                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


TRACY DEARL CAIN,                      No. 13-99008
         Petitioner-Appellant,
                                        D.C. No.
              v.                   2:96-cv-02584-ABC

KEVIN CHAPPELL, Warden,
        Respondent-Appellee.              OPINION


      Appeal from the United States District Court
         for the Central District of California
      Audrey B. Collins, District Judge, Presiding

         Argued and Submitted August 2, 2016
                 Pasadena, California

               Filed September 13, 2017

Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,
       and Consuelo M. Callahan, Circuit Judges.

             Opinion by Judge Rawlinson
2                        CAIN V. CHAPPELL

                            SUMMARY*


                Habeas Corpus / Death Penalty

   The panel affirmed the district court’s denial of a habeas
corpus petition in a death penalty case.

    The petitioner was convicted after a jury trial and
sentenced to death for two counts of first-degree murder,
burglary, and robbery. Distinguishing Gautt v. Lewis, 489
F.3d 993 (9th Cir. 2007), the panel held that the petitioner
was not denied procedural due process through inadequate
notice of an attempted rape special circumstance, and his
constitutional rights were not violated when the prosecutor
presented this special circumstance to the jury.

    The panel expanded the certificate of appealability to
include additional claims but held that these claims lacked
merit. The panel held that the petitioner did not establish
guilt-phase ineffective assistance of counsel in his attorney’s
concession of guilt on the burglary counts, failure to object to
the attempted rape special circumstance, or failure to
investigate and present voluntary intoxication and mental
health defenses.

    The panel held that the petitioner did not establish
penalty-phase ineffective assistance in counsel’s failure to
investigate and present mitigating evidence based on the
petitioner’s substance abuse, neurological and psychological
problems, and family background. The panel concluded that

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

the petitioner did not establish an Eighth Amendment claim
based on intellectual disability under Atkins v. Virginia.


                         COUNSEL

Jonathan C. Aminoff (argued) and Mark R. Drozdowski,
Deputy Federal Public Defenders; Hilary Potashner, Federal
Public Defender; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.

Kim Aarons (argued) and A. Scott Hayward, Deputy
Attorneys General; Lance E. Winters, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant Attorney
General; Office of the Attorney General, Los Angeles,
California; for Respondent-Appellee.


                          OPINION

RAWLINSON, Circuit Judge:

    In this death penalty case, Petitioner Tracy Cain (Cain)
challenges the district court’s denial of his federal habeas
petition. Cain was convicted and sentenced to death for the
murder of a couple, William and Modena Galloway, who
resided in a home next to Cain’s father. The district court
denied Cain’s habeas petition, but granted a certificate of
appealability (COA) on Cain’s claim that he did not receive
adequate notice of the attempted rape special circumstance.
We affirm the district court’s denial of Cain’s habeas petition.
4                    CAIN V. CHAPPELL

I. BACKGROUND

    In a criminal complaint, Cain was charged with the first-
degree murders of the Galloways. The complaint further
alleged special circumstances premised on multiple murder,
rape or attempted rape, robbery or attempted robbery, and
burglary in connection with Mrs. Galloway’s murder. With
respect to the rape special circumstance, Special Allegation
No. 4 provided:

       It is further alleged that the murder of Modena
       Shores Galloway was committed by
       defendant, Tracy Dearl Cain, while the
       defendant was engaged in the commission or
       attempted commission of the crime of rape, in
       violation of Penal Code section 261, within
       the meaning of Penal Code section
       190.2(a)(17).

The complaint also alleged special circumstances based on
multiple murder, burglary, and robbery or attempted robbery
associated with Mr. Galloway’s murder. Cain was also
separately charged with the offenses of rape, burglary, and
robbery.

    A second amended information alleged the same basic
offenses and special circumstances, albeit with some
additional details. Unlike the original criminal complaint, the
amended information did not specifically allege attempted
rape as a special circumstance. Instead, Special Allegation 6
stated:

       It is further alleged that the murder of Modena
       Shores Galloway was committed by
                      CAIN V. CHAPPELL                         5

        defendant, Tracy D. Cain, while the defendant
        was engaged in the commission of rape in
        violation of Penal Code Section 261, within
        the meaning of Penal Code Section
        190.2(a)(17).

Cain did not raise any pre-trial objections to the allegations in
the amended information addressing the attempted rape
special circumstance. See People v. Cain, 892 P.2d 1224,
1248 (Cal. 1995) (In Bank) (explaining that, after the
prosecution’s rebuttal, “the trial court raised the issue of
whether the information had provided defendant with
sufficient notice of the attempted rape basis of the special
circumstance”) (emphasis added).

    The evidence at trial established that the Galloways lived
next door to Cain’s father. See id. at 1233. Mr. Galloway,
who was sixty-three years old, suffered from poor health and
a back injury, and “had a habit of keeping large amounts of
cash in his house.” Id.

    During the relevant period, Cain’s father went on a trip,
leaving Cain and his younger brother, Val, at the residence.
See id. at 1234. On the night of the Galloways’ murders,
Cain and Val had a party at their father’s house. See id.
Ulysses Anthony Mendoza (Mendoza), Floyd Clements
(Clements), David Cerda (Cerda), Rick Albis (Albis), and
Kevin Walker (Walker) attended the party. See id.

    Mendoza testified that Cain was agitated and upset during
the party. Cain threatened Mendoza and others when he was
unable to find ten dollars that was missing, and kicked a hole
in a door because he was angry with his brother.
6                    CAIN V. CHAPPELL

    Mendoza related that, at approximately 11:00 pm, Cain
asked Mendoza to accompany him to the 7-Eleven to
purchase beer. As they were walking to the 7-Eleven, Cain
asked Mendoza if he “wanted to help him burglarize or rob
that house next door to his house.” According to Mendoza,
Cain stated that he wanted to burglarize the residence “so he
can get thousands.” Mendoza refused because he “[d]idn’t
have the nerve.”

    At the 7-Eleven, Mendoza and Cain met Richard Willis
(Willis) and Willis’ friend, Shawn. Cain asked them if they
had any cocaine. While riding in Shawn’s vehicle, Cain
made a “strangling motion” to Mendoza, after which
Mendoza asked to be dropped off for fear that “something
foolish would happen.” Mendoza returned to the Cain
residence.

    When Cain arrived at the residence, he “called [Mendoza]
a pussy . . . [b]ecause [Mendoza] wouldn’t help him.”
Mendoza then saw Cain and Cerda leave the residence.
Cerda returned to the Cain residence alone. At some point,
Val asked Cerda to check on his brother. After a few seconds
or minutes, Cerda returned without Cain. When Cain
eventually returned to the residence, he “had blood on his hat,
inner part of his hat, on his cheek, on his right foot, [and] on
his pant leg.” Cain stated that “he had thousands” and
Mendoza recalled that Cain had “a lot of money in his left
palm.” Cain also remarked that he “blipped somebody.”

    The next morning, Mendoza observed Cain sleeping in a
recliner in the living room. Mendoza noticed that Cain had
$500 next to him on a table. Mendoza also observed that
Cain’s “knuckles were torn up.” Later in the day, Mendoza
and Cain went shopping. Cain paid cash for new basketball
                        CAIN V. CHAPPELL                            7

shoes, a hat, and a car stereo. According to Mendoza, Val
asked Cain if he had killed someone and Cain responded,
“That’s on them. . . .”

    The following day, Mendoza attended a barbecue at the
Cain residence. During the barbecue, Cain threatened
Mendoza if he refused to let Cain use his truck. Mendoza
noticed that Cain had placed a box in the truck containing
rags, sticks, and wires. Cain subsequently disposed of the
box near the beach.

    Dr. Frederick Lovell, Chief Medical Examiner for
Ventura County, performed an autopsy on Mr. Galloway’s
body. Dr. Lovell observed numerous bruises on Mr.
Galloway’s body and “hemorrhage over the entire left side of
[his] head from front to back on bone, and . . . hemorrhage in
and around the brain underneath.” Dr. Lovell stated that there
was a minimum of thirteen separate blows on Mr. Galloway’s
body and that Mr. Galloway died from trauma to his brain.1

    Dr. Ronald O’Halloran, Assistant Medical Examiner for
Ventura County, examined Mrs. Galloway’s body. Dr.
O’Halloran observed “multiple injuries on [Mrs. Galloway’s]
face.” Mrs. Galloway suffered “a baselar skull fracture” and
“a hemorrhage in the space around the brain.” Dr.
O’Halloran determined that Mrs. Galloway died from
“traumatic head injuries.”




    1
       The evidence reflected that “[a] broken child’s rocking chair,
splattered with blood and missing a rocker and an armrest support, was
found next to Mr. Galloway’s body in the hallway.” Cain, 892 P.2d at
1236.
8                    CAIN V. CHAPPELL

    Dr. O’Halloran observed Mrs. Galloway “lying on her
back on the bed . . . with her feet and legs extending over the
side of the bed.” According to Dr. O’Halloran, Mrs.
Galloway’s “legs were spread wide apart, exposing her
genital area; and she was nude from the waist down.” There
was also “a pillow lying over her head” and “blood splatters
on the wall.” “There was moist fluid coming out of her
vaginal area, and . . . a streak of brownish-red material that
appeared to be blood coming from or coming from close to
her vaginal area.”

    During Mrs. Galloway’s autopsy, Dr. O’Halloran
“surgically removed the vagina and examined it” for injuries.
Dr. O’Halloran discovered “a one centimeter long tear . . .
inside the vaginal opening. . . .” Due to the lack of
hemorrhage, Dr. O’Halloran opined that he may have caused
the tear during his examination. Dr. O’Halloran also noted
that the absence of injuries did not preclude a finding that
Mrs. Galloway was raped.

    Edwin Jones (Jones), a criminalist, testified as a hair
expert. Jones determined that fifteen hairs found in Mrs.
Galloway’s panties, pajama bottom, slipper socks, and
pajama top were microscopically similar to Cain’s hair
samples. Jones eliminated Mendoza, Cerda, and Clements as
sources of the pubic hairs found on Mrs. Galloway’s body.
Jones also performed a chemical analysis of enzymes in the
hair samples and determined that he could not eliminate Cain.

    Dr. Bruce Woodling testified as an expert on sexual
assault. Dr. Woodling related that he had examined
approximately 2,000 sexual assault victims. After examining
Mrs. Galloway, Dr. Woodling concluded that Dr.
O’Hallaron’s testimony that he may have caused the vaginal
                     CAIN V. CHAPPELL                       9

tear was not a “likely explanation.” Dr. Woodling related that
he had never observed a similar tear during removal and
examination of the vagina in the rape cases in which he
participated. Dr. Woodling opined that the laceration was “a
classic injury of a forced penile-type penetration . . .”

    Detective Billy Tatum of the Oxnard Police Department
testified that he investigated the Galloway homicides.
Detective Tatum spoke with Mendoza and did not observe
any injuries on Mendoza’s hands. Detective Tatum
subsequently obtained an arrest warrant for Cain and
interviewed Cain at the police station. The tape recorded
interview was played to the jury.

    During the taped interview, Cain initially stated that he
remained at his residence on the night of the Galloways’
murders, except to go to the store, and “stayed at home” the
following day. Cain related that he found out about the
Galloways’ murders on the following Monday, when he
returned home from work. Cain explained that the bruise on
his shoulder was from his girlfriend and the cuts on his
fingers were from playing with his dog.

    Cain eventually admitted that he went into the Galloways’
residence, but denied committing the murders. After
inquiring if the police had any evidence that Cain “killed
them,” Cain admitted that he and other individuals entered the
residence on Saturday to “wipe[ ] away the fingerprints.”
Cain also eventually acknowledged that he was in the
Galloways’ residence during the murders, and he asserted that
Albis placed a pillow cover over Mrs. Galloway’s face. Cain
mentioned that Cerda and Mendoza hit Mr. Galloway and
Mendoza struck Mr. Galloway with a chair. According to
Cain, his fingerprints may have been on the chair because he
10                   CAIN V. CHAPPELL

“picked it up and . . . moved it.” Cain conveyed that he did
not know who raped Mrs. Galloway, but that Albis struck her
in the hallway and placed her on the bed.

    Detective Tatum testified that there was a malfunction in
the audio tape during the interview, and the tape “just stopped
playing . . . on Side 1.” During the malfunction, Cain
admitted to stealing $500 from the Galloways’ residence.

    Prior to jury deliberations, the trial court expressed
concern about the attempted rape special circumstance.
Specifically, the trial court observed that the information did
not specifically charge attempted rape, although the
information charged attempted robbery. Cain’s counsel
responded:

       But to be quite candid about it, I’ve read
       Section 190.2 numerous times. I’m aware it
       says commission or attempted commission. I
       can’t in good conscience say that I am
       surprised at this late date. I think it’s clear the
       entire thrust of the testimony from all the
       doctors was an actual rape . . . I’m aware of
       the section. I’m aware how it is plead, and
       I’m aware of these jury instructions. And I’m
       not going to sit here and pretend that I’m
       surprised and I’m going to holler foul at the
       D.A. at this late time. . . . I was aware and I
       heard [the prosecutor] and I could have
       objected but I didn’t because I think that he’s
       entitled to argue under Section 190.2
       commission or attempted commission. . . . But
       I don’t think Tracy Cain and the defense is
       [sic] prejudiced. . . .
                     CAIN V. CHAPPELL                      11

Based on counsel’s statement, the trial court did not pursue
the issue further.

    The trial court instructed the jury that it could find the
special circumstance if “the murder was committed while the
defendant was engaged in or was an accomplice in the
commission or attempted commission of a burglary[,] a
robbery or a rape” and that “the defendant intended to kill a
human being or intended to aid another in the killing of a
human being[.]” The trial court also instructed the jury that
“the special circumstance referred to in these instructions is
not established if the burglary, robbery or rape was merely
incidental to the commission of the murder.”

    The jury found Cain guilty of first-degree murder,
burglary, and robbery, but acquitted Cain on the rape charge.
The jury determined that Cain murdered Mr. Galloway during
the commission or attempted commission of burglary and
robbery. The jury also concluded that Cain murdered Mrs.
Galloway during the commission or attempted commission of
rape, burglary, and robbery.

    During the penalty phase, Anita Parker (Parker) testified
that she was assaulted by Cain. According to Parker, Cain
struck her in the head with a tire iron and kicked her during
an altercation.

    Nicholas Perez (Perez), a juvenile detention officer,
related that Cain hit him with his fist as Perez was escorting
Cain. According to Perez, his nose was broken and he
required six stitches above his left eye.

   David Wheat (Wheat), a state prison supervisor, testified
on Cain’s behalf. Wheat informed the jury that, when Cain
12                   CAIN V. CHAPPELL

was incarcerated, he was permitted to work on a fence crew,
a position reserved for inmates with no discipline problems.
In his reports, Wheat rated Cain with the “highest number”
available due to Cain’s good “work habits.”

    Reynaldo Duran (Duran), a training specialist with the
Arizona State Department of Corrections, supervised a
ground crew to which Cain was assigned. Duran reported that
Cain was rated highly for his cooperation, effort, and
responsibility.

    Wilma Cain (Wilma), Cain’s stepmother, testified that
Cain was one of eleven children and that Cain’s mother died
during the Jonestown massacre. Wilma described Cain as a
“typical boy” growing up. Wilma conveyed that she was
shocked that Cain was convicted of the Galloways’ murders
because “it didn’t sound like Tracy[.]” Wilma related that
Cain “got along with everybody.”

    Persey Cain (Persey), Cain’s father, also testified that
Cain’s mother died at Jonestown. Persey described Cain as
“a good kid” and a “typical . . . boy” during his youth. Persey
was shocked by the crime because “it didn’t sound like Tracy
Cain[.]” Persey related that Cain had “never been in any kind
of problem other than . . . car theft.”

    In his penalty-phase closing argument, Cain’s counsel
emphasized that the prosecution never demonstrated that Cain
premeditated or planned to murder the Galloways and that
there was “no deliberate killing.” Defense counsel also
argued that Cain was severely impaired due to his drug use
before the murders. His counsel maintained that “[w]e know
he was intoxicated. Witness after witness came in and
testified. . . . He was using crack. . . . [T]he truth is he was
                      CAIN V. CHAPPELL                         13

impaired.” Cain’s counsel contrasted the Galloways’ murders
with specific cases of brutal, premeditated homicides. He
asserted that, in contrast to those cases, Cain was “drug-
impaired” and “act[ed] in a rage reaction” without any
premeditation. He argued that Cain’s mother died when Cain
was young; that Cain failed to finish school; and that Cain
lacked many advantages described by the prosecution. In
addition, defense counsel focused on positive reports Cain
received while incarcerated.

     Defense counsel emphasized that Mendoza was never
arrested and that Cerda did not face the death penalty or “life
without parole.” Defense counsel remarked that Cain was
“the only one that’s going to end up in jail for the rest of his
life, whether he gets the gas chamber in jail or whether he
dies in jail.” Cain’s counsel argued that life in prison was the
proper punishment given the circumstances of life in prison.
Finally, Cain’s counsel argued that:

       [a]n unplanned, drug-impaired act with no
       foreseen consequences has cost Tracy Cain
       his life. But . . . there still is value in his life.
       He proved it in prison before. He proved it
       with his prison records, and he can prove it
       again if you give him the chance.

    The jury sentenced Cain to death based on his first-degree
murder of Mrs. Galloway and the multiple murder, attempted
rape, burglary, and robbery special circumstances. The jury
also sentenced Cain to death for the first-degree murder of
Mr. Galloway and special circumstances involving robbery
and burglary.
14                   CAIN V. CHAPPELL

    On direct appeal, the California Supreme Court affirmed
Cain’s convictions and sentence. See Cain, 892 P.2d at 1276.
Relevant to this appeal, the Court rejected Cain’s claim that
he received inadequate notice of the attempted rape special
circumstance. See id. at 1248–49. The Court held:

       We find no statutory error in the language
       used to allege the rape special circumstance.
       Although consistency in the form of charging
       special circumstances is preferable, the rape
       special circumstance as alleged satisfactorily
       charged defendant and was not misleading.
       Under the statute, the rape special
       circumstance specifically includes that the
       crime was committed during the attempted
       commission of a rape. The information
       specifically referred to the statute defining the
       special circumstance.             Under these
       circumstances, the rape special-circumstance
       allegation provided the express notice of the
       charges against defendant required under state
       law in a capital case.

Id. at 1249 (citations and internal quotation marks omitted).
The Court emphasized Cain’s counsel’s acknowledgment that
he was not surprised by the prosecution’s arguments and the
jury instructions premised on attempted rape. See id. The
Court observed:

       since the information was sufficient to
       provide the required notice, and defendant’s
       counsel stated defendant was neither surprised
       nor prejudiced by the argument and
       instructions relating to attempted rape as the
                     CAIN V. CHAPPELL                        15

       basis of the rape special circumstance,
       defendant’s constitutional right to notice of
       the charges against him was not
       compromised.

Id. (citations omitted). The Court rejected Cain’s related
arguments that the information was constructively amended
to include attempted rape, and that his counsel was ineffective
in failing to object to the attempted rape special circumstance.
See id. at 1249 n.17.

    Cain subsequently sought federal habeas relief. In Claim
1(6) of his third amended habeas petition, Cain asserted that
he did not receive constitutionally adequate notice of the
attempted rape special circumstance and that the prosecution
engaged in prosecutorial misconduct when it argued the
special circumstance to the jury. In Claim 3(7), Cain
contended that his constitutional rights were violated when
the state trial court instructed the jury on the attempted rape
special circumstance.

    The district court denied Cain’s claims, but granted a
certificate of appealability “as to Claims 1(6) and 3(7)
regarding the constitutional adequacy of Petitioner’s notice of
the attempted rape special circumstance charge.”

   Cain filed a timely amended notice of appeal.

II. STANDARDS OF REVIEW

    “We review de novo the district court’s denial of [Cain’s]
petition for a writ of habeas corpus and review its factual
findings for clear error. . . .” Smith v. Ryan, 823 F.3d 1270,
1278 (9th Cir. 2016), cert. denied, 137 S. Ct. 1283 (2017)
16                   CAIN V. CHAPPELL

(citation omitted). Because Cain filed his federal habeas
petition after April 24, 1996, the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) applies. See Mann v.
Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016) (en banc). Under
the AEDPA, habeas relief is warranted if the state court’s
adjudication of Cain’s claims “was contrary to or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254. We may also grant relief if the state
court’s decision “was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” Id.

    “An adjudication is contrary to clearly established
Supreme Court precedent if the state court arrives at a
conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts.” Mann, 828 F.3d at 1151 (citation,
alterations, and internal quotation marks omitted). “It is an
unreasonable application of clearly established Supreme
Court precedent if the state court identifies the correct
governing legal principle from the Supreme Court’s decisions
but unreasonably applies that principle to the facts of the
prisoner’s case.” Id. (citation and internal quotation marks
omitted). “An unreasonable application of federal law is
different from an incorrect application of federal law.” Id.
(citation and alteration omitted) (emphases in the original).
“The federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. (citation and
internal quotation marks omitted).         “A state court’s
adjudication is unreasonable only if the federal habeas court
                         CAIN V. CHAPPELL                              17

concludes that no fairminded jurist could conclude that the
adjudication was consistent with established Supreme Court
precedent. . . .” Id. at 1151–52 (citation omitted).

III.       DISCUSSION

       A. Certified Issue—Adequate Notice                       of    the
          Attempted Rape Special Circumstance

    Cain contends that habeas relief is warranted because he
did not receive adequate notice of the attempted rape special
circumstance and the prosecutor improperly relied on an
attempted rape special circumstance that was not charged in
the information.

    The Supreme Court has clearly established that a
defendant must receive adequate notice of the charges against
him. “No principle of procedural due process is more clearly
established than that notice of the specific charge, and a
chance to be heard in a trial of the issues raised by that
charge, if desired, are among the constitutional rights of every
accused in a criminal proceeding in all courts, state or
federal. . . .” Cole v. Arkansas, 333 U.S. 196, 201 (1948)
(citation omitted).2


       2
      Citing Lopez v. Smith, 135 S. Ct. 1 (2014), the State contends that
Supreme Court precedent has not clearly established the requirement of
adequate notice of the specific theory under which a felony-murder special
circumstance would be proved. In Lopez, the Supreme Court reversed our
grant of habeas relief premised on failure to provide adequate notice of an
aiding-and-abetting theory at trial. See id. at 3. The Supreme Court
faulted us for granting relief because the prosecutor focused on another
theory at trial, although the defendant previously received notice of
potential liability on an aiding-and-abetting theory. See id. The Supreme
Court observed that it was not disputed that the defendant “received
18                       CAIN V. CHAPPELL

    Relying on Gautt v. Lewis, 489 F.3d 993 (9th Cir. 2007),
Cain maintains that he was not properly informed of the
attempted rape special circumstance in the second amended
information. However, Cain’s reliance on Gautt is entirely
misplaced. In Gautt, we granted habeas relief because the
information failed to inform the petitioner that he was
charged with a specific sentencing enhancement that
significantly increased his potential sentence. See id. at 998.
We emphasized that “the pivotal fact” in that case was the
complete omission of any mention of the specific statute in
the information. Id. at 999. We observed that the charged
and uncharged conduct were dramatically different in that the
charged statute required “only that the defendant personally
used a firearm,” while the uncharged statute required that “the
defendant personally discharged a firearm.” Id. (emphases
and internal quotation marks omitted). Moreover, the
charged offense was punishable by a ten-year sentencing
enhancement and the uncharged offense was governed by a
“twenty-five-year-to-life . . . enhancement.” Id.

    Further compounding the error in Gautt, “the trial court
confused the two statutes when time came to instruct the
jury” and erroneously informed the jury about the additional
elements unique to the uncharged offense. Id. The parties
did not object to the trial court’s instruction and the
prosecution relied on the instruction in its closing argument.
See id. at 999 n.5, 1000. Additionally, “[t]he pattern of


adequate notice of the possibility of conviction on an aiding-and-abetting
theory.” Id. Therefore, Lopez is distinguishable and does not show that
the requirement of adequate notice is not clearly established. However,
we need not—and do not—decide whether the requirement of notice of
the prosecution’s theory of a felony-murder special circumstance is
otherwise clearly established, as we conclude that such notice was
provided here.
                      CAIN V. CHAPPELL                        19

statutory confusion and conflation that began with the trial
judge’s instructions to the jury repeated itself when the jury
completed its verdict form. . . .” Id. at 1000. Specifically, the
verdict form cited the charged statute, but listed elements
unique to the uncharged statute. See id. at 1001. Finally, the
abstract of judgment “listed . . . the ten-year enhancement . . .
as the basis for a sentence enhancement,” but “also stated that
[the petitioner’s] sentence was to be enhanced twenty-five
years to life-the applicable enhancement under” the
uncharged statute. Id.

    In concluding that the state appellate court unreasonably
determined that the petitioner received adequate notice, we
emphasized:

        This is not a situation . . . in which the
        numerical citation was incorrect but the verbal
        description of the crime corresponded to the
        crime of which the defendant was convicted.
        Nor is this a situation in which citation to one
        statute necessarily encompassed another
        lesser-included offense, thus sufficiently
        putting the defendant on notice of the need to
        defend against both statutes. . . .

Id. at 1007 (citation omitted). We criticized the state
appellate court because it “never actually scrutinized the
information to see if it contained any factual allegations that
would have sufficiently informed [the petitioner]” of the
uncharged conduct. Id. at 1005. The state appellate court
also never explained “how exactly this triumvirate-the
evidence, the jury instructions, and the closing argument-
provided [the petitioner] with sufficient notice.” Id. (footnote
reference omitted). Additionally, the state appellate court
20                   CAIN V. CHAPPELL

“did not acknowledge the multiple discrepancies that existed
between the information, the jury instructions, the verdict
form, and the ultimate sentence.” Id. at 1006. Based on the
state appellate court’s “critical oversight,” we opined that the
petitioner’s “constitutional right to be informed of the charges
against him was violated by this stark discrepancy between
the crime charged and the crime of conviction. . . .” Id. at
1008.

    Although we eschewed express reliance on other sources,
such as trial evidence, jury instructions, and closing
arguments, to assess whether the petitioner received adequate
notice of the charges, see id. at 1008–09, we nonetheless
“assume[d]-without deciding-that such sources can be parsed
for evidence of notice to the defendant.” Id. at 1010.
Nevertheless, we concluded that, even considering these
sources, the petitioner received constitutionally inadequate
notice. See id. We observed that the trial evidence did not
focus on the petitioner’s intent as required under the
uncharged statute; the jury instructions were muddled and
provided minimal indication that the uncharged offense was
at issue; and the prosecution’s closing argument was too
flawed regarding the intent required for the uncharged offense
to provide adequate notice of the uncharged offense. See id.
at 1011–13.

    Unlike in Gautt, the California Supreme Court in this case
did not unreasonably conclude that Cain received
constitutionally adequate notice of the attempted rape special
circumstance. The second amended information did not
explicitly charge Cain with an attempted rape special
circumstance, but alleged that Cain “engaged in the
commission of rape in violation of Penal Code Section 261,
within the meaning of Penal Code Section 190.2(a)(17).”
                      CAIN V. CHAPPELL                        21

The provisions of Cal. Penal Code § 190.2(a)(17) in effect at
the time of Cain’s trial specified that a special circumstance
may be based on the defendant’s attempted commission of
rape:

        The penalty for a defendant found guilty of
        murder in the first degree shall be death or
        confinement in state prison for a term of life
        without the possibility of parole in any case in
        which one or more of the following special
        circumstances has been charged and specially
        found . . . to be true: The murder was
        committed while the defendant was engaged
        in or was an accomplice in the commission of,
        attempted commission of, or the immediate
        flight after committing or attempting to
        commit . . . Rape in violation of Section 261.

Cal. Penal Code § 190.2(a)(17)(iii)(West 1987). Thus, the
allegations premised on Cal. Penal Code § 190.2(a)(17)
sufficiently apprised Cain that the special circumstance
explicitly applied to rape and to attempted rape. See Gautt,
489 F.3d at 1003–04 (explaining that “the charging document
need not contain a citation to the specific statute at issue; the
substance of the information, however, must in some
appreciable way apprise the defendant of the charges against
him so that he may prepare a defense accordingly”) (footnote
reference omitted). Moreover, as described in Gautt, Cain’s
case is “a situation in which citation to one statute necessarily
encompassed another lesser-included offense,” thereby
providing additional notice to Cain of the attempted rape
special circumstance. Id. at 1007 (citation omitted); see also
People v. Atkins, 25 Cal. 4th 76, 88 (2001) (noting that
attempted rape is a lesser included offense of rape under
22                        CAIN V. CHAPPELL

California law).      Importantly, Cain’s counsel fully
acknowledged that he was not surprised by the prosecution’s
reliance on attempted rape as a special circumstance, and did
not argue that Cain was prejudiced by the prosecution’s
reliance on attempted rape as a special circumstance.

    The California Supreme Court reasonably concluded that
Cain received adequate notice of the special circumstance.
Thus, Cain is not entitled to habeas relief on his claim that he
failed to receive adequate notice of the special circumstance
or his claim that the prosecutor improperly presented the
special circumstance to the jury. Cf. Gautt, 489 F.3d at
1007.3

     B. Uncertified Claims

   “To expand the certificate of appealability, [Cain] must
make a substantial showing of the denial of a constitutional


     3
       Any error in failing to provide Cain adequate notice of the attempted
rape special circumstance was likely harmless. See Gautt, 489 F.3d at
1016–17 (applying harmless error review). Cain does not challenge the
jury’s verdict that he was death-eligible based on the multiple murder,
burglary, and robbery special circumstances. Due to the weight of the
aggravating circumstances and the unchallenged special circumstances,
“we are not left with grave doubt about whether the jury’s consideration
of the [allegedly] invalid special circumstance[] had a substantial and
injurious effect on the jury’s verdict,” particularly as “the presentation of
evidence and argument during the penalty phase would not have been
materially different.” Beardslee v. Brown, 393 F.3d 1032, 1044 (9th Cir.
2004). The jury independently considered the special circumstances
applicable to Mr. Galloway’s murder, which did not implicate the
attempted rape special circumstance. See Brown v. Sanders, 546 U.S.
212, 223–25 (2006) (upholding capital sentence against a constitutional
challenge where a California jury considered four special circumstances
findings, two of which were later invalidated).
                         CAIN V. CHAPPELL                   23

right, accomplished by demonstrating that jurists of reason
could disagree with the district court’s resolution of his
constitutional claims . . .” Turner v. McEwen, 819 F.3d 1171,
1178 n.2 (9th Cir. 2016) (citation and internal quotation
marks omitted). Although we conclude that Cain has met that
standard for the claims discussed below, we deny each of the
claims on the merits.

          1. Guilt-Phase Ineffective Assistance of Counsel

    “Ineffective assistance of counsel claims are evaluated
according to the familiar standard set forth in Strickland.”4
Mann, 828 F.3d at 1152. “To receive relief under this
standard, first, the defendant must show that counsel’s
performance was deficient.” Id. (citation, alteration, and
internal quotation marks omitted). “Second, the defendant
must show that the deficient performance prejudiced the
defense.” Id. (citation omitted). “Unless a defendant makes
both showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process
that renders the result unreliable.” Id. (citation omitted).
“Judicial scrutiny of counsel’s performance must be highly
deferential, and a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. (citation and internal
quotation marks omitted).

              a. Counsel’s Concession of Cain’s Guilt

    Cain contends that he was deprived of effective assistance
of counsel because his counsel conceded at trial that Cain had
the specific intent to commit burglary. Cain maintains that

   4
       Strickland v. Washington, 466 U.S. 668 (1984).
24                    CAIN V. CHAPPELL

his counsel pursued an ill-informed strategy in admitting
Cain’s guilt on the burglary counts because Cain never
confessed to burglary.

    The California Supreme Court denied this claim on direct
review. See Cain, 892 P.2d at 1241. The Court concluded:

        Defendant also appears to argue his counsel’s
        concessions were an incompetent tactical
        choice. We disagree. Defendant admitted to
        the police on tape he was inside the victims’
        residence when they were murdered and he
        entered the residence with the intent to steal
        money. His taped statement was played to the
        jury. Defendant’s admission that he entered
        the residence for the purpose of stealing
        money proved his specific intent to commit
        burglary. Under the felony-murder rule, his
        commission of burglary, together with the
        killing of the victims in the commission of the
        burglary, made him liable for murder. Under
        these circumstances, we cannot conclude
        counsel was ineffective for candidly admitting
        defendant’s guilt on these counts while
        vigorously arguing against defendant’s guilt
        of the special circumstances.

Id. (citations omitted).

    “In assessing adequacy of representation, we are required
not simply to give the attorneys the benefit of the doubt, but
to affirmatively entertain the range of possible reasons
defense counsel may have had for proceeding as he did. . . .”
Gallegos v. Ryan, 820 F.3d 1013, 1030 (9th Cir. 2016) (citing
                     CAIN V. CHAPPELL                       25

Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011)
(alterations, and internal quotation marks omitted). At trial,
Cain’s counsel “was confronted with an exceedingly difficult
task in formulating a defense” given Cain’s admissions
during his taped confession and the evidence against him. Id.
at 1018. We have recognized that:

       As a strategic matter, disputing [the
       petitioner’s] involvement in the crime would
       have been unpersuasive given the evidence,
       and [counsel’s] acknowledgment of his
       client’s guilt in the killing could reasonably
       have been intended to establish credibility
       with the jury in the face of horrendous
       facts. . . .

Id. at 1027 (citations omitted). In light of the evidence
against Cain and his admissions of guilt, Cain “suggests no
alternate theory, let alone one more likely to succeed than the
one chosen” by his counsel. Id. at 1029. Indeed, the inability
of Cain’s counsel “to avoid a conviction of a predicate
offense was unrelated to any allegedly deficient conduct” and
convincing the jury that Cain was not guilty of felony murder
“would have been an exceedingly difficult task for even the
most skilled attorney.” Id. at 1035. Rather, Cain’s counsel
focused on Cain’s defense theory that, although involved in
the crimes, he never participated in the actual killings of the
Galloways and lacked the intent to kill required for the jury
to find any of the alleged special circumstances to be true.
Relying on this theory, Cain’s counsel could have made a
reasonable strategic calculation not to contest the strong
evidence of Cain’s guilt for felony murder, but instead, to
focus on avoiding a capital sentence for Cain. See Florida v.
Nixon, 543 U.S. 175, 190–92 (2004). Thus, “[a]bsent any
26                     CAIN V. CHAPPELL

defense that could have promised a greater chance of success,
we cannot conclude that [Cain’s counsel] was deficient for
choosing the one he did. The choice to pursue a bad strategy
makes no comment on an attorney’s judgment where no
better choice exists.” Gallegos, 820 F.3d at 1029 (citation
and internal quotation marks omitted).

    Cain also asserts that the California Supreme Court’s
determination that Cain admitted entering the Galloways’
residence with intent to commit burglary was unreasonable.
According to Cain, he never admitted that he entered the
Galloways’ home to steal money. However, even if the
California Supreme Court was wrong that the tape recordings
of Cain’s police interview include an explicit admission that
he went into the Galloway’s home with an intent to steal on
the night of the killings, there remains sufficient evidence for
the court to have concluded that Cain harbored such an intent.
Indeed, on the tape Cain admitted that he did want to steal
from the Galloways the next morning, and testimony was
offered that he did (and did intend to) steal from them the
night before as well. “[Section] 2254(d)(2) requires that we
accord the state trial court substantial deference.” Brumfield
v. Cain, 135 S. Ct. 2269, 2277 (2015) “If reasonable minds
reviewing the record might disagree about the finding in
question, on habeas review that does not suffice to supersede
the [state] court’s determination. . . .” Id. (citation, alteration,
and internal quotation marks omitted). The record reflects
that Cain admitted to being inside the Galloways’ residence
during the murders. The trial testimony also reflected that
Cain suggested to Mendoza that they burglarize the Galloway
residence so that he could “get thousands,” and that he
possessed a large sum of money after the murders. The state
court’s denial of this claim was not contrary to, nor did it
involve an unreasonable interpretation of Strickland. See
                     CAIN V. CHAPPELL                       27

Strickland, 466 U.S. at 690 (clarifying that counsel’s tactical
decisions are “virtually unchallengeable”).

           b. Failure To Object To Attempted Rape
              Special Circumstance

    Cain contends that his counsel was ineffective because he
did not object to the attempted rape special circumstance.

   Rejecting Cain’s claim on direct review, the California
Supreme Court concluded:

       We doubt, moreover, whether the principal
       error alleged, i.e., counsel’s failure to claim
       surprise and prejudice where there was none,
       could be considered constitutionally deficient
       performance even if prejudicial. Effective
       assistance does not require counsel to refrain
       from frankness and honesty in his or her
       dealings with the court. . . .

Cain, 892 P.2d at 1249 n.17 (citations and internal quotation
marks omitted). The district court ruled that the state court
“was not unreasonable in holding that [Cain] had adequate
notice” of the attempted rape special circumstance, or in
finding counsel’s performance to be adequate. We agree
because counsel’s performance did not fall below an
objective standard of reasonableness in acknowledging the
portent of the state statutory provisions. See United States v.
Cronic, 466 U.S. 648, 656 n.19 (1984) (observing that “the
Sixth Amendment does not require that counsel do what is
impossible or unethical. If there is no bona fide defense to
the charge, counsel cannot create one and may disserve the
28                   CAIN V. CHAPPELL

interests of his client by attempting a useless charade.”)
(citation omitted).

            c. Failure To Investigate and Present
               Voluntary Intoxication and Mental Health
               Defenses

    Cain describes his counsel as ineffective because he failed
to investigate and present a voluntary intoxication defense
during the guilt phase of the trial, premised on Cain’s cocaine
use and neurological deficits.

     On direct review, the California Supreme Court observed:

        Defendant further contends trial counsel did
        not present even a minimally effective
        argument on the undisputed use of alcohol
        and drugs on the night in question. Counsel
        did briefly argue there was no intent to kill
        because defendant was obviously under the
        influence of alcohol and drugs. Belaboring
        this point would have risked appearing to
        concede defendant was the killer, which
        would have conflicted with and detracted
        from counsel’s primary argument, that
        (consistent with his police statement)
        defendant had not killed anyone, planned to
        kill anyone or assisted in killing anyone in the
        burglary. In addition, almost no evidence was
        presented regarding the quantity and effects of
        the drugs consumed by defendant on the night
        of the murders or the effect consumption had
        on defendant.        Defendant thus cannot
        demonstrate either deficient performance or
                          CAIN V. CHAPPELL                              29

         prejudice in his counsel’s argument relating to
         this subject.

Cain, 892 P.2d at 1255 (internal quotation marks omitted).
The California Supreme Court summarily denied Cain’s more
developed ineffective assistance of counsel claim on habeas
review, that was not limited to diminished capacity on the
night of the murders.5

   The district court held that the California Supreme
Court’s summary denial of Cain’s claim was not
unreasonable because “[t]he court may have reasonably
concluded on habeas review that counsel reasonably relied on
expert opinion in not presenting an intoxication or diminished
capacity defense.”

   Cain’s counsel was provided a psychological evaluation
from Dr. Theodore Donaldson prior to trial. According to Dr.
Donaldson, Cain “denied the use of illegal drugs or alcohol.”
Additionally, the district court referenced a report from Dr.
Ronald Siegel concerning tests of Cain’s hair for “the



    5
      Cain maintains that the district court erred in basing its denial of
habeas relief on the California Supreme Court’s summary denial. Cain
asserts that the California Supreme Court’s decision on direct appeal is the
operative decision under the AEDPA. However, the district court only
referenced the summary denial for claims not addressed by the Supreme
Court on direct review. We agree with the district court that the operative
decision is the California Supreme Court’s summary denial because its
decision on direct review did not address Cain’s more fully developed
claim asserting ineffective assistance for failure to propose intoxication
defense instructions for the special circumstance allegations. See Cain,
892 P.2d at 1255; see also Ayala v. Chappell, 829 F.3d 1081, 1094–95
(9th Cir. 2016).
30                   CAIN V. CHAPPELL

presence of controlled substances.” As the district court
articulated:

       Dr. Siegel’s report, dated May 9, 1988, states
       that he interviewed and examined [Cain] on
       April 17, 1988. Trial counsel delivered his
       guilt-phase closing argument on April 20,
       1988. Dr. Siegel’s report states, “Prior to the
       events of October 1986, [Cain] reported to me
       that he was high on beer and marijuana, but
       denied recent use of other substances. The
       analyses of hair samples indicated no
       detectable amounts of marijuana, cocaine, or
       other substances for the past 2.5 years . . .”

(internal quotation marks omitted). Thus, it appears that
Cain’s counsel did consult experts to investigate the efficacy
of intoxication and mental health defenses. And it is not
ineffective for counsel to refrain from pursuing jury
instructions that have no basis in the evidence. See
Clabourne v. Lewis, 64 F.3d 1373, 1381–82 (9th Cir. 1995).
Accordingly, this claim fails on the merits. See Strickland,
466 U.S. at 689 (noting “the wide latitude counsel must have
in making tactical decisions”).

       2. Penalty-Phase       Ineffective    Assistance     of
          Counsel

    Cain asserts that his counsel was ineffective in failing to
investigate and present mitigating evidence based on Cain’s
substance abuse, neurological and psychological problems,
and family background.
                     CAIN V. CHAPPELL                        31

    “[B]ecause the state court summarily denied [Cain’s]
penalty phase ineffective assistance claims, we must
determine what arguments or theories could have supported
the state court’s decision; and then we must ask whether it is
possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of the Supreme Court.” Gallegos, 820 F.3d at
1037 (citation, alterations, and internal quotation marks
omitted). In the context of penalty-phase ineffective
assistance of counsel, we have acknowledged that “the
standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is
doubly so.” Cummings v. Martel, 796 F.3d 1135, 1148 (9th
Cir. 2015) (citation and alteration omitted). “The multiple
layers of deference create a standard that is difficult to meet,
and even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable. . . .” Id.
(citation and internal quotation marks omitted).

    “The first step in determining whether counsel’s deficient
performance prejudiced the defendant at the penalty phase is
evaluating the totality of the available mitigation
evidence. . . .” Andrews v. Davis, Nos. 09-99012, 09-99013,
— F.3d —, 2017 WL 3255161, at *16 (9th Cir. Aug. 1, 2017)
(citation and internal quotation marks omitted). After the
mitigating evidence is identified, a court weighs the strength
of the mitigating evidence “by assessing its likely impact on
a jury. This weighing process includes evaluating whether its
impact on the jury might be aggravating rather than
mitigating.” Id. at *17. Courts may “consider the fact that
mitigation may be in the eye of the beholder, and juries may
find that some evidence offered as mitigation cuts the other
way.” Id. (citation and internal quotation marks omitted).
We have also noted the Supreme Court’s observation that “on
32                   CAIN V. CHAPPELL

one hand, a jury could react with sympathy over the tragic
childhood of the defendant, while on the other hand, the same
testimony could establish the defendant’s unpredictable
propensity for violence that resulted in murder.” Id. (citation,
alteration, and internal quotation marks omitted). “Similarly,
evidence of mental and emotional problems might suggest an
increased likelihood that a defendant would be dangerous in
the future. . . .” Id. (citation omitted).

    “The second step in determining whether counsel’s
deficient performance prejudiced the defendant at the penalty
phase is evaluating the weight of the aggravating evidence
and any rebuttal evidence that the government could have
adduced had the mitigating evidence been introduced.” Id.
(citations omitted). “Aggravating evidence may include
evidence relating to the circumstances of the crime. Thus in
Strickland, the Court found the aggravating evidence to be
overwhelming where the defendant had repeatedly stabbed
the three murder victims during a robbery. . . .” Id. (citation
and internal quotation marks omitted). “Rebuttal evidence
may also directly undermine the value of the mitigation
evidence.” Id. at *18. “For example, the Supreme Court
[has] noted . . . . that it would be of questionable mitigating
value for defense counsel to introduce expert testimony
diagnosing a defendant with bipolar mood disorder and
seizure disorders, because such evidence would invite rebuttal
by a state expert, who could reject the diagnosis of bipolar
disorder and offer a different diagnosis of antisocial
personality disorder.” Id. (quoting Pinholster, 131 S. Ct. at
1410) (internal quotation marks omitted).

   The third and final step in assessing prejudice at the
penalty phase “is to reweigh the evidence in aggravation
against the totality of available mitigating evidence, in order
                      CAIN V. CHAPPELL                        33

to determine whether there is a reasonable probability that,
absent the errors, the sentencer would have concluded that the
balance of aggravating and mitigating circumstances did not
warrant death.” Id. (citations, alteration, and internal
quotation marks omitted). “A reasonable probability is a
level of probability that undermines confidence in the
outcome. . . .” Id. (citation, alteration, and internal quotation
marks omitted). “The likelihood of a different outcome must
be substantial, not just conceivable.” Id. (citation and
alteration omitted). “The Court has found a reasonable
probability of a different outcome when scant and weak
aggravating evidence could have been presented in rebuttal to
strongly mitigating evidence.” Id. (citation omitted). “By
contrast, the Court has found no prejudice when the
aggravating evidence is overwhelming, even though the
mitigating evidence is strong.” Id. (citation omitted).

    Prior to trial, defense counsel retained Dr. Donaldson to
conduct a psychological evaluation. Dr. Donaldson observed
that “there were no indications of a thought disorder.” Dr.
Donaldson conveyed that:

        For the most part, results of psychological
        testing were highly consistent among tests and
        with the clinical impression. There were no
        indications of significant psychopathology nor
        indications of significant ego deficits or
        inadequacies in reality testing. The tests are
        most remarkable in a general lack of
        indications of serious psychological problems.
        Testing did indicate the existence of
        significant situational stress . . . Mr. Cain
        appears as an emotionally unstable personality
34                  CAIN V. CHAPPELL

       characterized by poorly controlled anger and
       a tendency to temper outburst.

Dr. Donaldson concluded:

       Mr. Cain displays many of the features of
       sociopathy, although that is too simple a
       diagnosis, and there are also hysteroid and
       narcissistic features as well. His antisocial
       acting out appears to have not started until he
       was in his late teens, but indications are that
       this acting out has increased in frequency and
       severity at a rapid rate. This suggested the
       possibility of central nervous system
       dysfunction, but none was found in this
       evaluation, although that part of the
       evaluation was somewhat limited.
       Nonetheless, there were certainly no
       indications of gross brain disorder. Mr. Cain
       seems predisposed to episodic and violent
       acting out, and there are no indications in this
       evaluation that such episodes are the result of
       dissociation or psychosis.

    Based on Dr. Donaldson’s evaluation, Cain’s counsel may
have seen limited utility in presenting a defense premised on
Cain’s mental state. Dr. Donaldson referred to Cain’s
“sociopathy” and predisposition to “episodic and violent
acting out” that were not the result of any “gross brain
disorder” or psychosis. It would not have been unreasonable
for the California Supreme Court to determine that Cain’s
counsel did perform an investigation and relied on Dr.
Donaldson’s evaluation in deciding to emphasize Cain’s
positive conduct during past incarcerations and his lack of
                     CAIN V. CHAPPELL                       35

premeditation rather than Cain’s troubled background and
psychological impairments.

    Cain argues that his counsel also unreasonably failed to
follow up on certain “red flags” raised in Dr. Donaldson’s
report that “suggested the possibility of central nervous
dysfunction,” even though “none was found in [Dr.
Donaldson’s] evaluation” and Dr. Donaldson concluded that
there were “certainly no indications of gross brain disorder.”
In support, Cain submitted a declaration from Dr. Donaldson
more than a decade later stating that he “recall[ed] advising
[Cain’s counsel] that he might want to have Mr. Cain
examined by a neuropsychologist.” Given Dr. Donaldson’s
general difficulty remembering the details of his interactions
with Cain’s counsel, it would be reasonable to doubt whether
that recommendation was ever made. But even if Dr.
Donaldson’s assertion is accepted as true, the state court
could reasonably conclude that not all competent attorneys
would pursue additional expert testing based on Dr.
Donaldson’s mere suggestion that certain dysfunctions “may”
or “might” exist, especially where Dr. Donaldson’s own
report found no evidence of such dysfunctions. See, e.g.,
Leavitt v. Arave, 646 F.3d 605, 609–10 (9th Cir. 2011)
(concluding that an attorney was not required to pursue “red
flags” in a medical report that could only be ruled out through
further testing, given the other conclusions in the report that
other causes were more likely); see also West v. Ryan,
608 F.3d 477, 488–89 (9th Cir. 2010) (same); Pinholster, 131
S. Ct. at 1406–07 (acknowledging that defense counsel may
reasonably determine that a particular investigation is
unnecessary).

   Admittedly, the social and psychological evaluations
conducted after Cain’s conviction indicate that Cain was not
36                        CAIN V. CHAPPELL

a typical child. For example, a social history and evaluation
conducted by Dr. Stanley Huey reflects the troubled criminal
and psychological history of Cain’s mother who died at
Jonestown, the difficulties that Cain’s stepmother had in
taking care of the family’s numerous children; the severe
beatings and punishment meted out by his stepmother; Cain’s
untreated head injury in his childhood; and Cain’s learning
disabilities. Although Cain’s social and psychological
histories may have provided potential mitigating
circumstances, the additional background information is not
sufficiently compelling to warrant habeas relief. See
Cummings, 796 F.3d at 1148–50. Additionally, Cain’s social
and psychological histories could have “opened the door to
inflammatory and prejudicial aggravating evidence.” Id. at
1150. Moreover, in light of the aggravating circumstances
involving the brutal murders of a couple in their sixties, the
thirteen blows administered to Mr. Galloway, the attempted
rape of Mrs. Galloway, and Cain’s prior violent acts, the state
court’s denial of this claim was not unreasonable. See
Andrews, 2017 WL 3255161, at *18 (observing that “the
likelihood of a different result must be substantial, not just
conceivable” to establish prejudice) (citation and alteration
omitted); see also Strickland, 466 U.S. at 687 (clarifying that
to establish prejudice a defendant must show that he was
deprived of a fair trial). For the same reason, Cain’s
intoxication and substance abuse mitigation claims lack
merit.6


     6
       Cain also contends that the district court erroneously denied his
request for an evidentiary hearing because Cain demonstrated a prima
facie case that the state court unreasonably rejected his ineffective
assistance of counsel claim. However, “so long as we are reviewing a
petitioner’s claim under AEDPA, our review is limited to the facts before
the state court and the petitioner is not entitled to an evidentiary hearing
                          CAIN V. CHAPPELL                               37

           3. Atkins7 Claim

   Cain asserts that the California Superior Court
unreasonably denied his Atkins claim because Cain
demonstrated that he was intellectually disabled based on an
IQ of 71 when considering Cain’s adaptive deficits and the
Flynn effect.8

    The California Supreme Court issued an order to show
cause why Cain’s death sentence should not be vacated under
Atkins. In the subsequent Superior Court hearing on the order
to show cause, two psychologists testified concerning Cain’s
alleged intellectual disability—Dr. Ricardo Weinstein and Dr.
Efrain Beliz, Jr. Dr. Weinstein had evaluated approximately
thirty-five individuals to determine if they were intellectually
disabled. After administering several tests to Cain, Dr.
Weinstein determined that Cain had a full scale IQ score of
71. Dr. Weinstein also relied on a prior test from another
psychologist reflecting that Cain had a full scale IQ score of
75. Based on his consideration of the Flynn effect, Dr.
Weinstein deducted points from Cain’s IQ score and


in federal court.” Murray v. Schriro, 746 F.3d 418, 441 (9th Cir. 2014)
(citation omitted).
    7
        Atkins v. Virginia, 536 U.S. 304 (2002).
     8
       “The basic premise of the Flynn effect is that because average IQ
scores increase over time, a person who takes an IQ test that has not
recently been normed against a representative sample of the population
will receive an artificially inflated IQ score.” Smith v. Ryan, 813 F.3d
1175, 1184 (9th Cir. 2016), as corrected (citation omitted) (emphasis in
the original). “This is because IQ scores are based on a normal
distribution curve, and thus an individual’s score is meaningful only in
relation to the scores of the other people who took the same test. . . .” Id.
(citation omitted).
38                   CAIN V. CHAPPELL

determined that Cain was “mildly mentally retarded.” Dr.
Weinstein also relied on Cain’s school records in assessing
Cain’s adaptive behavioral deficits. The records reflected
that Cain had several learning disabilities, particularly in the
areas of verbal abilities, reasoning, and mathematics. Dr.
Weinstein opined that:

       from childhood through the time of his current
       incarceration, Mr. Cain qualified for a
       diagnosis of mild Mental Retardation. IQ
       scores fell at or below the 70 to 75 range,
       which meets the AAMR [American
       Association on Mental Retardation] definition
       of intellectual functioning two standard
       deviations or more below normal. Moreover,
       Mr. Cain’s adaptive functioning met the
       AAMR standards for mental retardation.

    Dr. Beliz had evaluated approximately 6,000 individuals
to determine if they were intellectually disabled. Dr. Beliz
observed that Cain “has never been diagnosed in the past with
fetal alcohol syndrome or affect, alcohol or drug dependency,
or significant brain damage.” According to Dr. Beliz, in
1977, Cain was administered the Peabody Picture Vocabulary
Test and received “a standard score of 85, which is the low
average range”; a Culture Fair Scale II test with a score of 75;
and a Wechsler Intelligence Scale for Children with a “full
scale score” of 78 and a “performance IQ score of 93.” Dr.
Beliz opined that “the performance IQ score of 93 is
significant because one could not be mentally retarded and
achieve this score on this part of this test.” Dr. Beliz also
noted that Cain received an IQ score of 64 on one test
administered in April, 1977.
                     CAIN V. CHAPPELL                        39

    Dr. Beliz observed that, in 1980, Cain received a score of
73 on the Peabody Picture Vocabulary Test and a score of 87
on the Culture Fair Scale II Test. The records indicated that
there was “no evidence of organic brain problems or
impairments in cerebral functioning,” although Cain suffered
from learning disabilities. Dr. Beliz related that Cain “was
never determined to be mentally retarded” in his school
testing.

    Dr. Beliz determined that Cain “expresses himself well
and is able to carry on adult conversation. [Cain] was able to
follow instructions, listen attentively for at least 30 minutes,
and carry out instructions.” Cain also “speaks in full
sentences, asks appropriate questions about his environment,
uses regular past tense verbs, modulates his tone of voice
appropriately and provides complex directions to others.”
During Dr. Beliz’s interviews, Cain “did not become
confused, frustrated, or bewildered by test demands” and
Cain “was well oriented with his attention and [his]
concentration [was] not significantly impaired.”

    Dr. Beliz administered seven psychological tests to Cain
during his evaluation and he did not adjust Cain’s scores for
the Flynn effect. Dr. Beliz concluded:

       Mr. Cain is not mentally retarded. There is
       no evidence to suggest that Mr. Cain
       has significant cognitive and adaptive
       limitations. . . . While test scores on particular
       instruments might yield extremely low scores
       suggestive of mental retardation, the scores
       can only be considered valid if the individual
       evaluated is a good fit with test scores. . . . In
       Mr. Cain’s case, the fact that he scores low on
40                    CAIN V. CHAPPELL

        certain tests or that he exhibits soft
        neurological findings does not automatically
        translate into a diagnosis of mental
        retardation, particularly when he does not
        exhibit behaviors indicative of significant
        cognitive and adaptive limitations or
        neurological impairment.

        In conclusion, there is absolutely no evidence
        for mental retardation. Mr. Cain is able to
        survey, organize, and integrate stimuli in a
        meaningful manner. Mr. Cain walks, talks,
        problem solves, socializes, thinks, reasons and
        interacts with others and his environment
        without significant difficulty. Cognitive and
        adaptive skills are adequately developed and
        free from significant impairment. . . .

    The California Superior Court determined that Dr.
Weinstein’s testimony “suffer[ed] from a number of
infirmities.” According to the court, Dr. Weinstein relied on
a prior psychological evaluation to support his conclusions,
without acknowledging that the prior evaluation provided that
Cain’s “performance score suggests that he has the
potentiality of operating within the average range of
intellectual abilities” or that Cain’s “low test scores reflected
a possible learning disability,” not an intellectual disability.
Dr. Weinstein also failed to mention that Cain received a
score of 85 on tests administered by the same psychologist.

    The California Superior Court observed that Dr.
Weinstein’s application of the Flynn effect was unpersuasive
in Cain’s case because “the observation that there is a trend
in a population toward rising IQ scores, even if credible (an
                     CAIN V. CHAPPELL                       41

assertion which was not proven in this action), does not
support the practice of applying a point correction to the IQ
scores of individual persons.” The court also opined that Dr.
Weinstein applied the AAMR “recommended correction of
5 points twice.”

    The California Superior Court articulated that Dr.
Weinstein lacked “significant experience in making
determinations of whether persons are or are not”
intellectually disabled. “More importantly, [Dr. Weinstein]
committed himself to the opinion that the petitioner is
mentally retarded early on in his work on this case, on skimpy
information. Dr. Weinstein’s subsequent work has been
aimed at bolstering that initial opinion instead of objectively
assessing [Cain].” The court concluded that Dr. Weinstein
acted as “an advocate in this case,” and that “Dr. Beliz
provided the only credible expert opinion in this matter.”

    The California Superior Court noted that Cain’s interview
with a news reporter after the murders was included in the
record. At the time of the interview, the reporter was
interviewing neighbors of the slain couple, unaware that Cain
was the murderer. The court observed that Cain “understood
the nature of the interview and interacted normally with the
interviewer. [Cain] clearly understood that it was in his best
interests to feign ignorance of the crimes and that he should
minimize his contact with the victims.” According to the
court, there was “no deficit in [Cain’s] mental functioning
observable from this evidence, which was fortuitously
recorded very shortly after the murders.” The court observed
that Cain exhibited the same behavior during his police
interview.
42                        CAIN V. CHAPPELL

     “[T]he Eighth and Fourteenth Amendments to the
Constitution forbid the execution of persons with intellectual
disability. . . .” Hall v. Florida, 134 S. Ct. 1986, 1990 (2014)
(citation omitted). In order to demonstrate that a defendant
is intellectually disabled “an IQ between 70 and 75 or lower
is typically considered the cutoff IQ score for the intellectual
function prong.” Brumfield, 135 S. Ct. at 2278 (citation and
alteration omitted). The Supreme Court has articulated that
“the medical community defines intellectual disability
according to three criteria:          significantly subaverage
intellectual functioning, deficits in adaptive functioning (the
inability to learn basic skills and adjust behavior to changing
circumstances), and onset of these deficits during the
developmental period.” Hall, 134 S. Ct. at 1994 (citations
omitted). The Supreme Court has furthered concluded that
“when a defendant’s IQ test score falls within the test’s
acknowledged and inherent margin of error, the defendant
must be able to present additional evidence of intellectual
disability, including testimony regarding adaptive deficits.”
Id. at 2001. Our general assessment of Cain’s Atkins claim
leads us to conclude that Cain is not entitled to habeas relief.
See Hall, 134 S. Ct. at 2001 (articulating the standard for
determining intellectual disability).9

    Cain’s claim turns essentially on a battle of experts
between Drs. Beliz and Weinstein. The state court reviewed
the expert testimony for both in detail, and gave numerous

     9
       Cain contends that the Supreme Court’s recent decision in Moore v.
Texas, 137 S. Ct. 1039 (2017) suggests that he is entitled to relief on this
claim. However, Moore is not an AEDPA case and thus does not address
the difficult burden Cain bears to prove his entitlement to relief under
AEDPA standards. Morever, having been decided just this spring, Moore
itself cannot serve as “clearly established” law at the time the state court
decided Cain’s claim. See Greene v. Fisher, 565 U.S. 34, 44 (2011).
                     CAIN V. CHAPPELL                       43

specific reasons to support its determination that Dr. Beliz
was more credible. At most, Cain’s arguments might show
that there could have been reasons to credit Dr. Weinstein’s
findings. But this does not overcome his much more difficult
burden under AEDPA to show that the state court acted
unreasonably in concluding that Dr. Beliz’s report was more
credible. See Wood v. Allen, 558 U.S. 290, 301 (2010);
Jamerson v. Runnels, 713 F.3d 1218, 1224 (9th Cir. 2013).

       4. Cumulative Error

    Cain asserts that he is entitled to habeas relief due to
cumulative error based on a litany of trial errors and
ineffective assistance of counsel. However, Cain is not
entitled to relief on a theory of cumulative error because he
was not “denied . . . a trial in accord with traditional and
fundamental standards of due process.” Chambers v.
Mississippi, 410 U.S. 284, 302 (1973).

IV.    CONCLUSION

    The California Supreme Court’s determination that Cain
received adequate notice of the attempted rape special
circumstance was not unreasonable.              The amended
information specifically alleged a special circumstance
premised on Cal. Penal Code § 190.2(a)(17), which
encompassed attempted rape.             Cain’s counsel also
acknowledged that Cain received adequate notice of the
special circumstance and that Cain was not prejudiced by the
prosecution’s arguments premised on attempted rape. Thus,
Cain received constitutionally adequate notice of the special
circumstance. In any event, Cain does not challenge the
jury’s verdict that he was eligible for the death penalty based
on the first-degree murder of Mr. Galloway and the
44                   CAIN V. CHAPPELL

associated special circumstances that were entirely unrelated
to attempted rape.

   After expanding the certificate of appealability to include
previously uncertified claims, we conclude that, upon further
consideration, these claims lack merit.

     AFFIRMED.
