                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


TEOFILO MEDINA, JR.,                     No. 09-99015
             Petitioner-Appellant,
                                            D.C. No.
                v.                      2:94-CV-01892-
                                             RSWL
KEVIN CHAPPELL, Warden,
            Respondent-Appellee.



TEOFILO MEDINA, JR.,                     No. 09-99016
             Petitioner-Appellant,
                                            D.C. No.
                v.                      2:97-CV-07062-
                                             RSWL
R. K. WONG,
              Respondent-Appellee.        OPINION


     Appeal from the United States District Court
         for the Central District of California
   Ronald S.W. Lew, Senior District Judge, Presiding

                Argued and Submitted
      March 19, 2014—San Francisco, California

                 Filed March 26, 2015
2                     MEDINA V. CHAPPELL

Before: Sidney R. Thomas, Chief Judge, and Kim McLane
    Wardlaw, and Marsha S. Berzon, Circuit Judges.

                   Opinion by Judge Wardlaw


                           SUMMARY*


               Habeas Corpus / Death Penalty

   The panel affirmed the district court’s denial of Teofilo
Medina, Jr.’s habeas corpus petitions challenging his murder
convictions and two death sentences, one of which was
imposed in Orange County, the other in Riverside County.

    Affirming the district court’s denial of the petition arising
out of the Orange County case, the panel rejected Medina’s
contention that trial counsel’s performance was deficient in
his investigation and presentation of mitigation evidence
relating to Medina’s childhood, and held that Medina did not
establish prejudice. The panel rejected Medina’s contention
that he is entitled to habeas relief because trial counsel
provided ineffective assistance at the penalty phase by failing
to obtain and present relevant mitigation evidence of
Medina’s possible mental and emotional impairments. The
panel held that counsel performed deficiently by failing to
object, during cross-examination of a doctor during the sanity
phase, to the prosecutor’s use of a study to remind the jury
that people are capable of faking schizophrenia and fooling
mental health workers. But the panel held that the failure to

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

object was not prejudicial during the penalty phase, and that
counsel’s performance was not deficient with respect to the
doctor’s testimony at the sanity phase.

    The panel explained that the Supreme Court’s holding in
Ryan v. Gonzales, 133 S. Ct. 696 (2013), that 18 U.S.C.
§ 3599(a)(2) does not provide a statutory right to competency
in federal habeas proceedings, is not limited to post-AEDPA
cases, but that the portion of the Gonzales opinion
constraining the discretion of district courts to issue stays is
inapplicable to pre-AEDPA petitions such as the Orange
County petition. The panel concluded that the district court
nonetheless acted within its discretion in denying Medina’s
request for a stay of his habeas proceedings due to his
incompetency.

    Affirming the district court’s denial of the petition arising
out of the Riverside County case, the panel rejected Medina’s
contention that counsel’s failure to investigate Medina’s
psychiatric history during the competency phase of the trial,
and his resulting failure to provide this information to the
experts who evaluated Medina’s competency, constituted
ineffective assistance. Assuming without deciding that
counsel performed deficiently by failing to investigate and
present mitigation evidence at the penalty phase, and by
failing to investigate a potential insanity defense, the panel
denied relief because fairminded jurists could disagree as to
whether any such deficient performance prejudiced Medina.
4                  MEDINA V. CHAPPELL

                        COUNSEL

Robert B. Amidon (argued), Tarzana, California, and Wayne
C. Tobin (argued), Newbury Park, California; David L.
Bernstein, Studio City, California, for Petitioner-Appellant.

Holly D. Wilkens (argued), Supervising Deputy Attorney
General; Gary W. Schons, Senior Assistant Attorney General;
and Adrianne S. Denault, Deputy Attorney General, Office of
the California Attorney General, San Diego, California;
Kamala D. Harris, Attorney General of California; Dane R.
Gillette, Chief Assistant Attorney General; Office of the
California Attorney General, San Francisco, California, for
Respondent-Appellee.

Jon M. Sands, Federal Public Defender; Therese Day,
Assistant Federal Public Defender, Phoenix, Arizona; Sean K.
Kennedy, Federal Public Defender; Mark R. Drozdowski and
C. Pamela Gómez, Deputy Federal Public Defenders, Los
Angeles, California, for Amici Curiae the California
Appellate Project, the Federal Public Defenders of the
District of Arizona, Central District of California, Eastern
District of California, District of Nevada, and the Federal
Defender Services of Idaho.
                      MEDINA V. CHAPPELL                            5

                            OPINION

WARDLAW, Circuit Judge:

    Teofilo Medina, Jr., a California death row inmate,
appeals the district court’s denial of his petitions for a writ of
habeas corpus. Medina killed four people in a month-long
crime spree in 1984. For these murders, the California courts
imposed two death sentences: one in Orange County, the
subject of the habeas petition in No. 09-99015, and one in
Riverside County, the subject of the petition in No. 09-99016.
The Orange County proceedings became final first. Medina
filed his federal habeas petition in the Orange County case
before the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Medina’s Riverside
County petition was filed after the effective date and is
therefore subject to AEDPA review.1

    The petitions allege ineffective assistance of counsel at
various phases of each trial, with a focus on claims of
deficient performance at the penalty phases. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253. Because
counsel in the Orange County trial did not render deficient
performance, and because the California Supreme Court
could have reasonably concluded that any deficient
performance in the Riverside County trial failed to prejudice
Medina, we affirm the district court’s orders denying
Medina’s habeas petitions. In addition, we conclude that the
district court did not abuse its discretion by denying a stay to
determine Medina’s competency while the Orange County
petition was pending.

  1
    Contemporaneous with this decision, we file an order consolidating
these appeals for purposes of disposition.
6                  MEDINA V. CHAPPELL

             I. FACTUAL BACKGROUND

    The factual circumstances of Medina’s crimes are
undisputed. Shortly after his August 1984 release from
prison in Arizona, Medina returned to California. From
October 13 through November 7, 1984, Medina engaged in a
crime spree in Orange County, which included stealing a gun
and holding up a drive-in dairy and two gas stations. At the
location of each robbery, he shot and killed an employee of
the business from which he stole. People v. Medina
(“Medina I”), 799 P.2d 1282, 1287 (Cal. 1990). During this
same period, he committed a fourth robbery-homicide, this
time at a gas station in Riverside County. People v. Medina
(“Medina II”), 906 P.2d 2, 16 (Cal. 1995).

    Medina was apprehended on November 7, 1984 after he
attempted another robbery. During the course of that
robbery, he shot at, but missed, two civilian witnesses. The
witnesses gave police Medina’s license plate number, and
officers apprehended Medina at his sister’s home. The
evidence linking Medina to the crimes included the gun used
in each of the crimes and his fingerprint on a bottle at the
scene of one crime. Medina’s sister found the gun in
Medina’s shaving kit. Bullets recovered from the murder
victims matched the gun.

    Medina’s history of abuse as a child is relevant to his
habeas claims. Declarations from family members describe
Medina’s troubled and troubling past. These declarations,
obtained by habeas counsel, provide the details of the
physical abuse Medina suffered growing up, details that were
not obtained by trial counsel in either case. Medina was
whipped by nuns while attending Catholic school, hit with a
belt by his father to the point where the belt left marks, and
                   MEDINA V. CHAPPELL                       7

hit by his mother with a tree switch, a belt, or her hand. In
addition to his own physical abuse, Medina’s father was an
alcoholic who sometimes hit Medina’s mother, and on one
occasion chased her around the house with a knife.

     Medina also suffered from numerous accidental injuries
as a child. When Medina was born, the physician had to use
forceps to facilitate the delivery, which left Medina with two
black eyes and bruises on his head. Excessive anesthetization
of Medina’s mother may have exacerbated this trauma. At
age 5 or 6, Medina fell and hit his head on a concrete floor,
leaving a scar on his forehead. When he was 6 or 7 years old,
he let his cousins use his head for target practice with BB
rifles. One summer when the family was in Utah, Medina
“fell into a river or a canal and almost drowned.” As a boy,
Medina spent hours assembling model airplanes in his room.
When family members complained about glue fumes, Medina
stuffed towels under his door to confine the fumes to his
room. Finally, at age 14, Medina was hit by a car while
riding a bicycle. His leg was badly broken, and several
family members noticed that he became more violent
afterwards. None of this information was uncovered by his
trial attorneys.

    Habeas counsel also discovered that Medina has a
documented history of mental illness. During Medina’s
previous periods of incarceration in California and Arizona,
Medina was diagnosed at least eleven times as suffering from
paranoid schizophrenia or related conditions. From a young
age, Medina talked to himself and would clench and unclench
his fists when upset. He also pulled out all of his eyelashes
when he was 11 or 12 years old. As an adult, Medina
frequently made delusional references to being under
surveillance, spied upon, and persecuted by neighbors and
8                  MEDINA V. CHAPPELL

fellow inmates. Of the nineteen members of Medina’s
extended family, as many as four suffered from
schizophrenia, and others may have had different mental
illnesses.

        II. THE ORANGE COUNTY PETITION

    A. Procedural Background and Standard of Review

     Prior to his jury trial in Orange County, Medina moved
for a competency hearing, at which lay witnesses, various
psychiatrists, psychologists, and other experts testified about
his violent behavior, attempted suicide, possible
schizophrenia, and inability to cooperate with counsel.
Medina I, 799 P.2d at 1288. The testimony of the five
psychological and psychiatric experts was contradictory:
some doctors concluded that Medina was competent to stand
trial and others opined that he was not. Id. The mental health
professionals also provided markedly different
diagnoses—some found him schizophrenic, while others
doubted that diagnosis or concluded that Medina was
malingering. Following the competency hearing, the jury
concluded that Medina was competent to stand trial. Id.

    At trial, Medina asserted an insanity defense. During the
sanity phase, various mental health professionals again
testified, to much the same effect. Id. Medina and a number
of lay witnesses also testified about Medina’s background,
“including his prior offenses and convictions, prison terms,
drug use, violent and aberrant behavior, attempted suicide,
confinement in a state mental hospital, and attempted escape
therefrom.” Id. The jury found Medina legally sane at the
time of the charged offenses. Id.
                   MEDINA V. CHAPPELL                        9

    After the jury returned a guilty verdict, the penalty phase
commenced. Defense counsel called four mental health
experts who had previously testified. Their testimony was
consistent with testimony adduced at the sanity and
competency phases. Id. at 881. Medina’s father testified that
Medina sniffed glue as a child, that Medina’s brother, John,
committed suicide, that Medina had been hit by a car while
delivering newspapers, and that Medina’s behavior had been
strange when he was driving back to California after his
release from prison in Arizona.

    On December 3, 1986, after deliberating for seven and a
half hours, the jury concluded that the appropriate penalty
was death. On February 26, 1987, Medina was sentenced to
death.

    The California Supreme Court affirmed Medina’s
convictions and death sentence on direct appeal. Medina I,
799 P.2d at 1310. The United States Supreme Court granted
certiorari to determine the constitutionality of California
Penal Code § 1369(f), which placed the burden on the
defendant to show by a preponderance of the evidence his
competence to stand trial. See Medina v. California, 505 U.S.
437 (1992). The Court upheld the statute and affirmed the
California Supreme Court’s decision. Id. at 452–53.

   Medina filed his habeas petition in federal court on
October 2, 1995, and, after returning to state court to exhaust
several claims, he filed an amended petition on November 19,
1997. The district court granted an evidentiary hearing on
several claims, and received evidence including declarations,
deposition transcripts, and exhibits.
10                  MEDINA V. CHAPPELL

    On June 5, 2003, Medina filed a state court petition
arguing that he was mentally retarded and as such, under
Atkins v. Virginia, 536 U.S. 304 (2002), could not be
executed. The California Supreme Court denied the petition,
and the district court granted Medina’s motion to amend his
federal habeas petition to include his Atkins claim. On June
16, 2008, the district court denied federal habeas relief on all
claims presented in Medina’s petition. On January 23, 2009,
the district court entered final judgment.

    Because Medina filed his federal habeas petition in the
Orange County case before the effective date of AEDPA, its
substantive provisions do not apply. See Phillips v. Ornoski,
673 F.3d 1168, 1178–79 (9th Cir. 2012). “We therefore
review de novo questions of law or mixed questions of law
and fact decided by the district court or by the state courts.”
Id. at 1179. “We review the district court’s factual findings
for clear error, and accord state court factual findings a
presumption of correctness.” Id.

    We review counsel’s conduct in a capital sentencing
proceeding under the same standards used for judging
ineffective assistance at trial. Strickland v. Washington,
466 U.S. 668, 686–87 (1984). To prevail, Medina must first
show that “counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. In making this
determination, we “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. at 689
(internal quotation marks omitted). Second, Medina “must
show that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so serious as
                    MEDINA V. CHAPPELL                        11

to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. at 687.

    B. Failure to Investigate and Present Mitigating
                        Evidence

    Medina argues that his trial counsel in the Orange County
case rendered ineffective assistance by failing to properly
investigate Medina’s childhood. According to Medina, such
a failure meant that his counsel lacked information that could
have been used in mitigation during the penalty phase.
Because counsel lacked sufficient knowledge, argues Medina,
he could not have made a reasoned tactical decision about
what to present at the penalty phase. We disagree, and
conclude that counsel’s performance was not deficient.

    Counsel has a duty to investigate, but this duty is not
without limits. Strickland clarified that “counsel has a duty
to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. 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.” 466 U.S. at 691. We “conduct an
objective review of [counsel’s] performance, measured for
reasonableness under prevailing professional norms, which
includes a context-dependent consideration of the challenged
conduct as seen from counsel’s perspective at the time.”
Wiggins v. Smith, 539 U.S. 510, 523 (2003) (citations
omitted) (internal quotation marks omitted).

    As the district court correctly concluded, Medina’s
defense team conducted a thorough investigation of his
childhood and family background—actions that stand in
12                  MEDINA V. CHAPPELL

sharp contrast to the conduct of defense counsel in cases
relied upon by Medina in support of his ineffective assistance
argument. In Ainsworth v. Woodford, 268 F.3d 868 (9th Cir.
2001), for example, trial counsel’s “preparation” for the
penalty phase proceedings consisted of interviewing one
defense witness for ten minutes on the morning she was to
testify, and failing to examine Ainsworth’s employment,
medical, prison, probation, or military records, all of which
were readily available. Id. at 874. In Silva v. Woodford,
279 F.3d 825 (9th Cir. 2002), we concluded that counsel’s
complete abandonment of all investigation into Silva’s
background was not objectively reasonable when Silva
instructed counsel simply that he did not want his parents
used as witnesses and that he preferred they be left alone. Id.
at 838. In Libberton v. Ryan, 583 F.3d 1147 (9th Cir. 2009),
we found ineffective assistance at the penalty phase where
defense counsel failed to interview any witnesses for trial and
only a very few for sentencing. Id. at 1169.

     In the Orange County case, the district court credited
counsel’s declaration that his investigator interviewed family
members and briefed him regarding the interviews, and that
counsel had questioned the family members himself. In
crediting counsel’s declarations, the district court relied upon
billing records and trial documents showing the amount of
time investigators spent speaking with witnesses and
conferring with counsel. Given the supporting evidence, the
district court did not clearly err by crediting counsel’s
declaration.

    Nor does counsel’s failure to uncover Medina’s childhood
abuse render his performance deficient. The district court
credited counsel’s sworn statement that neither Medina nor
his family members divulged to counsel the abuse to which
                        MEDINA V. CHAPPELL                               13

he was subjected, and Medina does not directly challenge this
finding. As Medina argues, “counsel has a duty to
investigate, even if his or her client does not divulge relevant
information.” Vega v. Ryan, 757 F.3d 960, 969 (9th Cir.
2014). Our decision in Vega does not, however, impose upon
counsel a duty to conduct a perfect investigation that reaches
every recess of a client’s mind. “A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effect of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. Unlike the situation in Vega,
Medina’s counsel conducted an adequate investigation of his
client’s history. The evidence counsel sought and reviewed
suggested that Medina experienced an average childhood.
Prison records, Medina’s own testimony under oath, and
discussions with Medina’s family members,2 all indicated that
Medina’s childhood was relatively unremarkable.

     Medina nonetheless asserts that counsel’s investigation
was unreasonable because he failed to ask the “right
questions.” Medina’s sisters claim that no one ever explained
to them what sort of evidence could be considered in
mitigation. Medina’s trial counsel, however, reported that he
supervised the investigators who questioned Medina’s family
and ensured that the family was informed of the defense
team’s needs. Counsel’s assessment is corroborated by
billing records, credited by the district court, that showed the


 2
   Trial counsel’s billing records further reflect a six-hour period in which
he spoke with Medina’s sister early in the case on February 9, 1985.
During that six-hour time-frame, counsel discussed several matters
including the “bizarre behavior of Medina during the time period [in]
which these incidents took place.”
14                     MEDINA V. CHAPPELL

amount of time the defense team spent with Medina’s family
and the quantity of evidence the team gathered. “[A]pplying
a heavy measure of deference to counsel’s judgments,” id. at
691, we cannot conclude that counsel’s performance was
deficient.

    Medina also relies on a letter to counsel, dated September
4, 1985, from Dr. Klatte, a psychiatrist who evaluated
Medina’s mental health prior to trial, to argue that counsel
possessed information that “would lead a reasonable attorney
to investigate further” into Medina’s childhood. Wiggins,
539 U.S. at 527. But, this letter’s “tantalizing indication” that
not all was as it seemed consists of two inapposite passages.
The first mentions that Medina loved his father, but also
feared him when he would get drunk and chase the kids out
of the house.3 The second recounts a bizarre memory Medina
has of his mother, but it is a memory completely devoid of
any indication of abuse.4




     3
    “[Medina] recalls as a child feeling his father was a superman. He
loved him but feared him when he would get drunk and chase the kids out
of the house.”
 4
   “[Medina] describes a very complex and pathological relationship with
his mother. On the one hand he indicates he was very close to her and she
was a very loving maternal woman. On the other hand his most vivid
memory from childhood still haunts and upsets him, bringing tears to his
eyes as he recounts it. He was about 7 to 9 years of age, he went to his
mother’s bedroom and saw her lying on her bed. They looked at each
other and ‘she looked like a smiling conniving harlot as described in the
old testament.’ She then said ‘I prayed to the Virgin Mary for a
homosexual.’ Suddenly he started crying and got angry, screaming at his
mother ‘I’m going to go straight to hell for that.’ He then ran out of the
room. He now does not know what he meant by what he said.”
                    MEDINA V. CHAPPELL                         15

    By contrast, in Wiggins, ample evidence in records
available to counsel indicated that further investigation would
very likely have unearthed mitigating evidence. The
Department of Social Services’ records and the pre-sentence
report demonstrated that Wiggins’s mother was an alcoholic
who left him and his siblings alone for days without food on
at least one occasion, and that Wiggins went from foster
home to foster home where he displayed emotional
difficulties and had frequent long absences from school.
539 U.S. at 525. The Court concluded that counsel
unreasonably ceased its investigation and failed to pursue
mitigating evidence.

    Here, counsel interviewed Medina’s family members but
found no evidence of physical abuse. The investigation was
adequate and thorough. Counsel’s decision not to interview
additional family members was also reasonable. In Bobby v.
Van Hook, 558 U.S. 4 (2009) (per curiam), the Supreme
Court reversed a grant of habeas relief based on an ineffective
assistance claim at the penalty phase in a pre-AEDPA case,
holding that counsel had reached that point at which
“evidence from more distant relatives can reasonably be
expected to be only cumulative, and the search for it
distractive from more important duties.” Id. at 11. So too
here. The vague allusions to dysfunctional familial
relationships related in Dr. Klatte’s letter did not alert counsel
that he should conduct more interviews and further
investigation, particularly when Medina himself reported an
unremarkable childhood.

    In addition, while not foundational to our analysis, it is
nevertheless significant that counsel originally intended to
call more family members at the penalty phase, but Medina
refused to allow counsel to call any family members other
16                  MEDINA V. CHAPPELL

than his father. While a defendant’s refusal to allow a
witness to testify does not excuse counsel from interviewing
that witness as part of a reasonable investigation into possible
mitigating evidence, Stankewitz v. Wong, 698 F.3d 1163,
1170 (9th Cir. 2012) (noting that “supposed opposition to
mitigating evidence” does not end the inquiry into the
adequacy of counsel’s performance), here counsel did
thoroughly interview other family members despite Medina’s
refusal to allow them to testify.

    Nor has Medina established prejudice, i.e., “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. To evaluate whether Medina was
prejudiced by counsel’s failure to investigate, if any, we
“reweigh the evidence in aggravation against the totality of
available mitigating evidence.” Wiggins, 539 U.S. at 534.

    In mitigation, Medina’s father testified that Medina was
hit by a car while riding a bicycle as a child and was exposed
to glue fumes when he built model airplanes, and about an
incident in which Medina pulled out all of his eyelashes. He
also testified that Medina had been close to his now-deceased
mother, that Medina’s brother had used drugs heavily after
his divorce and was in and out of mental hospitals before
finally committing suicide, and that Medina behaved
strangely upon his release from prison in Arizona. Medina
offered testimony from Richard Negrete, his parole officer,
and from James Hicks, an employee of the Orange County
District Attorney’s office, who had prosecuted a defendant
for stabbing Medina approximately twenty-eight times.

   Medina also presented the testimony of several mental
health experts. Dr. Pierce testified that Medina did poorly on
                    MEDINA V. CHAPPELL                        17

cognitive tests, that he was not malingering, and that although
sane, he suffered from a mental impairment. Dr. Sharma
testified that Medina was suffering from symptoms indicating
mental problems, and he noted four possibilities:
schizophrenia, “organic brain disorder due to the use and
abuse of mind-altering drugs he had used in the past,
including, for example, cocaine and PCP,” epilepsy caused by
a short circuiting of the brain tissue, or antisocial personality
disorder. He further testified that he saw mitigation in
Medina’s mental problems. Dr. Sakurai testified that Medina
had been placed in the rubber rooms in the Orange County
jail several times, that Dr. Sakurai had met with Medina on
thirty to forty occasions, and that he had prescribed Medina
medication. Finally, Dr. Klatte testified that Medina was a
disturbed person with a diagnosis of schizotypal personality
disorder and antisocial personality disorder, and noted that
Medina “had a brother who suicided and had a well-
established diagnosis of paranoid schizophrenia.”

     Declarations from Medina’s family members obtained by
habeas counsel describe additional mitigating evidence that
could have been, but was not, presented to the jury during the
penalty phase of the Orange County trial. As detailed in Part
I, these declarations from family members describe physical
abuse that Medina suffered growing up. This potentially
mitigating evidence, while substantial, was not
overwhelming. The abuse Medina suffered as a child falls
short of the horrific violence and deprivation that courts have
recognized as convincing mitigation evidence. Compare
Wiggins, 539 U.S. at 535–36 (holding that counsel’s failure
to investigate and present evidence of petitioner’s “physical
torment, sexual molestation, and repeated rape” established
prejudice), with Samayoa v. Ayers, 649 F.3d 919, 929 (9th
Cir. 2011) (observing that petitioner’s evidence of “harsh
18                 MEDINA V. CHAPPELL

discipline, poverty, drug abuse, and violence and sexual
abuse among extended family members” was “not so
dramatic or unusual” that it would have affected the death
penalty verdict). Moreover, unlike in Stankewitz v.
Woodford, where we found prejudice based on counsel’s
failure to present evidence that the defendant “suffered from
organic brain damage, to the point of being borderline
mentally retarded,” 365 F.3d 706, 723 (9th Cir. 2004), there
was no strong evidence that Medina suffered permanent brain
damage as a result of his childhood head injuries.

    For its part, the prosecution presented a litany of
aggravating factors at the penalty phase. The prosecution
relied on Medina’s prior convictions for rape, assault,
kidnapping, burglary, and discharging a firearm into an
occupied building, as well as Medina’s repeated attacks on
other inmates and prison staff while incarcerated. The
prosecution also elicited testimony from the victims’ relatives
about the victims’ non-violent nature.

    The mitigating evidence that was presented failed to
persuade the jury in light of this strong aggravating evidence.
And the potential mitigating evidence was weaker than the
array of mitigating evidence actually presented. Reweighing
the aggravating evidence against all mitigating evidence,
Wiggins, 539 U.S. at 534, we conclude that comparatively
weak additional mitigating evidence would not likely have
altered the jury’s verdict. Accordingly, Medina was not
prejudiced within the meaning of Strickland. 466 U.S. at
694–96.
                   MEDINA V. CHAPPELL                       19

  C. Evidence of Mental and Emotional Impairments

    Medina alternatively claims that he is entitled to habeas
relief because trial counsel provided ineffective assistance at
the penalty phase by failing to obtain and present relevant
mitigating evidence of Medina’s possible mental and
emotional impairments. Specifically, Medina argues that
counsel rendered ineffective assistance by: failing to obtain
medical records reflecting the hospitalization of Medina’s
brother and maternal aunt, which showed that both were
hospitalized with diagnosed schizophrenia; failing to provide
EEG and CT scan results to an expert who requested them;
and failing to retain an expert to explain to the jury the
possible mitigating effect of Medina’s exposure to
neurotoxins in glue when he was young.

    At the penalty phase, counsel has “a professional
responsibility to investigate and bring to the attention of
mental health experts who are examining his client, facts that
the experts do not request.” Wallace v. Stewart, 184 F.3d
1112, 1116 (9th Cir. 1999). “Regardless of whether a defense
expert requests specific information relevant to a defendant’s
background, it is defense counsel’s duty to seek out such
evidence and bring it to the attention of the experts.” Hovey
v. Ayers, 458 F.3d 892, 925 (9th Cir. 2006) (internal
quotation marks omitted).

    Medina argues that counsel’s failure to obtain his
brother’s and aunt’s medical records and subsequent failure
to turn them over to the experts who testified during the
penalty phase constituted ineffective assistance of counsel.
Medina asserts that had counsel obtained and relayed this
information, it could have strengthened his claim that he, too,
was schizophrenic. His argument is unpersuasive.
20                 MEDINA V. CHAPPELL

    First, trial counsel did obtain information about Medina’s
brother’s diagnosis of paranoid schizophrenia. During the
penalty phase, Dr. Klatte testified that Medina’s brother “had
a well-established diagnosis of paranoid schizophrenia.”
Although Dr. Sharma testified in a deposition that he was
never given information about Medina’s brother’s mental
illness as a “confirmed diagnosis,” he was made aware of the
mental illness and he “had assumed or inferred from what
[he] was told at that time that more likely than not the
diagnosis would have been schizophrenic disorder for his
brother.” The “failure” to provide Dr. Sharma with the
confirmed diagnosis, even if it constitutes deficient
performance, certainly does not meet Strickland’s prejudice
requirement, given that Dr. Sharma assumed the diagnosis.

    Second, Medina is correct that his aunt’s diagnosis of
paranoid schizophrenia was never provided to Dr. Sharma,
but counsel’s failure to provide this information was not
deficient performance. The district court credited counsel’s
account that he was unaware of the aunt’s mental problems at
the time of the penalty phase because neither Medina nor any
family member had disclosed the problems. Counsel cannot
be faulted for not having information about a second degree
relative’s hospital records when his investigation was
reasonable and none of Medina’s family members with whom
he spoke alluded to the aunt’s mental health problems. See
Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998)
(holding that counsel’s failure to discover an alleged family
history of mental illness was not unreasonable where counsel
spoke with family members and friends who would have such
information but none of them indicated there was any history
of mental illness).
                   MEDINA V. CHAPPELL                       21

     Medina argues that counsel’s failure to provide Dr.
Sharma with Medina’s EEG and CT scan results despite Dr.
Sharma’s requests for them constituted ineffective assistance
of counsel. Trial counsel should have provided the test
results to Dr. Sharma, but his failure to do so did not
prejudice Medina under the second prong of Strickland. Dr.
Sharma had been made aware that “Mr. Medina had
undergone a CAT scan, an EEG, brain x-rays, and a
neurological examination yielding results within the normal
limits.” Dr. Sharma further stated that he had been relying
upon a “broken brain” theory during the penalty phase of
Medina’s trial, and he conceded that if he had been shown the
test results, which were within the normal range, the results
would have the potential to contradict the “broken brain”
defense. It is thus unclear how Medina would have benefitted
at the penalty phase had Dr. Sharma obtained the test results;
if anything, Dr. Sharma’s testimony would have been less
helpful to Medina had the results been provided.

    Finally, Medina argues that counsel performed deficiently
by failing to request a neurological examination to assess
possible brain damage resulting from years of substance
abuse. Counsel was aware of Medina’s use of drugs and
history of glue sniffing. The district court credited counsel’s
account that he passed on information regarding Medina’s
glue sniffing to the doctors. Moreover, counsel intended to
follow up on the issue with an expert who would do more
testing, but Medina refused to see any more experts. As
counsel must respect a defendant’s wishes about whether to
undergo additional psychological testing, a failure to conduct
additional testing is not deficient performance on the part of
counsel in such circumstances. Gerlaugh v. Stewart,
129 F.3d 1027, 1034–35 (9th Cir. 1997). And even if Medina
were now to present neurological test results bringing some
22                    MEDINA V. CHAPPELL

new mental deficiency to light, evidence produced after the
fact is not necessarily relevant to whether counsel’s actions
were reasonable at the time. See Sims v. Brown, 425 F.3d
560, 584 (9th Cir. 2005), amended by 430 F.3d 1220 (denying
habeas relief because “[Petitioner’s] argument turns on a
latter-day battle of experts; however, the question is whether
counsel did all that he was constitutionally required to do at
the time”). Counsel’s investigation into Medina’s brain
damage was not deficient.

     D. Error With Respect to Dr. Gold’s Testimony

    Medina points to two mistakes made by counsel at the
sanity phase involving Dr. Gold’s testimony: counsel’s failure
to object to cross-examination of Dr. Gold based on the
Rosenhan study,5 and counsel’s failure to adequately prepare
Dr. Gold to testify at the sanity hearing. Medina contends
that these deficiencies further prejudiced him at the penalty
phase, rendering his death sentence unreliable. We have
recognized that “prejudice may result from the cumulative
impact of multiple deficiencies.” Harris ex rel. Ramseyer v.
Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (internal quotation
marks omitted).

    Trial counsel’s failure to object to the use of the Rosenhan
study during the prosecutor’s cross-examination of Dr. Gold
was deficient performance. The prosecution’s purpose in


 5
   In the Rosenhan study, eight individuals who were not suffering from
any mental illness visited a mental institution and complained they were
hearing voices. D. L. Rosenhan, On Being Sane in Insane Places,
13 Santa Clara Law. 379 (1973). All of them were admitted and
diagnosed as schizophrenic or manic-depressive despite their lack of
mental illness. Id. at 384.
                    MEDINA V. CHAPPELL                       23

mentioning this study was to remind the jury that people are
capable of faking schizophrenia and fooling mental health
workers into rendering that diagnosis.

    California Evidence Code section 721(b)(1) prohibits
cross-examination of expert witnesses regarding scientific
journal articles unless the expert considered or relied upon
that article in forming his opinion. California courts have
also held that the prosecutor’s reference to the Rosenhan
study during cross-examination, specifically, is improper.
People v. Visciotti, 825 P.2d 388, 435 (Cal. 1992).

     Counsel’s failure to object, however, did not prejudice
Medina during the penalty phase within the meaning of
Strickland. The prosecutor’s reference to the study was only
a small piece of the evidence admitted at the competency
hearing. Additionally, the prospect that Medina was
malingering and had fooled mental health experts was
suggested by more than the Rosenhan study. On direct
examination at the sanity phase, Dr. Gold stated that many
prisoners malinger and, in response to a question about
whether Medina was malingering, testified: “It’s possible, but
it’s not probable.” Thus, the reference to the Rosenhan study
was cumulative of other, more direct evidence of possible
malingering and, therefore, was not prejudicial.

    Medina also contends that counsel’s failure to prepare Dr.
Gold to testify at the sanity phase of his trial was deficient
performance. In his declaration, Dr. Gold asserts that defense
counsel failed to provide him with “relevant medical records
and reports relating to petitioner,” and that counsel spent only
about an hour with him prior to the presentation of his
testimony. However, counsel is entitled to rely upon the
opinion of experts, and, outside of the penalty phase, is not
24                 MEDINA V. CHAPPELL

required to provide experts with relevant information they do
not request. See Wallace, 184 F.3d at 1117 (distinguishing
between ineffective assistance claims for failure to provide
experts with information at the penalty and guilt phases).

    In sum, although counsel performed deficiently by failing
to object to the Rosenhan study, that error was not prejudicial
under Strickland during the penalty phase. And counsel’s
performance was not deficient with respect to Dr. Gold’s
testimony at the sanity phase.

        E. Request for Stay Due to Incompetency

     Finally, we affirm the district court’s denial of Medina’s
request for a stay of his habeas proceedings due to his
incompetency. In Ryan v. Gonzales, 133 S. Ct. 696 (2013),
the Court held that 18 U.S.C. § 3599(a)(2) does not provide
a statutory right to competency during federal habeas
proceedings, and the Court constrained the discretion of
district courts to issue stays when there is no reasonable hope
of a petitioner regaining competence in the foreseeable future.
Medina asserts that Gonzales has no applicability to his pre-
AEDPA petition. We disagree.

    As an initial matter, the Supreme Court’s holding that
18 U.S.C. § 3599(a)(2) does not provide a statutory right to
competency in federal habeas proceedings is not limited to
post-AEDPA cases. Indeed, Gonzales expressly overruled
our decision in Rohan v. Woodford, 334 F.3d 803 (9th Cir.
2003), a pre-AEDPA case in which we held that “‘where an
incompetent capital habeas petitioner raises claims that could
potentially benefit from his ability to communicate rationally,
refusing to stay proceedings pending restoration of
competence denies him his statutory right to assistance of
                       MEDINA V. CHAPPELL                             25

counsel, whether or not counsel can identify with precision
the information sought.’” Gonzales, 133 S. Ct. at 701
(quoting Rohan, 334 F.3d at 819).

    The pre-AEDPA/post-AEDPA distinction is relevant,
however, as to Part III of Gonzales, in which the Court went
on to “address only [the] outer limits” “of the district court’s
discretion to issue stays.” Gonzales, 133 S. Ct. at 708. This
portion of the Court’s opinion relies heavily upon Congress’s
intent in enacting AEDPA and the practical consequences of
stays for cases subject to AEDPA. See id. at 708–09.
Consequently, the Court’s conclusion that “[w]here there is
no reasonable hope of competence, a stay is inappropriate and
merely frustrates the State’s attempts to defend its
presumptively valid judgment,”6 id. at 709, is inapplicable to
pre-AEDPA petitions such as this one.

    But the inapplicability of this portion of the Court’s
holding does not aid Medina’s case. As the Court noted,
defining the outer limits of district courts’ authority to grant
stays does not affect our analysis in those cases, like
Medina’s, in which the district court has denied a stay. In
such a case, to grant relief, “we would have to conclude that
the District Court abused its discretion in denying the stay.”
Id. at 707 n.13. The district court did not abuse its discretion
here.



  6
    Although the Court did not cabin its analysis to AEDPA, it roots its
analysis in the congressional purpose in enacting AEDPA. Gonzales,
133 S. Ct. at 709 (“Without time limits [on stays], petitioners could
frustrate AEDPA’s goal of finality by dragging out indefinitely their
federal habeas review.” (alteration in original) (internal quotation marks
omitted)).
26                  MEDINA V. CHAPPELL

    Medina claimed that his competent assistance was
relevant to his Marsden, court shackling, and ineffective
assistance of counsel claims. The district court appropriately
concluded that the first two claims were record based, and
therefore, even under the statutory right to competence
framework, no stay was necessary. See Blair v. Martel,
645 F.3d 1151, 1156 (9th Cir. 2011). With respect to the
ineffective assistance of counsel claims, the district court
correctly concluded that Medina failed to specify which of his
ineffective assistance of counsel claims required his input.
Further, Medina finds himself in the same position as the
petitioner in Blair. He has not put forth a showing that there
was evidence concerning his family background, not already
in the record and which he could assist in uncovering if he
were competent, that would support his claim that counsel
conducted an inadequate investigation at the penalty phase.
Thus, although the district court may have acted within its
discretion had it issued a stay, it did not abuse its discretion
in declining to do so.

            III. THE RIVERSIDE PETITION

  A. Procedural Background and Standard of Review

     In 1987, following the conclusion of Medina’s Orange
County trial, the Riverside County District Attorney charged
Medina with special circumstances murder, robbery, and
burglary arising from the Riverside County homicide. The
trial court impaneled a jury to decide whether Medina was
competent to stand trial. Medina II, 906 P.2d at 17. After
hearing testimony from four experts, the jury found that
Medina was competent. Id. In early 1989, proceedings were
temporarily suspended in light of disruptive conduct by
Medina, and a second competency determination was
                   MEDINA V. CHAPPELL                      27

ordered. Id. After competency experts filed reports, the trial
court terminated the competency proceedings and ordered
Medina to stand trial with waist chains and leg shackles. Id.

    During the guilt phase of the trial, which began on August
14, 1989, Medina attempted to relitigate his competence to
stand trial, but otherwise did not present any evidence. Id.
The jury found Medina guilty. Id. During the penalty phase,
Medina’s counsel presented testimony from Irene McIntosh,
one of Medina’s sisters. Id. at 17, 46. Medina’s counsel
offered no other mitigating evidence. The prosecution
introduced a range of aggravating evidence, including
Medina’s Orange County murder convictions as well as
convictions for numerous other violent offenses. Id. at 17.
The jury recommended and the trial court imposed a sentence
of death. Id. at 16.

    The California Supreme Court affirmed Medina’s
conviction and sentence on direct appeal. Id. The United
States Supreme Court denied his petition for a writ of
certiorari. Medina v. California, 519 U.S. 854 (1996).

   Medina filed a state petition for habeas corpus, which the
California Supreme Court denied “on the merits” in a one-
page summary order. Medina then initiated his federal
proceedings by requesting appointment of counsel and a stay
of execution. He filed his federal habeas petition on
September 1, 1998, after the effective date of AEDPA.

    On April 25, 2000, the district court held an evidentiary
hearing on several of Medina’s claims. On June 17, 2008, the
court issued a sealed order denying all of Medina’s habeas
claims. Roughly seven months later, the court unsealed the
order, and granted a limited certificate of appealability.
28                  MEDINA V. CHAPPELL

    While Medina’s appeal was pending before us, the
Supreme Court held in Cullen v. Pinholster, 131 S. Ct. 1388
(2011), that federal habeas review under 28 U.S.C.
§ 2254(d)(1) is “limited to the record that was before the state
court that adjudicated the claim on the merits.” Id. at 1398.
We remanded Medina’s case so that the district court could
reconsider its denial of habeas relief in light of Pinholster.
On May 3, 2012, the district court reaffirmed its denial of
habeas relief.

   ADEPA governed the district court’s resolution of
Medina’s Riverside County petition. Under AEDPA, federal
courts may not grant a writ of habeas corpus with respect to
any claim that was:

       adjudicated on the merits in State court
       proceedings unless the adjudication of the
       claim—

       (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.

28 U.S.C. § 2254(d). Medina’s state habeas petition, which
the California Supreme Court denied in a one-page summary
order, was “adjudicated on the merits” within the meaning of
                       MEDINA V. CHAPPELL                              29

§ 2254(d). See Harrington v. Richter, 562 U.S. 86, 97–100
(2011).7

    Just as in the Orange County case, all of Medina’s
certified claims in the Riverside County case allege
ineffective assistance of counsel. As discussed at the outset
of Part II, Strickland requires the petitioner to demonstrate
that “counsel’s representation fell below an objective
standard of reasonableness,” 466 U.S. at 688, as well as “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different,” id. at 694. When we view a Strickland claim
through the lens of AEDPA, “the question is not whether
counsel’s actions were reasonable,” but “whether the state
court’s application of the Strickland standard was
unreasonable.” Richter, 562 U.S. at 105, 101. In the absence
of any reasoned state court decision on Medina’s ineffective
assistance claims, we “must determine what arguments or
theories . . . could have supported” the state court’s summary
denial, and then “ask whether it is possible fairminded jurists
could disagree that those arguments or theories are
inconsistent with” Strickland and its progeny. Richter, 562
U.S. at 102.




 7
   Medina argues that applying Richter to his petition violates the Eighth
Amendment because state procedural rules deprive California death row
prisoners of the opportunity to obtain at least one reasoned state decision
on the merits of their habeas claims. According to Medina, these rules
prevent death row prisoners from filing state habeas petitions in Superior
Court, where—if the petition is denied—they are guaranteed at least a
“brief statement of the reasons for the denial.” Cal. R. Ct. 4.551(g).
However, Medina has identified no authority prohibiting death row
prisoners from filing their state habeas petitions in Superior Court.
30                 MEDINA V. CHAPPELL

B. Competency Phase Ineffective Assistance of Counsel
                     Claims

    Medina argues that defense counsel’s failure to
investigate Medina’s psychiatric history during the
competency phase of the Riverside trial, and his resulting
failure to provide this information to the experts who
evaluated Medina’s competency, constituted ineffective
assistance. We disagree.

    Medina bore the burden of establishing his incompetence
to stand trial. See Medina, 505 U.S. at 452–53 (affirming the
constitutionality of California’s presumption of competence).
At Medina’s Riverside County competency trial, Drs. Rath,
Oshrin, and Sharma testified for the prosecution that Medina
was competent to stand trial, and Dr. Kania testified for the
defense that he was incompetent. Medina II, 906 P.2d at 17.
All three prosecution experts testified that they believed
Medina was malingering. Id.

     Dr. Kania has since declared that defense counsel “never
met with me or called me to discuss my opinions and
conclusions before I testified in the 1988 competency jury
trial.” He also declared that if he had been given additional
information about Medina’s medical and social history, his
“opinions and conclusions regarding Mr. Medina’s severe
psychosis would have been greatly strengthened.” Dr. Rath
stated that defense counsel “never made any written or oral
contact with me,” and that “it was my custom and practice to
contact both the district attorney and defense counsel to seek
their input in the preparation of my written evaluation.”
However, neither Dr. Kania nor Dr. Rath asserted that they
actually contacted defense counsel to request information.
                   MEDINA V. CHAPPELL                       31

    That omission is fatal to Medina’s claim. Although
defense counsel have a general obligation to investigate, see
Strickland, 466 U.S. at 690–91, the Supreme Court has never
held that they have an affirmative duty to provide psychiatric
information to experts who will be evaluating their clients for
purposes of determining competency to stand trial.

    Although Dr. Rath declared that it was his “custom and
practice” to request information from defense counsel, he did
not state that he actually made such a request. Therefore, the
California Supreme Court’s determination that Medina’s
counsel did not perform deficiently during the competency
phase because Dr. Rath never made a specific request for
information was not contrary to or an unreasonable
application of clearly established federal law. 28 U.S.C.
§ 2254(d)(1).

C. Failure to Pursue Mitigation Evidence in the Penalty
                        Phase

    Medina contends that his Riverside County trial counsel,
a different attorney than in the Orange County trial, rendered
ineffective assistance by failing to investigate and present
meaningful mitigation evidence at the penalty phase. We
need not decide whether counsel’s performance was deficient,
as we hold that any such error was harmless. We therefore
turn directly to the question of prejudice and conclude that
“fairminded jurists could disagree” as to whether counsel’s
deficient performance—assuming without deciding that
counsel’s performance was deficient—prejudiced Medina.
Richter, 562 U.S. at 102. Accordingly, we affirm the district
court’s denial of habeas relief.
32                    MEDINA V. CHAPPELL

    During the penalty phase, defense counsel presented only
one mitigation witness: Medina’s sister Irene McIntosh.
McIntosh testified that Medina was a “normal, responsible
child,” but that after he was released from prison, he was
“sick in the head” and “not the brother [that she] grew up
with.” On cross-examination, McIntosh admitted that she
was afraid of Medina and that she feared she could have been
his next victim. She explained that two days before Medina
was arrested, he told her he dreamt that he saw her bleeding
from scratches on her back. Although one of Medina’s other
sisters was present in the courtroom and available to testify,
counsel decided not to call her after hearing McIntosh’s
testimony.

    Medina identifies three types of evidence that defense
counsel should have investigated and presented in mitigation:
his family background, including his history of abuse as a
child; his head injuries and possible brain damage; and his
psychiatric history. Habeas counsel obtained the declarations
from family members regarding evidence of physical abuse,
childhood injuries, and mental illness, none of which was
presented at trial.8

    Nor did counsel call any medical experts, even though
several had testified earlier in the penalty phase of Medina’s
Orange County trial. Dr. Sharma, who testified during
Medina’s Riverside County competency hearing, declared
that if he had been privy to the information regarding
Medina’s history of mental illness, he would have been
prepared to testify at the penalty phase regarding Medina’s
“mental impairment and longstanding psychiatric illness.”

 8
   These declarations were before the state habeas court and therefore
may be considered on federal habeas under Pinholster, 131 S. Ct 1388.
                       MEDINA V. CHAPPELL                              33

Dr. Gold, who had been Medina’s treating psychiatrist in
Arizona state prison, also stated that he would have testified
as a mitigation witness.9          Other psychiatrists who
subsequently reviewed Medina’s full psychiatric and social
history also declared that they would have testified as
mitigation witnesses on the basis of that evidence.

    To succeed in his ineffective assistance claim, Medina
must establish that “there is a reasonable probability that,
absent the errors, the sentencer . . . would have concluded that
the balance of aggravating and mitigating circumstances did
not warrant death.” Pinholster, 131 S. Ct. at 1408 (quoting
Strickland, 466 U.S. at 695) (internal quotation marks
omitted). Thus, “we reweigh the evidence in aggravation
against the totality of available mitigating evidence,”
Wiggins, 539 U.S. at 534, and then ask whether it would have
been unreasonable for the California Supreme Court to
conclude based on this evidence that Medina failed to
establish prejudice.

    As discussed in Part II.B., supra, Medina was not
prejudiced within the meaning of Strickland in the Orange
County case by counsel’s failure to investigate and discover
the abuse Medina suffered as a child. Unlike in the Orange
County case, counsel in the Riverside County case also failed
to present evidence of Medina’s psychiatric history, which
suggested that he suffers from paranoid schizophrenia. Yet
as the Supreme Court recently noted, evidence of mental
illness is “by no means clearly mitigating, as the jury might
have concluded that [petitioner] was simply beyond


 9
   Dr. Gold’s declaration explicitly mentions his willingness to testify at
the Orange County trial, but there is no reason to doubt that he would have
been willing to do so at the Riverside County trial as well.
34                  MEDINA V. CHAPPELL

rehabilitation.” Pinholster, 131 S. Ct. at 1410. Indeed,
Medina’s Orange County counsel presented much of the same
psychiatric evidence during the penalty phase of that trial, yet
the jury there voted for the death penalty. Moreover, just as
in the Orange County trial, the prosecution presented
unusually strong aggravating evidence at the penalty phase,
which included multiple murder and rape convictions as well
as numerous assaults that Medina committed while in
custody.

    Reweighing this evidence against all available mitigating
evidence, and deferring as we must under AEDPA, we
conclude that fairminded jurists could disagree as to whether
defense counsel’s alleged failure to investigate and present
additional mitigating evidence prejudiced Medina. See
Richter, 562 U.S. at 102 (reiterating that “even a strong case
for relief does not mean the state court’s contrary conclusion
was unreasonable”). We therefore affirm the district court’s
denial of relief on this claim.

        D. Failure to Present an Insanity Defense

    Medina argues that his Riverside County counsel
rendered constitutionally ineffective assistance by failing to
investigate Medina’s mental state at the time of the crimes
and consequently failing to present an insanity defense. We
have found deficient performance where defense counsel was
“on notice about [his client’s] mental health and drug abuse
problems,” yet failed to investigate a potential mental state
defense. Jennings v. Woodford, 290 F.3d 1006, 1015–16 (9th
Cir. 2002) (citing Seidel v. Merkle, 146 F.3d 750, 755–57 (9th
Cir. 1998)).
                   MEDINA V. CHAPPELL                       35

    At the Riverside County trial, Medina’s counsel did not
present an insanity defense, and he has since declared that he
“never investigated nor pursued in any way an insanity
defense.” He was, however, aware that in Orange County
Medina had a separate trial to determine whether he was not
guilty by reason of insanity when he committed the crimes,
pursuant to California Penal Code § 1026, which provides for
a separate trial on “the question whether the defendant was
sane or insane at the time the offense was committed.” He
was found to be legally sane at the time all the charged crimes
were committed.

    Assuming without deciding that Medina’s counsel
performed deficiently by failing to investigate a potential
insanity defense, it would not have been unreasonable for the
California Supreme Court to conclude that Medina failed to
establish prejudice. Medina’s Orange County counsel
pursued an insanity defense, but it failed, despite Dr. Gold’s
testimony that Medina was probably insane at the time he
committed those murders. While the circumstances of the
Riverside County murder and Medina’s contemporaneous
Orange County crimes might not be per se incompatible with
an insanity defense, his careful planning and attempts to
avoid apprehension would have made an insanity defense
difficult. As a result, “fairminded jurists could disagree” as
to whether Medina met Strickland’s prejudice requirement,
Richter, 562 U.S. at 102, and the district court correctly
denied habeas relief.
36                 MEDINA V. CHAPPELL

                            IV.

   For the foregoing reasons, we affirm the district court’s
denial of Medina’s habeas petitions.

     AFFIRMED.
