williams’s mur-
der was not Hoffman’s first foray into the criminal justice
system — a fact that would have come to light had Hoffman
raised a diminished capacity defense.

   Finally, we consider Wellman’s evaluation, that his “expe-
rience with the makeup of the juries in Owyhee County led
[him] to believe that it was not the type of jury makeup that
would be attracted to a more mental-capacity-oriented case.”
Wellman stated that he doubted that he “could persuade a
bunch of farmers and ranchers that [there was] voluntary
intoxication to the point that you [could not] form the intent
to commit the crime.” While Wellman’s statement might be
discounted somewhat, given his lack of experience in capital
cases, Wellman had been a member of the Idaho criminal bar
for ten years before he represented Hoffman, and his evalua-
tion about the likelihood that the jurors would accept this
defense is entitled to some weight.5
  5
    In evaluating Hoffman’s claims based on diminished capacity and
competency, we do not rely on Hoffman’s testimony at the sentencing
phase of his trial. It is not clear whether Hoffman would have testified had
he not been deprived of counsel at his pre-sentencing interview, which
was found by the district court to constitute a violation of his Sixth
Amendment right to counsel. Testimony by Hoffman’s counsel indicates
that they called Hoffman to testify, in part, with the goal of undoing the
damage that had been done in the pre-sentencing interview. The district
court also found that the deprivation of counsel during the pre-sentencing
interview dictated counsels’ strategy at sentencing. Accordingly, we do
not base our holding here on any statements Hoffman made at sentencing.
7352                  HOFFMAN v. ARAVE
   [9] While it is impossible to divine exactly what might
sway a jury in any given situation, we do not believe that a
jury would have found that Hoffman was not capable of form-
ing the intent to murder Williams, or at least to knowingly
participate in her murder. The fact that he had the cognitive
ability to recognize that he should cover up evidence of Wil-
liams’s murder, that he was able to perform functions such as
driving and changing a tire, and that he was involved in
Simonis’s kidnaping during the same period indicate that
Hoffman probably had sufficient capacity to know what he
was doing and what the end result of his conduct would be.
We do not believe there is a “reasonable probability” that a
jury would have found otherwise. Accordingly, we conclude
that Hoffman was not prejudiced by his counsels’ deficient
performance in failing to investigate and present a diminished
capacity defense.

  B.   Ineffective Assistance in        Failing   to   Contest
       Hoffman’s Competency

   Hoffman claims that his attorneys were ineffective because
they did not contest his competency to stand trial. We con-
clude that Hoffman was not prejudiced by his attorneys’ fail-
ure to move for a competency hearing, and thus decline to
consider whether trial counsel’s conduct fell below an objec-
tive standard of reasonableness under the first prong of Strick-
land.

   [10] A person is competent to stand trial if he understands
the proceedings and is able to assist counsel in his defense.
See Dusky v. United States, 362 U.S. 402, 402 (1960). Com-
petency requires “the mental acuity to see, hear and digest the
evidence, and the ability to communicate with counsel in
helping to prepare an effective defense.” Odle v. Woodford,
238 F.3d 1084, 1089 (9th Cir. 2001) (citing Dusky, 362 U.S.
at 402).

  Our above finding, that counsel had reason to doubt Hoff-
man’s mental capacity, does not inexorably lead to the con-
                      HOFFMAN v. ARAVE                     7353
clusion that Hoffman was incompetent to stand trial. The
standard for competency to stand trial is lower than the stan-
dard for capacity to commit a crime. United States v. Flynt,
756 F.2d 1352, 1365 n.11 (9th Cir. 1985). Those with mental
disorders “frequently know the difference between right and
wrong and are competent to stand trial,” even if they are
regarded as less culpable because of their mental capacity.
Atkins, 536 U.S. at 318. As such, we have held that those with
mental deficiencies are not necessarily incompetent to stand
trial. See Boyde v. Brown, 404 F.3d 1159, 1166-67 (9th Cir.
2005). In this case, we find that there is no reasonable proba-
bility that the court would have found Hoffman incompetent
to stand trial.

   Wellman admitted that he “had concerns about [Hoff-
man’s] ability to follow, to take in info[rmation] and respond
to it.” Wellman noted Hoffman’s passive nature, that he
would often nod along even when things were going over his
head. Counsel also noticed that Hoffman had difficulty orally
expressing himself and presented an “odd” theory of why he
slit Denise Williams’s throat. At the same time, both trial
counsel testified that Hoffman had some ability to describe
what happened to Williams and to discuss his role and the
role of others in her murder. As Wellman put it, Hoffman
understood the facts of the case against him, even if he did not
always understand the law. Based on that description of Hoff-
man’s capabilities, it is unlikely that counsel could have con-
vinced the court that Hoffman was incompetent to stand trial.

   [11] In addition, observations of Hoffman by those around
him at the time of his trial also suggest that Hoffman would
not have been found incompetent to stand trial. For example,
Dr. Sanford, the expert who interviewed Hoffman in 1989
prior to sentencing, testified that he did not note any “frank”
indications of incompetence. Indeed, Hoffman himself testi-
fied, at his post-conviction hearing in December 1989, that
“to the best of his knowledge” he had followed what was
going on during trial and that he understood his attorneys’
7354                      HOFFMAN v. ARAVE
strategy. Given counsels’ assessment of Hoffman’s ability,
Dr. Sanford’s evaluation of Hoffman near the time of trial,
and Hoffman’s own evaluation of his competency during the
trial, we do not believe that Hoffman would have been
declared incompetent, had his attorneys moved for a compe-
tency hearing.

   The record indicates that Hoffman had difficulty under-
standing the aider and abettor theory of liability. But compe-
tency to stand trial requires an understanding of the factual
basis of the proceedings, and does not require mastery of
technical legal knowledge. See Godinez v. Moran, 509 U.S.
389, 402 (1993); see also Allard v. Helgemoe, 572 F.2d 1, 4
(1st Cir. 1978) (concluding that a defendant’s inability to
understand the intent element of a crime did not render him
incompetent). Hoffman’s difficulty in accepting the culpabil-
ity of indirect participants to a crime would not have made
him incompetent to stand trial.

   [12] In short, we conclude that Hoffman has not proved an
ineffective assistance claim based on his counsels’ failure to
challenge his competency because there is not a reasonable
probability that Hoffman would have been found incompe-
tent. Because Hoffman was not prejudiced by his counsels’
conduct, we affirm the district court’s finding that Hoffman
was not denied the effective assistance of counsel when his
attorneys failed to move for a competency hearing.

  C.    Ineffective Assistance in Counseling Hoffman
        Regarding the Plea Offer

   Finally, Hoffman claims that he received ineffective assis-
tance of counsel during the plea bargaining process. On this
claim, we conclude that Hoffman did receive ineffective
assistance of counsel when Wellman advised him to reject the
plea agreement offered by the prosecution.6
  6
   At the time the State offered Hoffman this plea agreement, Coulter had
not yet been appointed as co-counsel. Thus, only Wellman was involved
in advising Hoffman to reject the plea agreement.
                      HOFFMAN v. ARAVE                     7355
    1.   Deficient Performance of Counsel

  On February 6, 1989, the Owyhee County prosecutor pro-
posed that Hoffman plead guilty to first-degree murder in
exchange for an agreement by the State not to pursue the
death penalty against Hoffman during sentencing. The offer
was set to expire on February 16, 1989. Wellman advised
Hoffman to reject the plea agreement.

   Wellman based his advice on our en banc decision in
Adamson v. Ricketts, 865 F.2d at 1029-39, filed on December
22, 1988, about six weeks before the plea offer was tendered.
In Adamson, we held that Arizona’s death penalty scheme
was unconstitutional because it permitted sentencing facts to
be found by the judge, and not the jury. See id. at 1023. Well-
man noted the similarities between the Arizona statute found
unconstitutional in Adamson and the Idaho death penalty stat-
ute. See Idaho Code § 19-2515 (1989). Based on Adamson, he
advised Hoffman that he was unlikely to receive the death
penalty because it was only a matter of time before Idaho’s
death penalty scheme would also be, in his view, found
unconstitutional.

   On January 9, 1989, before the prosecutor tendered the plea
offer to Hoffman on February 6, 1989, the State of Arizona
had already signaled its unhappiness with our ruling in Adam-
son by petitioning for rehearing. On February 1, 1989, this
court stayed the mandate in Adamson pending the Supreme
Court’s disposition of the State’s anticipated petition for cer-
tiorari to the Supreme Court. When Hoffman let the prosecu-
tor’s offer lapse on February 16, 1989, the State had not yet
filed a petition for certiorari in Adamson, but it was a virtual
guarantee that the State would do so.

   [13] On February 2, 1989, four days before the prosecutor
tendered the plea offer, the Supreme Court of Arizona filed its
decision in State v. Walton, 769 P.2d 1017 (Ariz. 1989), over-
ruled in part by Ring v. Arizona, 536 U.S. 584, 603 (2002),
7356                       HOFFMAN v. ARAVE
in which it reaffirmed its earlier view that jury sentencing was
not constitutionally required in death penalty cases, directly
contrary to our decision in Adamson. See Walton, 769 P.2d at
1030. Thus, on February 16, 1989, when Hoffman let the
prosecutor’s offer lapse, there was a clear and direct conflict
between the Arizona Supreme Court’s decision in Walton and
our decision in Adamson. The State of Arizona had already
clearly signaled its intention to appeal our decision in Adam-
son, and it was not hard to guess that the defendant in Walton
would do the same.

   Indeed, certiorari was sought in both cases. In October
1989, the Supreme Court granted certiorari in Walton, holding
in abeyance the petition in Adamson. See Walton v. Arizona,
493 U.S. 808 (1989). On June 27, 1990, the Supreme Court
affirmed the Arizona Supreme Court’s decision in Walton,
thereby directly upholding the constitutionality of Arizona’s
judge-sentencing scheme in capital cases, and implicitly
upholding the comparable Idaho scheme. See Walton v. Ari-
zona, 497 U.S. 639, 647-49 (1990).7 Then, on June 28, 1990,
the Supreme Court denied the petition for writ of certiorari in
Adamson. See Lewis v. Adamson, 497 U.S. 1031 (1990).

   We do not fault Wellman for failing to predict the outcome
of these divergent opinions. We do not expect counsel to be
prescient about the direction the law will take. See Lowry v.
Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (holding that a lawyer
is not ineffective for failing to anticipate a decision in a later
case); Cooks v. United States, 461 F.2d 530, 532 (5th Cir.
1972) (“Clairvoyance is not a required attribute of effective
representation.”).
  7
    Of course, the Supreme Court has since reversed itself, holding in Ring
v. Arizona, 536 U.S. 584, 603 (2002), that the judge-sentencing scheme is,
after all, unconstitutional in death penalty cases. But the Court has also
held that Ring is not to be applied retroactively, see Schriro v. Summerlin,
542 U.S. 348, 358 (2004), providing no help to those, like Hoffman, who
were sentenced to death under the old judge-sentencing scheme.
                     HOFFMAN v. ARAVE                   7357
   Nor was it unreasonable for Wellman to draw a connection
from the Arizona death penalty scheme to the Idaho scheme.
The same fault that the Ninth Circuit identified in Arizona
death penalty law was present in Idaho’s law: both permitted
the sentencing judge to sentence a defendant to death based
on the judge’s own factual findings. In short, then, Idaho’s
statute and Arizona’s statute were materially indistinguish-
able. See Charboneau, 774 P.2d at 316-17 (declining to adopt
Adamson even though the court found no material difference
between Idaho’s scheme and Arizona’s scheme). Indeed, sev-
eral of Wellman’s colleagues in the Idaho state bar argued in
Idaho state courts that Idaho’s statute was unconstitutional
under Adamson. See, e.g., id.; State v. Lankford, 781 P.2d
197, 206-07 (Idaho 1989). Thus, Wellman was not unreason-
able in drawing a connection between our decision in Adam-
son and Hoffman’s case.

   We nonetheless find that Wellman’s representation of
Hoffman during the plea bargaining stage was deficient for
two reasons: first, Wellman based his advice on incomplete
research, and second, Wellman recommended that his client
risk much in exchange for very little.

   [14] The first problem is that Wellman based his advice
solely on a reading of Adamson and not on an understanding
of the general landscape in which that case arose. Wellman
testified that he had read Idaho Supreme Court capital cases,
and therefore he must have known that the Idaho state courts
had considered and consistently rejected claims similar to
Adamson. See State v. Fetterly, 710 P.2d 1202, 1208 (Idaho
1985); State v. Creech, 670 P.2d 463, 473-74 (Idaho 1983),
rev’d in part, Arave v. Creech, 507 U.S. 463 (1993); State v.
Sivak, 674 P.2d 396, 398-99 (Idaho 1983). With minimal
research, he would have discovered that a pair of cases was
well on its way to the Idaho Supreme Court that would chal-
lenge the continuing viability of these Idaho Supreme Court
cases in light of our holding in Adamson. See State v. Fain,
774 P.2d 252 (Idaho 1989); Charboneau, 774 P.2d at 315-17
7358                  HOFFMAN v. ARAVE
(reaffirming Creech, decided April 4, 1989, less than two
months after Hoffman rejected the plea agreement).

   [15] Had Wellman researched Arizona law, he would have
discovered that on February 2, 1989, after Adamson, but
before Hoffman rejected the plea offer, the Arizona Supreme
Court reaffirmed the constitutionality of Arizona’s death pen-
alty scheme. See Walton, 769 P.2d at 1030-31. A judge who
concurred in Walton recognized that the decision might set up
a conflict between Arizona law and Supreme Court precedent
and cited the Ninth Circuit’s decision in Adamson. See id. at
1039 (Feldman, V.C.J., concurring). With the state of the law
in turmoil both in Arizona and in Idaho, and with conflicts
between this court and the state supreme courts of both states,
a reasonable attorney would have recognized the substantial
risk of advising a client to reject a plea agreement. Because
Wellman possessed a deficient understanding of the law, he
led Hoffman to believe that his sentence would be the same
whether he accepted the plea bargain or was convicted at trial.
Such advice was constitutionally deficient. See Cullen v.
United States, 194 F.3d 401, 403-04 (2d Cir. 1999); Meyers
v. Gillis, 142 F.3d 664, 666-68 (3d Cir. 1988).

   If there was a high probability that Hoffman was not going
to receive the death penalty, Wellman might have been rea-
sonable in considering our decision in Adamson as an addi-
tional reason to reject the plea agreement. But Hoffman’s
chance of receiving the death penalty was not minimal, a fact
that counsel vastly underestimated and that made counsel’s
failure to investigate Adamson more disastrous. Under the
plea agreement, Hoffman would have given up his right to
challenge the first-degree murder charge based on aider and
abetter liability. But Wellman admitted that his central strat-
egy at trial — that Hoffman was less culpable than other par-
ticipants in the murder, especially Wages — could also
support a first-degree murder charge. Thus, Wellman advised
his client to go to trial and risk the death penalty even though
there was a good possibility that the guilt phase of trial would
                          HOFFMAN v. ARAVE                          7359
result in a first-degree murder charge, the same outcome as
the plea agreement. This was a huge risk in light of the poten-
tial downside, that is, that the court could impose the death
penalty. In contrast, under the plea agreement, Wellman could
have argued his client’s lesser culpability at sentencing while
ensuring that Hoffman would not receive a death sentence.8
Considering the magnitude of the gamble that Wellman was
advocating, Wellman’s failure to fully research the landscape
surrounding Adamson constituted deficient performance.

   [16] We certainly do not mean to imply that counsel is inef-
fective in relying on our precedent or in arguing for a reason-
able extension of this court’s decisions. In this case, however,
counsel advised Hoffman to give up the certainty of avoiding
the death penalty so that he could go to trial, a risky proposi-
tion with a substantial downside. More importantly, he
offered this flawed advice without conducting reasonable
research into the legal landscape. We therefore conclude that
Wellman’s legal representation of Hoffman during the plea
bargaining stage was not objectively reasonable.

      2.   Prejudice

  As stated above, deficient performance by counsel is not a
sufficient basis to reverse. Hoffman must also show that he
was prejudiced by his counsel’s deficient performance. Hoff-
man must show that there is a reasonable probability that he
would have accepted the plea agreement had he received
accurate advice from his attorney. See Strickland, 466 U.S. at
694; Nunes v. Miller, 350 F.3d 1045, 1054 (9th Cir. 2003);
  8
   In Idaho in 1989, a defendant convicted of first-degree murder could
be sentenced to death or to a life sentence. See Idaho Code § 18-4004
(1989). Where the judge imposed a life sentence, the judge also had to
determine a period of confinement, at least ten years, in which the defen-
dant would not be eligible for parole. See id. Thus, under the plea agree-
ment, Hoffman’s counsel would have had full latitude to argue to the
judge that Hoffman’s culpability in Williams’s murder warranted life with
the possibility of parole.
7360                  HOFFMAN v. ARAVE
Cullen, 194 F.3d at 403; Wanatee v. Ault, 259 F.3d 700, 704
(8th Cir. 2001). We hold that there is a “reasonable probabili-
ty” that the outcome of the proceedings would have been dif-
ferent had counsel acted competently.

   Wellman testified that Hoffman had a “compliant personal-
ity,” and would frequently defer to Wellman’s decision-
making. Wellman testified that, throughout the process, Hoff-
man would say “Well, Bill, you are the lawyer, you know,
you know more about it than I do.” Coulter also testified that
Hoffman would frequently defer to their decisions about how
the defense ought to be managed. This strongly suggests that,
had Wellman fully presented Hoffman’s options and told
Hoffman that he was giving up very little in exchange for the
security of the death penalty being off the table, Hoffman
probably would have gone along with Wellman’s suggestion
and would have accepted the plea agreement.

  The State argues that, regardless of Wellman’s advice,
Hoffman would not have taken the plea agreement because
Hoffman wanted the State to prove the charges against him.
The State points to Wellman’s testimony:

    I would describe [Hoffman as being] of the old
    school. He was not . . . going to snitch on anybody,
    he was not going to turn on anybody. And if the
    State charged him, then they needed to prove it.

The State’s argument pulls Wellman’s testimony out of con-
text. In the next sentence, Wellman admitted that he did not
know whether Hoffman had insisted on going to trial in any
previous criminal proceeding. He then explained that Hoff-
man was surprised that he was indicted, because he “per-
ceived himself as being out of the circle” of those responsible
for Williams’s murder, i.e., Holmes and Wages. As such,
Wellman explained, “he needed to see the evidence that the
State had in order to satisfy his mind or convince him[self]”
that the State had a case against him.
                       HOFFMAN v. ARAVE                     7361
   [17] When read in this light, Hoffman’s desire to have the
State prove its case was not a principled stand against accept-
ing a plea agreement. Rather, Hoffman’s misunderstanding of
aiding and abetting liability led him to believe that the State
was not likely to prove a first-degree murder charge against
him. Had Hoffman been presented with an accurate evalua-
tion (1) of the very real possibility of receiving the death pen-
alty at the end of the penalty phase; (2) of the very real chance
that the Idaho death penalty scheme would be upheld; and (3)
of the almost nonexistent chance that if he had gone to trial
he could have achieved anything better than the result prom-
ised in the plea agreement, there is more than a reasonable
probability that he would have accepted the plea. Therefore,
we find that Hoffman suffered prejudice because of his coun-
sel’s inadequate performance.

    3.   Remedy

   Because we find that Hoffman was deprived of the effec-
tive assistance of counsel, we must determine the proper rem-
edy. A habeas remedy “should put the defendant back in the
position he would have been in if the Sixth Amendment viola-
tion had not occurred.” United States v. Blaylock, 20 F.3d
1458, 1468 (9th Cir. 1994) (as amended). Where a defendant
is deprived of the opportunity to make a reasoned decision
about a proffered plea agreement, the proper remedy is rein-
statement of the offer of the plea agreement. See id. at 1468-
69; see also Nunes, 350 F.3d at 1056-57.

   [18] Accordingly, we order the district court to direct the
State to release Hoffman unless, within a reasonable time
from the date of this opinion, the State offers Hoffman a plea
agreement with the “same material terms” offered in the origi-
nal plea agreement. Nunes, 350 F.3d at 1057.
7362                       HOFFMAN v. ARAVE
III.    Uncertified Issues

   Hoffman has requested that we expand the COA to con-
sider two additional issues: (a) whether the district court
abused its discretion in denying Hoffman’s motion to amend
his petition; and (b) whether the district court abused its dis-
cretion when it denied Hoffman’s motion to expand the record.9

   A COA should be granted where “the applicant has made
a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). A “substantial showing” means that
“reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a differ-
ent manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’ ” Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983)).

  A.     Motion to Amend the Habeas Petition

   On February 7, 2002, after the district court held an eviden-
tiary hearing on Hoffman’s habeas petition but before oral
argument, Hoffman moved to amend his habeas petition.
Hoffman wished to amend the language of his ineffective
assistance claim to include the following language:

       As a result of his mental states, including retardation
       and congenital and drug-induced psychosis, Petition-
       er’s admissions regarding his presence and participa-
       tion in the offense are suspect and should have
  9
    In his opening brief, Hoffman raised a third uncertified issue, challeng-
ing whether Ring v. Arizona, 536 U.S. 584, 598 (2002), should apply
retroactively to his death sentence. Hoffman conceded that the issue was
relevant only if we reversed the district court’s order granting the habeas
petition on the grounds of ineffective assistance of counsel at the sentenc-
ing phase. Because the State withdrew its cross-appeal on grant of the
habeas petition on the sentencing phase, we do not consider the Petition-
er’s Ring-related request for a COA.
                           HOFFMAN v. ARAVE                            7363
       included further investigation into the truth of Peti-
       tioner’s statements, all of which would have called
       into question the reliability of admissions made by
       Petitioner, raising a reasonable doubt as to Petition-
       er’s guilt and giving the jury evidence to support a
       finding of actual innocence.

Thus, Hoffman sought to add a claim of ineffective assistance
based on his counsels’ failure to raise a factual innocence
claim.

   Hoffman also sought permission to add three additional
claims, each contending that the death penalty, as applied to
him, violated the Eighth Amendment prohibition on cruel and
unusual punishment because he is mentally retarded. The lat-
ter amendment was requested shortly after the Supreme Court
granted certiorari in Atkins v. Virginia, 543 S.E.2d 312 (Va.
2000), on the same issue. See Atkins v. Virginia, 533 U.S.
976, 976 (2001).10 Instead of permitting Hoffman to amend
his habeas petition to include these Atkins-related claims, the
district court ruled in Hoffman’s favor on a different ground
and then denied the motion to amend the petition.

   A district court “shall grant leave to amend freely ‘when
justice so requires.’ ” Lopez v. Smith, 203 F.3d 1122, 1130
(9th Cir. 2000) (en banc) (citing Fed. R. Civ. P. 15(a)). A dis-
trict court may deny leave to amend based on “the presence
of any of four factors: bad faith, undue delay, prejudice to the
opposing party, and/or futility.” Griggs v. Pace Am. Group,
Inc., 170 F.3d 877, 880 (9th Cir. 1999).

  Given our holding above, Hoffman will almost certainly
not be subject to the death penalty, assuming he accepts the
  10
    In Atkins v. Virginia, 536 U.S. 304, 321 (2002), filed after the district
court’s decision in this case, the Supreme Court held that execution of the
mentally retarded violates the Eighth Amendment’s prohibition against
cruel and unusual punishment.
7364                   HOFFMAN v. ARAVE
plea agreement. Thus, Hoffman’s request to amend his peti-
tion to add Atkins-type claims is moot. We are left with Hoff-
man’s request to add an actual innocence claim to his habeas
petition. We will grant the COA, in that reasonable minds
could differ over whether the district court should have per-
mitted Hoffman to amend his habeas petition to include an
actual innocence claim.

   [19] We find, however, that the district court did not abuse
its discretion in refusing to allow Hoffman to amend his
claim. The legal basis for Hoffman’s actual innocence claim
is “tenuous.” See Caswell v. Calderon, 363 F.3d 832, 837-38
(9th Cir. 2004) (finding that the district court did not abuse its
discretion when it denied petitioner’s request to amend his
habeas petition to include a “tenuous” claim). Given the
amount of evidence showing that Hoffman knowingly and
intentionally participated in Williams’s murder, we do not
believe that counsel was objectively unreasonable in failing to
investigate an actual innocence theory premised on the reli-
ability of Hoffman’s admission. The likelihood of success on
such a claim was minimal given the amount of evidence —
outside of Hoffman’s admissions — showing that Hoffman
was present at the scene and participated in Williams’s mur-
der. For the same reason, Hoffman suffered no prejudice from
his counsel’s failure to raise an actual innocence claim,
because there is not a reasonable probability that the jury
would have accepted such a claim. Accordingly, the district
court’s refusal to allow Hoffman to add such a tenuous inef-
fective assistance of counsel claim at such a late hour was not
an abuse of discretion.

  B.   Motion to Expand the Record

   Hoffman also challenges the district court’s denial of his
motion to expand the record. Given the district court’s time
constraints, the court asked both parties to consider presenting
testimony in the form of deposition transcripts instead of
examination in open court. After the evidentiary hearing but
                       HOFFMAN v. ARAVE                     7365
before oral argument, Hoffman filed a motion to expand the
record to include: (a) deposition testimony of Levi Martinez
and Don Sherman, both of whom testified that Holmes told
them that Hoffman was being set up to take the fall for Wil-
liams’s murder; (b) the declarations of Renee Lundquist and
Richard Simonis, who each testified that Hoffman had been
held responsible for other criminal acts by Holmes and
Wages; and (c) the pre-sentence interview of Richard Holmes,
in which he admitted that he often got others to do his “dirty
work” for him. This evidence, Hoffman alleged, would sup-
port his claim of actual innocence. The state stipulated to
admission of the depositions of Martinez and Sherman, but
challenged admission of the remaining documents. After ren-
dering its decision on the habeas petition, the district court
summarily denied Hoffman’s motion to expand the record.

   It is not clear why the district court did not allow Hoffman
to introduce these documents, especially those the State had
stipulated were admissible. Apparently, the district court did
not see these documents as useful to its decision, and “having
fulfilled the mandate of the Ninth Circuit,” it declined to
include them in the record.

   We grant the COA on this issue, in that reasonable jurists
could differ as to whether the district court, having requested
the parties to submit deposition testimony in lieu of live testi-
mony and having promised to review the deposition testi-
mony, should then exclude the documents. Even if the court
did not find the documents to be dispositive to its decision,
the better practice would have been to admit the documents,
if nothing else, so that Hoffman would have the benefit of
these documents on appeal.

  [20] But any error was harmless here. Even if we were to
consider all of the requested documents, see Burnett v. Lam-
pert, 432 F.3d 996, 1001 n.7 (9th Cir. 2005), it would not
change our decision in this case. Testimony that Hoffman was
being set up to take the fall for Williams’s murder is highly
7366                  HOFFMAN v. ARAVE
relevant for sentencing purposes. But, as noted above, none of
the testimony at issue demonstrates that Hoffman did not
knowingly and intentionally participate in Williams’s murder.
Nor do these documents affect our finding that no prejudice
inhered from counsel’s failure to pursue a diminished capacity
defense; a finding of diminished capacity requires more than
the influence of another to commit a crime. We thus find that
any district court error in not expanding the record was harm-
less.

IV.    Conclusion

   For the foregoing reasons, we GRANT the habeas petition
with respect to ineffective assistance of counsel during the
plea bargaining phase, and we remand for proceedings consis-
tent with this opinion. As stated above, we order the district
court to direct the State to release Hoffman unless, within a
reasonable time from the date of this opinion, the State offers
Hoffman a plea agreement with the “same material terms”
offered in the original plea agreement. On all other points, we
affirm the district court.

  AFFIRMED IN PART, REVERSED IN PART.
