               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

GEORGE HERBERT WHARTON,                 No. 11-99016
          Petitioner-Appellant,
                                         D.C. No.
              v.                    2:92-cv-03469-CJC

KEVIN CHAPPELL, Warden,
          Respondent-Appellee.           OPINION


     Appeal from the United States District Court
        for the Central District of California
     Cormac J. Carney, District Judge, Presiding

                Argued and Submitted
       May 15, 2014—San Francisco, California

                Filed August 27, 2014

    Before: Susan P. Graber, William A. Fletcher,
        and Richard A. Paez, Circuit Judges.

              Opinion by Judge Graber
2                    WHARTON V. CHAPPELL

                           SUMMARY*


                Habeas Corpus/Death Penalty

   The panel affirmed in part and vacated in part the district
court’s judgment denying relief on George H. Wharton’s 28
U.S.C. § 2254 habeas corpus petition challenging his
conviction and capital sentence for first-degree murder, and
remanded for further proceedings.

     The panel affirmed the district court’s denial of
Wharton’s claims that his due process rights were violated
when jurors saw him shackled and that his trial lawyer
provided ineffective assistance during the guilt phase. The
panel held that the district court correctly held (1) that
although some jurors occasionally saw Wharton in shackles
while being transported through the halls of the courthouse,
those sporadic sightings outside the courtroom did not rise to
the level of a constitutional violation; and (2) that Wharton’s
trial lawyer chose a constitutionally permissible guilt-phase
strategy of forgoing certain defenses for fear of opening the
door to the jury’s learning about Wharton’s significant
criminal history, which included a prior murder and rape.

    The panel affirmed in part and vacated in part the district
court’s denial of Wharton’s claim that his lawyer provided
ineffective assistance in investigating and presenting
mitigation evidence at the penalty phase.




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

    The panel held that Wharton did not overcome the strong
presumption that his lawyer provided constitutionally
adequate assistance in presenting evidence of his mental
illness or his positive adjustment to prison, or in failing to
present testimony by Wharton’s childhood friend and
neighbor.

    Regarding Wharton’s claim that his lawyer was
ineffective in failing to investigate and present testimony by
Wharton’s half-brother, Gerald Crawford, the district court
held that there was no prejudice and, accordingly, declined to
decide – or make the necessary factual findings related to –
Wharton’s claim that his trial lawyer was ineffective. The
panel held that, if Crawford was available to testify or
otherwise provide evidence, and trial counsel was ineffective
in his investigation, then Wharton has demonstrated prejudice
because the totality of the evidence – especially Crawford’s
testimony about sexual abuse ubiquitous in Wharton’s family
– gives rise to a reasonable probability that the jury may not
have rendered a verdict of death. The panel therefore vacated
the district court’s decision on this claim and remanded for
further factual development and for the district court’s
assessment, in the first instance, of whether Wharton has
established deficient performance.


                        COUNSEL

Marcia A. Morrissey (argued), Santa Monica, California; and
Lynne S. Coffin, Los Angeles, California, for Petitioner-
Appellant.

Xiomara Costello (argued), Deputy Attorney General,
Kamala D. Harris, Attorney General of California, Dane R.
4                 WHARTON V. CHAPPELL

Gillette, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Keith H. Borjon,
Supervising Deputy Attorney General, Richard S. Moskowitz
and A. Scott Hayward, Deputy Attorneys General, Los
Angeles, California, for Respondent-Appellee.


                         OPINION

GRABER, Circuit Judge:

    Petitioner George H. Wharton appeals the district court’s
denial of habeas relief in this capital case. Police officers
arrested Petitioner after finding the body of his live-in
girlfriend stuffed in a barrel in their kitchen. Petitioner
admitted killing her but claimed at trial, in California state
court, that he had been provoked into the killing and,
therefore, was guilty only of second-degree murder. The jury
disagreed and convicted him of first-degree murder. In this
habeas proceeding, Petitioner asserts that his due process
rights were violated when jurors saw him shackled and that
his trial lawyer provided ineffective assistance. We affirm
the district court’s denial of those claims. The district court
correctly held that, although some jurors occasionally saw
Petitioner in shackles while being transported through the
halls of the courthouse, those sporadic sightings outside the
courtroom did not rise to the level of a constitutional
violation. The district court also correctly held that
Petitioner’s trial lawyer chose a constitutionally permissible
guilt-phase strategy of forgoing certain defenses for fear of
opening the door to the jury’s learning about Petitioner’s
significant criminal history, which included a prior murder
and rape.
                   WHARTON V. CHAPPELL                        5

    At the penalty phase, the prosecutor introduced evidence
of Petitioner’s earlier convictions for both murder and rape,
and Petitioner introduced evidence of mental illness and of
his physically abusive and deprived childhood. The same
jury deliberated over the course of three days but ultimately
returned a verdict of death, which the trial judge imposed.
Petitioner now claims that his lawyer provided ineffective
assistance in investigating and presenting the mitigation
evidence. We affirm in part and vacate in part the district
court’s denial of Petitioner’s ineffective assistance of counsel
claim at the penalty phase. The district court held that no
prejudice resulted from the failure of Petitioner’s trial lawyer
to call Petitioner’s half-brother, Gerald Crawford, as a
witness. Accordingly, the court declined to decide—or make
the necessary factual findings related to—Petitioner’s claim
that his trial lawyer was ineffective in investigating what
Crawford knew. We hold that, if Crawford was available to
testify or otherwise provide evidence, and trial counsel was
ineffective in his investigation, then Petitioner has
demonstrated prejudice. We vacate that portion of the district
court’s judgment and remand for further proceedings,
including factual findings related to the investigation of
Crawford.

       FACTUAL AND PROCEDURAL HISTORY

   The California Supreme Court, whose factual findings are
“entitled to a presumption of correctness,” Rhoades v. Henry,
598 F.3d 495, 500 (9th Cir. 2010) (internal quotation marks
omitted), described the evidence at the guilt phase as follows:

           [On February 27, 1986, police officers
       discovered Linda Smith’s body in a barrel in
6             WHARTON V. CHAPPELL

    the kitchen of the apartment shared by Smith
    and Petitioner.]

        . . . A search of the apartment uncovered,
    among other things, several empty
    prescription drug bottles and a note pad with
    a note that began “Dear Dr. Hamilton.” While
    most of the bottles bore the victim’s name,
    one bore [Petitioner’s] name. In addition,
    police found a toolbox in the garage.

        An autopsy revealed the victim had been
    struck three times on the head with a blunt
    instrument, probably a hammer. The victim
    received one direct blow and two glancing
    blows. Any of the blows would have caused
    instant unconsciousness. Although the victim
    had no other broken bones or lacerations, the
    presence or absence of defensive wounds such
    as bruises could not be determined because of
    the advanced state of decomposition of the
    body. Dr. Failing, the pathologist in charge of
    the autopsy, testified that in his opinion, the
    victim died of asphyxia rather than the
    cerebral contusions. Because of the condition
    of the body, Dr. Failing could not pinpoint the
    time of death but opined it was probably 10 to
    14 days earlier.

       [Police arrested Petitioner.]

        [Petitioner] waived his Miranda rights and
    agreed to speak with Officer Tonello.
    [Petitioner] stated that he lived with Smith
                 WHARTON V. CHAPPELL                     7

      and that he spent the night of February 26th
      with her in their home. He affirmed that
      Smith was alive that night. He eventually
      admitted, however, that they argued and that
      he killed her. He explained that they had been
      drinking heavily that night and began to
      argue.1 She threw a book at him and he hit
      her twice in the head. She may have hit her
      head on a table, but he was not sure. He
      admitted he was mentally aware he was
      hitting her but stated that he was in a rage. He
      eventually realized she was dead. He began
      writing a letter to his psychotherapist, Dr.
      Hamilton, and then took several pills and lay
      down beside Smith. He tried to kill himself
      by inhaling gas from the oven. He did not
      know what he intended to do with the body,
      moving it from room to room. He also stated
      he lit a fire in the fireplace and brought
      Smith’s body into the room to keep her
      “warm.” At one point, he held Smith’s body
      to his own. He eventually wrapped Smith’s
      body in blankets and plastic bags and placed
      it in the barrel, where it was found by police.

________________
      1
        There was evidence that both [Petitioner]
      and the victim regularly abused alcohol,
      marijuana, and cocaine.

_________________
8              WHARTON V. CHAPPELL

        Leighton Smith, the victim’s ex-husband,
    was sorting through the victim’s belongings
    after [Petitioner] was taken into custody.
    Although police had already searched the
    house, Leighton Smith contacted police when
    he discovered a hammer lying under a day
    bed. He also noticed many of the victim’s
    possessions were missing, including coins,
    furs, jewelry, china, a television, a camera, a
    microwave oven, and a stereo.

        There was evidence that, in order to buy
    cocaine, [Petitioner] sold the victim’s
    property after, and possibly before, her death.
    He bartered away her car to Albert and
    Americo Perez for a quarter gram of cocaine
    plus a promise of more cocaine in the future.
    The Perez brothers sold the car in Mexico but
    agreed to retrieve it and testify against
    [Petitioner] in exchange for a grant of
    immunity. Sandra Barney testified that she
    helped [Petitioner] cash some of the victim’s
    checks; on at least two occasions, she saw him
    write the victim’s name on a check. She also
    testified that they used the money from the
    checks to buy drugs and alcohol and that
    [Petitioner] tried to sell the victim’s jewelry.
    Jackie Dennis testified that [Petitioner] gave
    her some women’s clothes and jewelry to sell
    and asked if she knew anyone who wanted to
    buy some dishes.

       In addition, [Petitioner’s] two
    psychotherapists testified and related various
                  WHARTON V. CHAPPELL                      9

       inculpatory statements [Petitioner] made in
       therapy. [Petitioner] did not present an
       affirmative defense.

People v. Wharton, 809 P.2d 290, 299–301 (Cal. 1991)
(citations omitted).

    In light of the overwhelming evidence that Petitioner
killed Smith, there was little hope of an acquittal on all
charges. Petitioner’s trial lawyer, William Duval, sought to
convince the jury that Petitioner was guilty of only second-
degree murder or manslaughter. Duval argued that Petitioner
lacked the malice required for a first-degree murder
conviction because Petitioner’s actions were the result of
provocation. See People v. Williams, 456 P.2d 633, 638 (Cal.
1969) (“Evidence of adequate provocation overcomes the
presumption of malice.”). The jury was unpersuaded and
returned a verdict of guilt on the first-degree murder charge
after deliberating for little more than a day.

    The same jury then heard evidence in a separate penalty
phase. The jury had not learned during the guilt phase about
Petitioner’s 1975 crimes of murder and forcible rape. During
the penalty phase, those crimes were the focus of the
prosecutor’s case in aggravation. The California Supreme
Court described the penalty-phase evidence:

           The prosecution’s case at the penalty
       phase of the trial consisted of evidence of
       [Petitioner’s] prior felony convictions. In
       June 1975, 61-year-old Jane B. answered her
       doorbell and found [Petitioner], a neighbor, on
       her doorstep. He indicated he had been
       fighting with his wife and asked to use Jane
10              WHARTON V. CHAPPELL

     B.’s telephone. She told him it was too late to
     let him in but made up a package of cosmetics
     to give to [Petitioner] for his wife, thinking it
     would cheer her up. When she opened the
     door to hand the package to him, [Petitioner]
     forced his way in and, armed with a butcher
     knife, forcibly raped her. During the crime,
     [Petitioner] held the knife to her throat, told
     her he would kill her if she screamed or made
     any noise, and made several small, shallow
     cuts on her neck. [Petitioner] told her that if
     she reported the crime, he would return and
     kill her. He also threatened to firebomb her
     house. After [Petitioner] left, Jane B.
     discovered some money, a small radio, and a
     camera were missing. She testified at
     [Petitioner’s] subsequent rape trial that the
     ordeal was extremely painful and that it left
     her vaginal area bloody.

          After his arrest for rape, [Petitioner]
     admitted he raped and robbed Jane B. but
     denied making the cuts on her neck. During
     his interrogation, [Petitioner] also admitted
     killing Robert Pierce after the latter solicited
     a homosexual act from him. [Petitioner] said
     he kicked Pierce and continued to kick him
     after he fell down. Before leaving the scene,
     he took Pierce’s watch. The prosecution’s
     evidence showed that in February 1975, Santa
     Barbara police found the body of Pierce, a
     university professor, lying in a doorway.
     Although they initially believed the death was
     accidental, an autopsy revealed facial and
          WHARTON V. CHAPPELL                     11

other injuries inconsistent with the accidental
death theory. [Petitioner] eventually pleaded
guilty to second degree murder and rape.

    In addition to this evidence, the
prosecution introduced evidence of
[Petitioner’s] prior convictions for burglary
and receiving stolen property.

    In the defense portion of the penalty
phase, [Petitioner] called Dr. Judith Hamilton
to the stand. She testified that [Petitioner]
voluntarily sought treatment from her because
of headaches, restlessness, and feelings of
nervousness around people. He also had a
fear of hurting his girlfriend, victim Linda
Smith. [Petitioner] reported he had abused
several drugs in the past, including cocaine,
amphetamines, marijuana, and alcohol. In
addition, he told her that he hated his father
and grandfather, that his grandfather beat him
with branches and scraps of wood, and that he
was sexually abused by his mother’s friend
when he was 11 years old. [Petitioner] also
revealed he had attempted suicide on three
different occasions, the most recent being a
month earlier. Dr. Hamilton diagnosed
[Petitioner] as suffering from atypical impulse
control disorder and multiple drug or
substance abuse. She could not determine on
the basis of her sessions with [Petitioner]
whether she could rule out paranoid
schizophrenia and organic personality
disorder as possible diagnoses.
12              WHARTON V. CHAPPELL

         Claudia Ann Wharton, [Petitioner’s]
     sister, described his childhood. The family,
     including [Petitioner], moved to his maternal
     grandmother’s farm in Hammond, Louisiana,
     after [Petitioner’s] parents separated. His
     mother worked as a domestic and received
     welfare benefits. David Lee, [Petitioner’s]
     stepgrandfather, was a six-foot, five-inch,
     three-hundred-pound man known as “Big
     Daddy” and was the father figure on the farm.
     Lee did not like [Petitioner]. Lee would beat
     [Petitioner] with a leather strap or an oak
     branch whenever [Petitioner] displeased him.
     [Petitioner] carried a heavier share of the
     chores than did the other children.
     [Petitioner’s] mother often quarreled with
     Lee; when he became angry, Lee would
     sometimes turn off the family’s water or
     refuse them wood to burn in the winter.
     [Petitioner’s] mother had a drinking problem
     during [Petitioner’s] childhood years. When
     [Petitioner] was 16, he left home and entered
     the Job Corps.

          Claudia also testified that [Petitioner] was
     a changed man after he was released from his
     first term in prison. He was anxious in
     crowds and had headaches. She stated that
     [Petitioner] told her he did not kill Pierce or
     rape Jane B. He also told her his wife had a
     miscarriage the night Jane B. was raped.

         Pearl Wharton, [Petitioner’s] mother,
     testified that she left home at age 11 when Lee
          WHARTON V. CHAPPELL                     13

tried to molest her. She married [Petitioner’s]
father, George Wharton, when she was 22
years old and their marriage lasted about 30
years [sic: 13 years]. [Petitioner’s] father
drank and occasionally physically abused her.
After the family moved back to her mother’s
farm, Lee mistreated [Petitioner], beating him
with oak switches. On one occasion, she
argued with Lee after he whipped one of her
daughters with an extension cord. When Lee
struck [Petitioner’s] mother with a
broomstick, [Petitioner] picked up a stick to
defend her. Lee produced a gun and
[Petitioner] ran away.

    Linda Wharton, another of [Petitioner’s]
sisters, essentially corroborated Claudia and
Pearl Wharton’s description of [Petitioner’s]
childhood years. She speculated that Lee
punished [Petitioner] because he looked like
his father, a man Lee disliked. She also
recalled that on one occasion, when
[Petitioner] was 12 or 13 years old, Lee
placed him in a burlap sack, dangled it from a
tree branch with a rope, and then set a
smoldering, smoky fire under the sack.
[Petitioner] was left in the sack for hours.

    Dr. Donald Patterson, a psychiatrist,
examined [Petitioner] at the request of the
defense. He concluded [Petitioner] suffered
from a personality disorder, a substance abuse
disorder, and possibly paranoid schizophrenia.
In addition, he noted that at the time of the
14                WHARTON V. CHAPPELL

       crime, [Petitioner] was under severe stress
       which may have led to a brief reactive
       psychosis, i.e., a brief interruption of contact
       with reality because of some significant event
       or stress. This would explain [Petitioner’s]
       unusual behavior following the slaying, that
       is, moving the victim’s body from room to
       room and building a fire to keep her “warm.”
       Patterson stated that although “atypical
       impulse disorder” (Dr. Hamilton’s diagnosis)
       was a possibility, he was less comfortable
       with that diagnosis.

           Dr. Patterson concluded by stating that, in
       his opinion, [Petitioner] was under the
       influence of extreme mental or emotional
       disturbance at the time he committed the
       crime because of the dysfunctional
       relationship he had with the victim. In
       addition, Patterson believed that [Petitioner]
       reasonably believed there was moral
       justification for his conduct and that he acted
       under extreme duress or under the substantial
       domination of another person. He reached
       these latter conclusions in light of evidence
       showing [Petitioner] suffered auditory
       hallucinations and may have killed in
       response to “voices” he heard inside his head.

Wharton, 809 P.2d at 301–02.

   On the third day of deliberations, the jury returned its
verdict of death. The California Supreme Court affirmed the
conviction and sentence. Id. at 299. The United States
                   WHARTON V. CHAPPELL                       15

Supreme Court denied certiorari. Wharton v. California,
502 U.S. 1038 (1992).

    Petitioner then filed this habeas action. The district court
stayed the case pending exhaustion of state remedies. The
California Supreme Court summarily denied habeas relief.
The district court then granted an evidentiary hearing on,
among other things, the claims now on appeal: Petitioner’s
shackling claim and his claims of ineffective assistance of
counsel at the guilt and penalty phases. After a lengthy
evidentiary hearing in 2006, the court issued an order in 2009
denying the claims addressed by the evidentiary hearing. The
court later denied all remaining claims in a separate order.

    Petitioner’s shackling claim, labeled claim 18, arises from
the fact that Petitioner was tried in the historic courthouse in
Santa Barbara, California. At the time of Petitioner’s trial,
the building’s design required less than optimal arrangements
for the transportation of prisoners. Petitioner arrived each
morning in a prison bus and was led, in what witnesses
described as a “chain gang,” to a holding facility in the
courthouse. Like the other prisoners brought to the
courthouse on the bus, Petitioner was shackled both
independently and to other prisoners while in transit. To
reach the holding facility, the chain gang walked through the
courthouse’s public hallways—within sight of the public,
including jurors who happened to arrive early for trial.

   The district court found that, although some jurors
occasionally saw Petitioner being transported in the chain
gang, Petitioner was never shackled in the courtroom. The
court held that the jurors’ occasional sightings of Petitioner
in shackles, outside the courtroom and while being
16                    WHARTON V. CHAPPELL

transported with other prisoners, did not rise to the level of a
due process violation.

    Petitioner’s claim of ineffective assistance of counsel at
the guilt phase, claim 41 subclaim 4,1 concerns Duval’s trial
strategy of arguing the defense of provocation only and not
also pursuing the available defenses of intoxication and
mental health. Evidence of intoxication and mental disease
is admissible to demonstrate that a defendant did not form the
specific intent required for a first-degree murder conviction.
See Cal. Penal Code § 29.4 (intoxication); id. § 28 (mental
health). The district court held that Duval’s trial strategy was
constitutionally adequate largely because Duval reasonably
feared that introducing evidence of intoxication and mental
illness would have opened the door to the jury’s learning
about Petitioner’s 1975 crimes of murder and rape.

    Finally, Petitioner’s claim of ineffective assistance of
counsel at the penalty phase, encompassing claim 37 and
claim 41, subclaims 16, 17, 19, 20, and 22, challenges the
adequacy of Duval’s investigation and presentation of
Petitioner’s case in mitigation. With three exceptions, the
district court rejected Petitioner’s theories on those claims
because Duval’s performance was constitutionally adequate.
On two of Petitioner’s subclaims—cultural mitigation and
Petitioner’s positive adjustment to prison—the court held that
Duval provided ineffective assistance but that the resulting
prejudice was very small and did not warrant relief. Finally,
the district court declined to decide whether Duval performed
deficiently in investigating the potential testimony of


  1
    Petitioner raised all claims of ineffective assistance of counsel under
claim 41 and listed his separate theories as “subclaims.” We follow this
convention, used by the parties and the district court.
                   WHARTON V. CHAPPELL                         17

Petitioner’s half-brother, Gerald Crawford. Instead, the court
held that, even if Crawford had been available to testify, no
prejudice resulted from the fact that he did not testify.

    Petitioner timely appeals. The district court granted a
certificate of appealability on the shackling claim. We
ordered supplemental briefing on the claims of ineffective
assistance of counsel mentioned above. Because the standard
in 28 U.S.C. § 2253(c) is met with respect to those claims, we
now grant a certificate of appealability on claim 37 and claim
41, subclaims 4, 16, 17, 19, 20, and 22.

                STANDARDS OF REVIEW

    “Because [Petitioner’s] first federal habeas petition was
filed before the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (‘AEDPA’),
pre-AEDPA standards apply to his claims.” Hamilton v.
Ayers, 583 F.3d 1100, 1105 (9th Cir. 2009). We review de
novo the district court’s denial of habeas relief. Arnold v.
Runnels, 421 F.3d 859, 862 (9th Cir. 2005). We review for
clear error the district court’s factual findings. Buckley v.
Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc).

                        DISCUSSION

    A. Shackling While Being Transported

    Petitioner argues that jurors’ viewing of him in shackles
while being transported deprived him of a fair trial under
Deck v. Missouri, 544 U.S. 622 (2005). “[T]he Fifth and
Fourteenth Amendments prohibit the use of physical
restraints visible to the jury absent a trial court determination,
in the exercise of its discretion, that they are justified by a
18                 WHARTON V. CHAPPELL

state interest specific to a particular trial.” Id. at 629. Three
reasons support that rule: the need for a defendant to assist
counsel, “[t]he courtroom’s formal dignity,” and the
presumption of innocence. Id. at 630–31. In the absence of
a particularized determination that shackling is justified,
visible shackling in the courtroom is “‘inherently
prejudicial.’” Id. at 635 (quoting Holbrook v. Flynn, 475 U.S.
560, 568 (1986)). That is, “where a court, without adequate
justification, orders the defendant to wear shackles that will
be seen by the jury, the defendant need not demonstrate
actual prejudice to make out a due process violation. The
State must prove ‘beyond a reasonable doubt that the
shackling error . . . did not contribute to the verdict
obtained.’” Id. at 635 (brackets omitted) (quoting Chapman
v. California, 386 U.S. 18, 24 (1967)).

    Deck concerned visible shackling in the courtroom. We
have held that visible shackling outside the courtroom—at
least when the viewing is brief and accidental—is not
inherently prejudicial; instead, a due process violation occurs
only if the criminal defendant demonstrates actual prejudice.
See Williams v. Woodford, 384 F.3d 567, 593 (9th Cir. 2004)
(holding that one “juror’s viewing of Williams in handcuffs
with a coat draped over his handcuffed hands as he went to or
from the courtroom was not inherently or presumptively
prejudicial”); Ghent v. Woodford, 279 F.3d 1121, 1133 (9th
Cir. 2002) (holding that there was no inherent prejudice
where “a few jurors at most glimpsed Ghent in shackles in the
hallway and as he was entering the courtroom”); United
States v. Olano, 62 F.3d 1180, 1190 (9th Cir. 1995) (holding
that “a jury’s brief or inadvertent glimpse of a defendant in
physical restraints is not inherently or presumptively
prejudicial” where, “on the sixth day of trial, the jury briefly
witnessed [the defendant] in handcuffs as he entered the
                   WHARTON V. CHAPPELL                       19

courtroom”); Castillo v. Stainer, 983 F.2d 145, 148 (9th Cir.
1992) (holding that, concerning “a brief and accidental
viewing of the defendant in a corridor, chained [at the
waist],” “[n]o harm that rises to a constitutional level is done
by such an unintended, out-of-court occurrence”); United
States v. Halliburton, 870 F.2d 557, 559–61 (9th Cir. 1989)
(holding that a “brief and inadvertent display of Halliburton
in handcuffs” when “he was observed handcuffed to a co-
defendant by at least two jurors as the elevator doors opened”
was not inherently prejudicial).

    We explained long ago the reasons for the distinction
between shackling in open court and shackling during
transportation. “[E]ven the ‘most unsophisticated juror’
knows that defendants may have to post bail and that some
lack the resources to do this.” Halliburton, 870 F.2d at 561
(quoting Dupont v. Hall, 555 F.2d 15, 17 (1st Cir. 1977)).
“‘Under these circumstances we cannot think that the
emotional impact of seeing the defendant in custody is
necessarily hostile—it may be quite the reverse.’” Id.
(alteration omitted) (quoting Dupont, 555 F.2d at 17). “‘It is
a normal and regular as well as a highly desirable and
necessary practice to handcuff prisoners when they are being
taken from one place to another, and the jury is aware of
this.’” Id. (alteration omitted) (quoting United States v.
Leach, 429 F.2d 956, 962 (8th Cir. 1970)).

    The distinction is also consistent with the Supreme
Court’s more recent reasoning in Deck, 544 U.S. at 630–31.
Unlike shackling in the courtroom, shackling during transport
does not affect the defendant’s ability to assist counsel during
trial. Id. at 631. Nor does it have any effect on the dignity of
the courtroom; indeed, it could be perceived as increasing the
dignity of the courtroom because a prisoner’s shackles are
20                 WHARTON V. CHAPPELL

removed for open-court proceedings. Id. Admittedly, visible
shackling during transportation might affect the jury’s
perception of the presumption of innocence, id. at 630, but
that concern is mitigated greatly by the reasons discussed
above—jurors know that, as a matter of routine, some
defendants are in custody during trial and that security needs
during transport demand restraints. In this case, too,
Petitioner was part of a group of prisoners being moved
through the courthouse; he was not singled out.

    Here, after conducting a lengthy evidentiary hearing, the
district court found that “Petitioner was not visibly restrained
while in the courtroom” but that “at least some of the jurors
observed Petitioner being transported through the
courthouse’s public areas while in visible restraints.” At the
evidentiary hearing, almost everyone testified that Petitioner
did not appear in shackles in the courtroom in front of the
jury: Petitioner’s lawyer, William Duval; Petitioner’s
investigator, Craig Stewart; the bailiff; the state-court trial
judge; the prosecutor; and Juror Reginald C.

    Only two jurors contradicted that observation, both with
ambivalent testimony. Juror George B testified that he saw
Petitioner shackled in some form or another in the
courtroom—suggesting at times that Petitioner’s hands were
chained to a table or to his waist, or that his legs were
shackled. At other times, however, George B contradicted
that testimony or hedged: “[I]t may be that I saw the actual
chains in the hall and not in the courtroom and just assumed.
I can’t guarantee you I saw the chains in the courtroom.”
George B confirmed at the evidentiary hearing that his
memory was “a little hazy.”
                   WHARTON V. CHAPPELL                        21

   Juror Shelley T testified that she saw Petitioner once in
handcuffs. She generally testified that this occurred in the
courtroom, as Petitioner was led either into or out of the
courtroom. When pressed, however, she also hedged: “I
could be wrong.” Her memory of the trial was “pretty bad.”

     In light of the overwhelming testimony in support of the
district court’s factual finding and only weak testimony to the
contrary, we conclude that the district court did not clearly err
in finding that Petitioner was not shackled in the courtroom.
See, e.g., Rodriguez v. Holder, 683 F.3d 1164, 1176 (9th Cir.
2012) (“Although an appellate court or other reviewing body
may find clear error in a fact-finder’s credibility
determination if a witness’s story is contradicted by the
evidence or is internally inconsistent or implausible, a
factfinder may nevertheless credit one witness’s testimony
over another’s if both have related coherent and facially
plausible stories that are not contradicted by extrinsic
evidence.”).

    The district court likewise did not clearly err in finding
that “at least some of the jurors observed Petitioner being
transported through the courthouse’s public areas while in
visible restraints.” The witnesses testified consistently that
prisoners arrived each morning in a bus and were
led—shackled—through the courthouse’s public hallways in
a “noisy” chain gang. Because the courthouse is open and
lacks separate hallways for transporting prisoners, jurors
arriving early for trial easily could see a defendant in
shackles. The presiding judge testified that the lack of
separate hallways was an “ongoing problem.” According to
the prosecutor, the problem was “endemic” at the time.
Additionally, two of the three testifying jurors stated that they
saw Petitioner in shackles in the hallway. Juror Reginald C
22                   WHARTON V. CHAPPELL

saw Petitioner in leg shackles “maybe once or twice” in the
hallway in the mornings before trial started for the day, and
Juror George B testified with confidence that he saw
Petitioner shackled in the hallway.

    The legal question that we confront, then, is whether
some jurors’ viewing of Petitioner being transported in
shackles through the courthouse’s public areas deprived him
of a fair trial in violation of his due process rights.2 We agree
with the district court that Petitioner’s due process rights were
not violated.

    Because jurors saw Petitioner shackled only occasionally
and only while being transported, Petitioner must demonstrate
actual prejudice. See, e.g., Ghent, 279 F.3d at 1132–33
(requiring that the petitioner demonstrate prejudice where the
petitioner “was transported to and from the courtroom in
shackles and . . . on some of these occasions jurors observed
him under restraint”). Only three out of the twelve jurors
testified. Shelley T testified that she saw Petitioner in
shackles once. Reginald C saw Petitioner in leg shackles
“[m]aybe once or twice.” (Emphasis added.) George B
testified that he saw Petitioner in shackles an unspecified
number of times: “Between one and 20. I have no
recollection.” Those jurors saw Petitioner in shackles only
while being transported in a group, outside the courtroom.3

 2
    We reject the Warden’s argument that Petitioner waived this issue by
raising it with inadequate specificity in his habeas petition.
  3
    Petitioner also cites Duckett v. Godinez, 67 F.3d 734, 748 (9th Cir.
1995), and Rhoden v. Rowland, 10 F.3d 1457, 1460 (9th Cir. 1993), for
support. But those cases involved in-courtroom shackling. See Duckett,
67 F.3d at 746 (“Duckett appeared for his sentencing hearing dressed in
prison clothes and wearing handcuffs and a security chain.”); Rhoden,
                      WHARTON V. CHAPPELL                                23

The jurors’ sightings of Petitioner were not so pervasive or
harmful that we must presume inherent prejudice.

     Nor has Petitioner demonstrated actual prejudice. As the
district court found, “[t]here is no testimony indicating
prejudice.” Petitioner clearly was implicated in the death of
Linda Smith; jurors likely understood that the transportation
shackling was a regular part of his custody—just as it was for
all the other prisoners being transported. Moreover, the fact
that Petitioner was not shackled in the courtroom, even
though he was shackled entering and exiting the courthouse,
suggested that Petitioner was not a dangerous person. We
agree with the district court that “Petitioner was not singled
out for special treatment, hence he suffered no particular
prejudice as a result of his treatment.”

    Petitioner makes much of a statement by one juror, while
explaining his inability to remember precisely where he saw
Petitioner shackled, that “[s]ince you’ve seen it [Petitioner in
shackles] in the hallways, it’s not going to make a major
impression when you see the same thing in the courtroom.”4
Petitioner reads this statement as somehow proving that the
out-of-courtroom viewing was as prejudicial as an in-
courtroom viewing would have been. Read most naturally,
however, the statement amounts to the reverse: the juror
speculated that an in-courtroom viewing would have had only


10 F.3d at 1458 (“Rhoden’s legs were shackled throughout the trial . . . .”).
They do not apply here, where Petitioner was seen in shackles only
outside the courtroom.
   4
      The Warden argues, in the alternative, that the statement was
inadmissible under Federal Rule of Evidence 606(b). We need not, and
do not, reach that argument. For the reasons stated in text, even if the
statement was admissible, it does not change our conclusion.
24                 WHARTON V. CHAPPELL

the same minimal effect as the out-of-courtroom viewing. In
any event, the statement is pure speculation. As the district
court found, jurors actually saw Petitioner shackled only
outside the courtroom. We decline to upend established
caselaw that recognizes legally significant differences in the
effect on jurors of in-courtroom shackling versus out-of-
courtroom shackling simply because of one juror’s personal,
hypothetical speculation. That juror’s speculation falls well
short of demonstrating actual prejudice.

   We thus agree with the district court that Petitioner’s
shackling claim fails.

     B. Ineffective Assistance of Counsel at the Guilt Phase

    Petitioner next argues that his trial lawyer, Duval, was
ineffective under Strickland v. Washington, 466 U.S. 668
(1984), by choosing to present the provocation defense only
and choosing not to present evidence of intoxication and
mental illness. To prevail on an ineffective assistance of
counsel claim, Petitioner must establish both deficient
performance and prejudice. Id. at 687. We undertake a
“highly deferential” assessment of Duval’s performance. Id.
at 689. Duval “is strongly presumed to have rendered
adequate assistance.” Id. at 690. “[S]trategic choices made
after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at
690–91.

    Duval investigated the intoxication and mental-health
defenses by consulting with many experts. At Duval’s
                   WHARTON V. CHAPPELL                         25

request, Drs. Donald Patterson, Michael Stulberg, Richard
Steinberg, Robert Sbordone, and William Rack evaluated
Petitioner. Duval also consulted with Dr. Ronald Siegel, who
had met with Petitioner and gathered hair samples at the
request of Duval’s predecessor. He reviewed a copy of a
report by Dr. James Wells, who had examined Petitioner at
the request of the prosecution. Because Petitioner’s memory
was unclear concerning the murder, he arranged for the
administration of sodium amytal, or “truth serum.”

    The investigation into the cocaine intoxication defense
yielded little support for that theory. The district court found
“a substantial hole” in the intoxication defense because “the
exact date of the murder cannot be fixed” and a “taped
jailhouse interview with Petitioner provides no support for
it.” See also Mayfield v. Woodford, 270 F.3d 915, 931 n.17
(9th Cir. 2001) (en banc) (“[J]uries are unlikely to favor
defenses based on abuse of dangerous drugs in evaluating a
defendant’s culpability for violent behavior.”). The district
court concluded that there was “no value in pursuing an
intoxication defense.” We agree. Duval’s decision not to
present the intoxication defense passes scrutiny under
Strickland, particularly in light of the fact, discussed in detail
below, that pursuing the defense likely would have opened
the door to evidence of Petitioner’s past crimes.

    By contrast to the intoxication defense, the investigation
did yield some support for the mental-health defense,
although the results were far from conclusive. Duval had
available to him several medical experts who could have
testified about Petitioner’s mental health at the time of the
murder. Petitioner had a long history of mental illness, and
the psychiatrists concluded that Petitioner suffered from a
variety of mental conditions, including schizophrenia,
26                 WHARTON V. CHAPPELL

atypical impulse disorder, hallucinations, delusions, and
paranoia.

    Some of the mental-health evidence was in tension with
the defense of provocation. For example, evidence that
Petitioner had atypical impulse control tended to undermine
Duval’s strategy of showing that Petitioner’s response to
provocation was objectively reasonable. But we need not
dwell on the merits of presenting a mental-health defense
versus the strength of presenting the provocation defense
alone. As the district court found, Duval had an independent
and very strong reason not to introduce testimony by the
mental-health experts: Duval was concerned that introducing
their testimony would lead to the jury’s learning about
Petitioner’s prior convictions for rape and murder.

    Duval’s concern was justified. Under well-established
California law, a mental-health expert may be cross-examined
about a patient’s criminal history in order to impeach the
expert. People v. Doolin, 198 P.3d 11, 45 (Cal. 2009); People
v. Panah, 107 P.3d 790, 853–54 (Cal. 2005); People v.
Osband, 919 P.2d 640, 698 (Cal. 1996); People v. Hendricks,
749 P.2d 836, 838–39 (Cal. 1988); People v. Nye, 455 P.2d
395, 405–08 (Cal. 1969)); see, e.g., Hendricks, 749 P.2d at
838 (“Other-crimes evidence may be used to impeach the
testimony of an expert witness.”); Nye, 455 P.2d at 406
(holding that cross-examination of an expert witness,
including concerning the defendant’s prior crimes, is
permissible on “the extent of his knowledge, the reasons for
his opinion including facts and other matters upon which it is
based, and which he took into consideration” (citation and
emphasis omitted)). Given that Petitioner’s prior crimes
involved heinous acts, it was eminently reasonable for Duval
to choose a trial strategy that avoided the serious risk that the
                  WHARTON V. CHAPPELL                      27

jury would learn about those past crimes. See Mickey v.
Ayers, 606 F.3d 1223, 1238–39 (9th Cir. 2010) (holding that
the decision by the petitioner’s lawyer not to introduce
evidence of a mental-health defense was adequate in part
because it “was likely to open the door to evidence of
Mickey’s deviant sexual behaviors”); Hendricks v. Calderon,
70 F.3d 1032, 1037 (9th Cir. 1995) (holding the same because
“the jury would have learned, during [the experts’] cross-
examination, of Hendricks’ other murders for which he was
tried separately”).

    We reject Petitioner’s arguments to the contrary. At the
evidentiary hearing, Duval testified repeatedly—both in
general and with respect to specific doctors—that he decided
to forego a mental-health defense out of concern for exposing
the jury to Petitioner’s past crimes. He testified in general
that “I wanted to defend [the case] in a manner that kept that
[prior] murder and the rape, by the way, from the jury.”
Petitioner’s prior murder conviction “posed some very
serious problems in defending him,” as Duval described:

           Q. Why?

           A.    Well, I have a defendant I’m
       defending on a murder case involving
       apparently a beating and he has a prior murder
       that was a result of a beating. I don’t want a
       jury to hear that.

           Q. Why wouldn’t you want a jury to hear
       that?

          A. It’s pretty basic stuff. Why wouldn’t
       I want a jury to hear that? It just seems
28                WHARTON V. CHAPPELL

       reasonable not to have a jury hear that. . . . I
       think it would be a concern that the jury
       would say once a killer, why not again.

The rape also troubled Duval: “[I]t was a brutal crime
involving a . . . 63-year old [sic: 61-year-old] woman. And
to me it was almost as bad as the jury learning about the prior
murder.” Duval had recently defended a client at whose trial
the jury learned that the defendant had committed a prior
murder, so Duval “was real leery about that as a possibility.”
He believed that there was a “decent chance” of a second-
degree murder verdict if he could “keep[] the jury from
learning about the prior convictions.”

     Duval also testified repeatedly that, because of
Petitioner’s prior convictions, Duval feared calling as
witnesses many of the specific doctors—Drs. Stulberg,
Steinberg, Sbordone, and Patterson—who could testify about
Petitioner’s mental health: “Q. Why? A. Because that
would be a way to get what I was most fearful of in front of
the jury, or a possible way to get it there[, his prior
convictions].” Indeed, Duval interrupted the line of
questioning about Dr. Sbordone to clarify that the prior
murder and rape were an overarching concern throughout the
trial: “Look, the 1975 priors, the prior murder and the prior
rape, were always on the table as far as I was concerned in
defending this case. It made it a difficult case to defend
because of those priors . . . .” The district court was well
within its parameters as a fact-finder to credit Duval’s
testimony, and Petitioner is plainly mistaken in asserting that
Duval’s strategic decision had nothing to do with the 1975
crimes.
                  WHARTON V. CHAPPELL                      29

    Petitioner next argues that Duval conducted an inadequate
investigation into mental-health issues and that, accordingly,
counsel’s decision to forego a mental-health defense is not
entitled to deference. We disagree. As noted above, Duval
hired many experts to assess Petitioner’s mental health, and
he reviewed additional reports and medical records. With the
benefit of hindsight and the absence of the time pressure of
preparing for trial, Petitioner points to many ways in which
Duval could have followed up on alleged leads, provided
more records to certain experts, or asked experts to conduct
additional testing or analysis.

    But “the Sixth Amendment does not guarantee the right
to perfect counsel.” Burt v. Titlow, 134 S. Ct. 10, 18 (2013).
Duval’s trial preparation was limited by time and resources.
Given that a mental-health defense carried with it the
considerable detriment of opening the door to Petitioner’s
prior convictions, Duval’s already extensive investigation of
that defense was more than adequate. Even if we considered
his investigation “less than complete,” we would conclude
that “reasonable professional judgments” supported his
decision not to investigate further. Strickland, 466 U.S. at
690–91.

    Finally, Petitioner argues that Duval could have filed an
“in limine motion,” before trial, to seek to exclude
Petitioner’s past crimes from evidence. But Petitioner has
provided no authority at all suggesting that the trial court
actually would have granted such a motion. Indeed, all the
cases that we have found, cited above, point in the opposite
direction: the trial court likely would have denied the motion
to the extent that Duval sought to introduce testimony by
mental-health experts. Similarly, Petitioner has not pointed
to any evidence in the record suggesting that the trial judge
30                   WHARTON V. CHAPPELL

here would have granted the motion.5 Given the exceedingly
low likelihood of success, it was a reasonable decision for
Duval to focus his limited time and resources on strategies
with a greater likelihood of success than to file a motion that
almost certainly would have been denied.

    In sum, the district court correctly denied relief on
Petitioner’s claim of ineffective assistance of counsel at the
guilt phase.

     C. Ineffective Assistance of Counsel at the Penalty Phase

    Petitioner argues that Duval did not provide
constitutionally adequate assistance at the penalty phase. “To
perform effectively in the penalty phase of a capital case,
counsel must conduct sufficient investigation and engage in
sufficient preparation to be able to present and explain the
significance of all the available mitigating evidence.” Correll
v. Ryan, 539 F.3d 938, 942 (9th Cir. 2008) (internal quotation
marks and alterations omitted). Duval had “an obligation to
present and explain to the jury all available mitigating
evidence.” Hamilton, 583 F.3d at 1113. He also “had a duty
to conduct ‘a thorough investigation of the defendant’s
background.’” Id. (quoting Williams v. Taylor, 529 U.S. 362,
396 (2000)). “It is imperative that all relevant mitigating


   5
     If anything, the record suggests that the trial judge would not have
ruled on an in limine motion in a way that was definitively favorable to
Petitioner. Before trial, Duval filed a motion to exclude certain other
testimony that was prejudicial to Petitioner. The trial judge granted the
motion “without prejudice to changed circumstances,” which Duval
interpreted to mean that the judge might change his mind during trial.
That ruling worried Duval because, he said, “I would have to be thinking
about not entering any area where the circumstances changed so I’d end
up having that testimony in front of the jury.”
                  WHARTON V. CHAPPELL                       31

information be unearthed for consideration at the capital
sentencing phase.” Caro v. Calderon (“Caro I”), 165 F.3d
1223, 1227 (9th Cir. 1999). “To that end, trial counsel must
inquire into a defendant’s social background, family abuse,
mental impairment, physical health history, and substance
abuse history; obtain and examine mental and physical health
records, school records, and criminal records; consult with
appropriate medical experts; and pursue relevant leads.”
Hamilton, 583 F.3d at 1113 (citations, internal quotation
marks, and alteration omitted). “[S]trategic choices made
after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.”
Strickland, 466 U.S. at 690–91. “In any ineffectiveness case,
a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying
a heavy measure of deference to counsel’s judgments.” Id. at
691.

    In addition to showing unprofessional judgment,
Petitioner also must establish prejudice, by demonstrating
“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at
694.

       [I]n assessing prejudice, we must compare the
       evidence that actually was presented to the
       jury with the evidence that might have been
       presented had counsel acted differently and
       evaluate whether the difference between what
32                   WHARTON V. CHAPPELL

         was presented and what could have been
         presented is sufficient to undermine
         confidence in the outcome of the proceedings.
         This requires us to evaluate the totality of the
         available mitigation evidence—both that
         adduced at trial, and the evidence adduced in
         the habeas proceeding[—]and reweigh it
         against the evidence in aggravation. Prejudice
         is established if there is a reasonable
         probability that at least one juror would have
         struck a different balance between life and
         death.

Hamilton, 583 F.3d at 1131 (citations, internal quotation
marks, and brackets omitted).

    “A convicted defendant making a claim of ineffective
assistance must identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable
professional judgment.” Strickland, 466 U.S. at 690. In the
certified claims on appeal, Petitioner asserts that Duval:
(1) failed to investigate and present evidence of Petitioner’s
mental illness; (2) failed to present evidence of Petitioner’s
positive adjustment to prison; (3) failed to present testimony
by potential mitigation witness Robert Short; and (4) failed to
investigate and present testimony by potential mitigation
witness Gerald Crawford.6



 6
   We address all arguments raised by Petitioner on appeal, regardless of
the heading under which we find those arguments. Accordingly, we reject
the Warden’s suggestion that Petitioner has waived arguments that appear
in his briefs. At the same time, we do not revive arguments made before
the district court that Petitioner declined to brief on appeal.
                      WHARTON V. CHAPPELL                             33

     1. Failure to Investigate and Present Evidence of
        Petitioner’s Mental Health

     As discussed above, Duval made a strategic decision not
to introduce evidence of Petitioner’s mental health at the guilt
phase in order to shield the jury from learning about
Petitioner’s prior convictions. But that consideration became
moot at the penalty phase, because the prosecutor could—and
did—introduce evidence of Petitioner’s prior convictions as
aggravating circumstances supporting the death penalty. As
part of Petitioner’s mitigation case, Duval introduced
evidence of Petitioner’s mental health through expert
testimony by Dr. Patterson and Dr. Hamilton.7

    Dr. Patterson saw Petitioner several times before the
penalty phase and reviewed many reports by other treating
and examining doctors over the span of a decade. He testified
that Petitioner presented a “very complex” psychiatric case.
Dr. Patterson found support for “a number of diagnostic
possibilities,” including “mental disorder,” “personality
disorder . . . with a marked potential for aggressive behavior,”
“thought disorder or a more serious mental illness in the form
of a schizophrenia,” “schizophrenia” as evidenced by
“auditory hallucinations,” and “atypical impulse disorder.”

    Petitioner argues that Duval provided inadequate
assistance at the penalty phase because Duval should have
presented better evidence of Petitioner’s mental illness. At
the evidentiary hearing in district court, Petitioner presented


 7
   Dr. Hamilton treated Petitioner in the weeks before the murder, without
the benefit of his full mental and medical history. At the penalty phase,
she provided only tentative mental-health diagnoses. Like the parties, we
focus on Dr. Patterson’s testimony.
34                 WHARTON V. CHAPPELL

testimony by Dr. Patterson, via a 2002 video deposition, and
testimony by Dr. Richard Dudley, Jr., an expert hired by
Petitioner in 1993. Dr. Patterson testified that, even though
he requested all background information related to Petitioner,
Duval did not provide him with several important reports and
pieces of information, including doctors’ reports, jail records,
and background information about Petitioner. Had Dr.
Patterson seen that information before his penalty-phase
testimony, he would have testified that Petitioner had even
more severe mental-health issues.

    Dr. Dudley is a professor at New York University School
of Law and also a practicing physician whose specialty is
psychiatry. He examined a wide range of reports and
information in preparation for the evidentiary hearing. He
concluded that, at the time of the 1986 murder, Petitioner was
“suffering from a major psychiatric disorder.” The district
court found, and the parties do not challenge, that, “[i]n Dr.
Dudley’s view, Petitioner suffered from ‘a borderline
personality disorder’ with cognitive defects.” “As he passed
through adolescence, he acquired a ‘schizoaffective disorder’
with which he attempted to cope through substance abuse.”

    In assessing Petitioner’s ineffective assistance of counsel
claim, the district court carefully compared Dr. Patterson’s
testimony at the penalty phase with the habeas testimony by
Drs. Patterson and Dudley. The court held:

           At its heart, Petitioner is resting his claim
       for relief on the assertion that Dr. Dudley’s
       testimony would have been so much better
       than that presented by Dr. Patterson.
       Petitioner asserts that Dr. Dudley was more
       understandable, clearer, internally consistent,
           WHARTON V. CHAPPELL                     35

and gave a better historical context to the
events of Petitioner’s life. Those statements
are almost definitely true, although due in part
to Dr. Dudley having had the luxury of
relying upon extensive work done in habeas
and being insulated from the pressures of a
capital trial. However, Dr. Dudley’s “ideal”
testimony is not so significantly different
from the testimony that was delivered in
mitigation as to mandate relief.

    Both experts concluded that Petitioner
suffered from long-standing mental and
emotional problems compounded by
substance abuse. Dr. Dudley drew a more
definite connection between Petitioner’s
childhood abuse and his later mental
problems, and introduced new elements into
Petitioner’s background such as his father’s
family history of mental illness and
characterizing his mother as suffering from
depression. Similarly, Dr. Dudley had some
new specifics to support his diagnosis, such as
the stories of Petitioner’s childhood behavior
and seizures and a passing reference to sexual
abuse by [Big Daddy]. However, the two
experts reach a similar conclusion of long-
standing mental illness with a similarly
persuasive historical basis. . . . Because
Petitioner’s proposed expert testimony is only
better than that which was actually presented
and not significantly different in kind, the
Court does not find that Mr. Duval failed to
render competent representation through his
36                WHARTON V. CHAPPELL

       presentation of mitigating evidence
       concerning mental disease or defect.

    We have conducted our own review, and we agree with
the district court’s analysis. All of the doctors who examined
or treated Petitioner concluded that he suffered from severe
mental illness; they just disagreed on the precise diagnosis.
Petitioner has not explained how the specific diagnosis by Dr.
Dudley in 2006 (or by Dr. Patterson in 2002) differed in any
material way from Dr. Patterson’s original diagnosis in 1987.
Cf. Miles v. Ryan, 713 F.3d 477, 493–94 (9th Cir.) (“The
newly uncovered portion of Petitioner’s social history simply
does not have significant mitigating value in view of what
was already available to the sentencing judge.”), cert. denied,
134 S. Ct. 519 (2013). We agree with the district court that
“Petitioner’s proposed expert testimony is only better than
that which was actually presented and not significantly
different in kind.”

    Petitioner’s finer-grained arguments fail for the same
reason. For example, Dr. Patterson may not have been the
wisest choice for an expert witness; Duval likely could have
provided Dr. Patterson with better supporting documentation;
and Duval possibly could have done a better job of eliciting
testimony from Dr. Patterson tying Petitioner’s mental health
more directly to the 1975 murder and rape. But Petitioner has
not shown how a more diligent lawyer would have produced
materially different expert testimony. Accordingly, Petitioner
has not overcome the strong presumption that Duval provided
constitutionally adequate assistance in presenting evidence of
Petitioner’s mental health.
                   WHARTON V. CHAPPELL                        37

    2. Positive Adjustment to Prison

     Petitioner next argues that Duval was ineffective by
failing to introduce evidence of Petitioner’s allegedly positive
adjustment to prison, such as his history of only minor, non-
violent disciplinary violations while in prison. Petitioner’s
argument fails for the simple reason that Duval did introduce
evidence of his positive adjustment to prison.

    A custodian of prison records, Lucy Bross, testified that
Petitioner was housed at Vacaville, a psychiatric treatment
facility, from 1976 to 1980. On cross-examination, she
testified that Petitioner had eight disciplinary violations while
he was in prison: one for possession of marijuana and seven
for failing to appear for work assignments and disobeying
orders. On redirect, in response to questioning by Duval, she
explained that the violations were minor and non-violent.
From this evidence of only occasional, minor, and non-
violent offenses while in prison, the jury could infer that
Petitioner would pose little risk of future dangerousness in
prison.

    On appeal, Petitioner does not argue that there were
additional details that should have been brought to light or
additional records that were not mentioned. Nor does he
argue that introduction of the records themselves—as
opposed to the custodian’s description of them—would have
aided his case. In any event, even if Duval could have
introduced slightly better evidence, such as a mental-health
expert’s testimony of Petitioner’s allegedly positive
adjustment to prison, we fail to see how Duval was
constitutionally ineffective for not dwelling on this aspect of
the case: we agree with the district court that the evidence
was “at best weakly positive.”
38                 WHARTON V. CHAPPELL

     3. Failure to Present Testimony by Robert Short

    Petitioner argues that Duval provided ineffective
assistance of counsel by failing to present testimony by
Robert Short. Short was a childhood friend and neighbor of
Petitioner’s and, for a time, was married to Petitioner’s sister
Claudia. Petitioner told Investigator Craig Stewart, whom
Duval had hired to investigate Petitioner’s background, that
Short might have helpful information. Stewart successfully
contacted Short, interviewed him, and prepared a nine-page
report for Duval.

    The report contained information that was helpful to
Petitioner’s mitigation case. For example, the district court
found that the report “supported the other witnesses’
testimony about the chaos and abuse present in Petitioner’s
childhood home and added new details about Petitioner’s
mother.” Those new details included that Petitioner’s mother
had a boyfriend approximately the same age as Petitioner,
which Petitioner resented, and that she had a sexual
relationship with a woman, which upset Petitioner. But the
report also contained information that was harmful to
Petitioner’s mitigation case. The district court found that the
report “added uncomfortable details about Petitioner’s thefts
from Mr. Short’s clients, how he would frequent gay bars to
prostitute himself, and about how, prior to his arrest,
Petitioner told him that Linda Smith had died suddenly due to
a concussion or a brain tumor.” Additionally, “Short would
have contradicted witnesses who stated that Petitioner drank
and used drugs as a youngster.”

    After receiving the report from Stewart, Duval wrote on
the top: “Great reading, but a disaster.” At the evidentiary
hearing, Duval explained—and the district court
                   WHARTON V. CHAPPELL                       39

credited—that he made a strategic decision not to call Short
because of the potential for testimony harmful to Petitioner’s
case. We conclude that Duval’s strategic decision did not run
afoul of Strickland. “[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are
virtually unchallengeable . . . .” Strickland, 466 U.S. at 690;
see, e.g., Toliver v. McCaughtry, 539 F.3d 766, 775 (7th Cir.
2008) (“After conducting an investigation (or making a
reasonable decision that investigation is unnecessary),
counsel may make a legitimate strategic decision not to call
a witness if he makes a determination that the testimony the
witness would give might on balance harm rather than help
the defendant.” (internal quotation marks and brackets
omitted)).

    On appeal, Petitioner argues that the harmful testimony
may not have come out during cross-examination and that the
helpful testimony was very helpful. As an initial matter, even
if we agreed with Petitioner’s assessment that perhaps Short
may have done more good than harm, Strickland demands
more:        Duval’s strategic choice is “virtually
unchallengeable.” 466 U.S. at 690. In any event, Petitioner’s
arguments fail on their own terms.

    Petitioner makes much of the fact that Duval had no duty
to give the report to the prosecution and therefore had no
reason to think that the harmful testimony would come out.
But Duval reasonably feared that the harmful testimony
would come out through ordinary cross-examination. This is
not a situation in which the harmful testimony concerned
some subject far afield from the witness’ testimony or the
crime itself, such that it was unreasonable for Duval to seek
to avoid the harmful testimony. The harmful subject areas
related directly to either the basis of Short’s testimony—his
40                 WHARTON V. CHAPPELL

childhood and adult friendship with Petitioner—or the crime
itself—the murder of Linda Smith. Cross-examination easily
could have uncovered the harmful topics.

    As for the helpful testimony, Short would have provided
testimony, for example, about the sexual activity of
Petitioner’s mother and its effect on Petitioner. But Duval
already introduced extensive testimony about Petitioner’s
family background and history. The helpful testimony would
not have framed a new perspective on a critical issue in the
case. Cf., e.g., Hamilton, 583 F.3d at 1135–36 (“It is difficult
to imagine a more significant discrepancy than that between
the portrait painted at the penalty phase of a man whose
childhood was ‘unfortunate’ but largely unmarred, and that of
a child who was raised in the presence of incest, rape, and
violence, suffered from mental illness, and was shuffled from
home to home.”); Boyde v. Brown, 404 F.3d 1159, 1177–78
(9th Cir. 2005) (finding ineffective assistance at the penalty
phase where the evidence suggested that the petitioner “had
a normal, non-violent childhood” when, in fact, he had been
“violently abused” and exposed to “physical and sexual abuse
by [his] mother and stepfather”).

   Accordingly, Duval’s decision not to call Short as a
witness was “a judgment call within the range of competent
counsel.” Jackson v. Calderon, 211 F.3d 1148, 1157 (9th Cir.
2000).

     4. Failure to Investigate and Present Testimony by
        Gerald Crawford

    Petitioner argues that Duval provided ineffective
assistance of counsel by failing to investigate and present
                      WHARTON V. CHAPPELL                              41

testimony by Petitioner’s half-brother, Gerald Crawford.8
Petitioner argues that Crawford would have testified about
facts not otherwise presented, most notably, sexual abuse by
Petitioner’s father and step-grandfather of many victims,
including Petitioner himself, his grandmother, his sisters, and
the family’s pet dog.

    The district court declined to decide whether Duval
performed deficiently9 because, in the court’s view, Petitioner
had not established prejudice. If we agree with the district
court’s assessment of prejudice then we, too, need not reach
the performance prong. For that reason, we begin by
analyzing prejudice. To do so, we must weigh the evidence
actually presented along with the evidence that Petitioner
asserts a competent lawyer would have presented. Hamilton,
583 F.3d at 1131. “Prejudice is established if there is a
reasonable probability that at least one juror would have
struck a different balance between life and death.” Id.
(internal quotation marks omitted).

    As detailed by the California Supreme Court, Wharton,
809 P.2d at 301–02, and quoted in the factual background
section above, both parties submitted extensive evidence at
the penalty phase. The prosecution’s focus was evidence of


  8
    Although the potentially ineffective investigation was performed by
investigator Stewart, counsel remained responsible for effective
representation, including the development and presentation of mitigating
evidence. Lambright v. Schriro, 490 F.3d 1103, 1120–21 (9th Cir. 2007)
(per curiam). The Warden does not argue to the contrary.
 9
   We reject the Warden’s contrary reading of the district court’s order.
A fair reading of the order demonstrates that the court declined to make
any factual findings or legal conclusions related to the performance prong,
which was entirely proper in light of its views on the prejudice prong.
42                   WHARTON V. CHAPPELL

the 1975 murder and the separate 1975 forcible rape. Duval’s
primary mitigation evidence concerned the abysmal
childhood that Petitioner had suffered, which was caused by,
among other things, extreme poverty and repeated physical
abuse by his step-grandfather, Big Daddy.

    At the evidentiary hearing, the district court admitted
Crawford’s testimony from his 2002 video deposition. Some
of Crawford’s testimony merely repeated or added a few
inconsequential details to the penalty-phase testimony already
introduced by Duval. For example, Crawford could have
verified, and possibly added a few details concerning, the
poverty and physical abuse that Petitioner endured. Because
those topics were adequately covered by the penalty-phase
witnesses, we agree with the district court that Crawford’s
testimony on those subjects was “cumulative” and that its
exclusion did not prejudice Petitioner’s mitigation case. See,
e.g., Pizzuto v. Arave, 280 F.3d 949, 956 (9th Cir. 2002)
(“Every weakness or discrepancy that Pizzuto now says
should have been cited and argued at sentencing was already
before the court.”), amended, 385 F.3d 1247 (9th Cir. 2004).

    But some of Crawford’s testimony was not cumulative.
Crawford testified about three subjects that differed
materially from the penalty-phase testimony: (1) Petitioner’s
cultural background;10 (2) his odd personal behavior and

  10
     Petitioner raised the “cultural mitigation” argument as a subclaim
separate from the subclaim concerning Crawford. The district court held
that unspecified “witnesses” were available to testify about cultural
mitigation, but neither the district court nor Petitioner has named any
available witness, other than Crawford. Petitioner bears the burden of
establishing what evidence a constitutionally adequate lawyer would have
submitted. Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009).
Accordingly, we collapse our analysis of “cultural mitigation” and
                      WHARTON V. CHAPPELL                                43

medical symptoms as a child and, most importantly;
(3) extensive sexual abuse by Petitioner’s father and step-
grandfather.

    Crawford testified at his 2002 video deposition that the
Ku Klux Klan regularly set up burning crosses in Hammond,
where he and Petitioner grew up. He testified that an
African-American “wasn’t nothing during that time.” The
police would not respond to calls by an African-American;
reporting crimes to the police was ineffective, even in the
case of a murder: “You know, if a black person got killed,
he’s just killed.” No penalty-phase witness testified on the
general subject of cultural oppression that African-Americans
experienced in Louisiana at the time of Petitioner’s
childhood, so Crawford’s testimony on this subject was not
cumulative.11 We nevertheless agree with the district court’s
assessment that the mitigating value of this testimony is
“slight.”

    Crawford also testified that Petitioner occasionally had
trance-like spells, would talk to himself in what sounded like
a foreign language, had bad headaches and dizzy spells, and
sometimes cut himself on purpose. No penalty-phase witness


Crawford’s testimony. In any event, as we explain in text, we agree with
the district court that the “cultural mitigation” evidence is slight and that
Petitioner cannot demonstrate prejudice on that ground alone. Petitioner’s
claim of ineffective assistance of counsel at the penalty phase turns on
whether Duval adequately investigated Crawford.
   11
      Duval certainly presented much evidence of Petitioner’s tragic
upbringing and many specifics about his particular family. But he
presented no evidence of systemic racism against African-Americans and
how those factors affected Petitioner. That evidence is different in kind
from individualized evidence about Petitioner’s home life.
44                    WHARTON V. CHAPPELL

testified on these topics, so the testimony would not have
been cumulative. But we find the mitigating value of this
testimony, standing alone, to be small. There was ample
evidence of Petitioner’s long-standing mental illness.
Crawford’s testimony does suggest that the mental illness
arose early in Petitioner’s life rather than, for example, solely
from Petitioner’s later abuse of drugs. So it is possible that
the jury would have viewed Petitioner in a slightly more
sympathetic light. But we are unpersuaded that Petitioner’s
odd childhood behavior, on its own, would have played more
than a small role in the jury’s deliberations.

    The prejudicial effect of the two topics just
discussed—cultural mitigation and Petitioner’s childhood
medical problems—was modest. But we reach a very
different conclusion with respect to Crawford’s testimony of
sexual abuse. Crawford testified about sexual abuse
ubiquitous in Petitioner’s family. He testified that both
Petitioner’s father and step-grandfather raped Petitioner at a
very young age.12 He also testified that Big Daddy molested
two of Petitioner’s sisters; beat and raped his wife when she
was dying of cancer; and had sex with the pet dog, Lassie.

   The jury did not hear any evidence of that extensive
sexual abuse. Indeed, the only evidence of sexual abuse
admitted during the penalty phase was the attempted
molestation of Petitioner’s mother by Big Daddy when she

   12
       The Warden challenges the admissibility of some of Crawford’s
testimony of sexual abuse on the ground of hearsay. It is true that
Crawford did not personally witness the actual assaults. But Crawford
testified to witnessing, firsthand, the physical injuries that Petitioner
suffered—such as anal bleeding—and circumstantial evidence that would
have permitted a jury to find that Petitioner’s father and step-grandfather
committed the assaults.
                   WHARTON V. CHAPPELL                       45

was a child—well before Petitioner was born—and an
isolated instance of sexual abuse of Petitioner by a non-
family member when he was 11 years old. The jury knew
that Petitioner grew up in a poor family and had been
physically abused. But they did not know that Petitioner had
been raped—first by his father, then by his step-
grandfather—and that his step-grandfather had raped
Petitioner’s sisters, grandmother, and pet dog.

    Childhood sexual abuse can be powerful evidence in
mitigation, particularly when it is not an isolated event.
See Boyde, 404 F.3d at 1176 (holding that “the family history
of sexual abuse [the petitioner] had known about growing
up[] is the sort of evidence that could persuade a jury to be
lenient”); cf. Wiggins v. Smith, 539 U.S. 510, 534–35 (2003)
(describing as “powerful” the mitigating evidence that
counsel failed to find, which included “repeated rape during
his . . . years in foster care”). But see Schurz v. Ryan, 730
F.3d 812, 815 (9th Cir. 2013) (rejecting the mitigating value
of a bare allegation that the petitioner was “likely sexually
abused by a priest”), petition for cert. filed, ___ U.S.L.W. ___
(U.S. June 6, 2014) (No. 13-10596); Samayoa v. Ayers,
649 F.3d 919, 929 (9th Cir. 2011) (holding that failure to
present evidence of a one-time possible childhood sexual
abuse by an uncle did not prejudice the defendant, in light of
the more powerful mitigating evidence actually presented to
the jury). Evidence that Petitioner had been raped by both his
father and his step-grandfather—the two father figures during
his childhood—“could have engendered sympathy” from the
jury. Boyde, 404 F.3d at 1180. Although the jury heard
evidence that Petitioner grew up in a poor family and suffered
physical abuse, the jury would have had no reason to think
that intra-family sexual abuse had occurred—in stark contrast
to Crawford’s testimony about extensive sexual abuse not
46                 WHARTON V. CHAPPELL

only of Petitioner himself but also of other family members.
See id. at 1178 (“But the evidence [counsel] elicited from the
parents suggested—in stark contrast to what [competent
counsel could have presented]—that Boyde had a normal,
non-violent childhood.”).

    Nor is sexual abuse unrelated to the crimes before the
jury. Both of Petitioner’s 1975 crimes—the aggravating
factors presented by the prosecution—concerned sex. The
1975 forcible rape of Petitioner’s 61-year-old neighbor
clearly concerns sexual abuse, and the 1975 murder of Pierce
occurred after Pierce propositioned Petitioner for homosexual
sex, enraging Petitioner. See Wharton, 809 P.2d at 301
(noting that Petitioner “admitted killing Robert Pierce after
the latter solicited a homosexual act from him”). Obviously,
the childhood sexual abuse that Petitioner suffered in no way
excuses those crimes. But the evidence of childhood sexual
abuse may have cast those past crimes in a different light. A
juror may have seen the 1975 murder as stemming from
repressed anger about the homosexual rapes of Petitioner by
his father and step-grandfather. A juror also may have seen
the 1975 rape—of a 61-year-old woman by a much younger
Petitioner—as stemming from a childhood filled with rape
and sexual abuse across generations, committed with
impunity. Yet from the evidence actually presented at the
evidentiary hearing, the jury had no information from which
to consider those possibilities.

     Even without the evidence of sexual abuse, and with the
knowledge of Petitioner’s terrible past acts, the jury struggled
to reach a unanimous verdict. On the first day of
deliberations, the jury sent the following note to the judge:
“If the jury does not reach unanimous concurrence on any of
the three verdicts—what will be the verdict?” The court
                   WHARTON V. CHAPPELL                       47

responded that “there will be no verdict.” At the end of the
second day of deliberations, the jury sent the following note
to the judge: “Judge Dodds: It appears we are at an
impass[e] on reaching a unaminous [sic] decision as to the
penalty in this case. What are your directions to us at this
time?” The judge declined to respond to the note, after being
informed by the bailiff that the jury wanted to continue
deliberating. The jury returned its verdict shortly before
11:00 a.m. on the third day of deliberations. The jury’s notes
and the fact that it deliberated over the course of three days
suggest that the verdict was not an easy one to reach. See
Thomas v. Chappell, 678 F.3d 1086, 1103 (9th Cir. 2012)
(holding that deliberations lasting almost five days, in
combination with the jury’s requests for readbacks of
testimony, “strongly suggest that the case was close”).

    In the final analysis, we conclude that, had Crawford
testified, “‘there is a reasonable probability that at least one
juror would have struck a different balance’ between life and
death.” Hamilton, 583 F.3d at 1135 (quoting Wiggins,
539 U.S. at 537). Although evidence of sexual abuse is
sometimes not enough to tip the scales, e.g., Schurz, 730 F.3d
at 815; Samayoa, 649 F.3d at 929, the sexual abuse at issue
here was personal to Petitioner, from more than one source
(his father and step-grandfather), and extensive throughout
Petitioner’s family (rapes of Petitioner, his sisters,
grandmother, and pet dog). Moreover, the jury did not reach
its verdict easily, possibly out of recognition that, although
his crimes were heinous, Petitioner himself clearly suffers
from serious mental illness and came from a disadvantaged
and abusive home. The totality of the evidence discussed
above—cultural mitigation, childhood behavior, and sexual
abuse—gives rise to a reasonable probability that the jury
may not have rendered a verdict of death.
48                WHARTON V. CHAPPELL

    It is true that the aggravating factors against Petitioner
were strong. But the missing sexual-abuse testimony could
have mitigated those factors. Moreover, we have emphasized
that relief must be granted “‘even in the face of . . . strong
aggravating evidence’ . . . ‘if we cannot conclude with
confidence that the jury would unanimously have’” reached
the same decision, had it heard the evidence that competent
counsel would have presented. Caro v. Woodford, 280 F.3d
1247, 1257 (9th Cir. 2002) (brackets omitted) (quoting
Mayfield, 270 F.3d at 929). Accordingly, we conclude that,
if Duval performed deficiently by failing to investigate and
present testimony by Crawford, then Petitioner has
established prejudice. We turn, then, to the question of
performance.

    Duval “had a duty to conduct ‘a thorough investigation of
[Petitioner’s] background.’” Hamilton, 583 F.3d at 1113
(quoting Williams, 529 U.S. at 396). “It is imperative that all
relevant mitigating information be unearthed for
consideration at the capital sentencing phase.” Caro I,
165 F.3d at 1227. The sexual abuse described by Crawford
is plainly relevant information that competent counsel would
want to discover during a background investigation. See
Hamilton, 583 F.3d at 1113 (listing general categories of
inquiry for a penalty-phase investigation, including “family
abuse,” required by Strickland).

    As noted above, Duval had hired Investigator Craig
Stewart to investigate Petitioner’s background. Stewart
visited Louisiana in order to interview Petitioner’s family
members and acquaintances. Consistent with Petitioner’s
right to a thorough investigation, Stewart wrote at the
beginning of his notes a list of topics to ask Petitioner’s
family members, and the list included an entry for inquiring
                  WHARTON V. CHAPPELL                       49

about sexual, as well as physical, abuse of Petitioner. At the
evidentiary hearing, Stewart confirmed that sexual abuse, if
any, was one of the topics he sought to learn about while in
Louisiana.

    On his trip, Stewart successfully interviewed many
people.    He often tape-recorded the interviews and,
afterwards, either wrote a written report summarizing the
interview or had the interview transcribed. For example, as
noted above, Stewart wrote a nine-page, single-spaced report
summarizing his interview with Robert Short, which he
provided to Duval.

    The record does not provide a clear answer to why
Stewart’s otherwise thorough investigation failed to uncover
Crawford’s highly relevant accounts of sexual abuse.
Crawford was one of the family members whom Stewart
sought to interview, in part because Petitioner had asked
specifically that Stewart contact Crawford. Indeed, Stewart
testified at the evidentiary hearing that “Gerald [Crawford] is
very important. It was his brother. George asked me over
and over, ‘Did you get in touch with Gerald?’”

    Yet Stewart did not interview Crawford. The record
contains neither a written report concerning Crawford nor a
transcript from an interview with Crawford. And Stewart
confirmed at the evidentiary hearing that he did not, in fact,
interview Crawford.

    The reasons why Stewart did not interview Crawford and
the extent of Stewart’s contacts with Crawford are the subject
of a clear factual dispute. In the 2002 video deposition of
Crawford, admitted at the evidentiary hearing, Crawford
stated definitively that Stewart had never contacted him and
50                WHARTON V. CHAPPELL

that he would remember if he had. He further stated that, had
someone contacted him about Petitioner’s childhood, he
would have provided the same information that he provided
in the deposition. By contrast, Stewart’s notes from the
Louisiana trip contain a few sparse entries suggesting that
Stewart did contact Crawford and that Crawford told Stewart
that prison officials had used Petitioner as a “guinea pig” in
drug tests while he was incarcerated. Stewart’s notes are
otherwise silent about Crawford. The notes do not reveal
whether Stewart asked Crawford about topics such as sexual
abuse, and they do not explain why Stewart failed to
interview Crawford.

    At the evidentiary hearing, Stewart testified that the gap
in his investigative records concerned him: “It bothered me,
both the state public defender and the state attorney general
said it looks like you create memos and reports, and how
come nothing was written on this. That bothered me.” A few
months before the evidentiary hearing in 2006, Stewart
awoke one morning with a vague memory of having phoned
Crawford. According to Stewart’s early morning revelation,
Stewart now remembered contacting Crawford: Crawford
told him that he moved away from the family home at an
early age, is older than Petitioner, had nothing to share about
Petitioner’s childhood, did not have any present-day contact
with Petitioner, and knew only about Petitioner’s having been
used as a “guinea pig.” Stewart “didn’t know if [his
recollection] was a dream or if it was whatever.” So he called
one of the lawyers on the case and told him that “I have some
information that I woke up with. I know it sounds crazy.”
The lawyer confirmed that Crawford was indeed older than
Petitioner and that Crawford had moved out of the house.
Stewart testified that the lawyer’s confirmation “prove[d] in
my mind” that what he “seemed to recall” was not “fantasy
                   WHARTON V. CHAPPELL                       51

or dream.” The record also contains evidence that Crawford
had reasons to dismiss Stewart’s inquiries: Stewart recalls
that there were outstanding warrants for Crawford’s arrest in
California, where Petitioner’s trial took place, and Crawford
had health problems that could have made it difficult for him
to fly to California to testify.

    Without factual findings on the extent of Stewart’s efforts
to contact Crawford and Crawford’s availability to testify or
otherwise supply evidence or leads to evidence, we cannot
determine whether Petitioner has established deficient
performance. For example, if Stewart never contacted
Crawford at all, as Crawford testified, then Petitioner almost
certainly has established deficient performance. The Warden
has not offered any reason—strategic or otherwise—that
would justify a decision simply not to contact Petitioner’s
half-brother. See, e.g., Hamilton, 583 F.3d at 1123 (“Counsel
also acted deficiently in not contacting Hamilton’s other
sister, Carolyn, who could have provided the most poignant
and revealing mitigating evidence, as her declaration
demonstrates.”); Correll, 539 F.3d at 946 (holding that
defense counsel’s investigation was deficient where he “was
aware that a chaplain . . . , Reverend Curry, might have been
willing to testify on Correll’s behalf, but the attorney never
even attempted to contact Reverend Curry”).

    Even if Stewart did contact Crawford, as Stewart’s notes
suggest, the inquiry becomes whether there was a
constitutionally sufficient effort to learn relevant information
about Petitioner’s upbringing. In this regard, it is important
that Crawford is not a passing acquaintance—Crawford is
Petitioner’s half-brother and lived in the same house as
Petitioner for many years when they were young. Moreover,
Petitioner emphasized the importance of Crawford’s
52                 WHARTON V. CHAPPELL

testimony by repeatedly questioning Stewart as to whether he
had interviewed Crawford yet. Stewart himself testified that
Crawford was a “very important” person to the background
investigation.

    At this procedural stage, we cannot engage in depth with
Petitioner’s claim. The district court declined to make the
preliminary factual findings necessary to evaluate this issue.
Accordingly, we vacate the district court’s decision on this
claim and remand for further factual development and for the
court’s assessment, in the first instance, of whether Petitioner
has established deficient performance. See, e.g., Reyes v.
Brown, 399 F.3d 964, 965 (9th Cir. 2005) (remanding for
further fact-finding by the district court); see also United
States v. Prieto-Villa, 910 F.2d 601, 602 (9th Cir. 1990)
(“Since the findings which would permit review of this
determination are absent here, we remand for factual findings
by the district court.”). In particular, the district court should
determine on remand whether Stewart contacted Crawford;
and, if so, whether Stewart made sufficient efforts to find out
what Crawford could say about Petitioner’s childhood,
whether Crawford denied having useful information, and
whether Crawford would have made himself available as a
witness or otherwise available to provide evidence or leads to
evidence. In making those determinations, the court may take
additional evidence at its discretion. If the court rules that
Petitioner has established deficient performance and finds
that Crawford would have made himself available to testify,
                      WHARTON V. CHAPPELL                             53

the court should grant the writ with respect to the sentence.13
Otherwise, the court should deny relief.

                           CONCLUSION

    We affirm the district court’s denial of relief on
Petitioner’s shackling claim (claim 18), his claim of
ineffective assistance of counsel at the guilt phase (claim 41,
subclaim 4), and most subclaims of his claim of ineffective
assistance of counsel at the penalty phase (claim 41,
subclaims 16, 17, 20, and the Robert Short portion of
subclaim 19). We vacate the denial of relief on Petitioner’s
claim of ineffective assistance of counsel with respect to the
alleged failure to investigate and present testimony by Gerald
Crawford (claim 37 and claim 41, subclaim 22 and the
Crawford portion of subclaim 19). We remand to the district
court for further proceedings consistent with this opinion.

   AFFIRMED in part, VACATED in part, and
REMANDED. The parties shall bear their own costs on
appeal.




  13
      At that point, “[i]f the State opts against pursuing further penalty
phase proceedings, [Petitioner] will automatically receive a sentence of
life imprisonment without the possibility of parole.” Hamilton, 583 F.3d
at 1102 n.1 (citing Cal. Penal Code § 190.2).
