                                                      Volume 1 of 2

                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MITCHELL CARLTON SIMS,                           No. 03-99007
             Petitioner-Appellant,                  D.C. No.
               v.
                                               CV-95-05267-GHK
JILL BROWN, Warden,*                              ORDER AND
             Respondent-Appellee.                  AMENDED
                                                   OPINION

         Appeal from the United States District Court
            for the Central District of California
          George H. King, District Judge, Presiding

                     Argued and Submitted
               June 9, 2005—Pasadena, California

                    Filed September 21, 2005
                   Amended December 8, 2005

      Before: Betty B. Fletcher, Pamela Ann Rymer, and
             Raymond C. Fisher, Circuit Judges.

                 Opinion by Judge Rymer;
Partial Concurrence and Partial Dissent by Judge B. Fletcher




  *Jill Brown is substituted for her predecessor, Jeanne Woodford, pursu-
ant to Fed. R. App. P. 43(c)(2).

                                 15865
                      SIMS v. BROWN                  15869


                       COUNSEL

Trevor W. Morrison and John H. Blume, Cornell Law School,
Ithaca, New York, for the petitioner-appellant.

David F. Glassman, Deputy Attorney General, Los Angeles,
California, for the respondent-appellee.


                         ORDER

  The majority opinion filed September 21, 2005, is amended
as follows:
15870                   SIMS v. BROWN
  Page 13519, line 6: delete sentence beginning with “Indeed,
Sims submitted no evidence . . . .”

   With this amendment, the majority of the panel votes to
deny the petition for rehearing. Judges Rymer and Fisher vote
to deny the petition for rehearing en banc. Judge B. Fletcher
would grant the panel rehearing and recommends en banc
rehearing.

   The full court has been advised of the petition for rehearing
en banc, and no judge of the court has requested on whether
to rehear the matter en banc. Fed. R. App. P. 35.

  The petition for rehearing and petition for rehearing en
banc are DENIED.


                          OPINION

RYMER, Circuit Judge:

   In 1987, Mitchell Carlton Sims was convicted of the first
degree murder of John Harrigan, a Domino’s Pizza employee
who delivered a pizza to Sims and his girlfriend, Ruby Pad-
gett, at their motel room in Glendale, and the attempted mur-
ders of two other Domino’s employees, Kory Spiroff and
Edward Sicam. He was sentenced to death. The California
Supreme Court affirmed. People v. Sims, 5 Cal.4th 405
(1993), cert. denied, Sims v. California, 512 U.S. 1253
(1994). After the supreme court denied Sims’s petition for a
writ of habeas corpus, Sims filed a 28 U.S.C. § 2254 petition
in the United States District Court for the Central District of
California on April 22, 1996. Following an evidentiary hear-
ing, the district court denied all of Sims’s claims on May 2,
2003.

  The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) does not apply to the merits of Sims’s appeal
                             SIMS v. BROWN                          15871
because his federal petition was filed before AEDPA’s effec-
tive date, Lindh v. Murphy, 521 U.S. 320, 327 (1997), but it
does apply to the procedures for seeking review. Accordingly,
Sims obtained a Certificate of Appealability (COA) on seven
issues: (1) whether his rights under Miranda v. Arizona, 384
U.S. 436 (1966), were violated by the admission of confes-
sions obtained in a custodial setting after he invoked his rights
to counsel and silence; (2) whether the prosecutor’s peremp-
tory challenges to two Hispanic prospective jurors violated
Batson v. Kentucky, 476 U.S. 79 (1986); (3) whether his right
to an impartial jury was violated when a member of his jury
met with a member of Padgett’s jury and discussed writing a
book about their experiences; (4) whether his Eighth and
Fourteenth Amendment rights were violated by the prosecu-
tor’s closing argument in the penalty phase about factor (k),
the last factor in mitigation under California law that covers
“any other circumstance which extenuates the gravity of the
crime”; (5) whether trial counsel rendered ineffective assis-
tance during the penalty phase by failing to investigate,
develop, and present mitigating evidence about Sims’s mental
condition; (6) whether counsel was ineffective in failing to
object to comments that Sims argues violated Griffin v. Cali-
fornia, 380 U.S. 609 (1965); and (7) whether reversal is
required on account of cumulative error.

   We affirm.

                                     I

                                    A

   Sims had managed a Domino’s Pizza parlor in West
Columbia, South Carolina before resigning when he got angry
at his boss for withholding part of a bonus.1 Sims sought
  1
   Our recitation of the facts is primarily based on the California Supreme
Court’s summary, Sims, 5 Cal. 4th at 418-27, which is presumed to be cor-
rect. Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001).
15872                   SIMS v. BROWN
revenge, and told his then-girlfriend that he wanted to use
explosives to kill the boss. He bought a gun. On November
15, 1985, Sims was hired as a delivery driver by another
Domino’s, in Hanahan, South Carolina.

   On December 8, 1985, Sims and Padgett ended up in Glen-
dale, California. They went to a Domino’s and asked Kory
Spiroff, the assistant manager, for directions to a drugstore.
On the afternoon of the next day, a man and woman went to
a Sears store in Glendale and bought a package of socks,
underwear, a clothesline, and a knife. The sales clerk over-
heard the woman tell the man to relax because they would be
leaving the store shortly.

   On the evening of December 9, Spiroff was on duty with
delivery drivers Edward Sicam and John Harrigan. Each had
on a Domino’s uniform, consisting of short-sleeved shirts
with a Domino’s badge and name tag. At 11:03 p.m., Brian
Scarlett, an off-duty Domino’s employee who was visiting
Spiroff, took a telephone order from a man with a southern
accent. The caller asked for the pizza to be delivered to Room
205 of the Regalodge Motel. The motel was a three-minute
drive from the parlor. Harrigan, who was twenty-one years
old, left the parlor at 11:26 p.m. in his Toyota truck to make
the delivery.

   Around 11:45 p.m., Sims and Padgett went into the Domi-
no’s. Spiroff recognized the couple from the day before. This
time, Sims pointed a gun at Sicam and ordered Spiroff and
Sicam into a back office. When Spiroff warned Sims that a
delivery driver was due back at any moment, Sims took off
his sweater to reveal a Domino’s shirt with Harrigan’s name
tag and chuckled, “No, I don’t think so.”

  Sims found a bank deposit bag which he gave to Padgett,
who then emptied the parlor’s cash drawers. Sims told her to
watch for fingerprints, and she began wiping the tables and
cash drawers at his direction. Sims ordered Spiroff and Sicam
                        SIMS v. BROWN                     15873
to stand in the corner of the office and aimed his gun directly
at them.

   At this point, Richard Wagner, an off-duty Domino’s
employee, arrived at the parlor with his wife. Sims told Spir-
off to go to the front counter, threatening to shoot Sicam
unless Spiroff cooperated. Instead of acknowledging Wagner
as a friend, Spiroff asked him for his order. Meanwhile, Sims
took an order over the phone, identifying himself as “Mitch”
to the customer. While Spiroff prepared the pizzas, Sims told
the Wagners to wait in the car for their pizza to be brought to
them. After Sims gave the Wagners their pizza, they drove off
and, suspecting a burglary, called the police.

   Sims decided to take Spiroff and Sicam, one at a time, into
the walk-in cooler. The cooler was 8 feet by 12 feet, with a
3-tier rack against the left wall. The temperature was kept at
32 to 40 degrees. Sims tied Spiroff’s hands tightly behind his
back with one end of a rope, looped the other end over the
rack, and lifted Spiroff’s arms painfully high by pulling down
on the rope. This forced Spiroff to stand on his tiptoes to ease
the tension in the rope and alleviate the pain. When Spiroff
complained, Sims replied, “Shut up. At least you live.” Next,
Sims wrapped the end of the rope around Spiroff’s neck and
tied it so tightly with a knot in back of the neck that Spiroff
would strangle if he stopped standing on his tiptoes. Sims
asked Spiroff when the cooler would be opened the following
day. Spiroff said at 11 a.m. Sims replied that, by then, he and
Padgett would be in San Francisco. When Spiroff asked Sims
about Harrigan, Sims said that Harrigan had been tied up at
the motel and would be found after Spiroff was found.

   Sims then brought Sicam into the cooler and bound him in
the same manner as Spiroff. When Sicam said he was chok-
ing, Sims responded, “You are alive.” Sims closed the cooler
and left at 12:15 a.m. with Padgett.

  While standing on the toes of one foot, Spiroff tried to
knock over cartons so they could stand on them and relieve
15874                    SIMS v. BROWN
some of the pressure around the neck, but the rope tightened
as he moved. Eventually he succeeded in knocking a box
over. Nevertheless, at some point Spiroff blacked out.

   Responding to Wagner’s call, Glendale police officers
arrived at 12:30 a.m. They found Spiroff and Sicam in the
cooler. One of them told the officers that their assailant was
wearing Harrigan’s shirt and that Harrigan had not returned
from delivering a pizza to the Regalodge.

   The officers went to the Regalodge, got the key and regis-
tration card to room 205, which was registered to Sims, and
found Harrigan’s dead body in the bathtub. The bathtub was
full of water, and Harrigan’s body was submerged under the
water on his right side with his back parallel to the side of the
tub. Cold water was running at full blast onto the back of Har-
rigan’s neck. His head was immediately under the spout,
about one inch below the water line. The drain plug was bro-
ken, but the tub was filled with water up to the overflow
valve. Harrigan’s wrists were bound behind his back; his
ankles were bound; and his feet and hands were “hogtied”
together behind his back. His head was covered with a pillow
case, which was secured with a rope ligature around the neck.
A washcloth had been placed inside his mouth, held in place
by a sock tied around his head.

   Dr. Joseph Cogan, the state’s forensic pathologist, who per-
formed the autopsy on Harrigan’s body, determined that the
cause of death was ligature strangulation based on the depth
of the furrow around the decedent’s neck, indicating the
extreme pressure of the ligature around the neck, and hemor-
rhages on the inner eyelids, indicating that Harrigan was alive
when the neck ligature was applied because it obstructed
blood flow to the head and brain. Cogan opined that Harrigan
lived for no more than ten minutes after the neck ligature was
applied and that the ligature in itself was enough to kill Harri-
gan. However, Cogan could not rule out the possibility that
drowning contributed to Harrigan’s death, based upon Harri-
                        SIMS v. BROWN                    15875
gan’s having been found fully submerged in a bathtub of
water with a gag in his mouth, and the presence of frothy pul-
monary edema in his trachea and bronchi.

   No money, wallet, or car keys belonging to Harrigan were
found in the room. The phone lines had been cut. Although
the room had been wiped clean with a wet towel, Sims’s fin-
gerprints were found inside a toilet paper roll and in a tele-
phone book on the page listing “pizza.” The knots used to tie
up the ligatures on Harrigan’s neck were identical to those
used to tie up Spiroff and Sicam. The rope used to bind Harri-
gan, Spiroff, and Sicam was similar to the clothes line sold to
the young couple at the Glendale Sears the day before Harri-
gan’s murder.

   Sims and Padgett were apprehended in a Las Vegas motel
on December 25 by the Las Vegas police acting on an anony-
mous tip. A fully loaded .25 caliber pistol was found under
the mattress. The police also recovered a Los Angeles Times
article entitled, “Delivery Man Slain While Making Run,” and
a yellow page torn from a Las Vegas telephone book listing
Domino’s Pizza establishments. Harrigan’s pickup truck, with
a Domino’s shirt bearing Harrigan’s name tag inside, was also
found in Las Vegas about twenty miles from the motel.

   Sims was taken to the Clark County jail. Officers Jonathan
Perkins and Gary Montecuollo of the Glendale Police Depart-
ment met with him in an interview room. Informed of his
rights pursuant to Miranda, Sims acknowledged his under-
standing and signed a written form indicating that he did not
waive his rights. As Perkins gathered his papers and stood up
to leave, Sims asked what was going to happen to him from
that point on, and indicated that he would like to go to South
Carolina rather than California. During the conversation that
followed, Sims told Perkins, “I had to kill that boy” and “He
would have identified me.” At the end of the interview, Per-
kins told Sims that Sims would have to initiate any further
conversation about the investigation, which Sims did the next
15876                   SIMS v. BROWN
day. Perkins tape recorded this interview, which included
Sims’s statement “I just got drunk, and I didn’t know what the
fuck I was . . . I knew I was doing it, but I shouldn’t have
done it.” After Perkins readvised Sims of his Miranda rights,
Sims said that he had worked for Domino’s Pizza in South
Carolina and that he and Padgett had traveled by bus from
that state to Glendale where they rented room 205 at the
Regalodge. He told Perkins they had gone to Domino’s for
directions to a drugstore, and to Sears to buy a knife. He said
that the next day they returned to Domino’s for a pizza. At
that point Sims ended the interview.

   Sims’s December 25 statements and an edited version of
the tape of the December 26 interview were admitted in the
guilt phase.

   Sims did not testify. His forensic pathologist, Dr. Robert
Bucklin, testified that the white, frothy material in Harrigan’s
larynx and trachea indicated that he had drowned, and that the
furrow and hemorrhages could have resulted from the posture
of Harrigan’s head rather than asphyxia. Bucklin also testified
that strangulation might have contributed to Harrigan’s death.
Stephen Schliebe, a private criminalist, testified that a piece
of rope tied as the ligature was to Harrigan’s neck would not
cause loss of consciousness. Sims’s theory of defense was that
Harrigan was alive when Sims put him in the bathtub and left
with Padgett, and that he lacked the intent to kill Harrigan,
Spiroff, or Sicam.

   The jury found Sims guilty of one count of first degree
murder, with two special circumstances findings (that Sims
committed the murder while lying in wait and during the com-
mission of a robbery), two counts of attempted murder, and
three counts of robbery. The jury also found that Sims used
a firearm during the commission of each offense.

                               B

   At the penalty phase the prosecution introduced evidence
that Sims robbed and shot to death two Domino’s Pizza
                            SIMS v. BROWN                          15877
employees in Hanahan, South Carolina less than one week
before the Glendale crimes. Just after 2 a.m. on December 4,
approximately two weeks after Sims was hired as a delivery
driver at the Hanahan Domino’s, Gary Melkie, the assistant
manager, appeared in the lobby of the Police Department
about three blocks away, dressed in his uniform with a tele-
phone cord dangling from one of his wrists and bleeding pro-
fusely from gunshot wounds to his head and neck. A
paramedic responded and Melkie was placed in an ambu-
lance. En route to the hospital, the ambulance detoured to the
parlor where another shooting had been reported. There, the
police had found Chris Zerr, a delivery driver, lying on the
floor covered with blood, his hands tied behind his back with
a telephone cord. He died shortly thereafter from a gunshot
wound to the head. $1,164 had been taken from the cash
drawers.

   At the hospital, the paramedic asked Melkie who had shot
him and Melkie responded, “Sims. Mitch Sims.” Melkie said
that Sims had tied him up and then shot Zerr. Melkie repeated
the same thing to a police officer, including a description of
Sims, and said that Sims worked for Domino’s. Melkie died
after surgery.2

  Melkie had suffered four gunshot wounds to the head and
neck, a bullet casing was removed from his tongue, and a fifth
bullet, which had exited from his head, was recovered from
a wall at the parlor.

  An unedited version of the tape recording of Sims’s
December 26 statement to Perkins was admitted into evidence
and played for the jury. In that portion of the statement, Sims
  2
   Following the trial in this case, Sims was tried and convicted in South
Carolina of the murders of Melkie and Zerr during the commission of a
robbery, and the death penalty was imposed. The convictions and sentence
of death were affirmed by the Supreme Court of South Carolina. State v.
Sims, 304 S.C. 409, (1991), cert. denied, 502 U.S. 1103 (1992).
15878                    SIMS v. BROWN
recounted that he had robbed a Domino’s Pizza parlor in
South Carolina before going to California.

   The defense presented as mitigating evidence a number of
witnesses who testified about Sims’s brutal family back-
ground of physical, sexual, and emotional abuse. His mother,
Mildred, testified that Sims only saw his natural father (from
whom she was divorced) on two or three occasions during his
childhood, and that she married Arnold Cranford in 1961. She
had three children with her first husband and two with Cran-
ford. Cranford had a drinking problem and became violent
and sexually abusive when intoxicated. She testified that
Cranford raped Sims when he was seven years old, and forced
Sims to engage in oral sex with him over the years. When
Sims was sixteen, Cranford made him have sexual intercourse
with his mother. They both cried during the incident. On
another occasion, Cranford forced Sims to have intercourse
with his older sister Merlon. Cranford repeatedly told Sims
that Sims was “no good” and a bad person. Sims began drink-
ing heavily at fourteen, and attempted suicide by drowning
when he was an adolescent.

   Merlon testified to repeated incidents of physical and sex-
ual abuse that she and the other children suffered at the hands
of Cranford. She said that every night was a nightmare, and
that “[i]t ain’t never going to leave me alone.” Cranford
would drag her out of bed, force her to strip, and then beat
her, tie her to a bed, fondle her, and occasionally have sexual
intercourse with her. Cranford brought men home and forced
her to have sex with them. She also attempted suicide several
times. Cranford threatened to kill the children if they told any-
one about what he did. When Sims was sixteen, Cranford
forced Sims’s younger stepsister, Margaret, to undress and lie
beside him in bed. He began to fondle her and told her he was
going to have sex with her, but Sims called the police. Cran-
ford was arrested and convicted.

   Sims’s brother Eddie also testified. He watched as Cranford
forced Sims to have sex with Cranford on many occasions. He
                         SIMS v. BROWN                     15879
heard Cranford having sex with Margaret in the next room.
Eddie also tried to commit suicide, and he said that Sims tried
to lift up his spirits. Sims’s other siblings did not testify, but
there was evidence that Margaret ran away from home and
began taking drugs, and that his brother Jimmy was a career
army officer.

   Sims’s wife, Theresa, had known Sims since she was nine,
and she, too, had experienced an abusive childhood. They
were married when Sims was twenty and she was sixteen.
They had three children, who worship Sims and live for his
phone calls and letters. She testified about various jobs that
Sims had held, and said that he became withdrawn and
depressed whenever he was promoted at work, that he
engaged in extensive substance abuse, and that he suffered a
sense of worthlessness and guilt from the incestuous act he
committed with his mother. While he was working at Domi-
no’s, Sims had an affair with a co-worker but came back to
Theresa. He left Theresa again when he met Padgett. Sims
told Theresa he was no good for her and did not want to pull
her, and the boys, down with him. At her urging, he saw a
counselor and cried as he recounted the abuse he had suffered.
Sims’s mother, sister and stepbrother, as well as his wife, tes-
tified that Sims was sensitive and continued to be a good, sup-
portive father to his three children.

   Dr. William Vicary, a psychiatrist, testified that Sims suf-
fered from chronic depression, and alcohol and drug abuse.
He stated that Sims had long-standing feelings of inadequacy,
low self-esteem, despair, shame, and humiliation. Vicary
explained that individuals who have suffered a lot of verbal
and physical abuse tend to be crippled from a psychological
point of view and have trouble later in life, becoming violent,
abusive adults. On cross-examination Vicary admitted that
Sims had never been diagnosed as mentally ill, and that his
depression was not severe.

  At the conclusion of the penalty phase, the jury fixed the
punishment at death.
15880                        SIMS v. BROWN
                                    C

   Sims appealed to the California Supreme Court, which
upheld both the conviction and sentence. Sims, 5 Cal.4th at
467. With respect to the issues that are now before us, it con-
cluded that the prosecutor based his juror challenges on his
perception of an individual bias, not on the basis of group
bias; that admission of Sims’s confessional statements on
December 25 and 26 was harmless error under Chapman v.
California, 386 U.S. 18 (1967), given overwhelming evidence
of Sims’s intent to kill Harrigan independent of those state-
ments;3 and that there was no reasonable possibility the jury
was misled to believe it could not consider Sims’s back-
ground in mitigation. The United States Supreme Court
denied Sims’s petition for writ of certiorari. Sims v. Califor-
nia, 512 U.S. 1253 (1994). Sims filed a state habeas petition
in February 1993, which was summarily denied on March 2,
1994.

   Sims initiated federal proceedings by filing a request for
stay of execution and appointment of counsel on August 8,
1995. His petition for habeas relief was filed on April 22,
1996. The district court found some claims unexhausted and
granted Sims leave to amend his petition to delete those
claims. Sims filed a second petition in state court on October
10, 1997, which the California Supreme Court denied on
April 29, 1998. After he amended his federal petition, Sims
asked for an evidentiary hearing and was given a hearing on
one of the claims that is pursued on appeal — ineffective
assistance of counsel regarding mental health evidence. On
this claim the district court found that Sims failed to establish
that his attorney’s performance was deficient because counsel
consulted qualified experts who did not suggest the need for
  3
    Justice Mosk dissented from the Chapman analysis; Justice Kennard
wrote in her concurring and dissenting opinion that she would have held
that Sims initiated conversation on both days and waived his right to coun-
sel.
                             SIMS v. BROWN                          15881
additional information or experts after being informed of the
relevant information about Sims’s background and relation-
ships. On other claims raised on appeal, the court held in an
exhaustive order that Sims’s claim of juror misconduct was
not supported by any indication that there were improper
communications between the Sims juror and the Padgett juror.
With respect to Sims’s admissions, the district court agreed
with the trial court (rather than with the California Supreme
Court) that the statement “I had to kill that boy” was not made
in response to interrogation; it held that Sims’s statement
“The boy would have identified me” was the product of
remarks by Perkins that the officer should have known were
reasonably likely to elicit an incriminating response; and it
concluded that Sims’s December 26 statement that “I just got
drunk, and I didn’t know what the fuck I was . . . I knew what
I was doing, but I shouldn’t have done it” was a response to
express questioning about the crime itself by Perkins that
should not have been admitted, but that his post-Miranda
statements were properly admitted. Regardless, applying
Brecht harmless error analysis,4 the district court embraced
the California Supreme Court’s finding (applying the stricter
Chapman standard) that even if a portion of Sims’s statements
were admitted erroneously, any error was harmless. The court
rejected Sims’s challenge to the prosecutor’s argument about
mitigating evidence because, in its opinion, the prosecutor
never told the jury to disregard Sims’s history of abuse but
instead argued that it lacked weight and, even if the argument
were improper, any error was cured by the trial court’s
instructions. With respect to Sims’s Batson claim, the district
court held that Sims failed to show purposeful discrimination
given the prosecutor’s explanation that his challenges were
based on the jurors’ lack of life experience and responsibility.
  4
    Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (holding that a fed-
eral court may only grant habeas relief from a state court judgment if con-
stitutional error “had substantial and injurious effect or influence in
determining the jury’s verdict” (quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946))).
15882                        SIMS v. BROWN
Finally, the court saw no ineffectiveness in counsel’s failure
to object to the prosecutor’s comment on Sims’s failure to tes-
tify as the prosecutor’s comments were not improper.

   Sims has timely appealed the denial of his habeas petition.5

                                     II

   Sims argues that the incriminating statements he made to
police officers on December 25 and 26 while he was in their
custody and after he had invoked his right to counsel were
obtained, and introduced, in violation of his Fifth and Four-
teenth Amendment rights under Miranda and its progeny.6
  5
     We review de novo a district court’s denial of a habeas petition filed
under 28 U.S.C. § 2254. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.
2003). A district court’s factual findings are reviewed for clear error.
Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir. 2003). In pre-AEDPA
cases such as this, we review legal questions and mixed questions of law
and fact de novo. Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir. 2001)
(en banc). State court findings of fact are presumed correct to the extent
they are “fairly supported by the record.” 28 U.S.C. § 2254(d) (1994);
Mayfield, 270 F.3d at 922.
   6
     See, e.g., Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (holding that
interrogation under Miranda refers to words or actions by the police that
they “should know are reasonably likely to elicit an incriminating
response”); Edwards v. Arizona, 451 U.S. 477, 485 (1981) (holding that
once an accused asserts his right to the presence of counsel he must him-
self “initiate[ ] further communication, exchanges, or conversations with
the police” before further interrogation may take place); Oregon v. Brad-
shaw, 462 U.S. 1039, 1045-46 (1983) (plurality opinion) (holding that
once an accused asserts the right to counsel, re-initiation occurs when he
“evince[s] a willingness and a desire for a generalized discussion about the
investigation”); see also Shedelbower v. Estelle, 885 F.2d 570, 573 (9th
Cir. 1989) (holding that an officer’s false statement that the suspect had
been identified by a rape victim was not the type of comment that would
encourage the accused to make some incriminating spontaneous remark);
United States v. Moreno-Flores, 33 F.3d 1164, 1169 (9th Cir. 1994) (hold-
ing that agent’s statements that the government had seized cocaine, the
accused was in serious trouble, and he faced a lengthy prison sentence
were not the functional equivalent of interrogation because they did not
                             SIMS v. BROWN                          15883
   After Sims had declined to waive his rights on the 25th, and
Perkins had started to leave, Sims asked what was going to
happen to him from that point on, and said that he would
rather go to South Carolina than California. Perkins replied
that he planned to obtain Sims’s extradition to California, that
there were warrants for Sims’s arrest in connection with the
murder of two Domino’s employees in South Carolina as well
as for the murder in Glendale, that he was investigating the
Glendale murder, and that the body of a Domino’s delivery
driver was discovered in room 205 of the Regalodge where he
had reason to believe that Sims and a young woman were
staying. Sims interjected, “I had to kill that boy.” Perkins
responded, “What did you say?” and Sims repeated, “I had to
kill that boy.” Perkins then described how Harrigan’s body
was found, and commented that Harrigan “did not have to die
in this manner and could have been left there tied and gagged
in the manner in which he was found.” Sims stated “The boy
would have identified me.” As he was leaving, Perkins told
Sims that he would have to initiate further conversation about
the investigation. The next day Sims asked to see the Glen-
dale officers.

   Perkins took a tape recorder with him on the 26th. Sims
complained about being in the “hole” because jail authorities
thought he was going to kill himself. Perkins asked whether
he was going to and Sims said “Why should I?” Perkins said,
“O.K., that’s all I want to hear . . . You don’t seem like that
kind of guy.” Sims responded: “I’m not, I’m not a murderer
either but, . . . .” Perkins said: “What does that mean?” And
Sims answered: “That means that I just got drunk, and I didn’t
know what the fuck I was, I knew I was doing it, but I

invite a response); United States v. Orso, 266 F.3d 1030, 1033-34 (9th Cir.
2001) (en banc) (holding that officer should have known it was reasonably
likely that engaging in discussion about evidence and witnesses against the
accused as well as the penalties for the crime would cause the suspect to
respond).
15884                   SIMS v. BROWN
shouldn’t of done it.” Perkins told Sims he had trouble dis-
cussing the case because Sims had not waived his Miranda
rights. Sims expressed interest in returning to South Carolina
where his family was, and remaining in the same state as Pad-
gett. Perkins explained that Sims would likely be tried first in
California, then be released to South Carolina, when Sims
said: “You know they won’t even let me see a lawyer, they
have charges against me in Nevada, huh . . . , lawyer.” Perkins
said: “You’re a fugitive, yeah. Well tomorrow, you go to
court.” Sims asked: “Why don’t they charge me with posses-
sion of pot or something? (Laughs.) I had a bag.”

   Later, Perkins readvised Sims of his Miranda rights, and
Sims waived them to discuss Padgett’s lack of involvement in
the South Carolina crimes. Sims said that he had worked at a
Domino’s Pizza in Columbia for thirteen months before mov-
ing to Charleston. He admitted robbing a Domino’s in a
Charleston suburb, but told the officers that Padgett was
unaware of the robbery until after it happened. The next
morning they left for Jacksonville, Florida, and from there
went to Los Angeles. Sims said he and Padgett rented room
205 at the Glendale Regalodge on December 8. He told Per-
kins they had gone to Domino’s for directions to a drugstore,
and to Sears to buy a knife. He said that the next day they
returned to Domino’s for a pizza. At that point Sims ended the
interview.

                               A

   Sims contends that the California Supreme Court correctly
held that he unambiguously invoked his right to counsel on
December 25; that for this reason all interrogation had to stop;
and that he did not re-initiate discussion about the Glendale
murder either by asking about extradition on the 25th, because
that question concerned the routine incidents of the custodial
relationship instead of the criminal investigation, or by con-
tacting the Glendale officers on the 26th. The state counters
that the trial court and the district court correctly determined
                          SIMS v. BROWN                       15885
that Sims’s initial incriminating statement “I had to kill that
boy” was spontaneous and not in response to interrogation,
and that the trial court’s findings with respect to the remaining
comments were correct. This is a debate that we need not
engage, however, because we agree with both the California
Supreme Court and the district court that admitting Sims’s
incriminating remarks was harmless.7

   We “review the evidence at trial to determine whether the
confession likely had a substantial and injurious impact on the
verdict; if not, its admission was harmless.” Taylor v. Mad-
dox, 366 F.3d 992, 1016 (9th Cir. 2004) (citing Brecht v.
Abrahamson, 507 U.S. 619, 637-39 (1993)). “If a habeas
court is left with ‘grave doubt’ about whether a constitutional
error substantially influenced the verdict, then the error was
not harmless.” Parle v. Runnels, 387 F.3d 1030, 1044 (9th
Cir. 2004) (citing O’Neal v. McAninch, 513 U.S. 432, 438
(1995)).

    Sims suggests that both courts conducted their harmless
error analysis — the California Supreme Court under Chap-
man, and the district court under Brecht — improperly by
assessing the strength of the state’s evidence apart from the
erroneously admitted statements. We do not think so, because
courts do review all the state’s evidence to determine whether
error had a substantial and injurious effect on the jury’s ver-
dict. See, e.g., Brecht, 507 U.S. at 639 (finding harmless error
in part because “the State’s evidence of guilt was, if not over-
whelming, certainly weighty”); Parle, 387 F.3d at 1044 (con-
cluding that error was harmless where “the prosecution had
overwhelming evidence” of intent); see also Arizona v. Ful-
minante, 499 U.S. 279, 310 (1991) (noting, under the Chap-
man standard, that “[w]hen reviewing the erroneous
admission of an involuntary confession, the appellate court
. . . simply reviews the remainder of the evidence against the
  7
   See, e.g., Spicer v. Gregoire, 194 F.3d 1006, 1008 (9th Cir. 1999)
(assuming constitutional error and finding it harmless).
15886                    SIMS v. BROWN
defendant to determine whether the admission of the confes-
sion was harmless beyond a reasonable doubt”). In any event,
as we explain, the evidence of Sims’s guilt was overwhelming
and there is no reasonable likelihood that the challenged state-
ments actually prejudiced him.

   [1] At trial on the guilt phase, Sims’s only argument was
that he did not intend to kill Harrigan, and thus the prosecu-
tion could not establish either first degree murder or the spe-
cial circumstance of lying in wait. His theory was that
Harrigan could have drowned himself, after Sims left, by
turning onto his side and thereby submerging his head under
water. However, as the California Supreme Court found, Har-
rigan “had been hog-tied and gagged, with a pillowcase pulled
over his head and secured by a ligature bound so tightly that
the victim inevitably would die of strangulation if death did
not occur first by drowning — the victim having been left in
the bathtub with the water running over his head.” Sims, 5
Cal. 4th at 448. In light of the record as a whole, it is clear
that Sims’s incriminating statements did not have a substantial
and injurious effect on the verdict.

   Sims had it in for Domino’s, wanted revenge, and had
expressed the desire to blow up a Domino’s pizza parlor with
employees inside it. As a former Domino’s manager Sims
knew how Domino’s operated. He had scouted out the Glen-
dale Domino’s the day before, so he knew how long it would
take the delivery driver to get to the motel and for Padgett and
him to get from the motel to the parlor. Sims lured the deliv-
ery driver to Room 205 by calling to order a pizza at 11:03
p.m. Sometime after that he cut the phone cord. Harrigan left
the parlor at 11:26 to deliver Sims’s pizza. Within less than
twenty minutes, Harrigan had made the delivery, and Sims
had stuffed a washcloth in Harrigan’s mouth and tied it with
a sock around his head; put a pillow case over Harrigan’s
head, and tied it with a rope knotted in back of the neck
tightly enough to strangle him; taken off Harrigan’s Domino’s
shirt; tied Harrigan’s wrists together and tied his feet together,
                        SIMS v. BROWN                    15887
then hog-tied his hands and feet behind his back; stolen Harri-
gan’s keys and money; put Harrigan into the bathtub with
cold water running at full blast, which was unnecessary if
Sims’s only aim were to incapacitate; and gone with Padgett
to the parlor, arriving there (wearing Harrigan’s shirt under-
neath a sweater) before the delivery driver’s absence would
be noticed. Room 205 was meticulously wiped clean of fin-
gerprints, also a largely unnecessary precaution if Harrigan
were meant to survive because he would be able to identify
both of them.

   Once at the parlor, Sims responded to Spiroff’s warning
that Harrigan would be returning from a delivery by chuck-
ling, “No, I don’t think so,” and removing his sweater to
reveal a Domino’s shirt with Harrigan’s name tag. Sims then
proceeded to order Spiroff and Sicam into the corner of the
office where he pointed his gun directly at them before being
interrupted by Wagner’s arrival, and after taking care of Wag-
ner’s order, bound the two employees in the cooler in such a
way that they, too, would almost certainly die before the
cooler was opened the following day. When Spiroff and
Sicam complained, Sims responded “Shut up. At least you
live.”

   Although the prosecutor did rely on Sims’s statements in
closing argument, the emphasis was on the “extremely life-
endangering” way that Sims’s victims were bound, his calcu-
lated and expeditious execution of the crimes, his threats to
blow up the South Carolina Domino’s, his meticulous wiping
down of the motel room, and his apparent intention to kill
Spiroff and Sicam. The prosecutor’s main point was that Sims
guaranteed Harrigan would die in one of two ways: either he
would be strangled to death by the ligature around his neck,
or he would drown to death in the bathtub.

   [2] In sum, there was strong evidence of motive to kill,
other circumstantial evidence that reflected careful planning
to make sure Harrigan would not be missed or return, and evi-
15888                        SIMS v. BROWN
dence that pointed to death as the only possible outcome of
putting a hog-tied person with a ligature around his neck in
a bathtub with the water running. Accordingly, we conclude
that although confessions are undoubtedly powerful evidence,
Fulminante, 499 U.S. at 296, apart from Sims’s statements,
the evidence overwhelmingly showed that he meant for Harri-
gan to die, one way or the other.

                                    B

   Sims also argues that the prosecutor’s reliance on his state-
ments at the penalty phase had a substantial and injurious
effect in determining his sentence. First, he asserts that the
prosecutor used Sims’s statements to argue that Harrigan’s
killing was “vicious, sadistic, cruel, and needless.” In addi-
tion, he contends that the prosecutor’s reliance on the South
Carolina crimes, which Sims partially described in his
December 26 statements, to establish his planning, intent to
kill, and lack of remorse “surely affected” the jury’s sentenc-
ing deliberations.8

   To show that Sims deserved the death penalty, the prosecu-
tion predominantly relied on the depraved way in which Sims
perpetrated his series of killings and attempted killings. Sims
began in South Carolina, where he killed his coworkers, Zerr
and Melkie. After Zerr was rendered helpless with his hands
tied behind his back, Sims shot him to death at point blank
range in the head. He proceeded to shoot Melkie, also bound,
in the head, through the mouth (knocking out several teeth),
in the back of the head, and through the neck, as Melkie
moved around the room. After traveling to Glendale, Sims
  8
    Whether the verdict was “surely affected” is not the standard by which
we measure harmless error. Sims apparently drew the concept from Sulli-
van v. Louisiana, 508 U.S. 275, 279 (1993), which discussed the distinc-
tion between structural error and Chapman harmless error review of trial
errors — noting in that connection that the verdict must be “surely unattri-
butable” to error. However, Chapman does not apply to federal habeas
review.
                          SIMS v. BROWN                      15889
lured Harrigan, an innocent pizza delivery man, to his motel
room, hogtied and gagged him, and, despite his incapacita-
tion, then placed him in a bathtub with the water running full
force. Having just killed three people in the last few days,
Sims then drove to Domino’s in Harrigan’s uniform, chuckled
as he told Spiroff and Sicam that Harrigan would not be
returning, pointed a gun at Spiroff and Sicam in the corner of
the office before Wagner’s entrance, and laughed and joked
with people in the store as he took pizza orders at the front
counter. Before leaving, he hanged Spiroff and Sicam in the
cooler in a manner that promised a slow, agonizing, and pain-
ful death. When he was arrested a couple of weeks later in a
Las Vegas motel room, the police found a yellow page torn
from a Las Vegas telephone book listing Domino’s Pizza
establishments.

   During the prosecutor’s discussion of the manner of Harri-
gan’s death in his closing argument, he suggested that Harri-
gan had raised his head above the waterline in the bathtub to
avoid drowning, leaving Sims to push his head back under the
water. The prosecutor then made a passing reference to
Sims’s statement, “I had to kill that boy.” He continued,
“What more could Mitchell Sims do to John Harrigan other
than to take this helpless individual who was hogtied, bound,
gagged, and strangled and hold his head under water until he
stopped moving. It is as vicious, it is as sadistic, it is as cruel,
it is as needless, absolutely needless a death as you can
think.” Thus, the reference to Sims’s statement added nothing
to the prosecutor’s point — that the circumstances of Harri-
gan’s death were especially heinous.

  Sims also notes that the prosecutor relied on Sims’s South
Carolina crimes, which Sims partially described in his
December 26 statement. However, Sims’s statement could not
have had any prejudicial effect because the entire story of
how Sims shot and killed Melkie and Kerr was independently
presented to the jury in the penalty phase.
15890                        SIMS v. BROWN
                                    III

  During jury selection, the prosecutor used eight of his first
twelve peremptory challenges to strike four African-American
and four Hispanic venire panelists. These strikes left no black
and one Hispanic-surnamed individual in the box. Sims
argues that this statistical disparity, combined with other evi-
dence, shows that two of the strikes — against Rolando
Mandujano and Maria Cerda — were exercised on the basis
of race in violation of Batson v. Kentucky, 476 U.S. 79
(1986).

   Defense counsel raised a Wheeler objection after the prose-
cutor had challenged four prospective jurors who were black.9
The prosecutor offered individualized justifications for each
strike, primarily having to do with the jurors’ views of the
death penalty and reasonable doubt. One juror, Torey Gaines,
the prosecutor believed was “too young” and he wanted peo-
ple who were accustomed to exercising responsibility. The
prosecutor also said: “There are several black jurors, I think,
that are outstanding in this case that just haven’t been called.
There are no Blacks. The only Black person in this case is the
people’s expert witness. We have a southern white defendant
and we have white victims. Why would I not want Blacks on
the jury? As a matter of fact, I do want Blacks on the jury.”
When counsel objected to peremptory challenges of Sonia
Vasconcellos, Alfredo Estevez, Mandujano and Cerda, the
prosecutor also volunteered an explanation for his strikes.
Vasconcellos had a language problem and the prosecutor had
problems communicating with her; Estevez was very hostile
to the death penalty; Mandujano was a “sharp guy” but was
  9
   People v. Wheeler, 22 Cal.3d 258 (1978), is the California analogue of
Batson, although it has somewhat different standards. Our review, of
course, is for federal constitutional error under Batson. The United States
Supreme Court recently rejected the standard that California required
under Wheeler for a prima facie showing. Johnson v. California, 125
S. Ct. 2410 (2005). However, Johnson does not affect our analysis
because Sims’s appeal does not turn on the prima facie case.
                         SIMS v. BROWN                     15891
“a college student” who did not have the “life experiences”
nor did he “exercise the kinds of responsibility needed in a
case like this”; and Cerda was “[v]ery young” and did not
“have the type of life experiences or responsibility to take on
a case like this.” The prosecutor remarked that “[t]here are
many Latins in the audience who I hope are called as jurors
in this case. The defendant in this case is white. All the wit-
nesses are white. There is one exception, a black expert that
the people called, and there is a — at least one Latino that the
people are going to call.” He added that he applied neutral
criteria, likes minority jurors, and preferred “on a case like
this to have minority jurors. I just haven’t gotten lucky yet.”

   The trial judge found “some reason for the prosecution’s
actions” with respect to six of those struck, including Mandu-
jano, who “appeared quite young to the court,” but made no
specific finding on Cerda. He denied the Wheeler motion,
finding that “[t]here is no evidence other than the fact that all
four Black jurors have been peremptorily excused to support
a finding at this time by the court of a systematic exclusion
of Blacks or Hispanics.”

   The California Supreme Court found that “the prosecutor’s
stated justifications were facially race-neutral, based upon a
perception of a ‘specific’ or individual bias of each juror
rather than a group bias, and thus afforded a constitutionally
permissible basis for the exercise of the peremptory chal-
lenges in question.” Sims, 5 Cal. 4th at 430. It also found that
the voir dire of Cerda supported the prosecutor’s justifications
as she “gave tentative, uncertain, and equivocal responses to
nearly every question that was asked relating to the death pen-
alty.” Id. at 431. Finally, addressing Sims’s contention that
the age of Mandujano, Cerda and Gaines did not justify their
excusal because the prosecution did not challenge two young
Caucasian jurors (Karlberg and Blakely), the court found that
“the full explanation given by the prosecutor for his chal-
lenges of the three jurors [was] not their numerical age but
rather their apparent immaturity and inexperience with assum-
15892                    SIMS v. BROWN
ing weighty decisions and responsibilities. Additionally, the
prosecutor did challenge one prospective Caucasian juror
because of her youth.” Id. at 431. The district court recog-
nized that the trial court’s ruling that it was necessary to show
a “systematic exclusion” of prospective jurors was incorrect,
as the Constitution forbids striking a single juror for a dis-
criminatory purpose, but agreed that the prosecutor gave race-
neutral reasons for excluding jurors.

  [3] Batson involves a familiar three-step analysis:

    First, the defendant must make out a prima facie case
    by showing that the totality of the relevant facts
    gives rise to an inference of discriminatory purpose.
    Second, once the defendant has made out a prima
    facie case, the burden shifts to the State to explain
    adequately the racial exclusion by offering permissi-
    ble race-neutral justifications for the strikes. Third,
    if a race-neutral explanation is tendered, the trial
    court must then decide . . . whether the opponent of
    the strike has proved purposeful racial discrimina-
    tion.

Johnson v. California, 125 S. Ct. 2410, 2416 (2005) (internal
quotations and citations omitted). Here, there is no issue about
the first step, as the trial court had no occasion to rule on
whether a prima facie case had been made out because the
prosecutor moved directly to step two. In these circumstances,
“the preliminary issue of whether the defendant had made a
prima facie showing becomes moot.” Hernandez v. New York,
500 U.S. 352, 359 (1991).

   Nor is there much of an issue about the second step. Sims
acknowledges that the prosecutor’s explanation does not need
to be persuasive, and argues only that it apparently proceeded
from stereotypical assumptions about how jurors of particular
races might react in a case like this. However, the prosecu-
tor’s proffered reasons for striking Mandujano and Cerda,
                        SIMS v. BROWN                     15893
which centered on their lack of responsibility, were race neu-
tral.

   With respect to the third step, Sims first contends that the
California Supreme Court did not cure the trial court’s incor-
rect articulation of the legal standard. Even under de novo
review, however, we conclude that the record demonstrates
that there was no Batson error.

   [4] Sims argues that the pretextual nature of the prosecu-
tor’s explanations is manifest in the racially disparate pattern
of his peremptory challenges, his explicit race-based strategy,
and a comparative analysis of the struck jurors with empan-
eled jurors. Although discriminatory intent may be inferred
from the fact that the prosecutor exercised four of his first
twelve peremptory challenges to strike jurors with Hispanic
surnames, see Hernandez, 500 U.S. at 363, at least one
Hispanic-surnamed member of the venire was empaneled.
This might indicate that the prosecutor’s motive was non-
discriminatory. See Turner v. Marshall, 121 F.3d 1248, 1254
(9th Cir. 1997). As we have already discussed, the prosecutor
commented that he had no reason to strike minority jurors,
and in fact had a black and Hispanic witness. See Hernandez,
500 U.S. at 370 (noting that the ethnicity of victims and pros-
ecution witnesses could be taken as evidence of the prosecu-
tor’s sincerity).

   [5] Finally, the prosecutor explained that he struck Cerda
and Mandujano because he doubted their capacity to exercise
the responsibility of jurors in a capital case. The Supreme
Court recently made clear that “[i]f a prosecutor’s proffered
reason for striking a black panelist applies just as well to an
otherwise-similar nonblack who is permitted to serve, that is
evidence tending to prove discrimination to be considered at
Batson’s third step.” Miller-El v. Dretke, 125 S. Ct. 2317,
2325 (2005). In Miller-El, comparative analysis undermined
the proffered race-neutral bases for striking two black venire-
men because nonblacks who served on the jury should have
15894                        SIMS v. BROWN
been excluded for the same reasons. However, here, the pros-
ecutor’s explanation for striking Cerda and Mandujano was
consistent with leaving two young whites, Karlberg and
Blakely, on the jury. The record is clear that Cerda, unlike
Karlberg and Blakely, waffled in response to questions about
the imposition of the death penalty.10 Although Mandujano
looked like a very strong juror, he was younger than Karlberg
and Blakely and the only college student, so the prosecutor’s
stated nondiscriminatory reasons for striking him are plausi-
ble. Therefore, Sims’s comparative argument fails.

                                    IV

   Sims claimed in his state habeas petition to the California
Supreme Court and in his federal petition that his right to an
impartial jury was violated when a member of his jury, Mar-
lene Mauro, met with a friend who had served on Padgett’s
jury, agreed to write a book with her, and told this to other
jurors.

   He submitted the declaration of Sarah Nordell, a Sims
juror, in support. Nordell avers that Mauro related to some of
the Sims jurors that she learned about her friend’s service on
the Padgett jury when they met at a beauty shop and discov-
ered that both occupied the same seat in the jury box, that she
and her friend were thinking of writing a book together about
the two trials titled something like “Seat Number 3,” and that
they were both looking forward to getting together, once the
Sims trial was over, to compare their experiences as jurors
  10
    Sims’s suggestion that the California Supreme Court and the district
court crafted an additional ground that Cerda had equivocal feelings about
the death penalty is misplaced, as Cerda’s equivocal responses to ques-
tions about the death penalty showed lack of maturity that reasonably led
the prosecutor to doubt her ability to “take on” a death case. Cf. Miller-El,
125 S. Ct. at 2332 (explaining that a court’s “substitution of a reason for
eliminating [a prospective juror] does nothing to satisfy the prosecutors’
burden of stating a racially neutral explanation for their own actions”).
                             SIMS v. BROWN                           15895
and to work on their book.11 The supreme court summarily
denied relief, and the district court denied Sims’s request for
discovery and for an evidentiary hearing on the claim. It held
that Nordell’s declaration does not establish any improper
communication.

   [6] Sims contends that the unauthorized communication
between Mauro and her friend is presumptively prejudicial
under Mattox v. United States, 146 U.S. 140 (1892), and Rem-
mer v. United States, 347 U.S. 227 (1954). In Mattox, the bai-
liff told jurors after the jury had retired to deliberate that this
was the third fellow the defendant had killed. The Court held
that “[p]rivate communications, possibly prejudicial, between
jurors and third persons, or witnesses, or the officer in charge,
are absolutely forbidden, and invalidate the verdict, at least
until their harmlessness is made to appear.” Mattox, 146 U.S.
at 150. In Remmer, an unnamed person communicated with a
juror and remarked that he could profit by bringing in a ver-
dict favorable to the petitioner. Elaborating upon Mattox, the
Court declared that “[i]n a criminal case, any private commu-
nication, contact, or tampering directly or indirectly, with a
juror during a trial about the matter pending before the jury
is, for obvious reasons, deemed presumptively prejudicial[.]”
Remmer, 347 U.S. at 229. In Sims’s view, the Mauro contact
was especially pernicious as it gave Mauro a real, or per-
ceived, pecuniary interest in the outcome of the case. For this
he relies on our statement in Dyer v. Calderon, 151 F.3d 970,
982 (9th Cir. 1998) (en banc), that a juror who has “the hope
of writing a memoir . . . introduces the kind of unpredictable
  11
     The state suggests that the Nordell declaration has multiple layers of
hearsay and so Sims did not present the California Supreme Court with
competent evidence of this allegation, thus making it noncognizable on
federal habeas review. It is unclear to us that this point was raised in dis-
trict court, but in any event, we decline to avoid the issue on this basis.
See Jeffries v. Blodgett, 5 F.3d 1180, 1189-91 (9th Cir. 1993) (considering
two juror affidavits filed two years after petitioner was sentenced that
recounted the remarks of a third juror).
15896                   SIMS v. BROWN
factor into the jury room that the doctrine of implied bias is
meant to keep out.”

   [7] Dyer involved the situation where a prospective juror
perjured herself during voir dire, whereas the alleged impro-
priety here arose after the juror was empaneled. Whether or
not Dyer’s comments about the “hope of writing a memoir”
apply in our circumstances is academic, however, because,
without condoning the contact — which the state agrees was
unfortunate — we see no prejudice resulting from it. “A com-
munication is possibly prejudicial, not de minimis, if it raises
a risk of influencing the verdict.” See Caliendo v. Warden,
365 F.3d 691, 697 (9th Cir. 2004) (so holding in a case where
the case agent talked to several jurors for twenty minutes in
the hallway outside the courtroom, and identifying factors that
may inform the decision whether the communication raised a
risk that the verdict was influenced). Here, taking Nordell’s
declaration as true, Mauro’s unauthorized communication did
not risk influencing the verdict. The Padgett juror was not
involved in any way with the Sims trial; she was not a party,
a witness, or a court official. The contact was fortuitous and
the communication was of a relatively innocuous nature in
that it centered on the serendipity of two friends ending up as
jurors in related trials sitting in the same seat. Even if Mauro
planned to write a book about “Seat Number 3,” there is no
suggestion that she had a financial interest in any particular
outcome. This is quite unlike the suggestion by a third-party
in Remmer that the juror could make a deal, or the bribery of
a juror by a co-defendant in United States v. Dutkel, 192 F.3d
893, 894-95 (9th Cir. 1999). As appears from Nordell’s decla-
ration, Mauro intended to wait until after Sims’s trial to dis-
cuss her experiences. And there is no indication that Mauro’s
communication had any actual impact on her or anyone else.
The connection between the allegations contained in the Nor-
dell declaration and any pecuniary interest on Mauro’s part is
simply too tenuous to raise a serious concern about undermin-
ing impartiality. In these circumstances, the unauthorized
communication raised no risk of influencing the Sims verdict.
                          SIMS v. BROWN                      15897
See United States v. Armstrong, 654 F.2d 1328, 1333 (9th Cir.
1981) (finding no prejudice from juror’s receiving obscene
phone calls from an unknown person regarding the juror’s
treatment of another juror, as the calls did not refer to the
merits of the case, were not threatening, and were not identi-
fied with either party).

   Sims contends that he should at least have been accorded
discovery or an evidentiary hearing on the basis of allegations
in his petition, but we see no abuse of discretion. See Villa-
fuerte v. Stewart, 111 F.3d 616, 633 (9th Cir. 1997) (per
curiam) (noting that abuse of discretion is the standard of
review). Discovery is indicated where specific allegations
give the court reason to believe that a petitioner may be able
to demonstrate that he is entitled to relief. Bracy v. Gramley,
520 U.S. 899, 908-09 (1997). An evidentiary hearing is
required under pre-AEDPA law if “(1) the petitioner’s allega-
tions would, if proved, entitle him to relief; and (2) the state
court trier of fact has not, after a full and fair hearing, reliably
found the relevant facts.” Silva v. Woodford, 279 F.3d 825,
853 (9th Cir. 2002) (quoting Jones v. Wood, 114 F.3d 1002,
1010 (9th Cir. 1997)). Only three things are alleged in Sims’s
petition that were not encompassed in the Nordell declaration:
that Mauro’s friend told Mauro information from Padgett’s
testimony shifting blame to Sims, that Padgett had been con-
victed and that, in the friend’s opinion, Padgett was a young,
beautiful girl who had wasted her life by getting involved
with Sims. Assuming the truth of these statements, they could
not have had a substantial or injurious effect on the verdict.
At trial, Sims did not attempt to exculpate himself by blaming
Padgett; indeed, the evidence showed that Sims directed, and
committed most of the conduct in furtherance of the crimes,
himself. The friend’s opinion of Padgett could have had no
effect on the verdict at all. And the fact that a number of
jurors knew about Padgett’s conviction was aired before the
district court, which concluded that any such knowledge was
rendered insignificant by the overwhelming evidence of
Sims’s guilt. This decision is not pursued on appeal, and we
15898                   SIMS v. BROWN
can see no way in light of it that Sims’s allegation that Mauro
knew about Padgett’s conviction, if proved, would entitle him
to relief.
SIMS v. BROWN           15899
                Volume 2 of 2
15900                           SIMS v. BROWN
                                        V

   Sims maintains that his rights to due process and a nonarbi-
trary sentence were violated when the prosecutor told the jury
during closing argument in the penalty phase that evidence
about Sims’s abusive childhood did not qualify as mitigating
evidence and was therefore irrelevant to the jury’s delibera-
tions. The state responds that this is not what happened.

   [8] At the penalty phase the jury was instructed in accor-
dance with California Penal Code § 190.3 and 1 California
Jury Instructions, Criminal (CALJIC) 8.84.1 (1986 rev.). The
instruction identifies eleven factors that a juror must consider
in aggravation and mitigation of a capital crime. Factor (k) is
the last of these and is a “catch-all” factor that directs the jury
to consider “any sympathetic or other aspect of the defen-
dant’s character or record that the defendant offers as a basis
for a sentence less than death, whether or not related to the
offense for which he is on trial.”12

   [9] Sims contends that the prosecutor’s arguments negated
this instruction in two respects: first, by telling the jury that
the abuse Sims suffered during his childhood, and the depres-
sion traceable to it that he suffered as an adult, did not qualify
as mitigating evidence in any context when he stated that “if,
in fact, it were a mitigating factor that a person had a bad
  12
    With respect to factor (k), the jury was instructed:
       In determining which penalty is to be imposed on the defendant,
       you shall consider all of the evidence which has been received
       during any part of the trial of this case. You shall consider, take
       into account, and be guided by the following factors if applicable
       . . . K, any other circumstance which extenuates the gravity of the
       crime, even though it is not a legal excuse for the crime, and any
       sympathetic or other aspect of the defendant’s character or record
       that the defendant offers as a basis for a sentence less than death,
       whether or not related to the offense for which he is on trial. . . .
       You, and each of you, are the sole judges of whether a factor is
       an aggravating or a mitigating factor.
                         SIMS v. BROWN                     15901
childhood, that would apply to virtually every violent felon
currently incarcerated”; and second, by stating that Sims’s
background was not a mitigating factor because there was
“nothing to bridge the background of what happened in
[Sims’s] family to the murders that we have dealt with here.”
Sims argued the same points to the California Supreme Court,
which concluded that “[t]he prosecutor’s remarks, in general,
fall within the bounds of proper argument.” Sims, 5 Cal.4th at
464. It explained that “[f]or the most part, he did not imply
that the jury should disregard the evidence of defendant’s
background, but rather that, in relation to the nature of the
crimes committed, it had no mitigating effect. ‘A prosecutor
does not mischaracterize such evidence [offered in mitigation]
by arguing it should not carry any extenuating weight when
evaluated in a broader factual context.’ ” Id. (internal citations
omitted). The supreme court thought that the prosecutor’s
comment that the troubled background of a defendant does
not constitute mitigating evidence might have tended to sug-
gest incorrectly that the jury could not consider such evidence
in mitigation, but that any such suggestion was harmless
beyond a reasonable doubt given defense counsel’s vigorous
argument that Sims’s background had mitigating relevance
and instructions that specifically told the jury to consider as
mitigating the evidence relating to Sims’s childhood. Id. In
these circumstances, the court concluded that there was no
reasonable possibility the jury was misled to believe it could
not consider Sims’s background in mitigation. The district
court agreed. As it read the prosecutor’s summation, he never
told the jury to disregard Sims’s history of abuse but instead
argued that the evidence lacked mitigating weight because it
was unexplained, but that even if it could be viewed as some-
how improper, any error was cured by the instructions that
admonished the jurors that the prosecutor’s remarks were
merely argument and that the court would instruct them on the
law. We agree with both courts.

   The controlling standard is “whether there is a reasonable
likelihood that the jury has applied the challenged instruction
15902                    SIMS v. BROWN
in a way that prevents the consideration of constitutionally
relevant evidence.” Boyde v. California, 494 U.S. 370, 380
(1990); Brown v. Payton, 125 S. Ct. 1432, 1440-41 (2005).
The Eighth and Fourteenth Amendments require that the sen-
tencer, “in all but the rarest kind of capital case, not be pre-
cluded from considering, as a mitigating factor, any aspect of
a defendant’s character or record . . . that the defendant prof-
fers as a basis for a sentence less than death.” Lockett v. Ohio,
438 U.S. 586, 604 (1978) (plurality opinion) (emphasis in
original) (footnotes omitted). If there is constitutional error,
that is, if inappropriate comments were made and there is a
reasonable likelihood that because of them the jury applied
factor (k) in a way that prevented consideration of relevant
mitigating evidence, then Brecht harmless error analysis
applies. See Calderon v. Coleman, 525 U.S. 141, 146 (1998).

   In his argument the prosecutor told the jury to be guided by
the court’s instructions, which list factors in mitigation, and
to make its determinations based upon the instructions. He
stated that the various factors in mitigation and aggravation
are the law. He explained that mitigating facts would be an
aspect of the crime or the individual that make the crime or
the individual less vicious, cruel, painful, and deserving of the
ultimate punishment. He emphasized that the statute indicates
that “you shall consider” the various factors in aggravation
and mitigation if applicable. The prosecutor went through
each of the aggravating and mitigating factors, arguing which
he believed applied. When he got to factor (k), he explained

    Now, in this respect, we get into areas of sympathy.
    Any sympathetic or other aspects of the defendant’s
    character or background. In this you can consider
    background, family, anything else . . . you can con-
    sider whatever you want to find sympathy or pity for
    the defendant, even though it does not relate to the
    other factors in mitigation or aggravation.

Discussing Dr. Vicary’s testimony and Sims’s depression, the
prosecutor again stated “[i]t is the law you can feel sympathy
                            SIMS v. BROWN                         15903
and pity for a defendant if you deem it appropriate, if you
attach a moral or sympathetic value to that.”

   The prosecutor described evidence of Sims’s background
as “shocking.” He stated that he had no evidence to contradict
it, that it should be taken at face value, and that it paints a
very ugly picture. He then posed the rhetorical question: What
does it mean? The prosecutor’s answer was: “There is nothing
to bridge the background of what happened in that family to
the murders that we have dealt with here, nothing to connect
it.” Relying on Vicary’s testimony that most people in prison
for violent offenses were themselves the victims of abuse
when they were younger, the prosecutor stated that “if, in fact,
it were a mitigating factor that a person had a bad childhood,
that would apply to virtually every violent felon currently
incarcerated. If that were, therefore, a mitigating factor, then
you would be emptying prisons because it would apply to vir-
tually everybody.”13 The prosecutor pointed out that Vicary
never said that mental disease or defect or emotional distur-
bance were produced by the acts perpetrated on Sims’s fam-
ily. The prosecutor contrasted the absence of a bridge for
these murders with the bridge that might exist, for example,
in an offense against Sims’s stepfather, or an offense involv-
ing rape or child abuse. He noted that Vicary did testify that
Sims suffered depression, child abuse, and low self-esteem,
but argued that it did not result in a mitigating factor because,
as Vicary also testified, Sims’s depression was somewhere
between the mental illness suffered by 20 million people and
that suffered by people in Boston when the Celtics lost the
playoffs — which, the prosecutor submitted, does not mitigate
three murders and two attempted murders.
  13
    Vicary testified during the sentencing phase that “the vast majority”
of people who are in prison for violent sexual offenses, rape, and child
molesting, were, themselves, the victims of some sort of abuse when they
were younger. He also testified that “in the vast majority of cases” that
people who commit acts of premeditated murder, were themselves abused
as children.
15904                    SIMS v. BROWN
   [10] Overall, the prosecutor’s statements do not suggest
that the jury cannot consider Sims’s background as a mitigat-
ing factor but rather that it should not find that his back-
ground, shocking though it was, mitigated the vicious murders
he committed and attempted. Cf. Payton, 125 S. Ct. at 1436-
37 (describing the prosecutor’s argument there as erroneously
telling the jury that it could not consider post-crime reform
and religious conversion as mitigating under factor (k)). He
emphasized that the jurors must follow the instructions, must
consider mitigating evidence, must take Sims’s background
and anything else into account, must take Sims’s evidence of
abuse at face value, and must feel sympathy and pity if the
jury deems it appropriate. Given these entirely correct state-
ments, we cannot conclude that the prosecutor’s remarks
about a missing bridge or emptying prisons created a reason-
able likelihood that the jury misapplied the factor (k) instruc-
tion so as to preclude consideration of Sims’s background.
See Boyde, 494 U.S. at 384-86 (rejecting contention that pros-
ecutor’s arguing that the mitigating evidence did not “suggest
that [petitioner’s] crime is less serious or that the gravity of
the crime is any less,” and that “[n]othing I have heard lessens
the seriousness of this crime” undermined the factor (k)
instruction).

   [11] Even if the jurors heard the prosecutor’s closing differ-
ently from the way we have read it, and even if the jurors
inferred from any of his remarks that he believed Sims’s
background should be ignored as the California Supreme
Court concluded, it is evident that in the whole context of the
case, the prosecutor’s remarks could not have substantially
influenced the verdict. The court admonished the jury that
statements of the attorneys were simply argument, and that
the jury would determine what the evidence was and the court
would instruct on the law. The prosecutor reminded the jury
that the court’s instructions would define the law and that the
instructions must be followed. The instructions clearly stated
that the jury “shall” consider “any sympathetic or other aspect
of the defendant’s character or record that the defendant
                        SIMS v. BROWN                     15905
offers as a basis for a sentence less than death, whether or not
related to the offense for which he is on trial.” Sims presented
significant evidence of horrific abuse and what impact that
abuse had on him. The prosecutor accepted the evidence as
true and acknowledged it was “shocking.” Defense counsel
told the jury that “what [he and the prosecutor] disagree on,
however, is the significance of the mitigating factor or factors
and what weight should be accorded them.” He emphasized
that factor (k) is the “sum and substance of Mitchell’s life
before December 2, 1985.” Sims’s attorney countered the
prosecutor’s “bridge” argument by explaining that it was
wrong, and that while Sims had choices as the prosecutor
argued, the “scar tissue builds up and you keep it inside and
then it comes out and it explodes in some people.” He
explained why the jury should weigh the evidence of Sims’s
childhood background and adult depression heavily as factors
in mitigation. Finally and most importantly, for the jury to
have believed it could not consider Sims’s mitigating evi-
dence, it would have had to believe that Dr. Vicary conducted
an extensive examination of Sims, and that Sims’s mother, his
sister, his stepbrother, and his wife came out to California to
testify, for naught. We think this is unlikely, as the Court
thought of the similar situation in Boyde. See Boyde, 494 U.S.
at 383-84 (observing that it is unlikely that reasonable jurors
would believe that the court’s instructions on factor (k), even
if ambiguous, transformed all of the defendant’s favorable
testimony into a “virtual charade”). We thus conclude that any
Boyde error was harmless.

                              VI

   Although trial counsel, Morton Borenstein, presented evi-
dence at the penalty phase about Sims’s abusive childhood,
Sims contends that he failed to present expert testimony
establishing: (1) that Sims suffers from Post-Traumatic Stress
Disorder (PTSD) as a result of the abuse he suffered as a
child; (2) that the abuse Sims suffered played a direct role in
his involvement with Padgett and in the crimes at issue; (3)
15906                        SIMS v. BROWN
that Sims has organic brain damage; and (4) that Sims demon-
strated good adaptability to confinement. Sims argues that
expert testimony establishing all of these points was readily
available and if the jury had known about the full range of
mitigating evidence, it is highly likely that Sims would not
have been sentenced to death. The district court conducted an
evidentiary hearing on this issue and found that Borenstein’s
performance was neither deficient nor prejudicial. In a federal
habeas action factual findings by the district court are
accepted unless they are clearly erroneous. Hendricks v. Cal-
deron, 70 F.3d 1032, 1036 (9th Cir. 1995) (as amended).

   Borenstein had been a deputy public defender for sixteen
years and was a Grade IV (the highest grade) defender at the
time he was assigned to Sims’s case. He had tried a number
of special circumstances cases. Although the Sims case was
the first he had tried through the penalty phase, Borenstein
had been preparing to do capital cases for a long time. He
attended seminars and meetings about the death penalty,
watched death penalty trials, and spoke with other attorneys
about issues attendant to capital cases. Borenstein worked
long hours consistently on Sims’s case for eleven months; he
was assisted by a paralegal and two investigators as well as
by an experienced South Carolina attorney familiar with death
penalty issues, Jack Swerling.14 Borenstein’s other cases were
reassigned before Sims’s trial began and he then worked
exclusively on it.

  The district court found that Borenstein sent Swerling
extensive materials and was in regular communication with
him while he prepared Sims’s defense. Swerling and his law
  14
    Borenstein arranged for Swerling’s appointment so that Swerling
could investigate Sims’s background and the South Carolina crimes. Swer-
ling had defended some 100 homicides, four of which involved the death
penalty. He was an adjunct professor of criminal trial advocacy at the Uni-
versity of South Carolina Law School, and had served as chair of the crim-
inal law sections of the South Carolina Bar Association and the South
Carolina Trial Lawyers Association.
                         SIMS v. BROWN                     15907
clerk interviewed witnesses and obtained Sims’s school and
work records. Borenstein traveled to South Carolina person-
ally to speak with family members and witnesses and to view
the crime scene.

   Borenstein spoke with Sims “a lot” and he or his paralegal
visited Sims in jail at least 24 times between March 6, 1986,
when Borenstein was assigned to the case, and March 10,
1987, when the trial began.

   Borenstein retained the services of two experts: Dr. Wil-
liam Vicary, a forensic psychiatrist, and Dr. Michael
Maloney, a forensic psychologist, so that he could have the
benefit of opinions from experts in both disciplines. Vicary
was a board-certified forensic psychiatrist who received his
medical degree from the University of Southern California in
1973 and a law degree from Harvard in 1969. Most of his
practice was devoted to conducting evaluations of individuals
charged with felonies in the Los Angeles Superior Court.
Borenstein gave Vicary a nine-page single-spaced letter out-
lining the crimes and Sims’s background, and Vicary also had
extensive conversations with Borenstein, who gave him sig-
nificant details about Sims’s background. Vicary interviewed
Sims six times, and interviewed Sims’s mother, wife, siblings,
and jail deputies. He reviewed police reports, Sims’s school,
army, and work records, his South Carolina therapy records,
psychiatric records, and court records regarding Cranford’s
prosecution for sexually abusing Margaret. Vicary also con-
ferred with Maloney on the results of Sims’s psychological
testing. Vicary never told Borenstein that he needed any addi-
tional material to evaluate Sims’s case, or that additional test-
ing or experts were needed.

   Maloney had a Ph.D. in Psychology from the University of
Colorado and completed his post-doctoral fellowship at the
University of Southern California Medical Center. He was a
Diplomate in Forensic Psychology licensed to practice in Cal-
ifornia since 1970. Maloney was retained to “conduct a psy-
15908                   SIMS v. BROWN
chological evaluation of Sims to determine the existence of
any possible mental defenses for the guilt phase, and to iden-
tify any factors that could be considered as mitigating evi-
dence in the event the case proceeded to a penalty phase.”
Borenstein selected Maloney because he had extensive expe-
rience in capital cases as well as issues involving allegations
of physical, emotional and sexual abuse. Maloney was famil-
iar with the potential impact of physical and sexual abuse on
an individual’s development. Borenstein also chose Maloney
because he would give him an honest opinion and would point
him in the right direction if other things were needed. Boren-
stein sent Maloney the same nine-page letter he sent Vicary,
as well as reports of interviews conducted with Sims’s family,
friends, and high school principal, and Sims’s military
records. He and Maloney also met several times and discussed
the case at length. Maloney interviewed Sims several times
and administered several tests, including: the Wechsler Adult
Intelligence Scale Revised, the Minnesota Multiphasic Per-
sonality Inventory, and the Rorschach inkblot test. Maloney
concluded that Sims was of “clearly above average intelli-
gence” and that there were no mental defenses to the crimes.
Sims showed a disparity between his Verbal and Performance
IQ scores, but Maloney believed that the disparity could be
attributed to factors other than neuropsychological deficits. In
his opinion, Sims also showed signs of antisocial personality
disorder. Maloney never told Borenstein that he lacked any
background materials to conduct the evaluation, nor did he
suggest that additional testing was needed or that additional
experts should be retained. Maloney indicated to Borenstein
that he did not believe he would be a good witness for Sims
because of what he had discovered in his testing, and Boren-
stein decided not to have Maloney testify because of this.

   Vicary did testify, relating in light of his interviews and
investigation that Sims had suffered a lengthy pattern of abuse
(along with other members of his family), had been suicidal
since the age of fifteen, and had a history of drug and alcohol
abuse as well as long-standing feelings of inadequacy, low
                             SIMS v. BROWN                           15909
self-esteem, despair, shame, and humiliation. He explained
that these feelings cause the victims to become more and
more frightened that, as they succeed, people will find out
who they really are and that they can not actually handle
responsibilities. This in turn can result in their intentionally or
unintentionally creating a situation so that the anticipated neg-
ative feedback occurs. Vicary also opined that Sims suffered
chronic depression.

   The district court held an evidentiary hearing at which testi-
mony was received from Borenstein and eight experts.15 The
district court found that Borenstein conducted an extensive
investigation regarding Sims’s background and the crimes,
  15
    Dr. Whyte, a psychiatrist, testified that he believed Sims suffered from
PTSD, alcohol dependence, and a personality change due to organic brain
damage; he disagreed with Maloney and Dr. Ornish who determined that
Sims suffered from antisocial personality disorder. Dr. Lebowitz, a psy-
chologist licensed as a healthcare provider in Massachusetts, assessed
Sims as tormented, impaired and desperate so far as Padgett was con-
cerned. Dr. Venn, a psychologist, diagnosed Sims with PTSD and
explained that Sims’s history of severe sexual abuse affected him pro-
foundly; that Sims suffers anxiety, depression, and low self-esteem; and
that Sims meets the DSM-IV criteria for alcohol dependence, although
when he originally interviewed Sims in 1992 and 1993, he diagnosed him
with anti-social disorder. Vicary stated that he did not realize that Maloney
had administered a shortened version of some tests to Sims; that he did not
consider a diagnosis of PTSD; that details of Padgett’s life would have
helped him explain why the offenses occurred; and that he was prepared
to offer testimony that Sims would adapt well to confinement. Dr. Halleck
reviewed the expert reports, and Dr. Hamrick, who testified in Sims’s
South Carolina trial, opined that the difference in Sims’s IQ scores would
generally indicate at least some mild brain dysfunction. Dr. Delis was a
neuropsychologist who found no evidence of brain damage that affected
Sims’s cognitive ability, or of frontal lobe cognitive dysfunction. Dr.
Ornish is a forensic psychiatrist who determined that Vicary’s trial assess-
ment of Sims was competent; that Sims had antisocial personality disor-
der, alcohol dependence and a history of substance abuse, that it was
inappropriate to diagnose brain damage solely based on differences
between verbal and performance IQ, and that there was no other evidence
of brain damage; and that Sims was a textbook sociopath and substance
abuser.
15910                    SIMS v. BROWN
retained well-qualified experts experienced in capital cases to
whom he reported the results of his investigation, and was not
told by either expert that additional information or expertise
was needed. With respect to the claims that Sims now makes,
the court found that Borenstein identified that brain damage
was a possibility, conducted a thorough investigation, and
provided the results of his investigation to the experts. Experts
testified convincingly at the hearing that the disparity in
Sims’s verbal and performance IQ was not indicative of brain
damage, and that Sims’s own calculated actions during the
crimes belie any claim that he suffered an impairment in fron-
tal lobe functioning. With respect to PTSD, the court deter-
mined that in Vicary, Borenstein hired an expert who was
exceptionally qualified to render a diagnosis based on Sims’s
history of childhood sexual abuse, and Vicary admitted that
he had knowledge of PTSD. Finally, the court found that Sims
minimized Padgett’s involvement in the crimes during con-
versations with Borenstein and that Borenstein saw signs that
Sims was the domineering partner even though he was a
“fool” for Padgett. Borenstein discussed Padgett’s influence
on Sims with Maloney, watched Padgett testify at her trial,
and based on all these things, concluded that there was noth-
ing about the relationship that he could effectively use to miti-
gate the heinous nature of the crimes. Borenstein was also
concerned that if he exploited Sims’s relationship with Pad-
gett, the prosecution would call her as a witness and if so, that
she would testify as she did at her trial that Sims forced her
to go to California and how Sims cut rope and laid out which
portions he would use to tie up Harrigan’s hands and feet, laid
out a washcloth and socks that he planned to use to gag the
victim, and considered drowning the victim or cutting his
throat. Thus, the court found that Borenstein’s decision not to
present evidence regarding Padgett’s effect on Sims was a
reasonable strategic decision. Finally, the court found that
Borenstein also made a reasonable tactical decision not to
pursue future dangerousness because it would open the door
for the prosecution to present evidence of a crime that Sims
committed in the Army, another structured setting.
                         SIMS v. BROWN                     15911
   Suffice it to say, the district court’s findings are fully sup-
ported. At the end of the day, Sims’s argument turns on a
latter-day battle of experts; however, the question is whether
counsel did all that he was constitutionally required to do at
the time. As carefully explained by the district court, it is
clear that Borenstein did.

   [12] The legal framework is well-settled. In order to prevail
on a claim for ineffective assistance of counsel a defendant
must show (1) that his counsel’s representation “fell below an
objective standard of reasonableness”; and (2) that counsel’s
deficient performance “prejudiced” the defense. Strickland v.
Washington, 466 U.S. 668, 688, 692 (1984). Defense counsel
“must conduct sufficient investigation and engage in suffi-
cient preparation to be able to ‘present[ ] and explain[ ] the
significance of all the available [mitigating] evidence.’ ” May-
field v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc)
(quoting Williams v. Taylor, 529 U.S. 362 (2000)).
“[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchal-
lengeable; and strategic choices made after less than complete
investigation are reasonable precisely to the extent that rea-
sonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690-91. In determining
whether counsel’s conduct falls within the broad range of pro-
fessionally acceptable conduct, this court “will not view coun-
sel’s actions through the distorting lens of hindsight. Rather,
under the rule of contemporary assessment, an attorney’s
actions must be examined according to what was known and
reasonable at the time the attorney made his choices.” Hen-
dricks, 70 F.3d at 1036 (internal quotations and citations
omitted). Counsel has “an obligation to conduct an investiga-
tion which will allow a determination of what sort of experts
to consult. Once that determination has been made, counsel
must present those experts with information relevant to the
conclusion of the expert.” Caro v. Calderon, 165 F.3d 1223,
1226 (9th Cir. 1999). Finally, a court must indulge a strong
presumption that counsel’s conduct falls within the wide
15912                   SIMS v. BROWN
range of reasonable professional assistance. Bell v. Cone, 535
U.S. 685, 702 (2002).

   Borenstein did not fall short of the mark in any of the
respects claimed by Sims. First, he did not unreasonably fail
to retain an expert who could properly analyze the impact of
childhood abuse, in particular, PTSD. Vicary was qualified to
do so, as he admitted.

   Second, Borenstein did not unreasonably fail to elicit expert
testimony explaining the dynamics of Sims’s relationship
with Padgett; he informed Vicary about Padgett, and Vicary
interviewed Sims a number of times knowing that Padgett
was his girlfriend and accomplice. Vicary had nothing posi-
tive to say about the dynamics, perhaps because Sims had said
that he told Padgett what his plans were and she protested but
was scared of him and he wouldn’t let her leave. Sims submits
that Borenstein could not make a reasonable strategic decision
to forego assessing Padgett’s impact on Sims because he
could only make this call if it were informed by an investiga-
tion into Padgett’s background. While the investigation sup-
porting counsel’s decision not to introduce mitigating
evidence must itself be reasonable, see, e.g., Wiggins v. Smith,
539 U.S. 510, 522-23, 526 (2003); Williams v. Taylor, 529
U.S. 362 (2000); Jennings v. Woodford, 290 F.3d 1006, 1014
(9th Cir. 2002), it is immaterial that Borenstein did not inves-
tigate Padgett’s background because it was Sims’s perspective
on the relationship that mattered. Sims’s experts evidently
thought so as well, as their testimony at the evidentiary hear-
ing focused on the relationship from Sims’s point of view.

   Third, Borenstein did not unreasonably fail to pursue the
possibility that Sims had organic brain damage. Maloney
alerted Borenstein to the possibility, but found none. He did
not advise Borenstein to retain a specialist in neurological
impairment to pursue the possibility. Some experts who testi-
fied at the evidentiary hearing agreed with Maloney’s diagno-
                             SIMS v. BROWN                           15913
sis, others didn’t.16 But there is no evidence that Maloney was
not qualified; the district court found that he was well-
regarded by the defense bar, prosecutors and judges alike. In
these circumstances, as we explained in Hendricks, attorneys
are entitled to rely on the opinions of mental health experts,
and to impose a duty on them to investigate independently of
a request for information from an expert would “defeat the
whole aim of having experts participate in the investigation.”
70 F.3d at 1038, 1039.

   Fourth, Borenstein did not unreasonably fail to elicit testi-
mony from Vicary about Sims’s adaptability to confinement.
Vicary’s optimistic assessment would have been severely
undercut by Sims’s bad conduct discharge from the Army for
a crime that involved the use of force or violence and which
would have been admissible as aggravating evidence during
the penalty phase. Cal. Penal Code § 190.3(b). Without doubt
Borenstein’s decision to keep this door closed was reasonable.

  [13] In sum, by contrast with other cases in which the
Supreme Court or we have found deficient performance,17
  16
      Sims is extremely intelligent, and scored in the 99th percentile on the
most sensitive test of frontal-lobe dysfunction, in the top two percent of
people in the country on a comprehension test, and average to above aver-
age in higher level cognitive functioning but in many ranges is in the top
ten percent of the population.
   17
      See, e.g., Wiggins, 539 U.S. at 510 (counsel performed deficiently
where they failed to put on any evidence of petitioner’s life history; failed
to follow up on preliminary information suggesting that petitioner had a
horrific and traumatic childhood; and failed to comply with the standards
of performance established in their state and by the ABA at the time of
trial); Williams, 529 U.S. at 362 (counsel performed deficiently where he
did not begin to prepare for sentencing until one week before trial; did not
obtain records on petitioner’s background; did not obtain petitioner’s
prison records which revealed adaptability to confinement; and failed to
return call of witness who offered favorable testimony regarding peti-
tioner); Allen v. Woodford, 395 F.3d 979 (9th Cir. 2005) (counsel failed
to prepare for the sentencing phase of capital case until a week before that
phase began and failed to present available mitigation and the failure was
15914                        SIMS v. BROWN
Sims’s counsel thoroughly prepared for the penalty phase,
retained and informed well-qualified experts upon whom he
could reasonably rely, and presented heart-wrenching evi-
dence in mitigation. His performance passes constitutional
muster.




deemed harmless); Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir.
2001) (en banc) (counsel billed only 40 hours in preparation for guilt and
penalty phases, only substantively met with the client once, and on the day
trial commenced, failed to obtain relevant material records, spent less than
half the allowed budget and failed to consult relevant experts despite being
alerted to “evidence of diabetes and substance abuse . . .”); Lambright v.
Stewart, 241 F.3d 1201 (9th Cir. 2001) (counsel failed to obtain psychiat-
ric evaluation despite knowing of petitioner’s traumatic wartime experi-
ence and extensive drug abuse); Bean v. Calderon, 163 F.3d 1073, 1078
(9th Cir. 1998) (completely unprepared attorney presented only “disorga-
nized and cursory” penalty phase); Turner v. Duncan, 158 F.3d 449, 456
(9th Cir. 1998) (counsel’s failure “to arrange a psychiatric examination or
utilize available psychiatric information also falls below acceptable perfor-
mance standards”); Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998) (coun-
sel was ineffective for failing to conduct any investigation into defendant’s
psychiatric history despite evidence that defendant had been treated for
mental illness); Caro, 165 F.3d at 1228 (counsel’s performance was defi-
cient because, although aware of his acute and chronic exposure to toxic
chemicals, counsel did not acquire any experts on the effects of chemical
poisoning, did not provide the experts who did examine Caro with the
information that he had, and failed to properly consult experts); Wallace
v. Stewart, 184 F.3d 1112, 1118 (9th Cir. 1999) (petitioner stated prima
facie case for ineffective assistance during penalty phase where there was
complete failure to investigate family or background despite evidence sug-
gesting petitioner had mental problems); Jennings, 290 F.3d 1006 (counsel
was ineffective where he failed to inquire into possible child abuse in the
family, failed to appoint additional experts to evaluate Jennings’s mental
state or the possible effects of methamphetamine on a heavy, long-time
user, despite the fact that he knew that Jennings had been “strung out” for
over a year, did not discuss the effects of Jennings’s drug use with Jen-
nings himself, nor did he follow up on a report that Jennings had
attempted suicide, that Jennings was schizophrenic, and that his ex-wife
believed that he was crazy).
                             SIMS v. BROWN                           15915
                                   VII

   Sims argues that during the prosecutor’s summation at the
penalty phase, he made numerous impermissible comments
about Sims’s silence regarding whether Sims was sorry for
the crimes he committed, which invited the jury to penalize
him for exercising his Fifth Amendment right not to testify.18
Borenstein did not make a Griffin19 objection, and Sims
claims that this amounted to ineffective assistance of counsel
with respect to these statements:

       I was waiting for Mitchell Sims to express remorse,
       to apologize to somebody for what he had done and
       what he had taken. What I heard was a preoccupa-
       tion with getting cigarettes, seeing his girlfriend
       Ruby Padgett. I did not hear any of that remorse.
       Anything that would tell me that Mitchell Sims will
       be living the rest of his life with his stomach in a
       knot. That he will be preoccupied with the evil he
       has done. There is nothing like that.
  18
      Sims’s argument has shifted from his position before the California
Supreme Court, where his argument appeared to be that the prosecutor
improperly urged the jury to consider his lack of remorse. The supreme
court found this argument was procedurally defaulted because Sims failed
to object, and that in any event the prosecutor properly suggested that lack
of remorse should weigh against the jurors’ assigning significance to the
mitigating evidence. Sims, 5 Cal. 4th at 465. The district court noted that
in addition to this point, Sims further contended in his federal habeas pro-
ceeding that by referring to his lack of remorse, the prosecutor impermiss-
ibly commented on his failure to testify. It concluded that the claim was
procedurally barred because the California Supreme Court invoked the
contemporaneous objection rule. The district court also found the claim
lacked merit, because the prosecutor did not refer to Sims’s failure to tes-
tify in describing Sims’s lack of remorse.
   19
      Griffin v. California, 380 U.S. 609, 615 (1965) (forbidding comment
by the prosecution on the accused’s silence). Counsel did object on Griffin
grounds to the prosecutor’s reference to Sims’s statement to Perkins on
December 26 that he preferred not to discuss what happened inside the
store in Hanahan.
15916                   SIMS v. BROWN
    ...

    Now, at no time did I hear any remorse. Hear a tear.
    I mean, we have all felt guilty about things in life.
    It’s a human reaction, but granted, we haven’t killed
    people. We are not mass murderers. But there was
    no feeling of guilt. There is absolutely no feeling of
    guilt.

    ...

    The life in prison, is he going to spend it brooding
    and contemplating about the evil he has done? You
    really think he will? You think he is going to have
    that knot in his stomach? You think he will think
    about the lives he has taken? The years he has
    stolen? Has he yet? Has he yet come out and said to
    anyone that tearfully he is sorry for what happened,
    that he thinks about it every day, that he can’t sleep
    at night?

  However, the statements must be considered in context. In
context, the first statement to which Sims says counsel should
have objected is as follows:

    Now, many things go into a case in judging what the
    appropriate punishment should be and we have a
    statement to Mr. Perkins on the 25th, the taped con-
    versation that I would like you — respectfully ask
    you to listen to for several reasons — on the 26th,
    and we have Dr. Vicary who said he interviewed the
    defendant 6 times for a total of 6 hours.

    And    I was waiting for those pieces of evidence to
    hear   that Mitchell Sims was sorry. I was waiting to
    hear   that Mitchell Sims felt bad about the years he
    had    stolen. I was waiting for Mitchell Sims to
                    SIMS v. BROWN                    15917
express remorse, to apologize to somebody for what
he had done and what he had taken.

What I heard was a preoccupation with getting ciga-
rettes, seeing his girlfriend Ruby Padgett. I did not
hear any of that remorse. Anything that would tell
me that Mitchell Sims will be living the rest of his
life with his stomach in a knot. That he will be pre-
occupied with the evil he has done. There is nothing
like that.

The second is:

Next day Mitchell Sims calls back Jon Perkins and
conversation picks up again about cigarettes. First
thing on Mitchell Sims’ mind is cigarettes. He has
killed 3 people, tried to kill 2 more, and the first
thing on his mind is cigarettes; the second one is
Ruby.

And he says, “Well, I knew I was doing it,” and then
kicks in as an afterthought, “Maybe I shouldn’t have
done it.” That’s the only thing, the closest thing we
have to even remotely showing any remorse for what
he did. And that was dropped immediately because
he said, “Oh, well, I was drunk.”

[colloquy]

Now, at no time did I hear any remorse. Hear a tear.
I mean, we have all felt guilty about things in life.
It’s a human reaction, but granted, we haven’t killed
people. We are not mass murderers. But there was
no feeling of guilt. There is absolutely no feeling of
guilt.

Listen to this tape. Listen to the tone of his voice on
[that] tape, and ask yourself where is the guilt?
15918                   SIMS v. BROWN
    Where is the remorse? Where is the repentance?
    Where is asking for forgiveness there? You won’t
    find it.

    And the third is:

    His world, we learned a little bit about when we
    heard first from Mrs. Sims and then from Detective
    Yarborough about his fascination with the movie
    “The Executioner’s Song.” About Gary Gilmore
    who was himself a multi-murderer, about how Sims
    wanted to go out in a blaze of glory. That is his
    world. Fascination with multiple murderers. That’s
    his world. A life in prison, that’s what his world will
    be like. That’s what he will be like. The life in
    prison, is he going to spend it brooding and contem-
    plating about the evil he has done? You really think
    he will? You think he is going to have that knot in
    his stomach? You think he will think about the lives
    he has taken? The years he has stolen? Has he yet?
    Has he yet come out and said to anyone that tearfully
    that he is sorry for what happened, that he thinks
    about it every day, that he can’t sleep at night? That
    he can’t eat? That he feels guilty and he can’t take
    it any longer? Will he spend the rest of his life in
    remorse or will it be like you hear on the tape: ciga-
    rettes, Ruby, me first, satisfy my needs today.

   [13] Each of these comments is tethered to evidence that
was part of the record in the penalty phase, as the district
court found. For this reason, Sims’s contention—that the
prosecution may not argue that the defendant has failed to
show remorse by using his silence at trial as the evidence of
remorselessness—while true in the abstract, is misplaced. We
held in Beardslee v. Woodford that “[a] prosecutor’s comment
is impermissible if it is ‘manifestly intended to call attention
to the defendant’s failure to testify or is of such a character
that the jury would naturally and necessarily take it to be a
                         SIMS v. BROWN                     15919
comment on the failure to testify.’ ” 358 F.3d 560, 586 (9th
Cir. 2004) (quoting United States v. Tarazon, 989 F.2d 1045,
1052 (9th Cir. 1993)). However, the situation and the prosecu-
tor’s statements in Beardslee were both quite different from
the situation and the prosecutor’s statements here. Beardslee
had testified at a preliminary hearing and at the guilt phase.
In that light, the prosecutor’s comments implied that the
defendant’s failure to testify at the penalty phase had signifi-
cance when he stated: “Since you only heard the defendant
through the tape recorder and his previous testimony, you
were not able to observe his demeanor and sincerity at the
time he testified so you, too, could judge if there was any feel-
ing in the man . . . . Wouldn’t you expect a man on trial for
his life would, through his statements, cry out for forgiveness,
cry out for pity? He did not. Never heard any in the state-
ments.” Id. Nothing similar occurred at the Sims trial or could
have been inferred from the prosecutor’s remarks, which
rested entirely upon statements that Sims himself had made.
The prosecutor made no allusion to the difficulty of gauging
an absent defendant’s credibility. This being so, counsel’s
failure to object to the prosecutor’s statements did not fall
below an objective standard of reasonableness.

                              VIII

   As with the individual claims, we conclude that the cumu-
lative effect of any constitutional errors did not prejudice
Sims.

  AFFIRMED.
15920                    SIMS v. BROWN
B. FLETCHER, Circuit Judge, concurring in part and dissent-
ing in part.

   I concur in the majority’s disposition of Sims’s guilt-phase
claims, but I must respectfully dissent from the denial of
habeas relief with respect to Sims’s death sentence, and in
particular from Parts III-B, VI, and IX of the majority opin-
ion.

   I view this case through a different lens than does the
majority. I conclude that constitutional error infected Sims’s
trial in two respects that I will elaborate. I then turn to Brecht
v. Abrahamson, 507 U.S. 619 (1993), to determine whether
the constitutional errors had “substantial and injurious effect
or influence in determining the jury’s verdict.” Id. at 623
(citation and internal quotation marks omitted). I add the gloss
of O’Neal v. McAninch, 513 U.S. 432 (1995), which instructs
that if there is “grave doubt” as to the effect of the constitu-
tional errors, the petitioner is entitled to relief. Id. at 436.

   In this death penalty case, I take this “grave doubt” stan-
dard very seriously and have viewed this case in that light. I
conclude that the determination of guilt must stand despite
constitutional error. In my view, it did not have a substantial
and injurious effect or influence in determining the jury’s ver-
dict. There was too much compelling evidence of guilt. How-
ever, the constitutional error carried over into the penalty
phase, and together with additional error introduced into the
penalty phase, engenders “grave doubt” as to what effect or
influence the constitutional errors had on the jury’s verdict.

   The penalty phase was marred by two constitutional errors:
the prosecutor’s use of Sims’s inculpatory statements
obtained in violation of Miranda, and the prosecutor’s insis-
tence that the compelling evidence of Sims’s childhood abuse
could not be considered by the jury in mitigation. Because
there is “grave doubt” as to the effect of these errors, the dis-
                               SIMS v. BROWN                           15921
trict court’s denial of the writ with respect to Sims’ death sen-
tence should be reversed.

                            I. Miranda Error

   The majority ignores the fact that the California Supreme
Court held that the admission of crucial portions of Officer
Perkins’s interrogation of Sims violated Miranda v. Arizona,
384 U.S. 436 (1966). People v. Sims, 853 P.2d 992, 1015
(Cal. 1993).1 I agree with the California Supreme Court that
the admission of Sims’s inculpatory statements was error. I
conclude further that the manner in which the statements were
used by the prosecution had a substantial and injurious effect
on the jury’s penalty phase deliberations.2
  1
   It held:
         We conclude defendant’s statement that he ‘had to kill that
      boy,’ his repetition of that statement, and his third statement that
      the victim would have identified him, were elicited in contraven-
      tion of Miranda. All three statements should have been excluded
      from evidence. The trial court’s denial of defendant’s motion to
      suppress these statements therefore constituted error.
         The three statements constituted a confession, i.e., a declara-
      tion of defendant’s intentional participation in the murder. (See
      People v. McClary, [ ] 571 P.2d 620 (1977).
853 P.2d at 1015.
   2
     Because “the availability of the Fifth Amendment privilege does not
turn upon the type of proceeding in which its protection is invoked, but
upon the nature of the statement or admission and the exposure which it
invites,” the Supreme Court has found “no basis to distinguish between the
guilt and penalty phases of [a] capital murder trial so far as the protection
of the Fifth Amendment privilege is concerned.” Estelle v. Smith, 451 U.S.
454, 462-63 (1981) (citation, internal quotation marks, source’s alteration
marks, and footnote omitted). Therefore, Miranda’s exclusionary rule
regarding improperly obtained unfavorable statements applies with equal
force to both the penalty and guilt phases. Id. (“Just as the Fifth Amend-
ment prevents a criminal defendant from being made ‘the deluded instru-
ment of his own conviction,’ [ ], it protects him as well from being made
the ‘deluded instrument’ of his own execution.” (internal quotation marks
and citations omitted)); cf. Jones v. Cardwell, 686 F.2d 754, 756 (9th Cir.
1982) (holding that the Fifth Amendment protects defendant against self-
incrimination in non-capital case for purposes of increasing sentence
based on judicial fact-finding).
15922                   SIMS v. BROWN
   Once having invoked his right to silence and to have an
attorney present during questioning, a suspect “is not subject
to further interrogation by the authorities until counsel has
been made available, unless the accused himself initiates fur-
ther communication.” Edwards v. Arizona, 451 U.S. 477, 484-
85 (1981). A suspect initiates further communication of his
own accord only when he “evince[s] a willingness and a
desire for a generalized discussion about the investigation.”
Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). If
police then begin anew with interrogation of the suspect, the
prosecution must demonstrate under the totality of the circum-
stances that the suspect has knowingly and intelligently
waived his previously invoked rights. Edwards, 451 U.S. at
486 n.9. “Interrogation” in this context may be express ques-
tioning or “any words or actions on the part of the police
(other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an
incriminating response.” Rhode Island v. Innis, 446 U.S. 291,
301 (1980).

   On December 25, Sims unequivocally invoked his rights to
silence and to have an attorney present during questioning.
Once this occurred, Perkins prepared to leave the interroga-
tion room. Perkins’s own testimony then establishes 1) that
Sims asked questions narrowly directed at issues relating to
extradition, 2) that Perkins responded with a rambling expla-
nation of his role in the investigation and details from the
crime scene, and 3) that only after Perkins had related this
extensive crime-scene information did Sims state “I had to
kill that boy.”

   The California Supreme Court’s determination that Per-
kins’s response was “nonresponsive to [Sims’s] inquiry and
served no legitimate purpose incident to [Sims’s] arrest or
custody” was entirely correct. Sims’s statement cannot be
read to “evince[ ] a willingness and a desire for a generalized
discussion about the investigation.” Bradshaw, 462 U.S. at
                             SIMS v. BROWN                           15923
1045-46. Rather, Sims was asking simple questions about
extradition.3 Perkins’s responses, in contrast, went directly to
the substance of the investigation; at one point Perkins even
stated that he had “reason to believe that [Sims] and a female
companion occupied that room prior to the demise of Mr.
Harrigan.” This statement was reasonably likely to elicit a
response from Sims related to whether or not he had occupied
the room, and whether or not he killed Harrigan. Thus, Per-
kins’s non-responsive narrative was tantamount to further
interrogation and in violation of Miranda and its progeny.

   Following this straightforward confession, Perkins contin-
ued to ply Sims with details of the murder, even remarking
that Harrigan did not need to die in that manner. Both the
Supreme Court of California and the district court concluded
that Perkins’s statements were likely to elicit an incriminating
response, and Sims’s response that “he would have identified
me” should have been suppressed. This conclusion is correct
for the reasons stated in those opinions.

  The following day, Sims requested to see the Glendale offi-
cers once more. When he mentioned that people thought he
was crazy and might kill himself, Perkins asked him if he
would, and stated that he didn’t “seem like that kind of guy.”
Sims remarked that he was not suicidal, and that he was “not
a murderer either.” Perkins’s statements until that point can-
not be characterized as interrogation, as they were not “rea-
sonably likely to elicit an incriminating response.” I have no
quarrel with the admission of this statement.
  3
    The district court’s determination that Sims inquired about “why Per-
kins was there, and his authority for being there” is unsupported by the
record. Indeed, the pages cited by the district court demonstrate that Per-
kins understood Sims’s questions to be related to “purely extradition.”
Despite this understanding, Perkins continued to speak of subjects far
afield from extradition. The district court’s factual finding in this regard
is clearly erroneous.
15924                       SIMS v. BROWN
   However, when Perkins then asked Sims “What does that
mean?” Perkins was posing a question that was likely to elicit
an incriminating response. This is exactly what happened, as
Sims confessed, “That means that I just got drunk, and I
didn’t know what the fuck I was, I knew I was doing it, but
I shouldn’t [have] done it.” The district court concluded that
this statement should have been suppressed. I agree.

   In all, I conclude that three of the four incriminating state-
ments were admitted into evidence by the trial court in viola-
tion of Miranda and its progeny.

         II.   The Miranda Error’s Injurious Effect

   The majority concludes that whatever Fifth Amendment
error occurred was harmless with respect to both phases of
Sims’s trial. Though I cannot say that the admission of Sims’s
confessions to Officer Perkins had a “substantial and injurious
effect or influence in determining the jury’s verdict,” Brecht,
507 U.S. at 623 (citation and internal quotation marks omit-
ted), at the guilt phase of Sims’s trial, it did have such an
effect on the penalty phase deliberations.

   Throughout both phases of the trial, the jury heard numer-
ous and extensive references to the December 25 and 26
incriminating statements, both during the presentation of the
evidence and the prosecution’s argument. During the guilt
phase, Officer Montecuollo testified that Sims had confessed
that “I had to kill that boy” during the December 25 interview.
The jury heard the same statement twice more during Mon-
tecuollo’s cross examination, and twice more on re-direct.
Officer Perkins corroborated that testimony, stating that when
he described the investigation and the crime scene, Sims twice
said, “I had to kill that boy,” then that “he was going to iden-
tify me.” The statement “I had to kill that boy” was then
repeated once more during direct testimony, four more times
on cross examination, and two more times on re-direct.4 Offi-
  4
   Sims’s explanation that “he was going to identify me” was heard by the
jury twice more during cross examination and once more during re-direct.
                         SIMS v. BROWN                     15925
cer Perkins went on to testify as to the December 26 inter-
view, recounting Sims’s admission that, “That means that I
just got drunk. I didn’t know what the fuck I was — I knew
what I was doing but shouldn’t have done it.” This same state-
ment was heard again by the jury when the prosecution played
the cassette tape of the December 26 conversation between
Perkins and Sims. A copy of the transcript of that taped con-
versation was admitted into evidence over defense counsel’s
objection, read in part to the jury during the prosecution’s
closing, and allowed into the jury room during deliberations.

   The use of these incriminating admissions was central to
the prosecutor’s closing argument in the guilt phase. After
using the statement “I had to kill that boy” four more times
during the closing to show intent to kill, the prosecutor used
the phrase as a refrain in his rebuttal. In bolstering Officer
Montecuollo’s credibility, the prosecutor stressed three times
how important the statement was. The prosecutor explained
that Montecuollo’s failure to remember Sims’s explanation
that Harrigan could have identified him was not significant
because “[Montecuollo and Perkins] both remember the key
important part: I had to kill that boy. That’s the important part
of that conversation” (emphasis added). The prosecutor then
continued:

       It is only natural that things — that people’s mem-
    ories begin to fade, accept [sic] for the really impor-
    tant things, and the important thing was: I had to kill
    that boy.

       But here is a man that is coming into court and
    telling you the honest truth. That’s what he recalls.
    And it is important because of what he recalls. He
    recalls the important part of that conversation, which
    is: I had to kill that boy.

(emphasis added). The prosecutor then spent a comparable
amount of time expounding on the importance of Sims’s other
15926                    SIMS v. BROWN
admission: “I knew I was doing it, but I shouldn’t [have] done
it.” Repeating the statement several times, the prosecutor
argued that it conclusively confirmed Sims’s intent to kill.

   During the penalty phase, the prosecution again played the
tape of Sims’s admission that “I just got drunk, and I didn’t
know what the fuck I was, I knew I was doing it, but I
shouldn’t [have] done it.” Then, in his penalty phase closing
argument, the prosecutor reiterated once again for the jury
Sims’s two most damning statements: “I had to kill that boy”
and “I knew I was doing it but I shouldn’t [have] done it.”
Specifically, the prosecutor used “I had to kill that boy” in
conjunction with a hypothesis about how the murder might
have taken place:

       We can assume that John Harrigan would want to
    live. Raises his head out of the water and it would
    take Mitchell Sims to push his head back under the
    water. What did Mitchell Sims say? “I had to kill
    that boy.” And that’s how he killed John Harrigan.

In sum, the improperly admitted statements were repeated
throughout the proceedings, becoming a refrain for the prose-
cution.

   The prosecution’s use of these statements prejudiced
Sims’s capital sentencing proceeding in two ways. First, the
use of Sims’s statements reflecting his intent to kill Harrigan
completely foreclosed any residual doubt argument Sims
might have mounted with respect to his intent to kill. We have
recently reiterated that reliance on residual doubt is an accept-
able penalty phase strategy. See Williams v. Woodford, 384
F.3d 567, 617-17 (9th Cir. 2004). Here, the evidence of intent
was strong enough that, after considerable review and study
of the record, I cannot say Sims’s statements to Perkins had
a “substantial and injurious effect or influence” on the jury’s
determination of Sims’s intent beyond a reasonable doubt,
and therefore I agree with the majority that Sims was not prej-
                        SIMS v. BROWN                    15927
udiced at the guilt-phase. However, there were lingering ques-
tions about Sims’s intent to kill that, absent the introduction
of Sims’s admission “I had to kill that boy,” could have pre-
vented the jury at the penalty phase from finding Sims’s intent
beyond all possible doubt (the standard for lingering doubt).
During the guilt phase, defense counsel argued that evidence
such as the cut phone cord, Sims’s deliberate misstatement to
Sicam and Spiroff that he and Padgett were headed to San
Francisco, the slackness of the ligature around Harrigan’s
neck, and the fact that the bathtub drain was unplugged, raised
a doubt as to Sims’s intent to kill. Sims’s admissions blunted
any potential impact this evidence may have had in support of
a residual doubt theory. Unsurprisingly, the defense’s argu-
ment that Sims lacked intent was entirely abandoned during
the penalty phase, and defense counsel did not press a residual
doubt argument with any specificity or vigor. Meanwhile the
prosecutor was able to argue very effectively during the pen-
alty phase that the case had been proved beyond all possible
doubt. Had Sims’s crucial statements to Officer Perkins — “I
had to kill that boy” and “I knew I was doing it” — been
excluded (as they should have been), the prosecutor’s argu-
ment on this score would have been open to challenge and the
residual doubt question would have been very much in play,
as several of Sims actions appear inconsistent with an intent
to kill. The effect of admitting the statements, then, was to
eliminate an entire legitimate and effective argument in favor
of sparing Sims’s life.

  Second, the prosecutor used Sims’s statements as the foun-
dation of his extensive argument that Sims lacked remorse.
The prosecutor argued:

       . . . [N]o remorse. Now, many things go into a
    case in judging what the appropriate punishment
    should be and we have a statement to Mr. Perkins on
    the 25th . . . [and] on the 26th . . . .

      And I was waiting for those pieces of evidence to
    hear that Mitchell Sims was sorry. I was waiting to
15928                   SIMS v. BROWN
    hear that Mitchell Sims felt bad about the years he
    had stolen. I was waiting for Mitchell Sims to
    express remorse, to apologize to somebody for what
    he had done and what he had taken.

       What I heard was a preoccupation with getting
    cigarettes, seeing his girlfriend Ruby Padgett. I did
    not hear any of that remorse. Anything that would
    tell me that Mitchell Sims will be living the rest of
    his life with his stomach in a knot. That he will be
    preoccupied with the evil he has done. There is noth-
    ing like that.

      What did we hear on the 25th? Mitchell Sims
    looking out for number one. “What is going to hap-
    pen to me in terms of extradition. I want to see
    Ruby. I want to go the same place Ruby goes.” . . .

      . . . And then he said, “I had to kill that boy.” And
    Mr. Perkins indicated, went through the facts of the
    Glendale case. “Well, you know this kid was tied up
    and bound and gagged.” Jon Perkins says, “Mitch
    he didn’t have to die.” At that point, Mitchell Sims
    says, “Well, I didn’t want him to identify me.”

       Next day Mitchell Sims calls back Jon Perkins and
    conversation picks up again about cigarettes. He has
    killed 3 people, tried to kill 2 more, and the first
    thing on his mind is cigarettes; the second one is
    Ruby.

       And he says, “Well, I knew I was doing it,” and
    then kicks in as an afterthought, “maybe I shouldn’t
    have done it.” That’s the only thing, the closest thing
    we have to even remotely showing remorse for what
    he did.

(emphasis added).
                        SIMS v. BROWN                     15929
   Sims’s lack of remorse was thus the subject of extended
discussion by the prosecutor, and Sims’s December 25 and 26
statements to Officer Perkins were at the heart of the prosecu-
tor’s portrayal of Sims as selfish, unfeeling, and utterly with-
out conscience. The record reflects that the prosecutor
repeatedly used the conversations between Sims and Officer
Perkins to portray Sims as remorseless. The prosecutor began
by drawing the jury’s attention to the most damning of Sims’s
statements taken in violation of Miranda: “I had to kill that
boy” and “Well, I knew I was doing it . . . maybe I shouldn’t
have done it.” The prosecutor told the jury that, as he listened
to the Perkins interviews, he “was waiting for those pieces of
evidence to hear that Mitchell Sims was sorry”; he “was wait-
ing to hear that Mitchell Sims felt bad about the years he had
stolen”; he “was waiting for Mitchell Sims to express
remorse, to apologize to somebody for what he had done and
what he had taken.” What the prosecutor heard instead “was
a preoccupation with getting cigarettes, seeing his girlfriend
Ruby Padgett”; the prosecutor “did not hear any of that
remorse.” The question “where is the remorse?” appears three
times in the prosecutor’s argument, along with two other simi-
lar formulations: “Where is the knot in his stomach?” and
“Where is asking for forgiveness there?” With these ques-
tions, the prosecutor drew out the contrast between the type
of remorse he would have expected to hear from a person who
“ha[s] a conscience,” and the Sims’s passionless confessions
— particularly, “Well, I knew I was doing it . . . maybe I
shouldn’t have done it,” a statement the prosecutor character-
ized as “the only thing, the closest thing we have to even
remotely showing remorse for what he did.” The prosecutor’s
extensive remarks on the subject of remorse, a point of
emphasis in his argument that Sims should be put to death,
thus arose directly from the prosecutor’s discussion of Sims’s
constitutionally inadmissible statements to Officer Perkins.
Sims’s confessions were the force behind the no-remorse
argument.

  “As the Supreme Court has observed: ‘A confession is like
no other evidence. Indeed, the defendant’s own confession is
15930                      SIMS v. BROWN
probably the most probative and damaging evidence that can
be admitted against him.’ ” Hayes v. Brown, 399 F.3d 972,
986 (9th Cir. 2005) (en banc) (quoting Arizona v. Fulminante,
499 U.S. 279, 296 (1991)) (further citation and internal quota-
tion marks omitted). So it was here. By presenting and
emphasizing to the jury Sims’s own admission of intent, the
prosecution foreclosed any residual doubt argument Sims
might have made, and Sims’s December 25 and 26 statements
became the centerpiece of the argument — featured promi-
nently throughout the prosecutor’s closing — that Sims
lacked remorse for his crime.

   In spite of the ghastly nature of the crime, a death sentence
was not a foregone conclusion in this case. Sims’s decade of
tragic abuse at the hands of his stepfather was, even in the
prosecutor’s characterization, “shocking.”5 Additionally, had
the prosecutor not been able to invoke Sims’s statements
taken in violation of Miranda, the jury might have retained
lingering doubt as to Sims’s intent and would not have been
presented with the prosecutor’s extensive argument that Sims
lacked any remorse for his crime. In light of the evidence
Sims presented in mitigation and the twin advantages the
prosecution gained by its use of Sims’s December 25 and 26
statements, I must conclude that, with respect to the penalty
phase, the Miranda violations had a “substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht,
507 U.S. at 623 (citation and internal quotation marks omit-
ted). I would find Sims entitled to relief from his sentence of
death on this error alone.

      III.   Mitigating Evidence: The Prosecutor Misleads
                            the Jury

  I also strongly disagree with the majority’s rejection (in
  5
    The details are so gruesome that I do not belabor them here. If the
reader needs to refresh his or her memory, turn to the majority opinion,
at 15878-79.
                             SIMS v. BROWN                           15931
Part VI of the opinion) of Sims’s Eighth Amendment claim
that the prosecutor repeatedly misstated the law as to the
jury’s use of mitigating evidence. The prosecutor misstated
the law to the jury in two respects: first, by telling the jury
that evidence of a childhood characterized by abuse is simply
not a mitigating factor at all because it would apply to practi-
cally all criminals; and second, by advising the jury that evi-
dence of Sims’s background does not qualify as mitigating
evidence because there is no connection or “bridge” between
that background and Sims’s crime. The prosecutor’s use of
these misstatements was pervasive during his closing. As I
shall explain, I cannot agree with the majority’s conclusion
that these misstatements were merely arguments that the jury
should not attach weight to Sims’s mitigating evidence: the
prosecutor’s misstatements of the law created the overwhelm-
ing impression that the jury could not consider evidence of
Sims’s dreadful childhood, which was the heart of the evi-
dence he offered to convince the jury to spare his life.6 As a
  6
    The record offers scant support for the majority’s conclusion that the
confusion sown by the prosecutor’s improper arguments was in any way
dispelled by the court’s instructions or the arguments of defense counsel.
The court’s instructions on mitigating evidence were of the most general
nature, were far removed in time from the prosecutor’s misstatements of
the law, and were not addressed to counteract these misstatements. When
the prosecutor presented his erroneous theories, no curative instruction
was given. Even worse, when defense counsel objected, the court over-
ruled him, thereby implicitly placing the court’s own imprimatur on the
prosecutor’s improper argument.
   Nor could the jury’s confusion have been ameliorated by the arguments
of defense counsel, who at first suggested that no bridge was required and
later argued as if it were. Moreover, it is doubtful whether the arguments
of defense counsel alone could ever suffice to cure misleading arguments
by the prosecutor, as the jury is likely to view a debate between defense
and prosecution as merely inviting resolution of the issue by the jury. Such
a result does not cure the constitutional violation. See Payton v. Woodford,
299 F.3d 815, 825-26 (9th Cir. 2002) (en banc) (“In effect, the court’s
instruction delegated to the jury the legal question whether factor (k)
allowed consideration of Payton’s mitigating evidence. Nothing prevented
the jury from refusing to consider Payton’s mitigating evidence and
thereby reaching an unconstitutional result.”), vac’d on other grounds, 538
U.S. 975 (2003), on remand at Payton v. Woodford, 346 F.3d 1204 (9th
Cir. 2003) (en banc), rev’d sub nom. Brown v. Payton, 125 S. Ct. 1432
(2005).
15932                   SIMS v. BROWN
result, the capital sentencing proceeding did not comport with
the standards of Lockett v. Ohio, 438 U.S. 586 (1978), and its
progeny, which require that the capital sentencer consider all
relevant mitigating evidence.

  In his penalty phase closing, the prosecutor argued:

       Now, let’s talk about Mitchell Sims because there
    was evidence put on about his background. Evidence
    — certainly is shocking about the evidence. . . . It
    certainly paints a very ugly picture. . . . The question
    is: what does it mean?

       We have had a psychiatrist come in and testify to
    tell us what it meant. . . . I have a notation: no
    bridge. There is nothing to bridge the background of
    what happened in that family to the murders that we
    have dealt with here. Nothing to connect it.

       And I kept waiting for something to connect it up.
    Connect it up. What does it mean that person has had
    an abused childhood? What does it mean in terms of
    this case right here? There is nothing to connect it up
    because when Dr. Vicary testified, he said that if you
    go up to state prison and you talk to violent crimi-
    nals, murderers, and rapists, and whatever, you find
    a violent childhood. If you go up to prison and find
    and talk to murderers and rapists and robbers, you
    are not going to find a lot of Harvard M.B.A.’s. You
    are going to find people who in turn were abused as
    children. What does that mean in terms of mitiga-
    tion? If, in fact, it were a mitigating factor that a
    person had a bad childhood, that would apply to ver-
    tually [sic] every violent felon currently incarcer-
    ated.

      If that were, therefore, a mitigating factor, then
    you would be emptying prisons because it would
                        SIMS v. BROWN                     15933
    apply to vertually [sic] everybody. . . . Were it a mit-
    igating favor that a person had a bad childhood,
    then you would have no death penalty statute at all.

(emphasis added). After defense counsel objected to this line
of argument and was overruled, the prosecutor continued:

        So, the question is: what does it mean? Let’s put
    it in context. Because we are dealing with a common
    background to a criminal population. . . .

      Now, I kept waiting for a bridge. Something to
    connect this to the offenses here. Some kind of rea-
    son why it should be a mitigating factor. . . .

      ...

       So, again, we are searching for a bridge, we are
    searching for some kind of bridge. I suppose if the
    offense was against his stepfather, certainly it would
    be relevant, then, wouldn’t it? No question about
    that.

       If the offenses here were sexual in nature, for
    example, rape murders, child molestation murders,
    then there would be a nexus, you would have that
    connection there, wouldn’t you? But there aren’t. I
    mean, there is no bridge. There is no bridge that
    bridges this bad background to anything we have in
    the case before us. We have murders of people who
    were strangers. People who were friends. People
    who were delivering pizzas. There is no connection.
    Also, we have a gap in time. What happened to Mr.
    Sims, as bad as it was, was ten years before the
    crimes in question. A lot of water under the bridge
    in ten years. The more you analyze it, and I know it
    sounded terrible when we heard it, we can’t help but
    be affected by it, but it is the jury’s job to avoid —
15934                    SIMS v. BROWN
    dispassionately analyze it. What does it mean in
    terms of assigning a mitigating factor to it? What
    does it mean in terms of punishment? It doesn’t
    mean a thing. There is no mitigating factor there.

(emphasis added).

   The Supreme Court has repeatedly held that, in a capital
sentencing proceeding, “a sentencer may not be precluded
from considering, and may not refuse to consider, any rele-
vant mitigating evidence offered by the defendant as the basis
for a sentence less than death.” Penry v. Lynaugh, 492 U.S.
302, 318 (1989), overruled on other grounds, Atkins v. Vir-
ginia, 536 U.S. 304 (2002); see also Skipper v. South Caro-
lina, 476 U.S. 1 (1986); Eddings v. Oklahoma, 455 U.S. 104
(1982); Lockett v. Ohio, 438 U.S. 586 (1978). The sentencer
must be able not only to consider but also to “give effect to
all relevant mitigating evidence offered” by a capital defen-
dant. Boyde v. California, 494 U.S. 370, 377-78 (1990)
(emphasis added). The Supreme Court has refused to tolerate
“[a]ny barrier” to the proper use of mitigating evidence:
“Whatever the cause, the conclusion would necessarily be the
same: Because the sentencer’s failure to consider all of the
mitigating evidence risks erroneous imposition of the death
sentence, in plain violation of Lockett, it is our duty to remand
. . . for resentencing.” McKoy v. North Carolina, 494 U.S.
433, 442 (1990) (citations, internal quotation marks, and
source’s alteration marks omitted).

   Regarding the definition of relevant mitigating evidence,
the Supreme Court has recently reaffirmed the breadth of the
range of evidence that the capital sentencer must be instructed
to consider:

    “Relevant mitigating evidence is evidence which
    tends logically to prove or disprove some fact or cir-
    cumstance which a fact-finder could reasonably
    deem to have mitigating value.” Thus, a State cannot
                         SIMS v. BROWN                     15935
    bar “the consideration of evidence if the sentencer
    could reasonably find that it warrants a sentence less
    than death.”

   Tennard v. Dretke, 124 S. Ct. 2562, 2570 (2004) (quoting
McKoy, 494 U.S. at 440, 441) (further citations, internal quo-
tation marks, and source’s alteration marks omitted). Apply-
ing this “low threshold for relevance,” id., the Supreme Court
specifically rejected the view, espoused by the Fifth Circuit,
that mitigating evidence is only relevant if it demonstrates
that the defendant had “a uniquely severe permanent handi-
cap” and that such condition bore a “nexus” to the crime. Id.
at 2569-70, 2573. The Supreme Court has subsequently char-
acterized the “nexus” requirement as “a test we never counte-
nanced and now have unequivocally rejected.” Smith v. Texas,
125 S. Ct. 400, 405 (2004).

   Here, the prosecutor gave the jury two reasons to believe
Sims’s background did not constitute legally cognizable miti-
gating evidence. First, according to the prosecutor, having a
bad background is too common among criminal defendants to
act as a mitigating factor: “If that were, therefore, a mitigating
factor, then you would be emptying prisons because it would
apply to vertually [sic] everybody. . . . Were it a mitigating
factor that a person had a bad childhood, then you would have
no death penalty statute at all.” Second, in the prosecutor’s
view Sims’s mitigating evidence was disqualified as a factor
to be considered and weighed by the jury because of the
absence of a connection between Sims’s background and his
crime: “There is no bridge that bridges this bad background
to anything we have in the case before us. . . . What happened
to Mr. Sims, as bad as it was, was ten years before the crimes
in question. . . . What does it mean in terms of assigning a
mitigating factor to it? What does it mean in terms of punish-
ment? It doesn’t mean a thing. There is no mitigating factor
there” (emphasis added). Under the Supreme Court’s Eighth
Amendment jurisprudence, the prosecutor’s argument was
wrong on both counts.
15936                   SIMS v. BROWN
   When the Supreme Court “addressed directly the relevance
standard applicable to mitigating evidence in capital cases,” it
“spoke in the most expansive terms.” Tennard, 124 S. Ct. at
2570 (describing McKoy). Discounting an aspect of a defen-
dant’s background because he shares it in common with other
defendants is the antithesis of the individualized consideration
the Supreme Court has found indispensable to a capital sen-
tencing process that comports with the Eighth Amendment.
See, e.g., Eddings, 455 U.S. at 112. Thus, the Supreme Court
has rejected the proposition that mitigating evidence can be
restricted to facts about the defendant that are “uniquely
severe.” Tennard, 124 S. Ct. at 2569-70. The prosecutor’s
“bridge” theory is equally faulty: the requirement that mitigat-
ing evidence bear some connection to the defendant’s crime
is one that the Supreme Court “never countenanced and now
[has] unequivocally rejected.” Smith, 125 S. Ct. at 405 (citing
Tennard). Thus, it is clear that the prosecutor misstated the
law of mitigating evidence in both of the respects Sims
alleges.

   The prosecutor’s misstatements of law entitle Sims to
reversal of his death sentence if “there is a reasonable likeli-
hood that the jury has applied the challenged instruction in a
way that prevents the consideration of constitutionally rele-
vant evidence.” Boyde, 494 U.S. at 380. Though “arguments
of counsel generally carry less weight with a jury than do
instructions from the court,” the Supreme Court has acknowl-
edged that prosecutorial misstatements of law may “have a
decisive effect on the jury.” Id. at 384. “[T]he arguments of
counsel, like the instructions of the court, must be judged in
the context in which they are made.” Id. at 385.

   Viewed in context, the prosecutor’s statements during
Sims’s penalty phase more than likely misled the jury and
clearly were intended by the prosecutor to persuade the jury
that they could not consider Sims’s dreadful childhood. The
prosecutor did not merely argue (as the majority would have
it) that Sims’s mitigating evidence lacked persuasive power;
                              SIMS v. BROWN                           15937
rather, the prosecutor repeatedly argued both implicitly and
explicitly that Sims’s background was not legally cognizable
mitigating evidence at all. By hypothesizing what would hap-
pen “[i]f, in fact, it were a mitigating factor that a person had
a bad childhood” (emphasis added), the prosecutor clearly
implied that a bad childhood is, in fact, not a mitigating fac-
tor. I agree with the California Supreme Court’s conclusion in
Sims’s direct appeal that “the prosecutor’s comment that the
troubled background of a defendant does not constitute a miti-
gating factor might have tended to suggest erroneously that
the jury could not consider such evidence in mitigation.”
Sims, 853 P.2d at 1029. If anything, this is an understatement.
The prosecutor was even more explicit in his assertion that the
absence of a connection between Sims’s background and his
crime disqualified his background as mitigating evidence:
“There is no bridge that bridges this bad background to any-
thing we have in the case before us. . . . It doesn’t mean a
thing. There is no mitigating factor there” (emphasis added).7

   The prosecutor’s clear message — that Sims’s background
was not mitigating evidence for two reasons — was not con-
fined to an isolated or offhand remark. On the contrary, the
prosecutor made extensive use of both of his theories as to
why Sims’s background categorically did not qualify as miti-
gating evidence. Three times the prosecutor invoked the prev-
alence of troubled backgrounds among the criminal
  7
   The prosecutor’s closing was replete with implicit as well as explicit
assertions that a connection between Sims’s background and his crime was
a prerequisite to the jury’s consideration of that background as mitigating
evidence. For example:
      So, again, we are searching for a bridge, we are searching for
      some kind of bridge. I suppose if the offense was against his step-
      father, certainly it would be relevant, then, wouldn’t it? No ques-
      tion about that.
(emphasis added). Again, by posing a hypothetical in which Sims’s back-
ground “would be relevant,” the prosecutor clearly implied that it was not
relevant in Sims’s case.
15938                        SIMS v. BROWN
population to suggest that a bad background is not mitigating
evidence. The prosecutor’s invocation of the “bridge” theory
was even more ubiquitous: in total, the prosecutor used the
word “bridge” or some form of the word “connection” in ref-
erence to Sims’s background no fewer than seventeen times
during the penalty phase closing. Perhaps most damaging, on
three occasions the prosecutor told the jury flat out that
Sims’s background was “not a mitigating factor,” that “[t]here
is no reason for mitigating factors,” that “[t]here is no mitigat-
ing factor there.” Although determining the effect of the pros-
ecutor’s closing on the jury is not a mere matter of counting
words or phrases, in this case the numbers are a reasonable
barometer of the extent to which the prosecutor’s misstate-
ments of the law were a point of emphasis with the jury.

   Squarely on point is our en banc decision in Payton v.
Woodford, 299 F.3d 815 (9th Cir. 2002) (en banc) (“Payton
I”), vac’d on other grounds, 538 U.S. 975 (2003), on remand
at Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2003) (en
banc) (“Payton II”), rev’d sub nom. Brown v. Payton, 125
S. Ct. 1432 (2005) (“Payton III”).8 In Payton I, we affirmed
the grant of a habeas petition as to a death sentence because
an ambiguous instruction (a forerunner of the factor (k)
instruction given at Sims’s trial), combined with prosecutorial
misstatements of the law, had prevented the jury from consid-
ering mitigating evidence of the defendant’s post-crime reli-
gious conversion. 299 F.3d at 820-23, 830. While Sims does
not argue (as Payton did) that the factor (k) instruction itself
was inherently ambiguous, “[t]he prosecutor’s arguments can-
  8
   Payton I granted relief under pre-AEDPA law, see 299 F.3d at 822,
830, and the Supreme Court summarily vacated and remanded for recon-
sideration of whether AEDPA applied to Payton’s petition. See 538 U.S.
975 (citing Woodford v. Garceau, 538 U.S. 202 (2003)). In so doing, the
Court suggested only that we had applied the wrong standard of review,
not that our application of that standard was faulty. Payton I remains good
law with respect to the determination of a claim — such as Sims’s — of
Eighth Amendment instructional error evaluated under pre-AEDPA stan-
dards.
                            SIMS v. BROWN                          15939
not be isolated from the instruction itself or from the failure
of the trial judge properly to instruct the jury or to correct the
prosecutor’s error.” Id. at 823. The prosecutorial misrepresen-
tations of law that occurred in Sims’s case bear a striking
resemblance to those we refused to countenance when we
applied pre-AEDPA habeas standards in Payton I.

   There as here, the prosecutor asserted several times (erro-
neously) that factor (k) did not permit jurors to consider in
mitigation precisely the type of evidence that the defendant
had offered. Id. at 821. There as here, the prosecutor told the
jury that they had “not heard any evidence of mitigation in
this trial.” Id. If anything, the misstatements of the law in
Sims’s case were more injurious than those in Payton’s
because Sims’s prosecutor offered the jury two erroneous
legal principles as alternative bases for disregarding Sims’s
mitigating evidence. And there as here, the prosecutor did not
merely “argue[ ] that in his view the evidence did not suffi-
ciently mitigate [the defendant’s] conduct,” Boyde, 494 U.S.
at 385 (citation and internal quotation marks omitted); rather,
“the prosecutor here told the jurors that the statutory list of
factors precluded them from considering the only mitigating
evidence [the defendant] presented.” Payton I, 299 F.3d at
825 (emphasis altered).9 The majority’s contrary conclusion is
belied by the record of what Sims’s prosecutor actually said,
which can be summed up in six of his own words: “[t]here is
no mitigating factor there.”

   In sum, the prosecutor misstated          the law repeatedly and
extensively. His erroneous “bridge”          theory was a particular
point of emphasis. The prosecutor’s          conclusion that “[t]here
is no mitigating factor there,” which        he reiterated to the jury
  9
   I note that Sims’s family witnesses also testified to Sims’s generosity
and that his children worshiped him and urged that his life was worth sav-
ing; however, this testimony was brief and limited. Aside from these few
remarks, Sims’s case in mitigation consisted entirely of the compelling
evidence of his traumatic childhood.
15940                    SIMS v. BROWN
on several occasions, explicitly instructed the jury to disre-
gard — not just to devalue — the mitigating evidence that
Sims offered. The trial court failed to give any sort of curative
instruction directed at the prosecutor’s misstatements of the
law; what instructions the court did give were entirely inade-
quate. Coupled with the court’s refusal to correct the prosecu-
tor when there was objection, this left the jury with the
uncorrected and inaccurate impression that Sims’s back-
ground did not qualify as mitigating evidence, because he had
not established a “bridge” between his background and his
crime, and because a troubled background is too common
among criminals to count as a mitigating factor. Conse-
quently, there is at least “a reasonable likelihood that the jury
has applied the challenged instruction in a way that prevents
the consideration of constitutionally relevant evidence.”
Boyde, 494 U.S. at 380.

IV.     Injurious Effect of the Prosecutor’s Misstatements

   I circle back to the issue with which I began: whether the
error meets the Brecht standard for harmfulness. The Supreme
Court has explained that the Boyde test “is not a substitute for
the Brecht harmless-error test. The Boyde analysis does not
inquire into the actual effect of the error on the jury’s verdict;
it merely asks whether constitutional error has occurred.” Cal-
deron v. Coleman, 525 U.S. 141, 146-47 (1998) (per curiam).

   Here, there is at least “grave doubt” as to whether the con-
stitutional error wrought by the prosecutor’s repeated mis-
characterizations of the law of mitigation had a “substantial
and injurious effect or influence” on the verdict. O’Neal, 513
U.S. at 436 (internal quotation marks omitted). The crime was
unquestionably brutal. The evidence against Sims was strong.
Several aggravating factors were present, including Sims’s
commission of two other murders, and the horrific circum-
stances of this one. The callous nature of Sims’s conduct and
his leading role in the murder also weigh against him.
                          SIMS v. BROWN                     15941
   But Sims’s childhood abuse was quite shocking as well, as
even the prosecutor admitted. The prolonged and continuous
physical, emotional, and sexual abuse he endured at the hands
of his stepfather may well have been sufficient to generate
enough sympathy to move a jury to spare Sims’s life — had
the jury understood that it was its duty to consider it. Instead,
there is at least a “reasonable likelihood that,” as a result of
the prosecutor’s repeated distortions of the law as to the role
of mitigating evidence, “the jury has applied the challenged
instruction in a way that prevent[ed] the consideration of con-
stitutionally relevant evidence.” Boyde, 494 U.S. at 380.
Because Sims’s troubled background was central to his miti-
gation defense, the prosecutor’s insistent assertion that the
jury could not consider Sims’s background “left the jury
bereft of any countervailing evidence to weigh against the
prosecution’s evidence of aggravating circumstances.” Payton
I, 299 F.3d at 829. It is difficult to imagine that the jury’s cal-
culus would not have changed significantly had the powerful
evidence of Sims’s background been brought to bear.

   The defendant “for whom life or death hangs in the balance
deserves the benefit of the doubt.” Mayfield v. Woodford, 270
F.3d 915, 933 (9th Cir. 2001) (en banc) (Gould, J., concur-
ring) (internal punctuation omitted). In Sims’s case, ulti-
mately “[w]e cannot know whether the jury would have
returned a verdict of life or of death had it been properly
instructed.” Payton I, 299 F.3d at 829. Given “grave doubt”
as to the harmlessness of the error, reversal is the prescribed
course. O’Neal, 513 U.S. at 436. I would hold that the prose-
cution’s misstatements of the law of mitigating evidence vio-
lated the Eighth Amendment and that Sims is entitled to relief
from his death sentence.

                    V.   Cumulative Error

   “Even if no single error were sufficiently prejudicial, where
there are several substantial errors, their cumulative effect
may nevertheless be so prejudicial as to require reversal.”
15942                   SIMS v. BROWN
Alcala v. Woodford, 334 F.3d 862, 893 (9th Cir. 2003) (cita-
tions, internal quotation marks, and source’s brackets omit-
ted). Even were the Miranda and Eighth Amendment
violations insufficient on their own to warrant habeas relief
from the penalty-phase verdict, the combined effect of these
errors certainly prejudiced Sims and warrants setting aside the
death sentence.

   In this case, the Miranda and Eighth Amendment violations
present a particularly compelling claim of cumulative error,
because the combined effect of these errors was more power-
ful than that of the errors taken individually. The prosecutor’s
emphasis on Sims’s statements “I had to kill that boy” and “I
knew I was doing it, but I shouldn’t [have] done it,” and the
prosecutor’s repeated insistence to the jury that Sims’s back-
ground was not mitigating evidence, comprised two of the
major themes of the prosecutor’s penalty-phase closing argu-
ment. Cf. Alcala, 334 F.3d at 893 (finding cumulative error in
part because “the cumulative impact of the errors goes to the
heart of the prosecution’s theory of the case”). As I have
noted, the prosecutor’s closing argument emphasized both
Sims’s lack of remorse (as demonstrated in the December 25
and 26 conversations with Officer Perkins) and Sims’s sup-
posed failure to present mitigating evidence. Additionally, the
tape of Sims’s December 26 statements — which included the
admission “I knew I was doing it, but I shouldn’t [have] done
it” — was replayed for the jury during the prosecution’s pen-
alty phase case.

   Just as significant as the extent of the constitutionally
impermissible comments was their force. The prosecutor’s
reiteration of the statements “I had to kill that boy” and “I
knew I was doing it, but I shouldn’t [have] done it” — both
obtained in violation of Miranda — focused the jury’s atten-
tion on what was probably the most powerful evidence of
Sims’s guilt. They completely foreclosed any attempt to argue
lingering doubt as to intent. They formed the backbone of the
prosecutor’s argument that Sims’s lacked remorse. Equally
                         SIMS v. BROWN                     15943
damaging, the prosecutor’s misrepresentations of the law of
mitigation invited the jury to disregard evidence of Sims’s
awful childhood, which was substantially the only evidence
Sims offered in mitigation.

   These errors — if not separately, then certainly together —
undermined the fairness of the process by which Mitchell
Sims was sentenced to death: in one morning, in one concen-
trated pitch to the jury just hours before they retired to delib-
erate, the prosecutor stressed powerful but constitutionally
inadmissible evidence in support of death and improperly
undercut practically all of Mitchell Sims’s evidence in favor
of life. As a result of these errors, the jurors quite likely com-
menced their deliberations with the wrong mind-set.

   “The collective presence of these errors is devastating to
one’s confidence in the reliability of this verdict[.]” Killian v.
Poole, 282 F.3d 1204, 1211 (9th Cir. 2002). Faced with two
substantial penalty-phase errors and their correspondingly
serious effects on the evidence Mitchell Sims’s jury consid-
ered in imposing its sentence of death, we should follow the
Supreme Court’s example and refuse to “risk that the death
penalty will be imposed in spite of factors which may call for
a less severe penalty. When the choice is between life and
death, that risk is unacceptable and incompatible with the
commands of the Eighth and Fourteenth Amendments.”
Penry, 492 U.S. at 328 (citations and internal quotation marks
omitted).

  I respectfully dissent from the majority’s decision to uphold
Sims’s death sentence.
