                                                       Volume 1 of 2

                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

RICHARD ADAMS HOVEY,                        
              Petitioner-Appellant,
                                                   No. 03-99001
                v.
ROBERT L. AYERS, JR.,* Acting                       D.C. No.
                                                 CV-89-01430-MHP
Warden, California State Prison at
                                                     OPINION
San Quentin,
             Respondent-Appellee.
                                            
         Appeal from the United States District Court
           for the Northern District of California
          Marilyn H. Patel, District Judge, Presiding

            Argued and Submitted February 5, 2004
             Submission Vacated January 4, 2005
                 Reargued October 27, 2005
                 Resubmitted August 4, 2006
                     Pasadena, California

                       Filed August 11, 2006

    Before: Kim McLane Wardlaw, Richard A. Paez, and
             Marsha S. Berzon, Circuit Judges.

                    Opinion by Judge Wardlaw



   *Robert L. Ayers, Jr. is substituted for his predecessor Jeanne Wood-
ford, as Acting Warden of California State Prison at San Quentin. See Fed.
R. App. P. 43(c)(2).

                                  9441
9446                    HOVEY v. AYERS


                          COUNSEL

William Bennett Turner, Rogers Joseph O’Donnell & Phil-
lips, San Francisco, California, for the petitioner-appellant.

Seth K. Schalit, Supervising Deputy Attorney General, San
Francisco, California, for the respondent-appellee.


                          OPINION

WARDLAW, Circuit Judge:

   Richard Hovey appeals the district court’s denial of his
petition for a writ of habeas corpus. He seeks relief from his
1982 conviction and sentence of death for first degree murder
during the course of a kidnapping. He asserts that more than
a dozen errors infected his trial, principally: denial of the due
process right to be present at a mid-trial hearing on his attor-
ney’s competence; ineffective assistance of counsel at the
guilt and penalty phases; Griffin error, see Griffin v. Califor-
nia, 380 U.S. 609 (1965); Brady error, see Brady v. Maryland,
373 U.S. 83 (1963); and exclusion of forward-looking evi-
dence to support a proper penalty-phase jury instruction.
Because Hovey admitted that he had taken the young victim
against her will and committed the acts that resulted in her
death, Hovey cannot demonstrate the requisite prejudice to
succeed on his claims of error in the guilt phase. The district
                           HOVEY v. AYERS                          9447
court, therefore, correctly rejected all of Hovey’s guilt-phase
claims, finding a number of errors but determining that none
is alone or cumulatively sufficient to merit reversal of
Hovey’s conviction. We hold, however, that the district court
erred in concluding that the deficient performance of counsel
in the penalty phase did not prejudice Hovey. Counsel’s fail-
ure to investigate Hovey’s mental condition at the time of the
murder and to adequately prepare Hovey’s penalty-phase
expert witness sufficiently undermines our confidence in the
verdict of death as to require us to reverse the denial of his
petition as to the penalty phase. Therefore, we affirm in part
and reverse in part the district court’s judgment denying
Hovey’s habeas corpus petition.

                          I.   Background1

   On March 10, 1978, eight-year-old Tina Salazar was
abducted while she was walking home from school in Hay-
ward, California. Later that afternoon she was found by the
side of a road, bound at the wrists and thighs. Doctors con-
cluded that she had six depressed skull fractures and fourteen
laceration wounds. Eight days later, Salazar died.

   Three months later, in June 1978, Hovey was arrested in
connection with the kidnapping of another young girl, Amy
Guard, in Albany, California. In December of that year, while
in custody for the Guard kidnapping, Hovey was arrested for
the Salazar kidnapping and murder. Hovey was charged with
kidnapping and with first degree murder with two “special
circumstances”: murder during a lewd and lascivious act on
a child, which was dismissed during trial, and murder during
the course of a kidnapping.

  Under California law applicable at the time of Hovey’s
  1
   The following facts are derived from the last state opinion of record,
People v. Hovey, 44 Cal. 3d 543 (1988), and evidence admitted during the
course of the district court’s evidentiary hearing.
9448                    HOVEY v. AYERS
trial, kidnapping was not a felony that could give rise to a first
degree felony murder conviction; it could only support a find-
ing of second degree murder. See Cal. Penal Code § 189
(1988); People v. Ford, 65 Cal. 2d 41, 57 (1966), overruled
on other grounds by People v. Satchell 6 Cal. 3d 28 (1971);
see also 1 B. E. Witkin & Norman L. Epstein, California
Criminal Law § 470, at 220-21 (2d ed. Supp. 1999) (discuss-
ing 1990 addition of kidnapping to California Penal Code sec-
tion 189). Furthermore, under the provisions of California law
applicable to Hovey’s case, the first degree murder in the
course of a kidnapping special circumstance with which
Hovey was charged required the jury to find a willful, deliber-
ate, and premeditated murder. See Cal. Penal Code
§ 190.2(c)(3) (1977). Thus, a finding of premeditation was
critical to Hovey’s eligibility for the death penalty.

   After his arrest, but before trial on the Salazar kidnapping
and murder, Hovey was convicted of the Guard kidnapping.
In return for the exclusion of the Guard conviction from the
Salazar murder trial, Hovey stipulated that he had taken Sala-
zar against her will and had committed the acts that caused
her death. The stipulation thus conclusively established
Hovey’s identity as Salazar’s killer. As a result, the central
issue at the guilt-phase trial became whether the killing was
sufficiently deliberate and premeditated to support a death-
eligible first-degree murder conviction.

   Two attorneys from the Alameda County Public Defender’s
Office were appointed to represent Hovey. Early in the trial,
the trial judge sua sponte convened an evidentiary hearing to
address the judge’s concerns regarding the competency of
Hovey’s primary attorney. Hovey was neither informed about
the two-day hearing nor invited to participate. At the conclu-
sion of the hearing, the court found counsel competent to rep-
resent Hovey.

  During the guilt phase, eyewitnesses testified that on the
day of the kidnapping they saw a man struggling with and
                       HOVEY v. AYERS                     9449
beating a young child with an object in a light blue car near
the place where Salazar was found. Two city employees testi-
fied that on the day of the kidnapping, while they were driv-
ing a City of Hayward marked car, they saw a light blue car
that had been parked by the side of a road suddenly speed
away. When they approached the place where the car had
been parked, they discovered a grievously injured child lying
on the ground.

   The prosecution argued that Hovey had a knife in his car
when he kidnapped Salazar and used the knife to kill her. No
knife was ever found. Two prosecution medical experts, Drs.
Chow and Loquvam, testified that Salazar’s wounds could
have been caused by a knife. In addition, two jailhouse infor-
mants, Thomas Hughes and Donald Lee, each recounted that
while sharing a cell with Hovey, Hovey had said that he
brought a knife with him when he kidnapped Salazar and
killed her with a knife. Hughes testified at trial, but Lee did
not; instead, his testimony from Hovey’s pretrial hearing was
read to the jury.

  The prosecution’s theory of motive was that Hovey had
abducted Salazar to sexually molest her and killed her to pre-
vent her from identifying him as her assailant. Hughes and
Lee each testified that Hovey told him that he had killed Sala-
zar because he was afraid she would identify him after she
kept trying to remove the blindfold, according to Lee, or the
hood-bag, according to Hughes, that Hovey had placed over
Salazar’s head to keep her from seeing him. No blindfold or
hood-bag was reported by the individuals who found Salazar.

   The defense theory was that Hovey did not intend to kill
Salazar but had struck her in a panic. Hovey did not testify.
The defense attempted to discredit the knife testimony by por-
traying Hughes and Lee as sophisticated individuals who had
fabricated their testimony to secure protection in jail and
lenient treatment for the charges pending against them. The
defense argued that Hovey had not brought a weapon with
9450                    HOVEY v. AYERS
him when he kidnapped Salazar, but instead panicked and
used a blunt instrument that he found in the car, possibly a
shock absorber. A defense medical expert testified that Sala-
zar’s wounds were caused not by a knife, but rather by a blunt
instrument. To support lack of premeditation, the defense
argued that Hovey had pushed Salazar out of the car directly
in front of the two City of Hayward employees to attract their
attention so that she could get medical help, thus showing that
he had not intended to kill her.

   The jury found Hovey guilty of first degree murder with the
special circumstance of murder during a kidnapping, and
guilty of kidnapping with infliction of great bodily injury. The
jury also found that he had used a deadly weapon, a stabbing
instrument, during the commission of the crime.

   In the penalty phase, Hovey’s key witness was Dr. Satten,
a psychiatrist who testified that Hovey suffered from schizo-
phrenia, and that this mental illness caused Hovey to lose con-
trol and kill Salazar. The jury found that the aggravating
circumstances of the crime outweighed the mitigating circum-
stances and returned a death verdict. Hovey’s conviction and
sentence of death were affirmed on direct appeal. People v.
Hovey, 44 Cal. 3d 543 (1988). After the state courts rejected
Hovey’s petitions for habeas relief, Hovey filed a federal
habeas petition in 1991. In seven orders issued between 1996
and 2002, the district court rejected all of Hovey’s claims and
ultimately denied his habeas petition. This appeal timely fol-
lowed.

        II.   Jurisdiction and Standard of Review

   The district court had jurisdiction over this petition for
habeas corpus pursuant to 28 U.S.C. § 2254. We have juris-
diction over final judgments of the district court pursuant to
28 U.S.C. § 2253(a).

  This is a pre-AEDPA case. See Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
                        HOVEY v. AYERS                      9451
110 Stat. 1214. Therefore, we review the district court’s deci-
sion to grant or deny a 28 U.S.C. § 2254 habeas petition de
novo. See Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.
2003). Legal questions and mixed questions of law and fact
are reviewed de novo. See Swan v. Peterson, 6 F.3d 1373,
1379 (9th Cir. 1993). Factual findings made by the district
court are reviewed under the “significantly deferential”
clearly erroneous standard, in which we accept the district
court’s findings of fact absent a “definite and firm conviction
that a mistake has been committed.” Silva v. Woodford, 279
F.3d 825, 835 (9th Cir. 2002) (as amended) (internal quota-
tion marks omitted). “Although less deference to state court
factual findings is required under the pre-AEDPA law which
governs this case, such factual findings are nonetheless enti-
tled to a presumption of correctness unless they are not fairly
supported by the record.” Id. (internal quotation marks omit-
ted); see also 28 U.S.C. § 2254(d)(8) (1996). We grant habeas
relief only if the alleged errors “had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks omitted).

                      III.   Guilt Phase

   Hovey asserts five guilt-phase and two penalty-phase
claims of error. We discuss his claims, and the relevant facts,
in turn.

      A.   Mid-Trial Attorney Competency Hearing

   Hovey claims that his rights to unconflicted counsel, to be
present, and to confront witnesses against him each were vio-
lated at a mid-trial hearing on his attorney’s competence. We
agree with the district court that the hearing was not a critical
stage at which Hovey’s right to unconflicted counsel attached
and that Hovey had no right to confront witnesses at the hear-
ing. We also conclude that even if Hovey had a due process
9452                    HOVEY v. AYERS
right to be present at the hearing, his exclusion from the hear-
ing was harmless error.

                  1.   Factual Background

   During a mid-trial colloquy outside the jury’s presence
about the admissibility of a prosecution witness’s prior testi-
mony, defense counsel stated that he was not prepared to
make objections at that time. Concerned that counsel might be
rendering ineffective assistance, the trial court called counsel
for both sides into chambers to discuss defense counsel’s con-
duct.

   Over the course of two days, the trial court held four in
camera sessions in which the court queried defense counsel,
his co-counsel, and his superiors in the Alameda County Pub-
lic Defender’s Office about counsel’s competence. The prose-
cution was excluded from most of these sessions, Hovey from
all of them. The court initially appeared concerned only that
counsel was not being honest about his lack of preparation
and that he was attempting to build error into the record. The
court soon broadened its inquiry, however, to examine coun-
sel’s overall competence, including whether there was any-
thing in his personal life that might be interfering with his
ability to represent Hovey properly. At counsel’s request, the
court instructed those present not to discuss the in-chambers
proceedings with anyone. The court subsequently clarified
that its ruling permitted defense counsel to discuss the pro-
ceedings with Hovey.

   Throughout the hearing, counsel deflected the court’s
inquiries, asserting attorney-client privilege and refusing to
answer the court’s questions. Counsel objected to the court’s
jurisdiction to hold the hearing and asked for counsel to repre-
sent him, and he made inconsistent statements about whom he
was representing at the hearing. The court twice cited counsel
for contempt, accused him of being “dishonest” during the
hearing, and found his conduct “shocking.” At the conclusion
                        HOVEY v. AYERS                       9453
of the hearing, however, the court found counsel competent to
represent Hovey and absolved him of contempt. Nothing in
the record suggests that Hovey expressed dissatisfaction with
counsel at any point during the remainder of the trial.

                        2.   Discussion

   We reject Hovey’s claim that his Sixth Amendment right to
counsel was violated because he was represented only by con-
flicted counsel, and thus effectively unrepresented, during the
competency hearing. The right to counsel, and the “correlative
right” to unconflicted counsel, Wood v. Georgia, 450 U.S.
261, 271 (1981), attach at all critical stages of a criminal pros-
ecution. See, e.g., United States v. Wade, 388 U.S. 218, 224-
25 (1967). A critical stage is any “stage of a criminal proceed-
ing where substantial rights of a criminal accused may be
affected.” Mempa v. Rhay, 389 U.S. 128, 134 (1967); see also
Bell v. Cone, 535 U.S. 685, 696 (2002) (defining a critical
stage as “a step of a criminal proceeding, such as arraignment,
that [holds] significant consequences for the accused”).

   On the basis of Supreme Court precedent, principally
Mempa and United States v. Ash, 413 U.S. 300, 309, 313
(1973), we have distilled a three-factor test for determining
what constitutes a critical stage. We consider whether: (1)
“failure to pursue strategies or remedies results in a loss of
significant rights,” (2) “skilled counsel would be useful in
helping the accused understand the legal confrontation,” and
(3) “the proceeding tests the merits of the accused’s case.”
Menefield v. Borg, 881 F.2d 696, 698-99 (9th Cir. 1989). The
presence of any one of these factors may be sufficient to ren-
der a stage of the proceedings “critical.” Cf. Ash, 413 U.S. at
313 (noting that the relevant inquiry is “whether the accused
require[s] aid in coping with legal problems or assistance in
meeting his adversary”) (emphasis added)).

   Based on the specific facts of this case, we conclude that
the attorney competency hearing did not involve a confronta-
9454                    HOVEY v. AYERS
tion at which an attorney would be needed to help Hovey
cope with complex legal problems, nor, relatedly, were
Hovey’s interests subjected to a “critical confrontation[ ],”
Wade, 388 U.S. at 227, or to a power “imbalance” in the face
of the state’s prosecuting authority, Ash, 413 U.S. at 309 (fac-
tor 2). Nor did the hearing test the merits of Hovey’s case
(factor 3).

   The first factor presents a closer question. At a hearing on
pre-trial matters held three weeks before the attorney compe-
tency hearing, Hovey asked to have another attorney
appointed, “just somebody to kind of have a second opinion
here, somebody outside of the public defender’s office.” The
record does not illuminate Hovey’s motivation for making
this request, and the trial court denied the request without fur-
ther inquiring into Hovey’s concerns. To the extent Hovey felt
counsel was inadequate, the competency hearing was argu-
ably Hovey’s best opportunity to have new counsel appointed,
and the presence of unconflicted counsel might have achieved
that result.

   [1] But whatever benefits Hovey might have enjoyed from
having unconflicted counsel present at the hearing, the
absence of counsel did not permanently deprive him of any
rights. During the hearing, the court repeatedly expressed a
desire to know Hovey’s feelings about his representation,
asked defense counsel and other members of the Public
Defender’s Office to inquire into Hovey’s opinion, and
explicitly left open the possibility that Hovey could bring his
concerns to the court’s attention in the future. Nothing pre-
vented Hovey from complaining about his attorney to the
court at any point after the hearing and asking for appoint-
ment of new counsel, as he had shown himself capable of
doing in the past. Thus, Hovey was not at risk of permanent
deprivation of any significant rights during the hearing. Under
the guiding Supreme Court cases and Menefield, the compe-
tency hearing, therefore, was not a critical stage. Cf. LaGrand
v. Lewis, 883 F. Supp. 451, 464 (D. Ariz. 1995) (declining to
                         HOVEY v. AYERS                        9455
“define a hearing on a motion to change counsel as a critical
stage”), aff’d sub nom. LaGrand v. Stewart, 133 F.3d 1253
(9th Cir. 1998).

   Hovey relies upon two cases in which we found prejudicial
error in the conduct of defense counsel competency hearings.
Neither case aids him. Unlike in United States v. Wadsworth,
830 F.2d 1500 (9th Cir. 1987), the hearing here was initiated
by the trial judge, did not result in Hovey losing the right to
obtain new counsel, did not compromise the time he had to
prepare for trial, and did not force Hovey to proceed to trial
unrepresented. Cf. id. at 1508-10. United States v. Adelzo-
Gonzalez, 268 F.3d 772 (9th Cir. 2001), did not address
whether hearings prompted by the defendant’s motions for
appointment of new counsel were critical stages, but rather
whether the trial court abused its discretion in denying the
motions. Id. at 777.

   We also reject Hovey’s claim that he is entitled to habeas
relief because his due process right to be present was violated
when he was excluded from the competency hearing. A crimi-
nal defendant has a due process right to be present at every
stage of trial where his absence might frustrate the fairness of
the proceedings. See United States v. Gagnon, 470 U.S. 522,
526 (1985) (per curiam). The defendant bears the burden of
showing “how this hearing was unfair or that his presence at
the hearing would conceivably have changed the result.”
Siripongs v. Calderon, 35 F.3d 1308, 1321-22 (9th Cir. 1994)
(as amended).

   We need not decide whether Hovey’s right to be present
was violated because, as we recently held in Campbell v.
Rice, a violation of the right to be present is trial error, subject
to harmless error review. 408 F.3d 1166, 1172 (9th Cir. 2005)
(en banc), cert. denied, 126 S. Ct. 735 (2005). Even if Hovey
had a right to be present at the competency hearing, his exclu-
sion from the hearing was harmless.
9456                    HOVEY v. AYERS
   [2] The hearing focused on the effectiveness of Hovey’s
counsel. At most, Hovey’s presence at the hearing could have
resulted in the trial judge appointing new counsel (although
Hovey has presented no evidence suggesting he had anything
useful to contribute at the mid-trial competency hearing). As
we explain below, however, Hovey’s counsel was not ineffec-
tive at the guilt phase in any respect reasonably likely to have
affected the outcome of his trial. Accordingly, there is no rea-
sonable probability that obtaining replacement counsel would
have changed the outcome of the guilt-phase proceedings, and
Hovey’s exclusion from the competency hearing was not prej-
udicial. See id. (concluding that because petitioner suffered no
adverse effect from counsel’s conflict of interest, no prejudice
resulted from petitioner’s exclusion from a hearing in which
the trial judge investigated the extent of the conflict of inter-
est); see also United States v. Wheat, 813 F.2d 1399, 1404-05
(9th Cir. 1987) (as amended), aff’d, 486 U.S. 153 (1988).

   As discussed below, we conclude that Hovey’s counsel ren-
dered ineffective assistance in the penalty phase and that it is
reasonably probable that the outcome of the penalty phase
would have been different had counsel been competent.
Because we grant Hovey’s habeas petition as to the penalty
phase, we need not independently consider any penalty-phase
prejudice caused by Hovey’s exclusion from the hearing on
his counsel’s competence.

   Finally, we reject Hovey’s claim that his exclusion from the
hearing violated his Sixth Amendment right to confront wit-
nesses against him. To ensure a fair and accurate trial, the
Confrontation Clause protects a defendant’s ability to effec-
tively cross-examine prosecution witnesses testifying against
him. See, e.g., Maryland v. Craig, 497 U.S. 836, 845-46
(1990); Coy v. Iowa, 487 U.S. 1012, 1019-20 (1988). The
confrontation right attaches when an individual testifies
against a defendant in an adversary proceeding before the trier
of fact, see Craig, 497 U.S. at 845, not merely when an indi-
vidual’s testimony is potentially adverse to a defendant.
                        HOVEY v. AYERS                     9457
   Hovey had no confrontation right because neither his coun-
sel nor any other witness in the hearing testified “against”
Hovey. See, e.g., Miller v. Stagner, 757 F.2d 988, 996 (9th
Cir.) (“Appellants were not denied their Sixth Amendment
right ‘to be confronted with the witnesses against [them]’
because jurors are not witnesses against the defendant.” (alter-
ation in original)), as amended, 768 F.2d 1090 (9th Cir.
1985). Moreover, the hearing addressed counsel’s compe-
tence, which was not an issue before the jury, rather than any
evidence against Hovey.

B.   Ineffective Assistance of Counsel in the Guilt Phase

   We reject Hovey’s claim that he suffered ineffective assis-
tance of counsel in the guilt phase of trial based on: (1) coun-
sel’s overall trial strategy and decision against moving to
strike the lewd and lascivious charge until very late in trial,
and his eventual decision to move to strike the charge; (2)
counsel’s closing argument; (3) counsel’s failure to ade-
quately investigate government informants Hughes and Lee,
resulting either from counsel’s conflict of interest due to the
Public Defender’s Office’s prior representation of the two, or
from counsel’s deficient performance; and (4) counsel’s fail-
ure to conduct an adequate voir dire. Hovey additionally
claims the district court abused its discretion in excluding
expert testimony from the evidentiary hearing on this claim.

   To prove ineffective assistance of counsel, Hovey must
first show that counsel’s performance was deficient, measured
under a standard of “reasonably effective assistance.” Strick-
land v. Washington, 466 U.S. 668, 687 (1984). Second,
Hovey must establish prejudice by showing that “there is a
reasonable probability,” defined as “a probability sufficient to
undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. Although counsel’s performance
was deficient in some respects, Hovey fails to show prejudice.
9458                   HOVEY v. AYERS
1.     Trial Strategy and the Special Circumstance Charge

   [3] Because his decision was motivated by sound trial strat-
egy, counsel was not deficient in choosing not to challenge
the lewd and lascivious conduct special circumstance charge
at the outset of trial. Courts must “indulge a strong presump-
tion that counsel’s conduct falls within the wide range of rea-
sonable 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). Counsel
believed that because of the circumstances of the crime, the
jury almost certainly would return a first degree rather than
second degree murder verdict. Accordingly, counsel aimed
for a first degree conviction on felony murder grounds, rather
than on premeditation grounds. Although kidnapping would
not support a first degree felony murder conviction, the felony
of committing a lewd and lascivious act on a child would. See
Cal. Penal Code § 189 (1988). This strategy was the only way
that the jury could convict Hovey of first degree murder with-
out exposing him to the possibility of a death sentence, and
was not deficient performance. Hovey faced substantial evi-
dence pointing toward premeditation, including the infor-
mants’ testimony about the knife, as well as medical
testimony indicating that Salazar’s wounds could have been
caused by a knife. Counsel’s strategy to avoid the death pen-
alty may have carried some risk, as the district court noted,
but it was a reasonable one in light of the circumstances. See
Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995)
(as amended) (“The choice to pursue a bad strategy makes no
comment on an attorney’s judgment where no better choice
exists.”).

   Moreover, even if we were to find counsel’s performance
deficient, there was no prejudice. Hovey argues that the jurors
were further inclined to return a verdict against him because
they were read the charge of lewd and lascivious conduct at
the beginning of trial; they were told by the prosecutor in his
                        HOVEY v. AYERS                      9459
opening statement that he would prove molestation; and they
heard testimony of the two government informants suggesting
that Hovey had molested Salazar. But even if counsel had
moved to strike the special circumstance at the beginning of
the trial, most of the evidence would have been admitted any-
way. The trial judge herself stated that she would have
allowed the prosecution to introduce evidence showing
attempted molestation as relevant to motive. The only differ-
ence a successful motion to strike the charge, or a distinct
overall trial strategy, for that matter, would have made is that
the jury would not have been read the lewd and lascivious
conduct charge at the outset of trial. This different circum-
stance is insignificant in light of the entirety of the evidence
presented against Hovey throughout the guilt phase. There is
not a reasonable probability that, but for counsel’s decision
against moving to strike the charge, the outcome of the pro-
ceeding would have been different.

   [4] As for counsel’s decision to move to strike the lewd and
lascivious conduct charge at the close of the prosecution’s
case-in-chief, Hovey again fails to establish prejudice. Even
if counsel was deficient in making a decision that “may have
been motivated in part by his own interests” to avoid charges
of incompetence, as the district court found, a question we do
not decide here, counsel’s decision to strike the charge did not
prejudice Hovey because the course of the trial would have
proceeded in the same way had counsel chosen to make the
motion at the outset of trial, or not at all. Therefore, we find
that there is not a reasonable probability that the result of the
proceeding would have been different.

   [5] We further hold that counsel’s overall trial strategy did
not constitute ineffective assistance of counsel. Hovey argues
that counsel’s choice to settle for a goal of felony murder
rather than aiming for a second degree verdict derived from
incompetence. Hovey contends that because counsel failed to
investigate the government informants adequately, whether
owing to a conflict of interest or to deficient performance,
9460                    HOVEY v. AYERS
counsel could not make a reasonable judgment as to whether
the prosecution’s case for premeditation, which rested largely
on the informants’ testimony, was sufficiently strong to jus-
tify a strategy based on the impossibility of a second degree
verdict. The evidence shows, however, that counsel’s tactical
decision was not affected by the strength of the government’s
case. Counsel explained that he chose to settle for a first
degree murder conviction that would avoid death-eligibility
because he believed an attempt to convince the jury of second
degree murder would be “an absurd request.” Counsel based
this assessment on the egregiousness of the crime. He
believed that because the victim was an abducted child who
was brutally attacked, facts admitted by Hovey, the jury
would lean heavily toward first degree murder, regardless of
whatever evidence there might be to support a second degree
conviction. There is no evidence to suggest that counsel for-
mulated this theory of defense in response to the informants’
role in the prosecution’s case. Thus, counsel’s failure to
investigate the informants does not bear on his trial strategy,
and his choice was strategic, not incompetent. See Anderson
v. Calderon, 232 F.3d 1053, 1087-90 (9th Cir. 2000) (holding
that counsel was not deficient in seeking a conviction for first
degree murder, rather than felony murder, in order to avoid
exposing his client to the death penalty, and concluding that
counsel “made a reasonable assessment that the jury would be
very unlikely to let Anderson off of the hook completely”);
overruled on other grounds by Osband v. Woodford, 290 F.3d
1036 (9th Cir. 2002).

                   2.   Closing Argument

   We also reject Hovey’s claim that counsel’s closing argu-
ment constituted ineffective assistance. Hovey contends that
counsel conceded guilt of first degree murder when, referring
to a chart that compared the requirements for first degree pre-
meditated murder with those for second degree murder, he
stated:
                        HOVEY v. AYERS                        9461
      I submit to you that it’s within the realm that there
    could be findings . . . of willful, deliberate and pre-
    meditated . . . yet . . . there may be some reasonable
    doubt.

       I think under the law as it’s presented by [the
    prosecutor] in this case, there are theories that could
    support a second degree murder. In fact, absent will-
    ful, deliberate[ ] premeditation, it is second degree
    murder. I do think also it could be first degree mur-
    der and I recognize it also could be special circum-
    stance. I believe that that is within your province to
    find as you see because you’re the judges to pass on
    the facts and you will.

   [6] Counsel did not concede premeditation with these
words. Although he stated that “there could be findings . . .
of willful, deliberate and premeditated,” he made this point in
the context of weighing the jury’s options. Moreover, the evi-
dence presented at the evidentiary hearing shows that coun-
sel’s statement was a reasonable strategic determination. In
response to questioning about the closing argument, counsel
explained, “I knew that if I tried to sell a second degree that
I would not sell it and I would lose credibility.” When asked
to explain the rationale for his statement to the jury, counsel
responded, “It’s one of credibility.” Rather than a concession
of guilt, counsel engaged in rhetoric to preserve his credibility
in the eyes of the jurors. Because counsel’s statement was
driven by strategy, and Strickland requires deference to
informed strategic choices, see 466 U.S. at 689, we do not
find deficient performance in the closing argument.

   Our conclusion that counsel’s closing argument did not
amount to deficient representation is supported by recent deci-
sions from the Supreme Court stressing the deference owed to
the choices made by defense counsel in crafting summations.
In Yarborough v. Gentry, 540 U.S. 1, 7-10 (2003) (per
curiam), for example, the Court counseled that defense attor-
9462                     HOVEY v. AYERS
neys often must make strategic decisions as to what argu-
ments to include in closing arguments and may choose to
acknowledge the “shortcomings” of their client’s case in order
to build credibility with the jury. In Bell, the Supreme Court
approved of a strategic decision by counsel to waive closing
argument altogether, to prevent the prosecutor from having an
opportunity at a rebuttal closing. 535 U.S. at 701-02. And in
Florida v. Nixon, 543 U.S. 175, 192 (2004), the Court stated
that when facing the distinct possibility of a penalty phase, it
can be reasonable for defense counsel to concede guilt in a
guilt-phase closing argument in an attempt to “impress the
jury with his candor,” for purposes of building on that impres-
sion during the penalty phase.

   Even if we were to find counsel’s performance deficient,
moreover, once again Hovey fails to show how he was preju-
diced. Hovey argues for presumed prejudice, because the
closing argument fits within the limited set of circumstances
that are “so likely to prejudice the accused that the cost of liti-
gating their effect in a particular case is unjustified.” United
States v. Thomas, 417 F.3d 1053, 1056-57 (9th Cir. 2005)
(internal quotation marks omitted), cert. denied, 126 S. Ct.
1095 (2006). However, we will presume prejudice only where
“counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing.” United States v. Cronic, 466
U.S. 648, 659 (1984); see also Nixon, 543 U.S. at 189 (noting
that Cronic is “reserved for situations in which counsel has
entirely failed to function as the client’s advocate”). Where
counsel’s failure to oppose the prosecution occurs only in iso-
lated points during the trial, we will not presume prejudice.
See Bell, 535 U.S. at 697.

   Counsel’s closing statements, even if properly character-
ized as concessions, constituted only a few isolated sentences
within the entire trial. At no point did counsel recommend
that the jury find Hovey guilty of first degree murder. As a
whole, counsel’s closing argument attempted to expose the
deficiencies in the prosecution’s case. Counsel correctly iden-
                        HOVEY v. AYERS                         9463
tified the testimony of Hughes and Lee as the only direct evi-
dence of premeditation and vigorously attacked their
credibility, characterizing their account of events as “unreli-
able” and “suspect.” Counsel also argued that the medical tes-
timony “doesn’t support an intent to kill.” Finally, counsel’s
closing argument reminded the jury of the government’s bur-
den by arguing that reasonable doubt existed. In contrast, in
cases such as United States v. Swanson where prejudice was
presumed, the defense attorney stated several times in closing
that he would not “insult [the jurors’] intelligence” by
attempting to argue that there was a reasonable doubt as to
whether his client had committed the robbery for which he
was being tried. 943 F.2d 1070, 1076-77 (9th Cir. 1991).
There we explained,

    By arguing that no reasonable doubt existed regard-
    ing the only factual issues in dispute, [counsel]
    shouldered part of the Government’s burden of per-
    suasion. We cannot envision a situation more dam-
    aging to an accused than to have his own attorney
    tell the jury that there is no reasonable doubt that his
    client was the person who committed the conduct
    that constituted the crime charged in the indictment.

Id. at 1075. Hovey’s claim mirrors that in Thomas, where
counsel conceded his client’s guilt to protect his own credibil-
ity and avoid conviction on other charges. In holding that
counsel had not “fail[ed] to subject the prosecution’s case to
meaningful adversarial testing,” Thomas, 417 F.3d at 1057-
58, we emphasized that Cronic requires wholesale failure by
counsel to defend the client; isolated statements, especially
those made for strategic reasons, do not qualify. See id.
Accordingly, the Strickland standard, not that of Cronic,
applies.

   Under Strickland, Hovey fails to show prejudice. Hovey
grounds his claim of prejudice on the prosecutor’s reiteration
of his counsel’s statements during his own closing. This mere
9464                   HOVEY v. AYERS
mention of counsel’s comments, however, does not establish
any likelihood that the jury considered them, especially in
light of the court’s instruction to the jury that “statements
made by the attorneys during the trial are not evidence,” and
fails to show any probability that had counsel not made those
comments, the outcome of the trial would have been any dif-
ferent.

 3.    Investigation and Impeachment of the Informants

   Hovey argues that counsel’s failure to adequately investi-
gate and impeach the government informants was ineffective
assistance of counsel. He bases this claim on two alternative
theories. First, he argues that because of the Public Defend-
er’s Office’s prior representation of both Hughes and Lee, and
co-counsel’s prior representation of Hughes, there was an
actual conflict of interest that adversely affected counsel’s
handling of his trial. See Cuyler v. Sullivan, 446 U.S. 335,
348-50 (1980). Second, he contends that even setting aside
the conflict, counsel’s failure to adequately investigate the
informants was deficient and caused prejudice. We disagree.

   The Sixth Amendment right to counsel encompasses a right
to representation “free from conflicts of interest.” Wood, 450
U.S. at 271. To establish ineffective assistance of counsel
based on a conflict of interest, Hovey must show an actual
conflict of interest that adversely affected counsel’s perfor-
mance. Cuyler, 446 U.S. at 348-50. A showing of prejudice
from any such adverse effect is not required. See United
States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).

   An “actual conflict” results when counsel “actively repre-
sented conflicting interests.” Strickland, 466 U.S. at 692
(internal quotation marks omitted). An actual conflict need
not be a direct conflict, and it need not be established sepa-
rately from adverse effect. See Mickens v. Taylor, 535 U.S.
162, 172 n.5 (2002). Instead, an actual conflict “is a conflict
of interest that adversely affects counsel’s performance.” Id.
                        HOVEY v. AYERS                      9465
Successive representation is sufficient to establish a conflict,
see Belmontes v. Brown, 414 F.3d 1094, 1118 (9th Cir. 2005)
(holding that “conflicts of constitutional magnitude can arise
from cases of successive representation”), cert. granted sub
nom. Ornaski v. Belmontes, 126 S. Ct. 1909 (U.S. May 1,
2006) (No. 05-493), as is imputed rather than direct conflict,
see United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir.
2003) (noting the Ninth Circuit’s refusal “to draw a distinc-
tion between direct and imputed conflicts for purposes of the
Sullivan analysis”). Because actual conflict is defined by its
impact, “[g]enerally, it is more difficult to show an actual
conflict resulting from successive rather than simultaneous
representation.” Mannhalt v. Reed, 847 F.2d 576, 580 (9th
Cir. 1988). “In successive representation, conflicts of interest
may arise if the cases are substantially related or if the attor-
ney reveals privileged communications of the former client or
otherwise divides his loyalties.” Id.

   To show an actual conflict resulting in an adverse effect,
Hovey must demonstrate “that some plausible alternative
defense strategy or tactic might have been pursued but was
not and that the alternative defense was inherently in conflict
with or not undertaken due to the attorney’s other loyalties or
interests.” United States v. Wells, 394 F.3d 725, 733 (9th Cir.
2005) (internal quotation marks omitted); see also United
States v. Schwayder, 312 F.3d 1109, 1118 (9th Cir. 2002)
(alternatively describing the standard as requiring “that coun-
sel was influenced in his basic strategic decisions” by the con-
flict (internal quotation marks omitted)). Here, there was no
defense strategy or tactic that counsel abandoned as a result
of the conflict.

   Hovey argues that counsel should have followed up on the
informants’ histories of mental health problems and drug and
alcohol dependency. Counsel stated that he faced an “impedi-
ment” due to the prior representation of the informants by the
Public Defender’s Office and by co-counsel and that there
was a certain amount of investigation that he did not under-
9466                    HOVEY v. AYERS
take because he felt constrained by the conflict. The district
court, however, did not take counsel’s testimony at face value,
but instead made a factual finding that counsel’s failure to
fully investigate the informants was not motivated by any
conflict of interest, but rather by counsel’s own incompetence.
Based on a review of the evidence, that finding was not
clearly erroneous. Counsel’s no-holds-barred impeachment of
the informants, adopting a trial strategy of portraying the
informants as untrustworthy individuals who fabricated testi-
mony for their own benefit, supports the district court’s con-
clusion that counsel’s handling of the informants was not
affected by the indirect conflict.

   Because the district court properly found that any failure to
investigate the evidence supporting an alternative defense the-
ory stemmed from neglect, not from divided loyalties, we
focus our inquiry on the traditional inquiry into deficiency
and prejudice that is applicable to such ineffective assistance
claims. “[C]ounsel has a duty to make reasonable investiga-
tions or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691. We
evaluate the scope of the duty to investigate in light of the
context of the trial. “In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for rea-
sonableness in all the circumstances, applying a heavy mea-
sure of deference to counsel’s judgments.” Id.

   [7] Here, despite counsel’s awareness that Hughes and Lee
were the key to the prosecution’s case, he failed to take any
reasonable steps to follow up on information that was in his
files. Included in counsel’s files on Hughes were several items
that “reasonably competent counsel” would have investigated.
First, counsel had a memorandum written by his investigator
summarizing the report that was completed during Hughes’s
ninety-day diagnostic evaluation at a state facility in Vaca-
ville. Counsel acknowledged that, although he had no inde-
pendent recollection of the document, it had probably been
sent to him while he was representing Hovey, but that he
                       HOVEY v. AYERS                     9467
failed to follow up on it. Second, the investigator submitted
a second memorandum recommending that counsel obtain
records concerning Lee’s incarceration in a mental facility in
Oklahoma and indicating that Lee was “described as being
mildly retarded.” Counsel testified that he did not recall see-
ing the memorandum and admitted that he never obtained the
records. These decisions not to investigate the informants fell
below an objective standard of reasonableness.

   [8] However, Hovey was not prejudiced by this failure. The
district court correctly found that the information that Hovey
thought counsel should have investigated, such as the records
of Lee’s treatment for mental illness, likely would have been
unavailable even if counsel had attempted to obtain it, and the
information regarding the informants’ mental health and his-
tories of drug and alcohol abuse would have conflicted with
counsel’s strategy of portraying them as “crafty snitches.”
Hovey responds that had counsel investigated any of this
information, he might have realized that a more effective
strategy would have been to portray the informants as unreli-
able individuals with histories of psychological problems that
skewed their memory and perception of Hovey’s story. We
disagree. Such an impeachment strategy would have been
futile, given that Hughes and Lee testified to admissions by
Hovey that were identical in most material respects. Any sug-
gestion that the same story being recounted by two different
individuals was the product of mental problems or drug use
would have defied logic. Instead, counsel adopted the only
impeachment strategy that would have been effective—that
Hughes and Lee were liars who concocted their testimony
against Hovey whether jointly or after coaching by the police
to curry favor with the government. Accordingly, there is not
a “reasonable probability” that the outcome of the trial would
have been different but for counsel’s deficiency, as required
by Strickland.

                        4.   Voir Dire

  [9] We reject Hovey’s claim that counsel’s voir dire was so
perfunctory that counsel failed to protect Hovey’s right to an
9468                    HOVEY v. AYERS
impartial jury. Counsel generally limited his voir dire to three
questions that covered whether the juror could “follow the
law,” “be fair to both sides,” and “wait until all the evidence
is in” before forming an opinion on the verdict. Hovey argues
that counsel should have questioned potential jurors on both
the widespread pretrial publicity and Hovey’s decision not to
testify. We disagree. Although counsel’s decision not to ques-
tion prospective jurors more extensively may seem a ques-
tionable decision in hindsight, it was guided by a reasonable
strategy and was not deficient performance.

   The conduct of voir dire “will in most instances involve the
exercise of a judgment which should be left to competent
defense counsel.” Gustave v. United States, 627 F.2d 901, 906
(9th Cir. 1980). We are cognizant of the “wide latitude coun-
sel must have in making tactical decisions,” and are mindful
that “[a] fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s chal-
lenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689. Counsel
testified to his belief that in defending a capital case, “the
least voir dire is the best tactic,” explaining that he preferred
to rely on “nonverbal communication” to make determina-
tions about potential jurors because that avoids exposing
potentially favorable jurors to prosecutorial challenges. When
asked why he did not inquire into potential jurors’ reaction to
the pretrial publicity, counsel stated that because four years
had passed since the publicity, he was hoping the jurors had
forgotten about it, and he did not “want to go back and wake
anybody up.” He also explained that he did not inquire about
jurors’ attitudes toward a defendant’s failure to testify because
he was concerned that Hovey might change his decision. He
also felt that he could address any juror concerns through jury
instructions later in the trial. As in Gustave, counsel’s “deci-
sion whether to request certain voir dire questions was a stra-
tegic decision of the attorney and his failure to do so . . . is
not ineffective representation.” 627 F.2d at 906; see also Wil-
                        HOVEY v. AYERS                     9469
son v. Henry, 185 F.3d 986, 991 (9th Cir. 1999) (holding that
there was no ineffective assistance of counsel where counsel
relied on jurors’ statements that they would be fair and follow
the law without asking about their views on criminal history).

                  5.   Exclusion of Experts

   The district court did not abuse its discretion in excluding
the testimony of four expert witnesses during the evidentiary
hearing on Hovey’s ineffective assistance of counsel claims.
See United States v. Morales, 108 F.3d 1031, 1035 (9th Cir.
1997) (en banc). “A district court abuses its discretion when
it bases its decision on an erroneous view of the law or a
clearly erroneous assessment of the facts.” Id. Reversal is
appropriate “where we have a definite and firm conviction
that the district court committed a clear error of judgment.
However, a trial court has broad discretion in assessing the
relevance and reliability of expert testimony.” United States
v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002) (citation and
internal quotation marks omitted).

   Expert testimony, while not necessary, is sometimes relied
upon in determining claims of ineffective assistance of coun-
sel. See, e.g., Karis v. Calderon, 283 F.3d 1117, 1133 n.9 (9th
Cir. 2002). A court reviewing an ineffective assistance claim
should consider counsel’s performance in the context of then
“ ‘prevailing professional norms,’ which include[ ] 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) (quoting Strickland, 466 U.S. at
688-89).

   Nonetheless, this standard does not “require[ ] that expert
testimony of outside attorneys be used to determine the appro-
priate standard of care.” LaGrand, 133 F.3d at 1271 n.8; see
also Fed. R. Evid. 702 (“If scientific, technical, or other spe-
cialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness quali-
9470                    HOVEY v. AYERS
fied as an expert . . . may testify thereto in the form of an
opinion or otherwise . . . .” (emphasis added)). The Supreme
Court has cautioned against evaluating ineffective assistance
claims based on generalized rules, noting that “[n]o particular
set of detailed rules for counsel’s conduct can satisfactorily
take account of the variety of circumstances faced by defense
counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Strickland, 466 U.S.
at 688-89. The district court’s rationale for excluding the
experts echoed this statement. The court concluded that “it
would be inappropriate for an expert to purport to articulate
a general standard of care at the level of fact-specific detail
that would be required to accommodate all of the unique facts
and circumstances [counsel] encountered while formulating
his strategy in this case.”

   [10] The district court may have underestimated the poten-
tial value of the experts’ testimony. Each proffered expert had
reviewed the state court opinions, the transcripts of the trial,
and the briefs. Thus their professional opinions were based
not on their expertise in general standards of representation,
but instead on thorough and detailed research of Hovey’s par-
ticular situation. But in determining the admissibility of
expert testimony, a district court “must consider the [testimo-
ny’s] probativeness,” United States v. Rahm, 993 F.2d 1405,
1412 (9th Cir. 1993), and in making that determination, a dis-
trict judge’s own ability to assess the issues is critical. For
example, in Bonin v. Calderon, in holding that the district
court did not abuse its discretion in refusing to allow an
expert on juror psychology to testify regarding Bonin’s claim
that he was prejudiced by his attorney’s conduct, we noted,
“The district judge is himself qualified to assess the likely
responses of a jury to certain evidence and is also qualified to
understand the legal analysis required by Strickland.” 59 F.3d
815, 838 (9th Cir. 1995). Here, the district court was qualified
to assess the factual and legal issues involved in Hovey’s
Strickland claim. While the experts’ testimony may have pro-
vided additional perspective, given the “broad discretion”
                         HOVEY v. AYERS                     9471
accorded a trial court in determining the relevance of expert
testimony, Finley, 301 F.3d at 1007, exclusion of their testi-
mony was not an abuse of discretion.

   We also reject Hovey’s contention that the district court
effectively treated Hovey’s defense counsel and co-counsel as
experts and, in so doing, erred by failing to allow Hovey to
rebut their opinions. Both attorneys, however, were called as
percipient witnesses who were questioned only about their
strategic choices throughout the trial. The district court’s rul-
ing precluding expert testimony, therefore, was not error.

                    C.   Griffin Violations

  The district court correctly rejected Hovey’s claim that the
prosecutor violated Griffin v. California, 380 U.S. 609, 615
(1965), when he made two comments in closing argument that
touched on Hovey’s decision not to testify at his trial. We
agree with the district court that the prosecutor’s statements
violate the rule of Griffin, but that they were harmless.

   In the first statement Hovey complains of, which occurred
at the outset of the closing argument, the prosecutor
remarked, “Well, [Hovey] has admitted in effect the kidnap-
ping and he has admitted in effect the killing, but he’s never
said anything to you about why, why he did these things.”
Later, in summarizing the evidence about the instrument that
killed Salazar, the prosecutor stated:

    Now, you weigh the testimony of those witnesses,
    you decide who is credible and who isn’t credible
    and you make a decision as to what was used,
    whether or not he used a knife. He said he used a
    knife. He’s never told you anything different. (Indi-
    cating the defendant) There’s nothing different.

At the end of the prosecutor’s closing, the defense asked the
court to cite the prosecutor for misconduct in referring to the
9472                    HOVEY v. AYERS
defendant’s silence before the jury. The trial judge denied the
motion, commenting that she did not believe that “in the
whole context” the prosecutor was commenting on Hovey’s
silence.

    The Due Process Clause prohibits a prosecutor from com-
menting on a defendant’s decision not to testify. Griffin, 380
U.S. at 615. While a direct comment about the defendant’s
failure to testify always violates Griffin, a prosecutor’s indi-
rect comment violates Griffin only “if it is manifestly
intended to call attention to the defendant’s failure to testify,
or is of such a character that the jury would naturally and nec-
essarily take it to be a comment on the failure to testify.” Lin-
coln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987). Although the
prosecutor’s comments here did not refer directly to Hovey’s
decision not to testify, they were indirect comments imper-
missible under Griffin. By focusing on Hovey’s failure to
explain his actions or to contradict the informants’ testimony,
the prosecutor’s indication that Hovey “never said anything
. . . about why . . . he did these things” and that Hovey “never
told [the jury] anything different” called attention to Hovey’s
decision against taking the stand in his own defense. The
prosecutor’s statement that “[t]here’s nothing different” natu-
rally and necessarily implicates Hovey’s decision not to tes-
tify, as Hovey is the only person who could definitively
answer the question of whether he used a knife. See id. at 810
(“Courts have distinguished between those cases in which the
defendant is the sole witness who could possibly offer evi-
dence on a particular issue, and those cases in which the infor-
mation is available from other defense witnesses as well.”);
see also Williams v. Lane, 826 F.2d 654, 665 (7th Cir. 1987)
(“Prosecutorial references to ‘uncontradicted’ testimony are
more readily deemed indirect references to the defendant’s
failure to testify in cases where it is ‘highly unlikely that at
least a portion of the testimony could have been contradicted
by anyone other than the defendant.’ ” (quoting United States
v. Buege, 578 F.2d 187, 189 (7th Cir. 1978)).
                        HOVEY v. AYERS                       9473
   [11] The Griffin error, however, was harmless. Reversal is
warranted only “ ‘where such comment is extensive, where an
inference of guilt from silence is stressed to the jury as a basis
for the conviction, and where there is evidence that could
have supported acquittal.’ ” Lincoln, 807 F.2d at 809 (quoting
Anderson v. Nelson, 390 U.S. 523, 524 (1968) (per curiam)).
Here, the prosecutor’s inappropriate comments were isolated
statements, and they were minimal in comparison with the
weight of the evidence presented against Hovey. There was
considerable evidence weighing in favor of conviction,
including testimony that Hovey’s weapon could have been a
knife, and suggestions that Hovey had a motive to kill Sala-
zar.

   The absence of a curative instruction does not change our
conclusion. Although the trial court’s failure to offer a cura-
tive instruction may “compound[ ]” the Griffin error, see
Beardslee v. Woodford, 358 F.3d 560, 588 (9th Cir. 2004) (as
amended), whether an instruction is given is not dispositive.
“[W]hen the comments are limited in nature and could not
have affected the verdict, we have declined to reverse even in
the absence of curative instructions.” Id. Moreover, the trial
court instructed the jury that

    [i]n deciding whether or not to testify, the defendant
    may choose to rely on the state of the evidence and
    upon the failure, if any, of the People to prove
    beyond a reasonable doubt every essential element
    of the charge against him, and no lack of testimony
    on the defendant’s part will supply a failure of proof
    by the People so as to support a finding against him
    on any such essential element.

The court also instructed the jury that “statements made by
the attorneys during the trial are not evidence.” We presume
that juries follow their instructions. See Francis v. Franklin,
471 U.S. 307, 324 n.9 (1985). Given the insignificance of the
9474                   HOVEY v. AYERS
comments in the course of the trial as a whole, and the weight
of the evidence against Hovey, the Griffin error was harmless.
HOVEY v. AYERS            9475
                 Volume 2 of 2
9476                    HOVEY v. AYERS
                D.   Brady/Napue Violations

   [12] We also affirm the district court’s denial of Hovey’s
claim that the prosecution failed to disclose critical impeach-
ment evidence on the informants and to correct inaccurate or
misleading portions of their testimony. Specifically, Hovey
argues that the prosecution violated Brady v. Maryland, 373
U.S. 83 (1963), by failing to disclose: (1) information indicat-
ing that Hughes received lenient treatment in exchange for his
testimony against Hovey; (2) an audiotape of a prosecution
interview of Lee in which he refused to provide evidence
against Hovey unless he received leniency in exchange; (3) a
letter written by a deputy district attorney to the California
Department of Corrections requesting Lee’s transfer out of
San Quentin; and (4) a teletype sent to law enforcement by
the prosecution’s chief investigator stating that Tina Salazar
“was not molested.” In addition, Hovey contends that the
prosecution violated Napue v. Illinois, 360 U.S. 264 (1959),
by failing to correct certain false testimony by the informants,
including statements that they had received no promises in
exchange for their cooperation in the State’s case against
Hovey. Because, as a matter of law, these nondisclosures did
not violate Brady or Napue, we affirm the district court.

                       1.   Background

   Hovey’s claim centers on two sets of facts about Hughes
and one about Lee, each of whom testified that Hovey told
him that he had killed Salazar with a knife and that he killed
her to prevent her from identifying him. Hughes became
Hovey’s cellmate in October 1978, while Hughes was await-
ing sentencing for an escape conviction in Alameda County.
The district attorney (D.A.) had recommended a sentence of
one year and a day. Hughes testified that he met Sergeant
Hess, an officer investigating the Salazar murder, a few days
after he became Hovey’s cellmate, but that they did not dis-
cuss Hovey until the second time they spoke. In December
1978, Hughes gave Hess a tape-recorded statement recounting
                       HOVEY v. AYERS                     9477
Hovey’s admissions about the killing of Tina Salazar. Hughes
returned to court for sentencing the following month. After
the public defender declared a conflict of interest, Hughes
elected to represent himself. When deposed in these proceed-
ings, Hughes explained that he chose to represent himself
“mainly because [he] was confident that Mr. Hess . . . was
going to somehow intervene and see that [he] got probation,”
even though Hess had hold Hughes “[t]hat he couldn’t prom-
ise [him] anything, couldn’t make [him] any promises; and,
anyway, he couldn’t do anything until after [his] testimony.”
Hughes was sentenced to three years’ probation and was
released to drug treatment.

   At Hovey’s trial, Hughes testified that he had already made
the probation deal with the Alameda County D.A. before he
ever spoke with Hess about Hovey and before he agreed to
cooperate with Hess against Hovey and gave his tape-
recorded statement. That testimony conflicts with Hughes’s
deposition testimony before the district court that even before
giving the tape-recorded statement, he had asked Hess to
ensure that he would receive only probation, and that when he
was informed of the public defender’s conflict of interest and
consequent withdrawal, he chose to represent himself, confi-
dent that Hess would intervene on his behalf.

   A month after sentencing, Hughes violated the terms of his
probation by leaving his drug treatment program without per-
mission. His probation was revoked, and a bench warrant was
issued for his arrest. He was apprehended in early 1981. In his
deposition for this habeas proceeding, Hughes testified that he
sought help from Meloling, the prosecutor in Hovey’s case,
who responded that “he wouldn’t help [Hughes] until after the
testimony,” if at all. When Hughes appeared in court in March
1981, he was released on his own recognizance, on the D.A.’s
recommendation.

  Hughes initially failed to appear for Hovey’s trial, and a
bench warrant subsequently issued. Hughes testified at
9478                   HOVEY v. AYERS
Hovey’s trial in November 1981. When he returned to court
in February 1982 for a hearing on the probation violation,
according to Hughes, the D.A. called Meloling at Hughes’s
insistence. After they spoke, according to Hughes’s deposi-
tion testimony, the D.A. asked that Hughes’s case be dis-
missed “in the interest of justice.” Probation was terminated
and Hughes was freed on the Alameda County conviction.

   In addition to the Alameda County charges, Hughes had
been arrested and charged with two counts of burglary in San
Francisco. Hughes testified in this habeas proceeding that
while he was being held on those charges, he asked Meloling
to call the San Francisco County D.A. on his behalf, but that
Meloling responded that “he couldn’t do anything or make
any promises until after [he] testified in the Hovey case.”
After Hughes testified, Meloling said that he would make the
call.

   Passaglia, the San Francisco deputy D.A. handling
Hughes’s case, testified that he received a call from Meloling
shortly before Hughes’s scheduled trial date in October 1981
asking for a continuance so that he could testify in Hovey’s
case. Hughes also stated in his deposition for this habeas pro-
ceeding that Meloling was responsible for having Hughes’s
trial postponed until after he testified at Hovey’s trial. Pas-
saglia’s superior, Benson, spoke with Meloling, who told
Benson that after Hughes testified he would send a letter to
the San Francisco D.A. requesting that he consider Hughes’s
testimony when offering a plea agreement to Hughes.

   Rosenbaum, the public defender representing Hughes on
the San Francisco charges in 1981, declared that he spoke
with Alameda County D.A. Traback and Hughes regarding
Hughes’s testimony against Hovey. Traback wanted Hughes
to testify in Hovey’s trial, but Hughes demanded a promise of
leniency in exchange. According to Rosenbaum, Traback said
that he could make no promises, but said “off the record” that
he would do whatever he could for Hughes.
                        HOVEY v. AYERS                     9479
   Hughes testified in a deposition in this habeas proceeding
that he met with Meloling the day before he testified in
Hovey’s trial, and that Meloling instructed him to say that
there were no promises made in exchange for his testimony.
According to Hughes, Meloling explicitly told Hughes that
there were no promises. However, in his deposition Hughes
also stated that Meloling said several times, “Don’t worry.
We’ll take care of it.” Hughes also characterized his discus-
sion with Meloling as an “unspoken agreement” in which it
was “insinu[ated] that something would be done” for him.
Hughes’s testimony at Hovey’s trial, however, was somewhat
different. During his trial testimony, Hughes stated that no
promises had been made to him, but that after testifying
against Hovey, he had “hopes of not going to prison” on the
San Francisco burglary charges.

   The San Francisco D.A.’s initial offer to Hughes was to
plead guilty to one count of second degree burglary and a fire-
arms enhancement for a sentence of three years in state
prison. After Hughes testified against Hovey, Meloling com-
municated with the San Francisco D.A.’s office, which then
revised its offer to Hughes. He received a suspended sentence,
but the term of imprisonment offered as part of the deal was
actually increased from three years to four years and eight
months.

   Meloling testified that he did not discuss any “consider-
ation” for Hughes’s testimony and that he never made “any
promises” to Hughes. Meloling conceded, however, that he
may have told Hughes that “things would be better for him”
if he testified. He denied ever discussing a “deal” with the San
Francisco D.A.’s Office, but he admitted that he “may have”
spoken with someone in the D.A.’s Office about Hughes.

   Donald Lee was sent to California state prison in Santa Rita
in 1978 after he had escaped from a work furlough program
while on parole. On October 10, 1978, he was assaulted in
prison. That night, he spoke about the assault with Hess. The
9480                    HOVEY v. AYERS
following day, other inmates accused him of being an infor-
mant, and he asked to be placed in protective custody. As a
result, he was placed in a cell with Hovey. A few days later,
Lee was brought to see Hess. Lee testified that he and Hess
only discussed the assault during this conversation and did not
talk about Hovey. A few minutes after he was returned to his
cell following the conversation, Lee was brought back out to
talk with Hess. At this time, Hess stated that he did not know
the identity of Lee’s cellmate, but that Lee should not mention
Hess’s name to his cellmate. Lee was then returned to his cell.

   At his October 19 arraignment, Lee pleaded guilty to
escape charges and was sentenced to two years in prison. He
testified that protective custody was part of the plea agree-
ment. Lee had expected to be granted probation, and when
that did not happen, Lee immediately called Hess to discuss
Hovey. Later that day, Hess and Lee met, and their subse-
quent conversation was tape-recorded. During the taped inter-
view, Lee repeatedly asked Hess for consideration in
exchange for his cooperation against Hovey, and Hess repeat-
edly refused. Hess did offer, however, to place Lee in protec-
tive custody if Lee agreed to testify against Hovey.

   After Lee testified at the preliminary hearing in Hovey’s
case, Deputy D.A. Parrilli sent a letter to the Law Enforce-
ment Liaison at San Quentin and requested Lee’s transfer to
another facility. The request was granted, and Lee was trans-
ferred.

   In his testimony at the preliminary hearing in Hovey’s case,
which was subsequently read to the jury at Hovey’s trial, Lee
stated that he knew that if he gave information to the guards
and police, he would benefit. At Santa Rita, Lee was in pro-
tective custody because he had provided information to the
authorities about an assault on him by other prisoners. He
admitted that “snitching on Hovey” put him in a position to
“get a little protection from the badge.” Nonetheless, he testi-
fied that neither Hess nor any other law enforcement officer
                        HOVEY v. AYERS                       9481
had promised him anything in exchange for his testimony
against Hovey.

                        2.   Discussion

   Under Brady, “suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punish-
ment, irrespective of the good faith or bad faith of the prose-
cution.” 373 U.S. at 87. To prevail on a Brady claim, “[t]he
evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either will-
fully or inadvertently; and prejudice must have ensued.”
Banks v. Dretke, 540 U.S. 668, 691 (2004) (internal quotation
marks omitted). Prejudice occurs if the evidence is “material.”
Silva v. Brown, 416 F.3d 980, 985 (9th Cir. 2005). “Evidence
is material if there is a reasonable probability that, had it been
disclosed to the defense, the outcome of the trial would have
been different.” Belmontes, 414 F.3d at 1113. A “reasonable
probability” of a different result exists “when the govern-
ment’s evidentiary suppression ‘undermines confidence in the
outcome of the trial.’ ” Kyles v. Whitley, 514 U.S. 419, 434
(1995) (quoting United States v. Bagley, 473 U.S. 667, 678
(1985)). In evaluating materiality, however, the question is
“not whether the defendant would more likely than not have
received a different verdict with the evidence,” and “is not
just a matter of determining whether, after discounting the
inculpatory evidence in light of the undisclosed evidence, the
remaining evidence is sufficient to support the jury’s conclu-
sions.” Strickler v. Greene, 527 U.S. 263, 289-90 (1999)
(internal quotation marks omitted). Instead, we focus on our
confidence in the verdict. Id. In making this determination, we
consider Brady violations cumulatively. See Kyles, 514 U.S.
at 436-37.

   Napue holds that the knowing use of false evidence by the
state, or the failure to correct false evidence, violates due pro-
9482                     HOVEY v. AYERS
cess. 360 U.S. at 269. To prevail on a Napue claim, the peti-
tioner must show that “(1) the testimony (or evidence) was
actually false, (2) the prosecution knew or should have known
that the testimony was actually false, and (3) . . . the false tes-
timony was material.” Hayes v. Brown, 399 F.3d 972, 984
(9th Cir. 2005) (en banc) (omission in original) (internal quo-
tation marks omitted). For the purpose of Napue claims, mate-
riality is determined by whether “there is ‘any reasonable
likelihood that the false testimony could have affected the
judgment of the jury,’ ” in which case the conviction must be
set aside. Belmontes, 414 F.3d at 1115 (quoting United States
v. Agurs, 427 U.S. 97, 103 (1976)). “Under this materiality
standard, [t]he question is not whether the defendant would
more likely than not have received a different verdict with the
evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confi-
dence.” Hayes, 399 F.3d at 984 (alteration in original) (inter-
nal quotation marks omitted).

   Evidence of a deal or promise of lenient treatment in
exchange for a witness’s testimony against a defendant may
constitute evidence that must be disclosed under Brady and
Napue. See Giglio v. United States, 405 U.S. 150, 154-55
(1972). The deal or promise need not be express; failure to
disclose an agreement or guarantee of leniency “indicated
without making a bald promise” also may violate Brady.
United States v. Butler, 567 F.2d 885, 888 n.4 (9th Cir. 1978)
(as amended). However, in the absence of a promise or deal,
a witness’s subjective belief that he might receive lenient
treatment in exchange for testifying does not render perjurious
his testimony that he received no promises that he would ben-
efit from testifying. See Williams v. Calderon, 52 F.3d 1465,
1475 (9th Cir. 1995).

   This appeal presents three categories of alleged prosecu-
torial misconduct: (i) suppression of evidence that was not
favorable to Hovey, and thus cannot form the basis of a claim
alleging a due process violation; (ii) suppression of evidence
                        HOVEY v. AYERS                     9483
that was favorable to Hovey, and thus must be analyzed for
materiality; and (iii) failure to correct false testimony, which
must also be analyzed for materiality.

  i. Suppression of Evidence That Was Not Favorable to
  Hovey

  Three pieces of evidence that the government failed to pro-
duce, the tape of Lee’s conversation with Hess, the letter from
Parilli, and the teletype stating that Salazar was not molested,
were not in fact favorable to Hovey, as none was impeaching
or exculpatory. Suppression of this evidence therefore could
not have violated due process under Brady.

   The tape recording of the October 19, 1978 conversation
between Lee and Hess does not suggest that there was any
deal between Lee and the State. The conversation demon-
strates only that Hess told Lee repeatedly that the State could
not promise lenient treatment. Therefore, the tape could not
have been used by the defense to impeach Lee’s testimony
from the preliminary hearing. That Lee ultimately chose to
provide information, despite his insistence on the tape that he
would not do so without some guarantee of leniency, is not
sufficient to render the tape exculpatory or impeaching, even
viewing the evidence in the light most favorable to Hovey, as
there is no evidence that suggests that Lee made this decision
because the prosecution eventually gave in to his demands.
Especially because Lee stated at the preliminary hearing in
Hovey’s case that he eventually chose to cooperate with the
State’s case against Hovey to “relieve [his] mind” of the
information Hovey told him, the tape does not overcome the
inference that Lee chose to talk with Hess because he wanted
to, not because he made a deal with the prosecution. Accord-
ingly, the State’s failure to disclose the tape could not have
violated Brady.

   Similarly, the State’s failure to disclose the April 16, 1979
letter from Deputy D.A. Joanne Parrilli to Emmett Hurst of
9484                    HOVEY v. AYERS
the Department of Corrections could not have violated due
process under Brady. In the letter, Parrilli explained that Lee
had testified in a preliminary hearing in a murder case, that
without his testimony the prosecution’s case was “primarily
circumstantial,” and that Lee had been threatened by “known
enemies.” Parrilli closed the letter with a statement that if a
transfer for Lee’s safety was possible, her office would appre-
ciate it. Two weeks later, Lee was transferred out of San
Quentin. Parrilli testified in a deposition in this habeas pro-
ceeding that she did not recall offering any consideration to
Lee. As the district court noted, neither the letter nor the fact
of the transfer were potentially exculpatory or impeaching, as
neither one demonstrates, nor raises an inference, that Lee’s
testimony was preceded by a deal. Making all reasonable
inferences in favor of Hovey, the evidence shows at most that
Lee was offered some protection following his testimony in
the preliminary hearing. That Lee received favorable treat-
ment after he testified does not have any bearing on the credi-
bility of his testimony or on his motives in cooperating in the
State’s case against Hovey. Furthermore, the letter may only
evidence a desire on the part of the State to ensure Lee’s
safety so that he would be available to testify at Hovey’s trial.
Therefore, the evidence is not exculpatory or impeaching.

   The same is true of the teletype issued on April 10, 1978,
before Hovey had been apprehended. The teletype described
where Salazar was found, her condition when found, eyewit-
ness accounts, and possible motives for the kidnapping. The
teletype observed that Salazar “was fully clothed, had no
bruises below the shoulders and was not molested,” and it
speculated that “[i]nterrupted sexual molestation is a possibil-
ity along with the possibility of a psychopath with no apparent
motive.” Hovey’s habeas counsel became aware of the tele-
type only in 1994. Hovey argues that the teletype was excul-
patory in that it supported a finding that there was no physical
evidence of sexual activity. But no testimony that there was
physical evidence of sexual activity was presented at trial, so
an affirmative statement that there was no physical evidence
                       HOVEY v. AYERS                     9485
of sexual activity would not have affected Hovey’s defense.
Although the informants testified that Hovey had “play[ed]
with” Salazar’s body and indicated that he had intended to
molest her, they did not suggest that there had been sexual
activity that would produce physical evidence. Therefore, the
teletype was not inconsistent with any testimony presented at
trial, and could not have served to impeach the informants’
testimony of molestation even if the State had provided the
evidence to the defense. Accordingly, there can be no due
process violation.

  ii. Suppression of Evidence That Was Favorable to
  Hovey

   The prosecution did, however, fail to disclose certain evi-
dence regarding favorable treatment of Hughes that was
potentially impeaching or exculpatory, and we therefore eval-
uate whether suppression of this favorable evidence violated
due process. The district court found that the prosecution’s
failure to disclose that Hughes received lenient treatment—in
the form of release on his own recognizance despite his pro-
bation violation—at the time between his sentencing on the
Alameda County charges and his testimony against Hovey
“did not render any of Hughes’s testimony misleading,
because he was not asked about the course of his probation at
trial.” We disagree with this characterization. We believe that
this evidence could have been useful to Hovey, as the defense
attempted to portray Hughes and Lee as sophisticated liars
motivated by self-interest to fabricate evidence. Although the
jury was aware of Hughes’s hope of receiving leniency in
exchange for testifying against Hovey, the fact that he did
receive lenient treatment during the time between his plea and
his testimony at Hovey’s trial could have given the jury an
additional reason to distrust Hughes’s testimony. As a result
of the State’s nondisclosure of this evidence, the development
of a more comprehensive theory of the informants’ incentives
in testifying was hindered. See Banks, 540 U.S. at 691
(“Corresponding to the second Brady component (evidence
9486                    HOVEY v. AYERS
suppressed by the State), a petitioner shows ‘cause’ when the
reason for his failure to develop facts in state-court proceed-
ings was the State’s suppression of the relevant evidence.”).
Accordingly, we analyze the suppression of this evidence for
a due process violation under Brady.

   In addition, as the district court did find, the evidence here,
taken in the light most favorable to Hovey, reveals “an
implicit agreement to provide some assistance to Hughes” on
the San Francisco charges, which the prosecution did not dis-
close before trial. Hughes testified that he asked Meloling to
call the San Francisco D.A. for him, a request to which Melol-
ing acceded. Passaglia testified that Meloling did indeed call
before Hughes’s trial testimony and that Meloling agreed to
send a letter on Hughes’s behalf after he testified against
Hovey. Meloling denied making an explicit deal with the San
Francisco D.A.’s office, but he admitted that he “may have”
spoken with the office on Hughes’s behalf. Because existence
of this implicit agreement was not disclosed by the State and
was potentially impeaching, we analyze the suppression of
this evidence as a Brady violation.

  iii.   Knowing Use of False Testimony by the State

   Hovey claims that the prosecution violated Napue by fail-
ing to correct Hughes’s testimony that he received “no prom-
ises” in exchange for his cooperation in the State’s case
against Hovey. Evaluating this claim, the district court con-
cluded that “there is no factual dispute as to whether an
explicit agreement for lenient treatment existed; all the wit-
nesses involved testified that no explicit promises were
made.” But even though an explicit agreement for lenient
treatment was not made, there were explicit agreements to
attempt to secure lenient treatment for Hughes. Before
Hughes testified in Hovey’s trial, Meloling told an attorney in
the San Francisco D.A.’s office that after Hughes testified he
would write to the San Francisco D.A. requesting that it con-
sider Hughes’s testimony when negotiating his plea agree-
                        HOVEY v. AYERS                     9487
ment on the San Francisco charges, and he allegedly agreed
to make a phone call on Hughes’s behalf. Hughes’s San Fran-
cisco counsel also testified that the Alameda County D.A. told
him that he would do whatever he could for Hughes in
exchange for his testimony. Furthermore, Meloling himself
conceded that he might have told Hughes that “things could
be better for him” if he testified. Although a specific deal was
not promised to Hughes, the promise of a letter or a phone
call, or a vow to use one’s best efforts to secure a deal, are
sufficient to constitute evidence that was potentially favorable
to Hovey, as these promises belie Hughes’s testimony that
“no promises” had been made to him.

   Hovey further argues that the State should have corrected
Lee’s false testimony during the preliminary hearing that Lee
did not receive any promises in exchange for cooperating
against Hovey, which was read to the jury at Hovey’s trial.
Hovey urges us to find that Lee’s pretrial testimony that Lee
and Hess did not discuss Hovey during their second meeting
was false based on Lee’s deposition testimony that Hess told
Lee that if Lee testified against Hovey, Hess “would help
[Lee] in anything [he] needed,” and that Hess also gave Lee
information about the crime, including the names of the vic-
tim and her mother, “what kind of vehicle [Hovey] was driv-
ing,” and that Hovey had “raped her and killed her with a
knife.” Hovey further argues that the deposition suggests
egregious prosecutorial misconduct in Hess’s supplying Lee
with information about Hovey before planting him in Hovey’s
cell. Standing alone, this portion of Lee’s deposition would
indicate that the prosecutor had a responsibility to correct
Lee’s false testimony at trial and, assuming materiality, his
failure to do so violates Napue. However, Lee also stated in
his deposition that he had never testified against Hovey and
that he did not recall the preliminary hearing in 1978. Lee also
denied ever telling Hess that Hovey had killed, kidnapped, or
stabbed Salazar, and he maintained that he had in fact told
Hess that Hovey had told him he was innocent. In addition,
Lee testified that Hovey told him that he did not kill Salazar.
9488                    HOVEY v. AYERS
Even drawing all reasonable inferences in favor of Hovey, the
inconsistencies in Lee’s deposition render it completely unre-
liable. There is insufficient evidence in the record to support
Hovey’s claim that the State put on false evidence with regard
to Lee’s “no promises” testimony. Accordingly, we do not
assess this issue as a potential due process violation under
Napue.

   [13] Hovey also contends that the State either relied on
false testimony or failed to correct false testimony with
respect to the timing of Hughes’s probation deal with the Ala-
meda County D.A. On summary judgment, we must draw all
reasonable inferences in favor of Hovey. We therefore must
consider the reasonable inference that Hughes’s testimony at
Hovey’s trial that he had already made the deal with the D.A.
when he talked with Hess was false in light of his later depo-
sition testimony that he had asked Hess to ensure that he be
sentenced to only probation. Although there is not necessarily
a conflict between Hughes’s testimony that he had made the
deal with the D.A. before he spoke with Hess and his testi-
mony that he asked Hess to help him, it is reasonable to infer
one. The district court therefore erred in finding that the post-
trial evidence bears out Hughes’s trial testimony that he made
the probation deal before he agreed to cooperate with the
prosecution in Hovey’s case. We must examine whether the
State’s failure to correct false testimony on this issue could
have violated due process.

  iv.   Materiality Analysis

   To summarize, we must address the materiality of the
undisclosed evidence regarding the lenient treatment Hughes
received, Hughes’s misleading testimony that he received “no
promises” from the prosecution in exchange for his coopera-
tion in the State’s case against Hovey, and Hughes’s possibly
false testimony as to the timing of his deal with the Alameda
County D.A.
                        HOVEY v. AYERS                      9489
   As to the nondisclosure of Hughes’s lenient treatment, even
taking all facts in the light most favorable to Hovey, the omis-
sion of this evidence was not material. Hughes’s testimony
was significant because he testified to Hovey’s alleged motive
to kill Salazar. Even if Hughes had been further impeached by
the disclosure that he had not merely a hope of lenient treat-
ment, but actual lenient treatment and promises of more such
favors, the fact would remain that Lee testified to the same
motive for the Salazar killing. We have held that there was no
proof of constitutional error in the prosecution’s handling of
Lee’s testimony. In determining materiality under Brady, we
focus our inquiry on our confidence in the verdict. See Kyles,
514 U.S. at 434. That Lee’s testimony corroborated that given
by Hughes makes it unlikely that the jury would have dis-
counted Hughes’s testimony altogether, absent some
impeachment information of an entirely different kind than
that actually presented. Moreover, even aside from this con-
sideration, Hovey’s defense strategy did portray the infor-
mants as crafty, sophisticated individuals who told the
authorities whatever they wanted to hear, and both informants
testified about their hopes of securing protection and leniency.
Given that the defense impeached the informants’ credibility
to this extent and the jury still convicted Hovey, it is not rea-
sonably probable that the additional evidence of actual
leniency with regard to one of the two informants would have
altered the outcome of the trial.

   Similarly, the prosecution’s failure to correct Hughes’s
false testimony about prosecutorial promises and the timing of
the Alameda County deal does not demonstrate a reasonable
likelihood that the false testimony could have affected the
jury’s guilty verdict. The jurors heard ample evidence about
Hughes’s criminal record and his pending burglary charges.
The defense had put on an already strong case showing that
Hughes was a sophisticated actor who was manipulating the
State for his own gains. His hope of receiving lenient treat-
ment in exchange for his testimony against Hovey was no
secret. Hughes himself told the jury that he “hope[d] [he]
9490                    HOVEY v. AYERS
would not be sent to prison.” Furthermore, in his closing argu-
ment, defense counsel characterized the testimony of Hughes
and Lee as “unreliable” in light of the fact that they were both
“trying to dig information out of [Hovey] for their own good.”
We cannot see how learning that his hope was based on a
promise of a letter or phone call from Meloling or on the Ala-
meda County D.A.’s promise to do what he could to help
Hughes would affect the jury’s assessment of the evidence
before it, nor do we see how learning that Hughes had not yet
made a deal with the D.A. at the time he talked to Hess would
have affected the jury’s assessment of Hughes’s credibility.

   [14] Even considering the prosecution’s conduct with
respect to these three matters cumulatively, the materiality
requirement is not met. Despite the prosecution’s impropriety,
we conclude that disclosure of this evidence would not have
altered the outcome of the trial. Because the prosecution’s
suppression of evidence and failure to correct false testimony
was immaterial, it does not rise to a due process violation
under Brady and Napue.

 E.    Other Prosecutorial Misconduct in the Guilt Phase

   We reject Hovey’s claims that the prosecution’s charge of
lewd and lascivious conduct, as well as the prosecution’s use
of “irrelevant but emotionally compelling” evidence at the
guilt and penalty phases, violated due process. Hovey argues
that this misconduct “so infected the trial with unfairness as
to make the resulting conviction a denial of due process.”
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see
also Darden v. Wainwright, 477 U.S. 168, 181 (1986). Even
if the prosecution’s actions were inappropriate, they do not
rise to the level of a due process violation that merits reversal
of Hovey’s conviction.

       1.   Lewd and Lascivious Special Circumstance

  Hovey contends that the prosecution violated his right to
due process in charging that Hovey killed Tina Salazar during
                        HOVEY v. AYERS                       9491
the commission of a lewd and lascivious act despite its knowl-
edge that it could not prove the corpus delicti of the crime
independent of Hovey’s admissions to the informants. We
disagree.

   Prosecutors have broad discretion in determining whether
to bring charges against a criminal defendant and which
charges to bring. “[S]o long as the prosecutor has probable
cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute,
and what charge to file or bring before a grand jury, generally
rests entirely in his discretion.” Bordenkircher v. Hayes, 434
U.S. 357, 364 (1978). Accordingly, it is improper for a prose-
cutor to bring charges against a criminal defendant in the
absence of probable cause. How much evidence is required to
constitute probable cause sufficient to charge a criminal
defendant, however, is not clear. California cases have
defined probable cause to charge or indict as “some rational
ground for assuming the possibility that the offense charged
has been committed and the accused is guilty of it.” People
v. Aday, 226 Cal. App. 2d 520, 526-27 (Ct. App. 1964).

   In this case, Lee testified at the pretrial hearing that Hovey
had said that he “liked to pick [girls] up and take them out and
play with them,” and that Hovey admitted to “playing” with
Salazar, which Lee explained to mean “feeling her body.” At
the time of charging, Hughes had also given a statement sug-
gesting that Hovey had molested or attempted to molest Sala-
zar. Based on these statements, the prosecution had “some
rational ground for assuming the possibility” that Hovey had
committed a lewd and lascivious act. Under California law,
lewd and lascivious conduct does not require penetration, the
molestation of any particular body part, or the touching of
bare skin. People v. Martinez, 11 Cal. 4th 434, 444-45, 452
(1995) (“[S]ection 288 is violated by ‘any touching’ of an
underage child accomplished with the intent of arousing the
sexual desires of either the perpetrator or the child.”); see also
Cal. Penal Code § 288. Accordingly, the lack of physical evi-
9492                    HOVEY v. AYERS
dence of molestation did not eliminate the possibility of
securing a conviction for committing lewd and lascivious con-
duct. Moreover, the speculation in the teletype that
“[i]nterrupted sexual molestation is a possibility” provided
additional support for the possibility that Hovey was guilty of
committing the lewd and lascivious conduct that was charged.

   Hovey argues that California law at the time required that
“the corpus delicti must be established before extrajudicial
statements and admissions of a defendant are admissible in
evidence,” Hall v. Superior Court, 120 Cal. App. 2d 844, 847
(Dist. Ct. App. 1953) (internal quotation marks omitted), and
that the prosecution could not prove the corpus delicti of the
lewd and lascivious conduct special circumstance independent
of Hovey’s statements to the informants. But at the time of
charging, the law was unclear regarding whether the corpus
delicti rule applied to felony-based special circumstances; it
was only in 1984, after Hovey was convicted, that the Califor-
nia Supreme Court clarified that the corpus delicti of a special
circumstance must be established independently of the defen-
dant’s extrajudicial statements. People v. Mattson, 37 Cal. 3d
85, 93-94 (1984) (applying the corpus delicti rule to felony-
based special circumstances and declaring that any statement
to the contrary in previous cases was overruled), superseded
by statute, Cal. Penal Code § 190.41, as recognized in People
v. Mickle, 54 Cal. 3d 140, 179 n.22 (1991).

   [15] Even had the law been clear at the time, Hovey’s claim
would fail. The improper charging of the lewd and lascivious
conduct special circumstance does not rise to the level of an
error that “so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Donnelly, 416
U.S. at 643. As the Supreme Court held in Donnelly, we must
evaluate the impact of the prosecutor’s potentially prejudicial
misconduct in the context of the entire trial. See id. at 645.
When defense counsel moved to strike the special circum-
stance, the prosecution conceded the issue. Moreover, the trial
judge specifically stated that she would have admitted any
                        HOVEY v. AYERS                      9493
allegations that Hovey molested Salazar as relevant to motive
even absent the special circumstance charge. Therefore,
Hovey was not denied due process by the inclusion of this
charge.

           2.   Emotionally Compelling Evidence

   The district court did not err in rejecting Hovey’s claim that
the prosecution denied him due process by using a portrait of
Tina Salazar and relying on her mother’s identification, or by
using a mannequin resembling Salazar, or by the prosecutor’s
statement that Hovey had kidnapped Salazar to “sexually
molest” or “rape” her.

   Under “the narrow [standard] of due process,” in contrast
to the “broad exercise of supervisory power,” relief is not
appropriate in situations where, for example, the prosecutor’s
conduct “did not manipulate or misstate the evidence” or “im-
plicate other specific rights of the accused such as the right to
counsel or the right to remain silent.” Darden, 477 U.S. at
181-82 (internal quotation marks omitted). Hovey points to
prosecutorial conduct that indeed may have “reflect[ed] an
emotional reaction to the case,” and that may have been “im-
proper,” “undesirable” or “even universally condemned,” but
this conduct did not deprive Hovey of a fair trial. See id. at
180-81 (noting that egregiousness of prosecutor’s actions “is
not enough” to satisfy high standard of due process violation).

   Hovey asks us to overturn his conviction because the prose-
cution’s reliance on the portrait and on Salazar’s mother’s
identification of it indicated that the State was “urg[ing] the
jury to convict appellant of first[ ]degree murder and impose
death because his victim was a young girl.” Although we
agree with his contention that the photograph was irrelevant
to any issue in dispute at trial, Hovey fails to recognize the
very high standard for proving a due process violation in cir-
cumstances such as these. Even if there are no permissible
inferences the jury can draw from the evidence in question,
9494                    HOVEY v. AYERS
due process is violated only if the evidence is “of such quality
as necessarily prevents a fair trial.” Jammal v. Van de Kamp,
926 F.2d 918, 920 (9th Cir. 1991) (internal quotation marks
omitted). We have held that admission of far more inflamma-
tory evidence did not violate due process. See, e.g., United
States v. Boise, 916 F.2d 497, 504 (9th Cir. 1990) (as
amended) (autopsy photographs); Batchelor v. Cupp, 693
F.2d 859, 865 (9th Cir. 1982) (photographs of the victim’s
body). Here, the jury was already well aware that the victim
was a young girl, and ample evidence was presented as to the
circumstances of the crime. Hovey fails to show how remind-
ing the jury of the age of the victim could have prevented a
fair trial.

   Hovey also claims that a new trial is warranted because,
during closing argument, the prosecutor presented to the jury
a mannequin resembling the victim, dressed as the victim was
when she was killed, with her hands and legs tied in rope and
with a bag over her head. In granting summary judgment, the
district court noted that it is not clear what standard the court
should apply in assessing Hovey’s claim that the prosecu-
tion’s use of the mannequin violated due process, as the man-
nequin was neither argument nor evidence. Ultimately, the
district court properly determined that the Darden standard,
“so infected the trial with unfairness as to make the resulting
conviction a denial of due process,” was appropriate. Darden,
477 U.S. at 181.

   [16] As the district court held, even though the mannequin
may have affected the jury emotionally, that impact was not
so unfair as to amount to a due process violation. The prose-
cution had a tactical reason for using the mannequin, as it
illustrated the victim’s size relative to Hovey, a comparison
that was relevant to whether the defense’s panic theory was
reasonable. Even setting aside the prosecutor’s purported
rationale for using the mannequin, Hovey fails to show that
use of the mannequin rendered his trial unfair. There was no
misstatement or manipulation of the evidence, nor was there
                       HOVEY v. AYERS                     9495
any conduct that directly implicated any of Hovey’s constitu-
tional rights. Like the photograph of Tina Salazar, the impact
of the mannequin on the jury cannot be said to be so great or
so prejudicial as to amount to a due process violation.

   On the other hand, the prosecution’s statement during clos-
ing that Hovey had kidnapped Salazar in order to “rape” her
was a clear manipulation of the evidence. The prosecution
made this claim at a point when the lewd and lascivious con-
duct charge had been withdrawn. Moreover, even if there was
circumstantial evidence that Hovey either intended to or did
molest Salazar, there was no indication that he intended to or
attempted to rape her.

   [17] In evaluating a petitioner’s claim regarding comments
by the prosecution, we have evaluated the fairness of a trial
under Darden by considering, inter alia, “(1) whether the
prosecutor’s comments manipulated or misstated the evi-
dence; (2) whether the trial court gave a curative instruction;
and (3) the weight of the evidence against the accused.” Tak
Sun Tan v. Runnels, 413 F.3d 1101, 1115 (9th Cir. 2005),
cert. denied, 126 S. Ct. 1066 (2006). Although the prosecu-
tor’s statement was an improper manipulation of the evidence,
the jury was instructed that statements by counsel were not to
be taken as evidence, and the evidence against Hovey, as we
have discussed, was considerable. Moreover, as the district
court noted, the jury was aware that there was no evidence of
rape. Again, therefore, this misconduct does not give rise to
a due process violation. As to the prosecutor’s statement that
Hovey kidnapped Salazar to molest her, the jury had heard
testimony from the informants that Hovey had admitted to
“playing with” and “feeling” Salazar. Thus, this comment did
not have the potential to mislead the jury and did not misrep-
resent evidence.

                             ***

  Accordingly, we reject Hovey’s claims of error in the guilt
phase. The district court correctly determined that neither any
9496                         HOVEY v. AYERS
individual error nor cumulative error was sufficient to merit
reversal of Hovey’s conviction.

                         IV.     Penalty Phase

             A.    Ineffective Assistance of Counsel

   Hovey argues that he received ineffective assistance of
counsel during the penalty phase because his attorney failed
to adequately investigate and present evidence of Hovey’s
mental condition at and around the time of his crime. Hovey
contends that counsel failed to provide his psychiatric expert,
Dr. Satten, with key information about Hovey’s mental health
history and failed to adequately prepare Dr. Satten to testify.
As a result, the testimony of his key penalty-phase witness
was undermined, and his mitigation case was substantially
prejudiced. The district court concluded that although coun-
sel’s performance was deficient, Hovey was not prejudiced by
the deficiency. For the reasons discussed below, we disagree
with the district court’s prejudice analysis, and we conclude
that Hovey is entitled to habeas relief on this claim.2

                            1.   Background

   During the penalty phase, Hovey presented eighteen wit-
nesses, including twelve friends and three family members,
who described him as a well-meaning and introspective young
man from an unexceptional middle-class family. Hovey
attended the University of California at Davis and the College
of Chabot, and had been living at home and working sporadi-
cally at the time of the Salazar murder. Witnesses described
his behavior in the months leading up to his crimes as increas-
ingly eccentric.
   2
     Hovey also claims that during the evidentiary hearing, the district court
erred in excluding testimony from a second psychiatric expert, Dr. Kor-
mos, regarding prejudice that may have resulted from Dr. Satten’s lack of
preparation in Hovey’s trial. Because we grant relief from the penalty
phase verdict, we need not reach this issue.
                         HOVEY v. AYERS                       9497
   Dr. Satten was Hovey’s main penalty-phase witness. The
bulk of his direct testimony repeated what Hovey had told
him about the Salazar murder during the course of several
interviews. Dr. Satten testified that in his professional opin-
ion, at the time of the Salazar murder Hovey suffered from
schizophrenia. He stated that Hovey first showed signs of
mental illness in college, and that his illness became increas-
ingly severe over time, particularly following the death of an
adolescent girl Hovey had befriended named Paris.

   Dr. Satten described Hovey’s symptoms, including distur-
bances in perception, possible auditory hallucinations, disor-
dered thinking (such as grandiose delusions about his
selective breeding theories and his discovery of a cure for
cancer), and disturbances in volition (such as his inability to
finish things he started, irritability, aggressiveness, and loss of
control). Dr. Satten opined that Hovey’s illness affected his
actions on the day of the Salazar offense. He further testified
that Hovey was prone to drift into fantasies linked to his fear
of adult women and his relative comfort with young children;
that at the time of the crime Hovey was suffering from the
effects of Paris’s death and attempting to cope with pressure
from his mother to become independent; and that Hovey’s
schizophrenia caused him to panic after kidnapping Salazar.
Dr. Satten opined that “in this panic I believe [Hovey] totally
lost control of himself.”

                         2.   Discussion

   A defense attorney in the sentencing phase of a capital trial
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); see also Caro
v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002). Regardless
of whether a defense expert requests specific information rele-
vant to a defendant’s background, it is defense counsel’s
“duty to seek out such evidence and bring it to the attention
9498                    HOVEY v. AYERS
of the experts.” Wallace, 184 F.3d at 1118. To obtain relief,
Hovey must demonstrate both that counsel’s performance was
deficient and that he was prejudiced by that deficiency. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Preju-
dice exists if, “absent the errors, there is a reasonable proba-
bility that the jury ‘would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.’ ” Boyde v. Brown, 404 F.3d 1159, 1180 (9th Cir.)
(quoting Strickland, 466 U.S. at 695), as amended, 421 F.3d
1154 (9th Cir. 2005).

   Hovey’s penalty-phase mitigation evidence fell into four
categories: (1) Hovey’s mental illness; (2) his generosity,
kindness, and capacity for friendship; (3) his intelligence, sci-
entific knowledge, artistic creativity, and industriousness; and
(4) his post-crime conduct in prison. Evidence of Hovey’s
mental disorder, which came almost entirely from the testi-
mony of Dr. Satten, was the heart of Hovey’s mitigation case.
Hovey contends that counsel made almost a dozen significant
omissions in providing documents to and preparing Dr. Satten
to testify. We discuss only the most serious of these errors.

   As the district court acknowledged, counsel’s performance
was deficient: There was no valid tactical reason for failing to
supply Dr. Satten with at least some of this information. We
therefore address whether this deficient performance preju-
diced Hovey.

                a.   Chope Hospital Incident

   One year before Tina Salazar’s murder, Hovey was hospi-
talized following what may have been a schizophrenic epi-
sode. After walking from downtown San Francisco to the San
Francisco International Airport to find his father, who worked
at the airport, Hovey broke into a parked car and was arrested.
Hovey was taken to Chope Hospital in San Mateo, where doc-
tors noted that he was “catatonic,” was “not oriented to
place,” and had a flat affect. Hovey spent more than two days
                        HOVEY v. AYERS                      9499
at Chope, where he was administered Valium and Haldol, a
medication used to treat schizophrenia. Doctors believed
Hovey may have had an acute schizophrenic episode, and a
letter Hovey’s father later sent to defense counsel stated that
Hovey’s attending psychiatrist at Chope had made a tentative
diagnosis of catatonic schizophrenia. Hovey’s discharge sum-
mary states that he was diagnosed as having “1. Toxic
psychosis—drug. 2. Personality disorder—other (border-
line).”

   Defense counsel never provided the Chope records to Dr.
Satten. Had he done so, the records would have strengthened
Dr. Satten’s diagnosis of schizophrenia because the recorded
observations were consistent with and to some extent con-
firmed his diagnosis, as Dr. Satten later testified in these pro-
ceedings. Dr. Satten also would have been able to testify that
Hovey had a history of mental illness, including symptoms of
schizophrenia, that began before the kidnapping incidents,
and that his mental illness was serious enough to require hos-
pitalization and treatment. Most significantly, the records
would have corroborated Dr. Satten’s testimony and bolstered
the credibility of his response to the prosecution, whose pri-
mary strategy in attacking Dr. Satten was to suggest that
Hovey had never suffered from mental illness. As Dr. Satten
testified before the district court, the Chope records would
have provided evidence “that it was not me alone, or me and
[the] psychologist . . . I had chosen, that came up with the
diagnosis, but there was evidence of it from other people who
were not connected with the defense.”

   Instead, the prosecution was able to suggest convincingly
that Dr. Satten had fabricated his diagnosis of Hovey. The
prosecution elicited testimony from Dr. Satten that, as far as
he knew, Hovey had never been treated by a psychiatrist or
other physician for a mental condition or prescribed any med-
ication related to his mental health before his arrest. The pros-
ecutor ably undermined Dr. Satten’s opinion by pressing on
9500                    HOVEY v. AYERS
the absence of the very sort of evidence that Hovey’s counsel
should have provided Dr. Satten:

    Q.   Before that time [of the Chope Hospital inci-
         dent] was [Hovey] ever treated anywhere by
         any doctor anywhere for any mental condition?

    A.   He reported that he was examined on one occa-
         sion following a car accident.

    Q.   By a doctor?

    ....

    A.   By someone who . . . by a counselor.

    Q.   My question, I think, was, Doctor, whether or
         not you found any evidence of his ever having
         been treated by a psychiatrist or a doctor for a
         mental condition?

    A.   I did not find any such evidence.

    Q.   In connection with the incident you say he was
         placed in a hospital [Chope] for a hospitaliza-
         tion as a result of the incident involving a car,
         was any medication prescribed for him to take
         as a result of that incident?

    A.   Not to my knowledge.

    Q.   They do have medication for schizophrenia?

    A.   They do.

    ....

    Q.   And he wasn’t put on any, was he?
                        HOVEY v. AYERS                          9501
    A.   To my knowledge he wasn’t.

  The prosecutor continued to emphasize the lack of medical
support for Dr. Satten’s opinion during closing argument:

    [T]he doctor tells you, he arrives at his diagnosis. I
    remember cross-examination, there is [sic] ways to
    treat this type of an illness. You give the people
    medication. Only nobody prescribed anything for the
    defendant, Richard Hovey. He had never seen a psy-
    chiatrist before this time, except that on [sic] some-
    what ambiguous period that we don’t know much
    about in San Mateo [i.e., Chope]. He’s taking no
    medicine. That doctor prescribed from that incident,
    they gave him no medicine, made no diagnosis. . . .
    And for the last three years, four years, he still hasn’t
    been taking any medication for this exotic mental ill-
    ness that he has certainly contracted or had, accord-
    ing to the doctor, on March 10th of 1978.

The prosecutor’s closing argument, in combination with Dr.
Satten’s ignorance of Hovey’s experience at Chope, strongly
suggested that the defense had concocted the mitigating men-
tal illness evidence.

   The district court concluded that Hovey was not prejudiced
by counsel’s failure to provide the Chope information to Dr.
Satten because (1) Dr. Satten technically did not testify that
Hovey had never been treated for a mental condition, only
that he had never been treated prior to the Chope incident; (2)
the jury might have interpreted the Chope records as demon-
strating that Hovey suffered only from a drug-induced psy-
chosis and that the medication he was administered was
prescribed to treat that psychosis and not schizophrenia; and
(3) the Chope doctors ultimately concluded that Hovey suf-
fered from drug psychosis or borderline personality disorder,
so Dr. Satten would have had to defend the inconsistency of
his diagnosis.
9502                   HOVEY v. AYERS
   These findings are in error. First, as the above excerpt of
Dr. Satten’s cross-examination demonstrates, while the prose-
cutor asked at one point whether Hovey had been treated for
a mental condition before the Chope incident, he later asked
the same question without limitation as to time. The overall
impact of the prosecution’s questions and Dr. Satten’s
responses was to suggest that Hovey had never been treated
for or prescribed medication for mental illness. Had jurors
known that Hovey had been under observation for a psychotic
episode, had displayed symptoms of schizophrenia, had been
prescribed medication to control psychosis, and ultimately
had been diagnosed with a mental disorder, they would have
been faced with a strikingly different and more accurate pic-
ture of Hovey’s mental condition at the time of the Salazar
assault. This evidence, coming as it did from doctors who had
no connection to the defense or incentive to invent a diagnosis
and thus who were invulnerable to charges of fabrication,
could very well have made the difference in a life as opposed
to death verdict.

   Second, while the Chope records contain evidence suggest-
ing that Hovey might have suffered from a drug-induced psy-
chosis, that evidence is inconclusive. Hovey claimed that he
found and smoked a “reefer” that “must have had PCP in it”
on the morning of the Chope incident, but his drug test at
Chope came back negative. During these proceedings, Dr.
Satten explained that Hovey may have made up the PCP story
to explain his psychosis, because it was highly unlikely that
he would have happened upon PCP in the street. In any case,
the Chope records show both that Hovey displayed symptoms
consistent with Dr. Satten’s diagnosis and that doctors
believed that Hovey might have experienced an “acute schizo-
phrenic episode.” Furthermore, the letter from Hovey’s father,
which counsel also failed to give Dr. Satten, indicates that a
doctor at Chope tentatively diagnosed Hovey with catatonic
schizophrenia. “[A]ll potentially mitigating evidence is rele-
vant at the sentencing phase of a death case, so . . . mental
                        HOVEY v. AYERS                      9503
problems may help even if they don’t rise to a specific,
technically-defined level.” Wallace, 184 F.3d at 1117 n.5.

   Finally, during deliberations the jury specifically requested
that Dr. Satten’s testimony be re-read, suggesting that the jury
placed importance on it. The portions of the transcript re-read
to the jury included Dr. Satten’s assessment of how Hovey’s
mental illness affected his actions at the time of the crime, as
well as his cross-examination testimony suggesting that
Hovey had never been prescribed medication for mental ill-
ness.

    b.   Circumstances Surrounding the Amy Guard
                      Kidnapping

   Counsel also failed to provide Dr. Satten with important
information about the circumstances surrounding the Amy
Guard kidnapping. This information would have prevented
the prosecutor from portraying Dr. Satten as ill-prepared and
foolish and thereby impugning his medical conclusions.
Because Dr. Satten was not adequately prepared, the prosecu-
tion was able to demonstrate that Dr. Satten was completely
ignorant of several important facts, including that Hovey was
regularly and successfully attending a training school at the
time of the Salazar murder, that Hovey altered his appearance
after the Salazar murder and before the Guard kidnapping,
and that Hovey released Amy Guard only after being discov-
ered and pursued by two witnesses to his crime:

    Q.   Now, [Hovey] told you that he picked up Amy
         Guard and that he intended to—voluntarily
         release her, didn’t he?

    A.   Yes.

    Q.   Did he tell you that the reason he released her
         was that he and Amy Guard were found by two
         persons that pursued them? Did he tell you that?
9504                   HOVEY v. AYERS
    A.   No.

    ....

    Q.   [O]n the date of this killing [the Salazar mur-
         der], he was enrolled in a training school in the
         area where this killing took place. Are you
         aware of that?

    A.   No.

    Q.   And this particular day happened to be a day
         when this school was not in session, Friday; but
         4 days before that, he was in school every day.
         Are you aware of that?

    A.   No.

    Q.   Are you aware the following week he was in
         school every day? Are you aware of that?

    A.   No.

    Q.   Are you aware of the fact that he completed that
         period of training at that training school suc-
         cessfully and was then placed in the Qume Cor-
         poration?

    A.   No.

    Q.   Are you aware that after the commission of the
         crime of murder, that Richard Hovey, this
         defendant, altered his appearance? Are you
         aware of that?

    A.   No.
                        HOVEY v. AYERS                          9505
    Q.    Pardon me, Doctor. You were not told that Mr.
          Hovey changed his appearance . . . ? [You]
          were not told that?

    A.    No, I was not told that.

  The prosecution further capitalized on Dr. Satten’s igno-
rance of important information during closing argument:

      Do you remember the doctor, Doctor Satten, told
    you that he made his diagnosis based on what the
    defendant told him, based on a short conversation
    with the parents and the brothers and based on read-
    ing, reading, not talking to, reading the reports of the
    witnesses . . . .

         ....

       He didn’t think it was important that just shortly
    after [the Salazar murder], the defendant again goes
    out fully prepared to kidnap a child, having gone
    through an elaborate process of changing his appear-
    ance, getting a new car, disposing of the old car . . . .
    That wasn’t important. That wasn’t important. After
    all, the defendant said he let her go, to the doctor,
    and that’s what the doctor used in his evaluation of
    what the defendant was thinking at the precise
    moment when he’s beating her to death, Tina to
    death.

   [18] We disagree with the district court’s conclusion that
although Dr. Satten’s credibility “undoubtedly” suffered,
counsel’s failure to provide this information was not prejudi-
cial. Because Dr. Satten’s testimony was the heart of Hovey’s
mitigation case, and because the prosecution’s counter-
strategy was to attack the soundness of Dr. Satten’s medical
conclusions and the bases for them, there is a reasonable
probability that Dr. Satten’s ignorance of basic background
9506                        HOVEY v. AYERS
facts related to the Guard kidnapping affected the jury’s sen-
tencing decision.

   The clear implication of the prosecution’s argument was
that Dr. Satten was uninformed about the subject of his diag-
nosis and that his conclusions stemmed from a general misun-
derstanding of the facts. Even if the background information
did not change Dr. Satten’s diagnosis, he at least would have
been able to testify more knowledgeably about the case and
better weather the prosecution’s attempts to discredit him. He
would have been able to anticipate the prosecution’s questions
during cross-examination and explain how Hovey’s activities
around the time of the offense could be consistent with a diag-
nosis of schizophrenia. Instead, Dr. Satten was caught by sur-
prise, in an embarrassed and vulnerable situation. He was
entirely discredited by his lack of critical information, infor-
mation that lay in the hands of Hovey’s counsel. Cf. Bean v.
Calderon, 163 F.3d 1073, 1080-81 (9th Cir. 1998) (finding
prejudice where counsel failed to adequately prepare mental
health experts, whose testimony was, as a result, “less than
persuasive at best . . . and a seeming artifice at worst” (inter-
nal quotation marks omitted)).3

                            c.   Conclusion

   “[A] penalty phase ineffective assistance claim depends on
   3
     Hovey was also prejudiced by his counsel’s failure to provide Dr. Sat-
ten with a probation report prepared by the Albany Police Department
after he pled guilty to the Guard kidnaping and by his counsel’s decision
not to elicit testimony from Dr. Satten about records from Fairmont Hospi-
tal, where Hovey was sent several times during his post-arrest incarcera-
tion. These documents contain observations of Hovey’s behavior by
medical professionals, including descriptions of his delusions and grandi-
ose ideas, that are consistent with Dr. Satten’s observations and diagnosis.
Although the documents report diagnoses of schizoid personality disorder
rather than schizophrenia, they would have helped demonstrate to the jury
that whatever the precise diagnosis, medical professionals repeatedly had
concluded that Mr. Hovey was seriously mentally disturbed.
                        HOVEY v. AYERS                     9507
the magnitude of the discrepancy between what counsel did
investigate and present and what counsel could have investi-
gated and presented.” Stankewitz v. Woodford, 365 F.3d 706,
716 (9th Cir. 2004). Here, counsel failed to adequately pre-
pare Dr. Satten, paving the way for the prosecution’s devas-
tating cross-examination of the most critical mitigation
witness. Counsel also failed to provide Dr. Satten with impor-
tant documents that would have demonstrated that Hovey had
suffered mental health problems serious enough to require
hospitalization and medication, thus further bolstering the
credibility of Dr. Satten’s independent conclusions. The state
trial court’s own response to Dr. Satten’s testimony (provided
in the course of ruling on Hovey’s automatic motion to mod-
ify the verdict at the end of trial) reveals the extent of the
damage to Dr. Satten’s credibility. The trial court stated that
as a result of Dr. Satten’s seemingly inaccurate and inconsis-
tent statements, the court did not “attach any significance to
[Dr. Satten’s] opinion.”

   [19] Given that Dr. Satten’s testimony was the sole vehicle
for presenting robust evidence about Hovey’s mental condi-
tion, and given that the jury appears to have considered the
psychiatric testimony important, as demonstrated by its
request that portions of Dr. Satten’s testimony be re-read, the
destruction of Dr. Satten’s credibility almost certainly harmed
Hovey’s mitigation case. The jury was left with the erroneous
impression that Hovey had never been treated for a mental ill-
ness before committing his crimes, that Hovey may have fab-
ricated a mental illness to obtain mercy at sentencing, and that
Hovey’s psychiatric expert based his conclusions on a sub-
stantially incomplete understanding of the facts. With
Hovey’s main mitigation witness undermined, Hovey’s miti-
gation case was left to rest on the unremarkable testimony of
his family and friends that he had been a well-meaning, intro-
spective, and harmless young man, as well as forward-looking
9508                        HOVEY v. AYERS
mitigation evidence, which the jury may have believed it
could not consider.4

   The aggravating evidence in Hovey’s case was strong, but
it was not so overwhelming as to preclude the possibility of
a life sentence. Heinous crimes do not make mitigating evi-
dence irrelevant. See, e.g., Smith v. Stewart, 189 F.3d 1004,
1013 (9th Cir. 1999); Hendricks v. Calderon, 70 F.3d 1032,
1044 (9th Cir. 1995) (as amended). Hovey had no history of
serious violent crimes before the Salazar murder, and neither
that murder nor the Guard kidnapping suggests a proclivity
for violence against adult, male prisoners or prison personnel,
were he sentenced to life without parole instead of death.
Indeed, despite the horrific nature of Hovey’s crime, it
appears that the jury seriously considered a sentence of life
without parole. Four of the five questions the jury asked the
court during deliberations concerned the history of the death
penalty in California (Question 1), the possibility that Hovey
might be paroled in later years if he were sentenced to life
imprisonment without parole (Questions 2 and 3), and
whether death penalty determinations are reviewed by appel-
late courts (Question 4). Cf. Stankewitz, 365 F.3d at 724-25
(concluding that because a capital jury asked whether “anyone
sentenced to confinement in a state prison for life without
possibility of parole has been put before a parole board,” the
jury “did not regard a death sentence as a foregone conclu-
sion” (internal quotation marks omitted)).

   [20] Dr. Satten’s testimony was the principal component of
Hovey’s mitigation case. Counsel’s egregiously deficient per-
formance in preparing Dr. Satten substantially weakened the
doctor’s testimony and enabled the prosecution to destroy his
  4
    Hovey argues that the trial court’s jury instructions improperly
restricted the jury’s consideration of forward-looking mitigating evidence.
In light of our conclusion that Hovey is entitled to habeas relief for his
counsel’s ineffective assistance in the penalty phase, we do not address
this argument. See infra p.9509.
                         HOVEY v. AYERS                       9509
credibility on cross-examination. Had counsel correctly pre-
pared Dr. Satten, there is a reasonable probability that
Hovey’s jury would have concluded that the balance of aggra-
vating and mitigating circumstances did not warrant death.
We accordingly reverse the district court’s denial of habeas
relief on this claim.

    B.   Unconstitutional Imposition of Death Penalty

   Hovey also contends that the death penalty was unconstitu-
tionally imposed in his case, based on (1) the prosecution’s
use of inflammatory evidence and argument in the penalty
phase, (2) the trial court’s failure to direct the jury to consider
Hovey’s mental illness evidence as mitigating, (3) improper
restrictions on the jury’s consideration of mitigating evidence,
(4) the trial court’s unresponsive answer to jury questions
about the sentence of life without parole, and (5) the absence
of procedural safeguards governing the imposition of the
death penalty. In light of our conclusion that Hovey is entitled
to habeas relief for his counsel’s ineffective assistance in the
penalty phase, we need not reach these additional claims.

                        V.   Conclusion

   For the foregoing reasons, we affirm the district court’s
denial of habeas relief as to Hovey’s conviction and each of
its underlying rulings. We reverse the district court’s denial of
habeas relief as to Hovey’s death sentence. Because Hovey
received ineffective assistance of counsel at the penalty phase,
we remand to the district court with instructions to grant the
petition for a writ of habeas corpus as to Hovey’s death sen-
tence unless the State grants Hovey a new penalty-phase trial
within 120 days of the district court’s order.

   The judgment of the district court denying the petition as
to Hovey’s conviction is AFFIRMED. The judgment of the
district court denying the petition as to Hovey’s death sen-
tence is REVERSED. The case is REMANDED to the dis-
9510                    HOVEY v. AYERS
trict court for entry of an appropriate order for a penalty-phase
retrial, if the State elects to seek such a retrial.
