                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


WILLIAM KIRKPATRICK, JR.,                 No. 14-99001
        Petitioner-Appellant,
                                          D.C. No.
              v.                    2:96-cv-00351-WDK

KEVIN CHAPPELL, Warden,
California State Prison at San             OPINION
Quentin,
          Respondent-Appellee.


      Appeal from the United States District Court
         for the Central District of California
      William D. Keller, District Judge, Presiding

       Argued and Submitted February 17, 2017
                Pasadena, California

        Original Opinion Filed October 10, 2017

        Panel Rehearing Granted July 18, 2018

     Re-argued and Submitted December 10, 2018
              San Francisco, California

      Original Opinion Withdrawn June 13, 2019

                    Filed June 13, 2019
2                   KIRKPATRICK V. CHAPPELL

        Before: Kim McLane Wardlaw, Carlos T. Bea,
            and Morgan Christen, Circuit Judges. *

                      Opinion by Judge Bea


                           SUMMARY **


                Habeas Corpus / Death Penalty

   The panel filed (1) an order withdrawing the original
opinion and (2) a new opinion affirming the district court’s
denial of William Kirkpatrick’s habeas corpus petition
challenging his capital sentence for two first-degree
murders.

   In its order withdrawing the original opinion, the panel
explained that this case was originally decided by a panel
comprised of Judge Stephen Reinhardt, Judge Kim McLane
Wardlaw, and Judge Alex Kozinski. Appellee’s petition for
panel rehearing and rehearing en banc was pending when

    *
      This case was originally decided by a panel comprised of Judge
Stephen Reinhardt, Judge Kim McLane Wardlaw, and Judge Alex
Kozinski. Appellee’s petition for panel rehearing and rehearing en banc
was pending when Judge Kozinski retired. Following Judge Kozinski’s
retirement, Judge Christen was drawn by lot to replace him. Following
the death of Judge Reinhardt, Judge Bea was drawn by lot to replace him.
Ninth Circuit General Order 3.2.h. The newly constituted panel granted
Appellee’s petition for rehearing before a three-judge panel on July 18,
2018. The newly constituted panel re-heard argument on December 10,
2018. The filing of this opinion serves to withdraw the original opinion.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                KIRKPATRICK V. CHAPPELL                     3

Judge Kozinski retired. Following Judge Kozinski’s
retirement, Judge Christen was drawn by lot to replace him.
Following the death of Judge Reinhardt, Judge Bea was
drawn by lot to replace him. The newly constituted panel
granted Appellee’s petition for rehearing before a three-
judge panel, and the newly constituted panel re-heard the
appeal.

     In its opinion, the panel affirmed the district court’s
denial of Kirkpatrick’s claim that his Eighth Amendment
right against arbitrary and capricious sentencing was
violated by the jury’s consideration, at the penalty phase of
his trial, of evidence that he threatened a person’s property
and poisoned her dogs. The panel assumed that the claim
was exhausted, and it concluded that, even under the more
favorable standard of de novo review, Kirkpatrick was not
entitled to relief. The panel assumed without deciding that
the error of California law in allowing the jury to consider
the threats and poisoning as aggravating evidence amounted
to constitutional error under the Eighth Amendment. The
panel held that Kirkpatrick failed to show that he was
prejudiced because, in light of the substantial aggravating
evidence presented in comparison to the minimal mitigation
evidence, absent the improperly-considered facts, the jury
still would have found that the aggravating circumstances
outweighed the mitigating circumstances and therefore
would have been required to impose the death penalty. Thus,
any constitutional error was harmless.

   Expanding the certificate of appealability, the panel
addressed Kirkpatrick’s claim that district court erred in
dismissing as unexhausted the claims from his state court
habeas petition that the California Supreme Court deemed
waived. Kirkpatrick argued that the California Supreme
Court erred in finding that he validly waived his state habeas
4               KIRKPATRICK V. CHAPPELL

petition because he was not competent to withdraw his
petition, and his waiver was not voluntary, knowing, and
intelligent. The panel deferred to the California Supreme
Court’s factual determinations that Kirkpatrick was
competent and that his waiver was knowing and intelligent.
As to the mixed question of law and fact whether the waiver
was voluntary, the panel deferred to the California Supreme
Court’s underlying factual findings. The panel concluded
that Kirkpatrick had not rebutted by clear and convincing
evidence the California Supreme Court’s finding of waiver.

    The panel declined to expand the certificate of
appealability as to the district court’s dismissal as
unexhausted of a penalty-phase claim of ineffective
assistance of counsel.


                       COUNSEL

Patricia Ann Young (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.

A. Scott Hayward (argued), Deputy Attorney General;
James William Bilderback II, Supervising Deputy Attorney
General; Lance E. Winters, Senior Assistant Attorney
General; Gerald A. Engler, Chief Assistant Attorney
General; Xavier Becerra, Attorney General; Office of the
Attorney General, Los Angeles, California; for Respondent-
Appellee.
                KIRKPATRICK V. CHAPPELL                    5

BEA, Circuit Judge:

                   I. BACKGROUND

    In September 1983, William Kirkpatrick was arrested
and subsequently tried and convicted for robbing a Taco Bell
restaurant in Burbank, California and for murdering two
Taco Bell employees in the course of his robbery. He was
23 years old. The two victims, one of whom was 16 years
old, were later found stuffed in a closet; both had been shot
in the head, “execution style.” Because the California
Supreme Court’s opinion in People v. Kirkpatrick, 874 P.2d
248 (Cal. 1994) (in bank), disapproved of on other grounds
by People v. Doolin, 198 P.3d 11, 36 n.22 (Cal. 2009),
explains the details of Kirkpatrick’s brutal double murder,
we do not restate them here.

A. Kirkpatrick’s Trial

     More relevant to Kirkpatrick’s appeal is the procedural
history of his case. After the guilt phase of Kirkpatrick’s
trial, the jury deliberated for five days. The jury found
Kirkpatrick guilty on two counts of first-degree murder,
burglary, and robbery. The jury also found that because
Kirkpatrick was convicted of two murders and the murders
were committed during the commission of a robbery and
burglary, special circumstances existed under California
Penal Code § 190.2 that rendered Kirkpatrick eligible for the
death penalty.

    During the penalty phase of Kirkpatrick’s trial, the jury
was tasked with deciding whether Kirkpatrick should
receive the death penalty or a sentence of life imprisonment
without parole. Cal. Penal Code § 190.3. The prosecution
and defense had the opportunity to present aggravating and
mitigating evidence to the jury to support their arguments
6                KIRKPATRICK V. CHAPPELL

regarding which sentence Kirkpatrick should receive. The
prosecution presented aggravating evidence of Kirkpatrick’s
character and his other troubling actions. First, Stephen
Thomas told the jury that when he was 16, Kirkpatrick
became angry with him while they were drinking at a park
after he refused to assist Kirkpatrick in a violent robbery.
Thomas stated that Kirkpatrick dragged him to the park
restroom, choked him, and tried to stick his head in a toilet.

    Another witness, Jacob De Binion, testified that when he
was 17, he met Kirkpatrick in a Der Wienerschnitzel
restaurant parking lot and accepted Kirkpatrick’s invitation
to drink beer in the back of a van. After having a few drinks
together, De Binion testified that Kirkpatrick physically
forced him to perform oral sex and kiss him and threatened
to kill him if he refused.

    Finally, Shirley Johnson testified that Kirkpatrick left his
calculator, bicycle, and projector at her house in late May
1983. Kirkpatrick attempted to retrieve his belongings from
her house, but his calculator was nowhere to be found.
Kirkpatrick subsequently made numerous phone calls to
Johnson and threatened to “do damage” to her dogs,
daughter, house, and herself if his calculator was not
returned.

    In late June 1983, Johnson came home and found that her
two dogs had been poisoned and temporarily paralyzed.
Later, Kirkpatrick called Johnson to tell her that he had
“taken care” of the dogs. Kirkpatrick’s defense counsel
objected to Johnson’s testimony about Kirkpatrick’s dog
poisoning and property threats, and argued that making
threats to property and poisoning dogs were not facts that
may be considered as aggravating evidence under California
Penal Code § 190.3, which permits the jury to consider only
                KIRKPATRICK V. CHAPPELL                    7

violent acts and threats of violence to people. The court
overruled defense counsel’s objection without explanation.

    The defense’s mitigation presentation consisted solely of
Kirkpatrick’s testimony, in which he reasserted his
innocence and said he aspired to be a writer. Kirkpatrick’s
lawyers spoke to his mother in preparation for the mitigation
presentation and told the court that she would be “very, very
helpful to the defense,” but Kirkpatrick ordered his lawyers
not to contact or present any family members as witnesses.

   After both sides rested, the court instructed the jury.
Relevant here, the court told the jury:

       Evidence has been introduced for the purpose
       of showing that Defendant Kirkpatrick has
       committed the following acts:

       1. Oral copulation by means of force upon
          Jacob De Binion, age 17;

       2. An assault       upon    Stephen    Eugene
          Thomas;

       3. Making threatening telephone calls to
          Ms. Shirley Johnson;

       4. Administering poison to animals;

       Which involved the express or implied use of
       force or violence or the threat of force or
       violence. Before you may consider any such
       criminal acts as an aggravating circumstance
       in this case, you must first be satisfied beyond
       a reasonable doubt that the Defendant
       Kirkpatrick did commit such criminal acts.
8               KIRKPATRICK V. CHAPPELL

       You may not consider any evidence of any
       other criminal acts as an aggravating
       circumstance.

    In closing argument, the prosecutor noted the absence of
mitigating factors from Kirkpatrick’s presentation. He urged
the jury to impose the death penalty because the aggravating
evidence outweighed the mitigating evidence. He also relied
heavily on the dog poisoning incident to highlight
Kirkpatrick’s character:

       We brought in Shirley Johnson. Shirley
       Johnson committed the crime of having the
       defendant’s calculator and he wanted the
       calculator back.

       So what did the defendant do? The defendant
       made a series of threatening phone calls. “I
       will get you; I’ll get your dogs and I’ll get
       your children. Your daughter.”

       The next day or a few days later, Mrs.
       Johnson came home and her dogs were
       paralyzed. A few days later she gets a phone
       call from Mr. Kirkpatrick.

       “I have taken care of your dogs. You and
       your daughter are next. Give me back my
       calculator.”

       ...

       What does it show you about Mr.
       Kirkpatrick? It shows you he is a man who
       has callousness, a callous disregard for the
                    KIRKPATRICK V. CHAPPELL                              9

         feelings of other people. This person who is
         absolutely amoral and will stop at nothing to
         get what he wants. He will go so far as to
         poison Mrs. Johnson’s dogs to get his
         calculator.

The prosecutor continued: “With the Johnsons, he had a
choice. He had a choice to leave [them] alone and get his
calculator back some other way: but he chose to poison the
dogs and to make threats. . . . Mr. Kirkpatrick is here right
now because of choices he made. . . . I would ask you to
think about that when you think about pity, when you think
about sympathy.”

    At closing argument, Kirkpatrick told the jury that he had
not received a fair trial. 1 He argued that his attorneys failed
to call certain witnesses and ask specific questions. He said
he was “frightened” and “mad” that prosecutors were
sending an innocent person to jail. He also told jurors that
he did not blame them for finding him guilty and that he
would have done the same thing if he had been in their
position.

    Prosecutors rebutted Kirkpatrick’s closing argument by
suggesting that Kirkpatrick was “an anarchist” and that his
only contribution to society was “to inflict havoc, pain and
suffering on innocent people.” The prosecution reminded

    1
       Throughout his criminal trial, appeals, and habeas proceedings,
Kirkpatrick has repeatedly tried to represent himself or to interfere with
his defense counsel. After the trial court denied his request to serve as
co-counsel during the guilt phase of his trial, Kirkpatrick threatened not
to attend the penalty phase unless he could proceed pro se. The trial
court denied his request to proceed pro se, but the court granted him co-
counsel status for the penalty phase of his trial. Accordingly, Kirkpatrick
and his counsel each addressed the jury directly during the penalty phase.
10              KIRKPATRICK V. CHAPPELL

the jury that Kirkpatrick made deliberate choices to kill two
Taco Bell employees; to force Jacob De Binion to perform
oral sex and kiss him; to assault Stephen Thomas after he
refused to help him with a violent burglary; and to threaten
Shirley Johnson, her daughter, and her dogs to retrieve his
calculator. The prosecution concluded by stating that
because the aggravating factors “so far outweigh anything in
mitigation,” the jury “shall impose the penalty of death.”

    The jury began its penalty deliberations on June 19,
1984. Several hours into deliberating on June 20, 1984, the
jury sent a note to the court asking: “[W]hat [are] the legal
definitions for aggravating and mitigating circumstances as
they apply to the instructions in making the determination of
this sentence?” The court responded that the jury members
“have been given all the legal definitions [they] need [and
that] [a]ll other words have their common definitions.” On
June 21, 1984, the jury returned a death verdict for both
murders.

    At Kirkpatrick’s sentencing hearing on August 14, 1984,
Kirkpatrick moved to modify the verdict imposing the death
penalty. The court reviewed the aggravating circumstances
and stated that the only mitigating factors were Kirkpatrick’s
lack of prior felony convictions and his young age of 23.
Because the court found that the aggravating circumstances
outweighed those in mitigation, it denied Kirkpatrick’s
motion to modify the verdict and imposed a sentence of
death.

B. Kirkpatrick’s Direct Appeal and State Habeas Petition

   In 1988, Kirkpatrick filed an automatic direct appeal
with the California Supreme Court as provided by the
California Constitution. Cal. Const. art. VI, § 11, subsec. a.
Kirkpatrick argued, in relevant part, that the trial court
                 KIRKPATRICK V. CHAPPELL                     11

violated state law and his Eighth Amendment rights when it
instructed the jury that it may consider evidence of
Kirkpatrick’s dog poisoning and property threats as
aggravating circumstances in deciding whether to impose
the death penalty. Specifically as to his Eighth Amendment
argument, Kirkpatrick argued that allowing the jury to
consider those facts violated the Supreme Court’s
“narrowing” requirement that a capital sentencing scheme
must provide a “meaningful basis for distinguishing the few
cases in which [the death penalty] is imposed from the many
cases in which it is not.” He further argued that these
statements “were highly prejudicial” and had “minimal, if
any, legal relevance to the important issue of whether the
death penalty should be imposed.”

    The California Supreme Court affirmed Kirkpatrick’s
conviction and sentence in a lengthy published opinion.
Kirkpatrick, 874 P.2d at 269. The court held that evidence
of Kirkpatrick’s dog poisoning and property threats was
admissible as a matter of state law because it showed the
surrounding circumstances of Kirkpatrick’s threats to harm
Johnson’s daughter. Id. at 263. The court did, however, hold
that the trial court erred in instructing the jury that it could
consider evidence that Kirkpatrick threatened Johnson’s
property and poisoned her dogs as aggravating
circumstances in determining whether to impose the death
penalty because California Penal Code § 190.3 allows the
jury to consider “only those threats of violent injury that are
directed against a person or persons.” Id. at 264. It
nevertheless found that the error was harmless. Id. at 264–
65.

    As to Kirkpatrick’s Eighth Amendment argument, the
court explained that California law performs its required
narrowing at the eligibility phase, not the penalty selection
12              KIRKPATRICK V. CHAPPELL

phase of the trial. Id. at 264. As a result, it held that the
aggravating factors considered at the penalty selection phase
are not relevant to whether the State’s scheme adequately
narrows the class of persons who receive the death penalty.
Id. Because the court found that Kirkpatrick’s Eighth
Amendment argument was “founded upon a mistaken
understanding of the purpose of aggravating and mitigating
circumstances in [California’s] death penalty scheme,” it
denied him relief on his Eighth Amendment claim. Id.

C. Kirkpatrick’s Federal Habeas and State Habeas
   Exhaustion Proceedings

    On January 18, 1996, nine days before his scheduled
execution, Kirkpatrick initiated habeas proceedings in the
United States District Court for the Central District of
California. On June 24, 1998, Kirkpatrick filed his federal
habeas petition. The district court dismissed more than 20
of Kirkpatrick’s claims as unexhausted but found good cause
to stay his petition pending exhaustion of his claims in state
court. Kirkpatrick subsequently filed a habeas petition to
exhaust his claims in the California Supreme Court on
December 30, 1998.

    While his state habeas exhaustion petition was pending,
on July 23, 2000, Kirkpatrick sent a handwritten letter to the
California Supreme Court, with an attached handwritten
form titled, “Waiver Form.” His handwritten “Waiver
Form” stated: “I do not wish to proceed with my petition for
writ of habeas corpus review in this matter. I wish the
sentence and the judgement [sic] of execution in People v.
William Kirkpatrick Jr., 14-590144 to be carried out at this
time.”

   In response, the California Supreme Court appointed
Marin County Superior Court Judge Stephen Graham as a
                KIRKPATRICK V. CHAPPELL                  13

referee to determine whether Kirkpatrick was competent to
waive his petition and whether his waiver was voluntary,
knowing, and intelligent. At first, Kirkpatrick cooperated.
He appeared before the referee with his lawyers from the
Federal Public Defender’s (FPD) office for status
conferences on four occasions in late 2000. Kirkpatrick was
also evaluated by a court-appointed psychiatrist, Dr.
McEwen, for two and a half hours. Following Dr.
McEwen’s examination, however, Kirkpatrick declined to
take part in the process any further. He refused to be
interviewed by three experts retained by the FPD, doctors
Robert Weinstock, Xavier Amador, and Roderick Pettis.

    He also refused to attend the referee’s evidentiary
hearing in March 2001. There, Dr. McEwen testified that
Kirkpatrick was competent to waive his habeas petition and
he had no “mental disease, disorder or defect.” She also
opined that if Kirkpatrick decided to waive his state habeas
exhaustion petition, his decision to proceed on his own and
represent himself would be voluntary, knowing, and
intelligent. Although the FPD-supplied experts did not have
the opportunity to meet with Kirkpatrick in person, they
reviewed Dr. McEwen’s report and each testified that her
conclusions were not adequately supported. However, each
FPD expert also testified that he was not in a position to
express a diagnostic conclusion as to Kirkpatrick’s
competence because he did not interview Kirkpatrick
personally.

   Referee Judge Graham credited Dr. McEwen’s opinions
over the FPD experts’ opinions because he thought they
were “based upon extraordinary qualifications of training
and experience, careful review of the available history, and
perhaps the only substantial mental health interview Mr.
Kirkpatrick has ever allowed.” Based on Dr. McEwen’s
14               KIRKPATRICK V. CHAPPELL

opinions and his interactions with Kirkpatrick, the referee
concluded that Kirkpatrick had voluntarily requested to
withdraw his state habeas exhaustion petition and was
competent to do so. But because Kirkpatrick “refused to
engage in sufficient discussion” with the referee to permit
him to make a more specific determination, the referee fell
short of concluding that Kirkpatrick’s waiver was
“knowing” or “intelligent.” The referee submitted his
findings in a report to the California Supreme Court, along
with the hearing transcripts, Dr. McEwen’s written report,
and copies of relevant exhibits, letters, and briefs. The
California Supreme Court adopted the referee’s conclusion
that Kirkpatrick was competent to withdraw his state habeas
exhaustion petition, but—differing from the referee’s
conclusion—also found that he “made a knowing,
intelligent, and voluntary waiver of his right to proceed.” As
a result, the California Supreme Court summarily granted
Kirkpatrick’s request and dismissed his state habeas
exhaustion petition as waived.

    Back in federal court in December 2001, Kirkpatrick’s
lawyers filed an amended federal habeas petition, including
the claims from his state habeas exhaustion petition that the
California Supreme Court had deemed waived. Kirkpatrick
then filed a pro se request to waive his amended federal
petition. The district court, however, denied the request after
Kirkpatrick again refused to participate in a competency
evaluation.

   After the state moved to dismiss the claims Kirkpatrick
had waived in state court on grounds that such claims were
unexhausted, Kirkpatrick argued that his waiver in the
California Supreme Court was invalid because it was not
voluntary, knowing, and intelligent. The district court
upheld the California Supreme Court’s conclusion that the
                 KIRKPATRICK V. CHAPPELL                     15

waiver in state court was valid, and it dismissed as
unexhausted all the state claims in Kirkpatrick’s amended
federal habeas petition that had been part of his waived state
habeas exhaustion petition.

    In making this determination, the district court applied
28 U.S.C. § 2254(d) deference to the California Supreme
Court’s finding that Kirkpatrick’s waiver had been
voluntary, knowing, and intelligent. It stated, “Under [the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA)], the decision of the California Supreme Court
must be given deference, and cannot . . . be reviewed de novo
by this court.” Rather, the district court noted that its “power
to review the decision of the California Supreme Court is
extremely limited.” Applying this highly deferential
standard, the district court concluded that because “there is
evidence to support the conclusory findings of the California
Supreme Court,” its conclusion must be upheld. To be sure
of its decision, the district court also conducted its own
analysis and concluded there was evidence to support the
California Supreme Court’s finding of waiver.                See
Appendix 1. The court then concluded that “[t]here has been
no unreasonable determination of the facts or a decision
contrary to, or involving an unreasonable application of,
clearly established federal law.” As a result, the district
court dismissed as unexhausted all the claims Kirkpatrick
had presented in his state habeas exhaustion petition.

    On June 9, 2011, Kirkpatrick filed a revised amended
federal habeas petition asserting the exhausted claims that
had been presented to the California Supreme Court on
direct appeal. In Claim 17(C) of his revised amended federal
habeas petition, Kirkpatrick argued that allowing the jury to
consider the facts that he poisoned Shirley Johnson’s dogs
and threatened her property during the penalty phase of his
16              KIRKPATRICK V. CHAPPELL

trial violated his Eighth Amendment right against arbitrary
and capricious sentencing. Following the logic of the
California Supreme Court, the district court interpreted
Kirkpatrick’s claim as directed to the narrowing requirement
under California Penal Code § 190.2, and not to the choice
of punishment under California Penal Code § 190.3. Like
the California Supreme Court, the district court denied
Kirkpatrick’s Eighth Amendment claim on the theory that
the special circumstances of California Penal Code
§ 190.2—not the factors for penalty selection set out in
§ 190.3—perform the constitutionally required narrowing
function. The district court further agreed with the
California Supreme Court that any error of state law was
“harmless because the magnitude and circumstances of the
underlying crimes were such that the result would not have
been any different even if the objectionable evidence had not
been admitted.” The district court granted Kirkpatrick a
certificate of appealability on Claim 17(C), and this appeal
followed.

                      II. ANALYSIS

A. Kirkpatrick’s Eighth Amendment Claim

    The district court certified only one issue for appellate
review: Claim 17(C) of Kirkpatrick’s revised amended
federal habeas petition, regarding whether the jury’s
consideration of the facts that he threatened Shirley
Johnson’s property and poisoned her dogs at the penalty
selection phase of his trial violated Kirkpatrick’s Eighth
Amendment right against arbitrary and capricious
sentencing. To obtain relief on this claim, Kirkpatrick must
show that the jury’s consideration of these facts amounts to
prejudicial constitutional error. Davis v. Ayala, 135 S. Ct.
2187, 2197 (2015).
                    KIRKPATRICK V. CHAPPELL                            17

   As a threshold issue, there is some doubt whether
Kirkpatrick properly raised this issue on appeal. 2

    2
      The Supreme Court has long drawn a distinction between the
“narrowing” and “selection” phases of capital sentencing as it applies to
cruel and unusual punishment under the Eighth Amendment. The
“narrowing” phase requires that states define the circumstances that
place a defendant in the class of people eligible for the death penalty.
Zant v. Stephens, 462 U.S. 862, 878 (1983). States must limit judges’
and juries’ discretion to impose the death penalty on a defendant because
giving them unfettered discretion to decide who receives the death
penalty is “cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments.” Furman v. Georgia, 408 U.S. 238, 239–40
(1972) (per curiam); see also Godfrey v. Georgia, 446 U.S. 420 (1980);
Gregg v. Georgia, 428 U.S. 153 (1976).

     By contrast, the “selection” phase occurs after a jury has found that
a defendant is eligible for the death penalty and must decide whether to
sentence the defendant to death or life imprisonment without parole. In
contrast to the requirement during the narrowing phase that states must
limit judges’ and juries’ discretion in determining who is eligible for the
death penalty, the Court has stated that the selection stage requires only
“an individualized determination on the basis of the character of the
individual and the circumstances of the crime.” Zant, 462 U.S. at 879
(emphasis in original).

     To the California Supreme Court and the federal district court,
Kirkpatrick appears to have raised his Eighth Amendment argument only
in context of the narrowing phase and not the penalty selection phase.
Accordingly, the California Supreme Court and federal district court
addressed Kirkpatrick’s Eighth Amendment argument as one that
alleged his rights were violated at the narrowing phase of his trial, not
the penalty selection phase of his trial. But on appeal to this court,
Kirkpatrick argues that independent of any narrowing that took place
during the guilt phase of his trial to determine whether he was eligible
for the death penalty, the jury’s consideration of the facts that he
threatened Johnson’s property and poisoned her dogs at the penalty
selection phase resulted in the arbitrary and capricious infliction of the
death penalty in violation of the Eighth Amendment. Kirkpatrick also
argues that his Eighth Amendment claim is exhausted because he fairly
18                  KIRKPATRICK V. CHAPPELL

Nonetheless, we assume without deciding that Kirkpatrick’s
certified claim is exhausted because it makes no difference
to the result. See 28 U.S.C. § 2254(b)(2).

    Next, the parties dispute what standard of review applies
to Kirkpatrick’s Eighth Amendment claim. The warden
argues that AEDPA applies because Kirkpatrick’s habeas
petition was filed in 1998, after AEDPA was enacted.
Kirkpatrick does not dispute that his habeas petition is
generally subject to AEDPA’s standards, but argues that we
should apply de novo review to his Eighth Amendment claim
because the California Supreme Court did not adjudicate the
claim on the merits. See Johnson v. Williams, 568 U.S. 289
(2013). Again, we need not decide this issue because we
deny Kirkpatrick relief even under the more favorable
standard of de novo review. See Berghuis v. Thompkins,
560 U.S. 370, 390 (2010) (“Courts can . . . deny writs of
habeas corpus under § 2254 by engaging in de novo review
when it is unclear whether AEDPA deference applies,
because a habeas petitioner will not be entitled to a writ of
habeas corpus if his or her claim is rejected on de novo
review.” (citing 28 U.S.C. § 2254(a)).          Additionally,
regardless of what standard of review applies, to obtain
relief, Kirkpatrick must prove the claimed error was not


presented it to the California Supreme Court and federal district court,
and they merely improperly construed his argument as only a narrowing
argument.

    We have doubts as to whether Kirkpatrick’s Eighth Amendment
argument concerning the penalty selection phase of his trial was fairly
presented to the California Supreme Court and federal district court.
However, because we may deny Kirkpatrick’s habeas petition on the
merits notwithstanding his failure to exhaust his Eighth Amendment
claim in state court, 28 U.S.C. § 2254(b)(2), we analyze the merits of his
Eighth Amendment claim.
                 KIRKPATRICK V. CHAPPELL                    19

harmless—that a trial error of federal law “had substantial
and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(citation omitted). Indeed, “a prisoner who seeks federal
habeas corpus relief must satisfy [the harmless error standard
established in Brecht], and if the state court adjudicated his
claim on the merits, the Brecht test subsumes the limitations
imposed by AEDPA.” Davis, 135 S. Ct. at 2199 (citing Fry
v. Pliler, 551 U.S. 112, 119–20 (2007)). Thus, we proceed
to analyze the merits of Kirkpatrick’s Eighth Amendment
claim.

    Kirkpatrick contends that his Eighth Amendment rights
were violated when the trial court allowed the jury to
consider evidence that Kirkpatrick poisoned Shirley
Johnson’s dogs and threatened damage to her property
because those acts are not enumerated under California
Penal Code § 190.3, which explains the type of evidence the
jury may consider when determining whether to impose a
sentence of death or life imprisonment without parole. The
parties do not dispute that the jury should not have
considered those acts as aggravating evidence. Indeed, the
California Supreme Court held that although the evidence
was admissible to provide context to Kirkpatrick’s threats
against Johnson’s daughter, “the court should have modified
the [jury] instructions to delete references to poisoning
animals and threatening injury to property.” Kirkpatrick,
874 P.2d at 263–64. The court explained that California
Penal Code § 190.3 permits the jury to consider “only those
threats of violent injury that are directed against a person or
persons,” not animals or property. Id. at 264 (citing People
v. Boyd, 700 P.2d 782, 792–93 (Cal. 1985) (in bank)).

   While we recognize that the jury’s consideration of
Kirkpatrick’s dog poisoning and property threats was error
20               KIRKPATRICK V. CHAPPELL

under California state law, Kirkpatrick, 874 P.2d at 263–64,
we assume without deciding and solely for the sake of
argument that this error amounts to constitutional error under
the Eighth Amendment, because “that does not necessarily
mean that [Kirkpatrick] is entitled to habeas relief,” Davis,
135 S. Ct. at 2197. On collateral review, “[f]or reasons of
finality, comity, and federalism,” habeas petitioners must
also show the trial error “resulted in ‘actual prejudice.’” Id.
(quoting Brecht, 507 U.S. at 637). Under this test, relief is
proper only when a federal court “is in grave doubt about
whether a trial error of federal law had substantial and
injurious effect or influence in determining the jury’s
verdict.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995)
(internal quotation marks omitted).

    Kirkpatrick has not shown he was prejudiced by the
jury’s consideration of Shirley Johnson’s testimony that
Kirkpatrick threatened her property and poisoned her dogs.
In California, once the jury has determined that a special
circumstance exists under California Penal Code § 190.2
that renders the defendant eligible for the death penalty, it
must then determine whether to impose on the defendant a
sentence of death or life imprisonment without parole under
California Penal Code § 190.3. Section 190.3 instructs, in
relevant part:

       After having heard and received all of the
       evidence, and after having heard and
       considered the arguments of counsel, the trier
       of fact shall consider, take into account and
       be guided by the aggravating and mitigating
       circumstances referred to in this section, and
       shall impose a sentence of death if the trier of
       fact concludes that the aggravating
                 KIRKPATRICK V. CHAPPELL                    21

       circumstances outweigh         the   mitigating
       circumstances.

Cal. Penal Code § 190.3 (emphasis added). This means that
after excluding the aggravating facts that were considered in
error, if the other aggravating circumstances outweigh the
mitigating circumstances, the jury would still be required to
sentence Kirkpatrick to death.

    Besides the evidence that Kirkpatrick poisoned
Johnson’s dogs and threatened to damage her property, the
prosecution presented substantial aggravating evidence of
Kirkpatrick’s immoral and callous character, which
Kirkpatrick does not challenge. First, the jury could
consider the circumstances of the crime of conviction—his
“execution style” double-murder of two Taco Bell
employees. Cal. Penal Code § 190.3, factor (a). Second, the
jury could consider the presence of criminal activity by the
defendant that involved the use or threat of force or violence
against a person. Id. factor (b); Kirkpatrick, 874 P.2d at 264.
Under this factor, the jury could consider Stephen Thomas’s
testimony that when he was sixteen, Kirkpatrick dragged
him to a park bathroom, choked him, and tried to stick his
head in a toilet. Another witness, Jacob De Binion, testified
that he once accepted Kirkpatrick’s invitation to drink beer
in the back of a van, and Kirkpatrick physically forced him
to perform oral sex and kiss him and threatened to kill
De Binion if he refused. Further, even if the jury improperly
considered the portions of Shirley Johnson’s testimony
referring to property threats and dog poisoning, Kirkpatrick
does not challenge that the jury could consider that
Kirkpatrick threatened to “do damage” to Johnson and her
daughter if she did not find and return Kirkpatrick’s
calculator.
22               KIRKPATRICK V. CHAPPELL

    By contrast, the only mitigating evidence presented to
the jury comprised Kirkpatrick’s testimony explaining that
he did not want to involve his family in his trial, reasserting
his innocence, and noting that he aspired to be a writer and
would write in prison if given the chance. In light of the
substantial aggravating evidence presented in comparison to
the minimal mitigation evidence, absent the improperly-
considered facts, the jury still would have found that the
aggravating circumstances outweighed the mitigating
circumstances and therefore would have been required to
impose the death penalty. Thus, we are not left with grave
doubt that the jury’s consideration of Kirkpatrick’s property
threats and dog poisoning had a substantial and injurious
effect on the jury’s decision. Brecht, 507 U.S. at 637. We
hold, therefore, that any constitutional error arising from the
jury’s consideration of these facts was harmless. Davis,
135 S. Ct. at 2197.

B. Kirkpatrick’s Uncertified Claims

    Although the district court certified only one issue for
appeal, Kirkpatrick has briefed two additional uncertified
issues. Pursuant to Ninth Circuit Rule 22-1(e), if a petitioner
elects to brief any uncertified issues alongside the certified
issues, it will be “construed as a motion to expand the
[certificate of appealability (COA)] and will be addressed by
the merits panel to such extent as it deems appropriate.”

    Under 28 U.S.C. § 2253(c)(2), a COA may issue only
when the petitioner “has made a substantial showing of the
denial of a constitutional right.” This showing can be
established by demonstrating that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues were ‘adequate to deserve encouragement to proceed
                 KIRKPATRICK V. CHAPPELL                    23

further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

    In his first uncertified claim (his “waiver claim”),
Kirkpatrick argues that the district court erred in dismissing
as unexhausted the claims from Kirkpatrick’s state habeas
exhaustion petition that the California Supreme Court
deemed waived. Kirkpatrick argues that the California
Supreme Court erred in finding that he validly waived his
state habeas exhaustion petition because he was not
competent to withdraw his petition, and his waiver was not
voluntary, knowing, and intelligent.           In his second
uncertified claim, Kirkpatrick alleges that the district court
erred in dismissing his original penalty-phase ineffective
assistance of counsel claim as unexhausted. There, he
argues that his trial counsel failed to investigate “to uncover
any and all available mitigating evidence to present at the
penalty phase of a capital trial.” We think Kirkpatrick’s
waiver claim merits further discussion, but we agree with the
district court that his original ineffective assistance of
counsel claim is unexhausted. We decline to address it
because it fails to meet the standard warranting certification.

    As to Kirkpatrick’s waiver claim, we consider whether
the California Supreme Court erred in granting Kirkpatrick’s
request to waive his state habeas exhaustion petition based
on its conclusion that he was competent to waive his petition
and his waiver was voluntary, knowing, and intelligent.

   1. Standard of Review

   First, Kirkpatrick argues that de novo review should
apply to the question whether he validly waived his state
habeas exhaustion petition in the California Supreme Court.
When Kirkpatrick presented this argument to the district
court, it disagreed and held that it owed deference to the
24               KIRKPATRICK V. CHAPPELL

California Supreme Court’s finding of waiver under
28 U.S.C. § 2254(d). We agree with the district court that
we owe deference to the California Supreme Court’s finding
of waiver, but not under 28 U.S.C. § 2254(d).

    Under 28 U.S.C. § 2254(d), a habeas petition seeking
relief from a state court’s judgment “shall not be granted
with respect to any claim that was adjudicated on the
merits,” unless it (1) “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States;” or (2) “resulted in a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.” The Supreme Court has defined “claim” as
used in 28 U.S.C. § 2254 as “an asserted federal basis for
relief from a state court’s judgment of conviction.”
Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). And an
adjudication on the merits is “a decision finally resolving the
parties’ claims . . . that is based on the substance of the claim
advanced, rather than on a procedural, or other, ground.”
Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004)
(citation omitted).

    Kirkpatrick’s handwritten “Waiver Form” to the
California Supreme Court requesting to withdraw his state
habeas exhaustion petition is not “an asserted federal basis
for relief from a state court’s judgment of conviction.”
Gonzalez, 545 U.S. at 530. If we were to conclude that his
waiver was invalid, Kirkpatrick would not be entitled to
relief from his state court conviction; rather, he could merely
continue litigating the merits of the claims contained within
his state habeas exhaustion petition. Additionally, because
his withdrawal is a waiver of his right to pursue habeas relief,
it is not a decision resolving his claims based on the
                    KIRKPATRICK V. CHAPPELL                          25

substance of his habeas petition. Thus, under § 2254(d)
alone, we would not be subject to AEDPA’s deferential
framework.

    However, under § 2254(e)(1), in proceedings evaluating
a prisoner’s habeas petition, “[f]actual determinations by
state courts are presumed correct absent clear and
convincing evidence to the contrary.” Miller-El v. Cockrell,
537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)).
Unlike § 2254(d), § 2254(e)(1)’s application is not limited
to claims adjudicated on the merits. Rather, it appears to
apply to all factual determinations made by state courts. See
Sophanthavong v. Palmateer, 378 F.3d 859, 866–67 (9th
Cir. 2004); Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir.
2003). Thus, we defer to the California Supreme Court’s
factual determinations unless Kirkpatrick provides clear and
convincing evidence that its factual findings were wrong.

    Whether a petitioner is competent to withdraw his habeas
petition is a question of fact, Massie ex rel. Kroll v.
Woodford, 244 F.3d 1192, 1194 (9th Cir. 2001), and the
parties agree this inquiry is generally subject to deference
under § 2254(e)(1). Likewise, whether a waiver is knowing
and intelligent is a question of fact, United States v. Doe,
155 F.3d 1070, 1074 (9th Cir. 1998) (en banc), and thus this
inquiry is also subject to deference under § 2254(e)(1). 3


    3
      Kirkpatrick argues that the panel need not defer to the California
Supreme Court’s factual findings under § 2254(e)(1) because its factual
findings resulted from a deficient fact-finding process. But “before we
can determine that the state-court [fact-finding] process is defective in
some material way, or perhaps non-existent, we must more than merely
doubt whether the process operated properly.” Taylor v. Maddox,
366 F.3d 992, 1000 (9th Cir. 2004), overruled on other grounds by
Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014). “Rather,
26                  KIRKPATRICK V. CHAPPELL

    However, whether a waiver is voluntary is a mixed
question of law and fact. Id.; Collazo v. Estelle, 940 F.2d
411, 415–16 (9th Cir. 1991) (en banc) (reviewing de novo
the voluntariness of a confession and reviewing for clear
error whether a waiver was knowing and intelligent). Pre-
AEDPA, we reviewed de novo mixed questions of law and
fact; but after AEDPA was enacted, our court, sitting en
banc, found that AEDPA “restricts the scope of federal
review of mixed questions of fact and law.” Jeffries v.

we must be satisfied that any appellate court to whom the defect is
pointed out would be unreasonable in holding that the state court’s fact-
finding process was adequate.” Id. If not, we must presume the state
court’s factual findings are correct. Id.; 28 U.S.C. § 2254(e)(1).

     We recognize that there was no in-depth questioning as to whether
Kirkpatrick “appreciate[d] the consequences of his decision, that he
underst[ood] the possible grounds for appeal but d[id] not wish to pursue
them, and that he ha[d] a reason for not delaying execution.” Dennis ex
rel. Butko v. Budge, 378 F.3d 880, 889 (9th Cir. 2004); Whitmore v.
Arkansas, 495 U.S. 149, 165–66 (1990). But that is only because
Kirkpatrick chose not to attend several evidentiary hearings the referee
scheduled, not because of any failing on the state court’s part.

     Additionally, though it is unusual that the California Supreme Court
made its own factual determinations after reviewing the evidence and the
referee’s findings, that is simply a function of that court’s de novo fact-
finding power in habeas cases. See In re Thomas, 129 P.3d 49, 53 (Cal.
2006). The California Supreme Court was not bound by the referee’s
findings and was free to make its own factual determinations. Id.

    To the extent we harbor any doubts about the peculiarities in the
process here, mere doubts are not enough to discount the California
Supreme Court’s factual findings, and Kirkpatrick has presented no other
evidence that its fact-finding process was otherwise deficient. Thus, we
defer to the California Supreme Court’s factual findings regarding
Kirkpatrick’s waiver of his state habeas exhaustion petition under
28 U.S.C. § 2254(e)(1).
                   KIRKPATRICK V. CHAPPELL                          27

Wood, 114 F.3d 1484, 1498 (9th Cir. 1997) (en banc) (citing
28 U.S.C. § 2254(e)), overruled on other grounds by
Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc).
Specifically, we held that “[d]e novo review is no longer
appropriate; deference to the state court factual findings is.”
Id. 4 To review the California Supreme Court’s conclusion
on the mixed issue of voluntariness, we “must first separate
the legal conclusions from the factual determinations that
underlie it.” Lambert, 393 F.3d at 977–78. “Fact-finding
underlying the state court’s decision is accorded the full
deference of [§ 2254(e)(1)].” Id. at 978.             Because
Kirkpatrick challenges only the factual findings underlying
the California Supreme Court’s conclusion that his waiver
was voluntary, we defer to those factual findings under
§ 2254(e)(1). 5

    Kirkpatrick cites to Campbell v. Wood, 18 F.3d 662 (9th
Cir. 1994) (en banc) and Moran v. Godinez, 57 F.3d 690 (9th
Cir. 1994), to support his assertion that we should apply de
novo review to the finding of a voluntary waiver because it
is a mixed question of law and fact. Of course, these cases
pre-date AEDPA and our holdings in Lambert and Jeffries.
393 F.3d at 977–78; 114 F.3d at 1498. Moreover, even pre-
AEDPA cases held that the factual issues underlying the

     4
       Our original published opinion, now withdrawn, was premised on
the conclusion that mixed questions of fact and law are reviewed de
novo. See Kirkpatrick v. Chappell, 872 F.3d 1047, 1057 n.6 (9th Cir.
2017) (withdrawn). However, we now recognize that Jeffries requires a
different standard. 114 F.3d at 1498. That analytical change drives the
different outcome reached in the opinion issued today.

    5
      We need not address what standard of review would apply to the
California Supreme Court’s legal conclusion as to voluntariness because
Kirkpatrick’s claims of error are directed to the court’s factual
determinations.
28              KIRKPATRICK V. CHAPPELL

voluntariness inquiry were entitled to a “presumption of
correctness,” while the legal question of voluntariness was
not. See Marshall v. Lonberger, 459 U.S. 422, 431–32
(1983); Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir. 1996);
Collazo, 940 F.2d at 415; Iaea v. Sunn, 800 F.2d 861, 864
(9th Cir. 1986). Thus, we presume the California Supreme
Court’s findings that Kirkpatrick was competent to withdraw
his habeas petition and that his withdrawal was voluntary,
knowing, and intelligent are correct unless Kirkpatrick
rebuts them by clear and convincing evidence.

     2. Whether Kirkpatrick can rebut the California
        Supreme Court’s finding of waiver

    To waive a petitioner’s right to further habeas
proceedings, the petitioner must be competent and his
waiver must be voluntary, knowing, and intelligent. Rees v.
Peyton, 384 U.S. 312, 313–14 (1966); Dennis ex rel. Butko
v. Budge, 378 F.3d 880, 889 (9th Cir. 2004). A petitioner is
competent to waive further habeas proceedings so long as he
lacks a mental disease, disorder, or defect that substantially
affects “the prisoner’s capacity to appreciate his options and
make a rational choice among them.” Dennis, 378 F.3d at
889 (emphasis omitted) (citing Whitmore v. Arkansas,
495 U.S. 149, 166 (1990)). Whether a waiver is voluntary,
knowing, and intelligent involves two distinct inquiries.
Moran v. Burbine, 475 U.S. 412, 421 (1986). “First, the
relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception.” Id. And
second, “the waiver must have been made with a full
awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it.” Id. A
petitioner’s waiver of his right to proceed is voluntary,
knowing, and intelligent where his “statements to the court
                 KIRKPATRICK V. CHAPPELL                    29

demonstrate that he appreciates the consequences of his
decision, that he understands the possible grounds for appeal
but does not wish to pursue them, and that he has a reason
for not delaying execution.” Dennis, 378 F.3d at 889.

    Important here, we are not tasked with determining
whether Kirkpatrick was competent to waive his state habeas
exhaustion petition and whether his waiver was voluntary,
knowing, and intelligent. We are tasked only with deciding
whether Kirkpatrick has presented clear and convincing
evidence to rebut the California Supreme Court’s finding
that Kirkpatrick validly waived his state habeas exhaustion
petition. Kirkpatrick offers several arguments why his
waiver of his state habeas exhaustion petition was invalid,
but none of his arguments provide clear and convincing
evidence that the California Supreme Court’s waiver
determination was wrong.

    Kirkpatrick first argues that his handwritten letter to the
California Supreme Court stating that he wished to withdraw
his state habeas exhaustion petition is insufficient to
constitute waiver because it does not demonstrate that his
waiver was voluntary, knowing, and intelligent. Along that
same line, Kirkpatrick argues that his waiver was invalid
because he was never questioned on the record about his
decision, and without such a colloquy a factfinder could not
determine whether his waiver was knowing and intelligent.

    While Kirkpatrick’s handwritten “Waiver Form” on its
own is likely not enough to establish that he was competent
to waive his state habeas exhaustion petition and that his
waiver was voluntary, knowing, and intelligent, the
California Supreme Court had other evidence before it when
it determined Kirkpatrick’s waiver was valid. After the
referee concluded the evidentiary hearings, he submitted a
written report to the California Supreme Court (along with
30              KIRKPATRICK V. CHAPPELL

the hearing transcripts, Dr. McEwen’s report, and copies of
other relevant records) containing substantial evidence that
Kirkpatrick desired to waive his state habeas exhaustion
petition. For example, in a colloquy with the referee when
Kirkpatrick first participated in the proceedings, he was
asked what he “would like to accomplish at the bottom line
in this process,” to which Kirkpatrick responded,
“Competency and vacating of the appeal.” During the same
hearing, Kirkpatrick demonstrated that he understood the
potential consequences of waiving his petition:

       [Warden]: If he is raising an issue in the State
       Court that’s not previously been exhausted,
       and you go to Federal Court and try to raise
       it, we can make a claim and the Federal Court
       buys that and says, “You can’t litigate that
       issue as good as you may think it is.” It might
       limit your possibilities of what you can raise
       in Federal Court.

       [Kirkpatrick]: I understand that my writ for
       exhaustion is already filed by the PD’s office.

       [Warden]: If you withdraw that, then it won’t
       have the impact of doing the exhaustion
       because it will be withdrawn. There is a
       potential that when we go back to Judge
       Keller’s courtroom and you withdraw it, you
       can’t raise it there again. There is a possibility
       he might do that.

       [Kirkpatrick]: I can appreciate that.
                KIRKPATRICK V. CHAPPELL                    31

       [Warden]: So that means if you say, “Gee, I
       changed my mind,” he may say, “Mr.
       Kirkpatrick, sorry, you can’t raise it.”

       [Kirkpatrick]: You are looking out there,
       Robert. Thanks.

At the end of the first hearing, Referee Judge Graham told
Kirkpatrick that although it was “only a preliminary
observation . . . I can tell you right now based upon what I
have seen here today, I don’t see that you have any mental
or emotional limitations that would get in the way of your
being a perfectly rational and intelligent participant in the
litigation process.”

    Additionally, Dr. McEwen, the only psychologist to
interview Kirkpatrick personally, testified that she
“believe[d] he ha[d] the capacity” to “appreciate his position
and make a rational choice with respect to continuing or
abandoning further litigation.” And she did not think
Kirkpatrick was suffering “from a mental disease, disorder
or defect which may substantially affect his capacity” to
forgo rationally further litigation.

    Rather, Dr. McEwen thought Kirkpatrick’s actions were
part of a “conscious, deliberate set of responses that provide
him with a certain degree of pleasure. The reward being
attention, slowing down of the process.” She observed that
Kirkpatrick’s hope was to gain “more and more control over
his case” through hiring different lawyers or representing
himself. The referee asked Dr. McEwen, “[A]ssuming that
he has made the decision to proceed on his own and represent
himself, was that a knowing, intelligent, and voluntary
decision of his?” Dr. McEwen opined, “yes.”
32                  KIRKPATRICK V. CHAPPELL

    Dr. McEwen’s written report reiterated her “medical
opinion that [Kirkpatrick] shows no evidence of mental
impairment which would diminish his capacity to make a
knowing, intelligent and voluntary decision pertaining to his
legal choices.” Rather, “[t]he clinical evidence suggests that
he indeed made his decision to withdraw his petition in a
conscious, goal-directed manner, free of any intervening
mental illness.” 6




     6
       Kirkpatrick argues that the referee erred in determining he was
competent to waive his state habeas exhaustion petition because he failed
to order Kirkpatrick to submit to competency determinations by the
FPD’s experts, failed to order Kirkpatrick to be examined in an inpatient
psychiatric facility, failed to require Kirkpatrick to be examined by a
second mental health expert, and failed to videotape Kirkpatrick’s
interview with Dr. McEwen. Kirkpatrick argues that Dr. McEwen’s
testimony alone “provided no reliable or reasonable basis for the state
court to conclude that Kirkpatrick was competent to waive his [state
habeas] exhaustion petition,” particularly because the FPD’s experts
reviewed Dr. McEwen’s testimony and found it to be flawed.
Kirkpatrick admits, however, that the FPD’s experts could not give
definitive opinions because they did not interview Kirkpatrick in person.

     This argument is flawed. First, the referee could not force
Kirkpatrick to attend the evidentiary hearings to determine his
competency after Kirkpatrick refused to attend and answer questions. It
follows logically that it would have been futile for the referee to order
Kirkpatrick to submit to further examinations. And Kirkpatrick cites no
authority to support the proposition that the referee was required to take
any of these measures. Second, the referee acted reasonably in basing
his competency determination on Dr. McEwen’s testimony because he
found that her opinions were “based upon extraordinary qualifications of
training and experience, careful review of the available history, and
perhaps the only substantial mental health interview Mr. Kirkpatrick has
ever allowed.” Finally, even if the district court prematurely determined
that Kirkpatrick was competent to waive his state habeas exhaustion
                    KIRKPATRICK V. CHAPPELL                           33

    Kirkpatrick also argues that some of his statements to the
referee and Dr. McEwen show that he did not want to
withdraw his petition to expedite his execution. Rather, he
argues that he wanted to exercise more control over his case,
which he planned to do through firing his current counsel
and then representing himself or hiring black lawyers, with
the hope of obtaining a new trial to establish his innocence.
On de novo review, that argument could provide a basis for
considering whether Kirkpatrick’s waiver was really
knowing or intelligent. But under § 2254(e)(1), it does not
amount to the clear and convincing evidence necessary to set
aside the California Supreme Court’s well supported factual
findings. Kirkpatrick clearly desired more control over the
proceedings, but that is not evidence that he did not
understand or appreciate the consequences of his decision.
We are bound by the California Supreme Court’s factual
conclusion, especially in light of the specific evidence from
Dr. McEwen and Kirkpatrick himself that supports it. As to
Kirkpatrick’s claim that a colloquy on the record is required
to validate a waiver, Kirkpatrick cites to no binding authority
that a colloquy is required, particularly where the defendant
refused to participate in court proceedings where a colloquy
would have occurred. 7 Indeed, in Dennis we noted that

petition, that certainly does not amount to clear and convincing evidence
that the California Supreme Court’s competency finding was wrong.
    7
       We note, however, that where courts have previously found such
waivers to be knowing, voluntary, and intelligent, they have done so after
the court questions the petitioner on the record regarding his intentions
and whether he understands the consequences of the waiver. See
Demosthenes v. Baal, 495 U.S. 731, 732–35 (1990) (state postconviction
court found a valid waiver after an evidentiary hearing at which the
petitioner testified that he understood his waiver would result in his
death); Whitmore, 495 U.S. at 165 (finding valid waiver based on
colloquy between counsel and trial court with the petitioner, including a
34                  KIRKPATRICK V. CHAPPELL

courts “have a measure of discretion in affording a hearing
that is suitable in the circumstances” when determining the
validity of a petitioner’s waiver. 378 F.3d at 894.

    Kirkpatrick urges us to follow the Third Circuit’s
opinion in Fahy v. Horn, 516 F.3d 169 (3d Cir. 2008).
There, Henry Fahy was convicted of capital murder and
sentenced to death in Pennsylvania. Id. at 176. Fahy filed
multiple petitions for post-conviction relief. Id. at 177.
After his third petition for post-conviction relief was denied,
Fahy appealed to the Pennsylvania Supreme Court. Id.
While his appeal was pending, “Fahy filed a handwritten pro
se motion” asking the court “to allow him to withdraw his
appeal and to waive all collateral proceedings so that his
death sentence could be carried out.” Id. The Pennsylvania
Supreme Court remanded his appeal to the post-conviction
relief court to conduct a colloquy to determine whether he
“fully underst[ood] the consequences of his request to
withdraw his appeal and to waive all collateral proceedings.”
Id. On remand, the judge granted Fahy a one-week

discussion of the “possible grounds for appeal” he was waiving); Comer
v. Schriro, 480 F.3d 960, 965–66 (9th Cir. 2007) (en banc) (per curiam);
id. at 966 (Paez, J. concurring) (describing the district court’s “thorough
findings, including its finding that Comer understood his legal claims”
that he was waiving after hearing Comer’s testimony that he
“underst[ood] that the merits of his habeas appeal are legally strong . . .
but that he wished to halt his legal challenges even so”); Dennis,
378 F.3d at 891; Massie, 244 F.3d at 1196–97; see also Fahy v. Horn,
516 F.3d 169, 183–85 (3d Cir. 2008); Sanchez-Velasco v. Sec’y of Dep’t
of Corr., 287 F.3d 1015, 1032–33 (11th Cir. 2002); St. Pierre v. Cowan,
217 F.3d 939, 947–48 (7th Cir. 2000) (noting the lack of “any kind of
proceeding, formal or informal, at which any court was able to assure
itself that [the] waiver . . . satisfied the requirements for a knowing and
voluntary waiver and that [the petitioner] intended it to be a waiver”).
The State has not identified any cases in which a court determined that
there was a valid waiver in the absence of such a colloquy.
                KIRKPATRICK V. CHAPPELL                    35

extension to consider his waiver request. Id. at 178. During
that week, Fahy changed his mind and signed a sworn
affidavit stating that he “no longer wished to waive his
appellate rights, that he wanted to proceed with his appeal,
and that he desired continued representation by counsel.” Id.
But when he appeared before the judge for a second time, he
stated that he changed his mind yet again and that he did not
want legal representation nor did he want to pursue further
litigation. Id. The judge then asked Fahy several questions
before informing him that he would tell “the Supreme Court
of Pennsylvania that [he was] knowingly waiving all [his]
appellate rights and all [post-conviction relief] rights.” Id.
The Pennsylvania Supreme Court subsequently affirmed the
post-conviction court’s determination that Fahy validly
waived his right to further appellate and collateral
proceedings. Id.

    Fahy then filed a motion to stay his execution and an
amended federal habeas petition in federal district court. Id.
The district court held that although Fahy was competent
when he waived his right to further appellate and collateral
proceedings in state court, he was “improperly induced to
waive his rights.” Id. at 178–79. The government appealed
to the Third Circuit. Id. As to waiver, the Third Circuit
recognized that it must defer to the state court’s factual
findings under 28 U.S.C. § 2254(e)(1); however, the court
refused to defer to the state court’s finding of waiver in
Fahy’s case. Id. at 181–87. It held that “when a state court’s
waiver colloquy fails to reveal whether the requirements of
a valid waiver have been met due to procedural infirmities,
substantive deficiencies, and an insufficient probing into a
defendant’s knowledge of the rights he is waiving, the
findings by that court concerning the waiver are too
unreliable to be considered ‘factual determinations.’” Id. at
183. Thus, the court held that the trial court’s finding of
36               KIRKPATRICK V. CHAPPELL

waiver was not “entitled to the presumption of correctness.”
Id. In so holding, the court emphasized a few important
points.

    First, the court noted that Fahy’s waiver resulted from
“procedurally infirm” proceedings because the post-
conviction relief court denied his counsel’s request to ask
Fahy about his waiver, which Fahy had requested in a letter
to the court, and the court “explicitly refused to consider any
evidence of coercion.” Id. at 184–85. Second, Fahy
expressly stated in his colloquy with the judge that he had
not discussed all the issues pertaining to his waiver with his
lawyers. Id. The court stated that this “inadequate colloquy”
did not “reveal that he had any knowledge whatsoever of the
purpose of federal habeas corpus or its procedures.” Id. at
186.      Finally, the court emphasized that Fahy’s
equivocation—that he first filed a handwritten waiver form,
then filed a signed affidavit stating he did not want to waive
his appellate rights, and then changed his mind again and
decided to waive further appellate and collateral
proceedings—compelled its conclusion that Fahy’s waiver
was not knowing and voluntary. Id. The court concluded
that this “record of equivocation . . . does not support an
enforceable waiver,” and thus proceeded to review the
merits of Fahy’s appeal. Id. at 187.

    The Third Circuit’s decision in Fahy differs from this
case in several significant respects. First, unlike in Fahy
where the court refused to consider evidence of coercion and
was unbothered by Fahy’s express statement that he had not
discussed his case with his attorneys, Kirkpatrick makes no
claim that the referee did not allow him or his counsel the
opportunity to discuss whether his waiver was voluntary,
knowing, and intelligent. In fact, the opposite occurred: the
referee engaged with Kirkpatrick to the extent he could,
                    KIRKPATRICK V. CHAPPELL                            37

noting that it was a “pleasure to talk to [him]” at the first
hearing. The court ordered a professional evaluation of
Kirkpatrick’s competency, and Dr. McEwen interviewed
Kirkpatrick for two and a half hours. It was Kirkpatrick who
refused to engage with the court and his lawyers after Dr.
McEwen assessed his competency. 8 Thus, any “procedural
infirmity” that occurred in Kirkpatrick’s case was of his own
making. Second, and most importantly, unlike the petitioner
in Fahy, Kirkpatrick never made any affirmative indication
that he no longer wanted to waive his state habeas exhaustion
petition. 9 In fact, he submitted a nearly identical waiver
during his federal district court habeas proceedings. Even if
Kirkpatrick’s conduct of refusing to participate in the
referee’s evidentiary hearings supports a counter-finding
that he did not want to waive his state habeas exhaustion

    8
       We do not suggest that Kirkpatrick’s refusal to participate in the
referee’s evidentiary hearing altered the State’s burden to prove the
validity of his waiver. See Brewer v. Williams, 430 U.S. 387, 404 (1977)
(“[I]t was incumbent upon the State to prove ‘an intentional
relinquishment or abandonment of a known right or privilege.’” (citation
omitted)). Nor did Kirkpatrick’s refusal “relieve [the] court of the duty
to ensure that a definitive waiver ha[d] occurred before it deprive[d] the
petitioner of remedies that are available under state law.” St. Pierre v.
Cowan, 217 F.3d 939, 949 (7th Cir. 2000).

    9
       After Kirkpatrick attended the first evidentiary hearing, he refused
to attend the following four evidentiary hearings. The referee sent
Kirkpatrick two separate letters telling him that if he “actually wish[ed]
to withdraw [his] habeas corpus petition, it seems critical that you
attend” the evidentiary hearing. Kirkpatrick never responded and never
attended the subsequent evidentiary hearings. Kirkpatrick argues that
his silence and refusal to attend further evidentiary hearings shows he
did not want to waive his state habeas exhaustion petition. But this is
not necessarily evidence that Kirkpatrick no longer wanted to waive his
state habeas exhaustion petition. It could equally be evidence of
Kirkpatrick’s unwillingness to cooperate with the court as part of a
strategy to delay his court proceedings and execution.
38              KIRKPATRICK V. CHAPPELL

petition, it does not amount to clear and convincing evidence
that the California Supreme Court’s waiver determination
was wrong. His refusal to participate after requesting the
opportunity to withdraw his petition—a process he repeated
in federal district court—is entirely consistent with Dr.
McEwen’s testimony that “he has an agenda” and is simply
trying to manipulate the process.

    Finally, Kirkpatrick argues that his waiver was
involuntary because evidence exists to suggest he wrote his
“Waiver Form” under duress. Kirkpatrick notes that he
wrote multiple letters to the state court asserting that he
believed prison guards were trying to kill him, retaliate
against him by withholding showers and food, and that the
prison denied him medical attention, medication, legal
documents, access to the library, and access to the prison
yards. Kirkpatrick does not explain how these events
influenced his decision to waive his state habeas exhaustion
petition. Nonetheless, even if Kirkpatrick’s letters to the
state court exhibited evidence of duress, both Dr. McEwen
and the referee, who talked to Kirkpatrick personally,
determined that his waiver was voluntary. Kirkpatrick’s
assertions do not amount to clear and convincing evidence
that the California Supreme Court’s finding that
Kirkpatrick’s waiver was voluntary was wrong.

    While we agree that the California Supreme Court’s
waiver finding was unconventional, ultimately the
California Supreme Court was not bound to accept the
referee’s findings. See In re Thomas, 129 P.3d 49, 53 (Cal.
2006). Kirkpatrick has not presented clear and convincing
evidence to rebut the California Supreme Court’s finding
that he validly waived his state habeas exhaustion petition.
                  KIRKPATRICK V. CHAPPELL                        39

Thus, we presume its findings were correct, and affirm the
district court’s dismissal of Kirkpatrick’s waived claims. 10

                      III. CONCLUSION

    Because Kirkpatrick cannot show the jury’s
consideration of the facts that he poisoned Shirley Johnson’s
dogs and threatened her property had a substantial and
injurious effect on the jury’s decision to impose the death
penalty, Kirkpatrick is not entitled to relief on his Eighth
Amendment claim. Additionally, Kirkpatrick has not
presented clear and convincing evidence to rebut the
California Supreme Court’s finding that Kirkpatrick validly
waived his state habeas exhaustion petition. Thus, we affirm
the district court’s denial of federal habeas relief to
Kirkpatrick.

    AFFIRMED.




    10
       Nothing in this opinion should be construed to minimize or
modify the constitutional requirements of a competency determination
and a voluntary, knowing, and intelligent waiver.
40              KIRKPATRICK V. CHAPPELL

                        Appendix 1

The district court’s independent analysis whether there was
evidence to support the California Supreme Court’s finding
of waiver:

The district court stated, “[t]he evidence supporting the
California Supreme Court’s findings would include, but is
not limited to, the following statements made during status
conferences and in the evidentiary hearing before Judge
Graham”:

       Court: “What is it you would like to
       accomplish at the bottom line in this
       process?”

       Petitioner: “Competency and vacating of the
       appeal.”

                           ***

       Respondent: “If he is raising an issue in the
       state court that’s not previously been
       exhausted, and you go to federal court and try
       to raise it, we can make a claim and the
       federal court buys that and says, ‘You can’t
       litigate that issue as good as you may think it
       is.’ It might limit your possibilities of what
       you can raise in federal court.”

       Petitioner: “I understand that my writ for
       exhaustion is already filed by the PD’s
       office.”

       Respondent: “If you withdraw that, then it
       won’t have the impact of doing the
         KIRKPATRICK V. CHAPPELL                 41

exhaustion because it will be withdrawn.
There is a potential that when we go back to
Judge Keller’s courtroom and you withdraw
it, you can’t raise it there again. There is a
possibility he might do that.”

Petitioner: “I can appreciate that.”

Respondent: “So that means if you say, ‘Gee,
I changed my mind,’ he may say, Mr.
Kirkpatrick, sorry, you can’t raise it.”

Petitioner: “You are looking out there,
Robert. Thanks.”

Respondent: “I am here to do justice. . . .
[D]o you understand what I am trying to
communicate?”

Petitioner: “Yeah, you are covering your
ass.”

                     ***

Court: “Mr. Kirkpatrick, I know it is only a
preliminary observation, but I can tell you
right now based upon what I have seen here
today, I don’t see that you have any mental or
emotional limitations that would get in the
way of your being a perfectly rational and
intelligent participant in the litigation
process, and but for the circumstances in
which we find ourselves its been a pleasure
to talk to you.”
42            KIRKPATRICK V. CHAPPELL

                          ***

     [Psychiatrist] Dr. McEwen: “He made it quite
     plain that he knew why I was there.”

     Court: “What did he say to you?”

     Dr. McEwen: “He recognized that I was
     coming to talk to him about all these things
     that you see. We talked about coming in to
     this courtroom and talking to this Judge, and
     he talked about you and he talked about the
     Attorney General. So it was quite plain to me
     that he knew this was in response to some of
     his—it was in direct response to some of his
     requests in his case . . . .”

     Dr. McEwen: “There’s not a clear—it should
     be obvious that there’s not a clear step-by-
     step plan that is particularly realistic. In the
     back of my mind I thought this person may
     simply be trying to stymie everybody else’s
     efforts on his case. I had that impression from
     his written material and from seeing him in
     person.”

     Dr. McEwen: “[T]his is apparently a
     conscious, deliberate set of responses that
     provide him with a certain degree of pleasure.
     The reward being attention, slowing down of
     the process. His hope being that he has more
     and more control over his case. I want to have
     you understand that this is someone who has
     responded to being on death row in a very
     particular way. It is a combination of the
         KIRKPATRICK V. CHAPPELL                    43

environment he’s in and his particular
personality. I think he’s conscious of what
he’s doing. . . . He knew exactly what he was
doing with me.”

Dr. McEwen: “He thinks that he is going to
be found competent. He tells me—he says,
“There’s nothing wrong with me.”

Dr. McEwen: “[H]e certainly has some trends
that are like a personality disorder, but these
would not be the sorts of things that would
interfere with the aforesaid decision-making
abilities.”

Dr. McEwen: “[B]ut I have to say I think that
this man knows what he is doing, has an
agenda, doesn’t have the slightest interest in
being seen as mentally ill. . . . I think I feel
pretty strongly that he has character trends,
argumentative, contrary character trends and
a lot of energetic intelligence to keep himself
very much occupied in this pursuit that he is
involved in. It is a goal-directed pursuit, and
I think that he is trying not just to frustrate
people and make people upset, but he’s also
trying to feel a sense of being in control of his
life.”

Respondent: “[W]hat is your answer to this
question: Whether Mr. Kirkpatrick has the
capacity to appreciate his position and make
a rational choice with respect to continuing or
abandoning further litigation?”
44             KIRKPATRICK V. CHAPPELL

      Dr. McEwen: “I believe he has the capacity
      to do that.”

      Respondent: “Secondly, whether Mr.
      Kirkpatrick is suffering from a mental
      disease, disorder or defect which may
      substantially affect his capacity to do those
      things?

      Dr. McEwen: “I believe he does not suffer
      from that type of condition.”

      ....

      Respondent: “Assuming that he has made the
      decision to proceed on his own and represent
      himself, was that a knowing, intelligent, and
      voluntary decision of his?”

      Dr. McEwen: “I would say yes.”

The district court also found excerpts of Dr. McEwen’s
written findings persuasive, as the only psychiatrist to
interview Kirkpatrick in person:

      “Based upon my examination of Mr.
      Kirkpatrick and upon review of the
      documents noted above, it is my medical
      opinion that he shows no evidence of mental
      impairment which would diminish his
      capacity to make a knowing, intelligent and
      voluntary decision pertaining to his legal
      choices. He is not suffering from any mental
      condition or defect that could interfere with
      either his ability to comprehend his situation
         KIRKPATRICK V. CHAPPELL                 45

or his ability to make rational decisions
regarding litigation.”

“The clinical evidence suggests that he
indeed made his decision to withdraw the
petition in a conscious, goal-directed manner,
free of any intervening mental illness.”

“He is stimulated by and takes pleasure in
confounding the ‘powers that be.’ Wanting
control is a natural human reaction, and not
necessarily maladaptive.”
