                                                       Volume 1 of 2

                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

SCOTT LYNN PINHOLSTER,                      
                Petitioner-Appellee,
                 v.                                No. 03-99003
ROBERT L. AYERS,* Warden, of the                    D.C. No.
California State Prison at San                   CV-95-06240-GLT
Quentin,
             Respondent-Appellant.
                                            

SCOTT LYNN PINHOLSTER,                      
               Petitioner-Appellant,
                                                   No. 03-99008
                 v.
ROBERT L. AYERS, Warden, of the                     D.C. No.
                                                 CV-95-06240-GLT
California State Prison at San
                                                    OPINION
Quentin,
              Respondent-Appellee.
                                            
         Appeal from the United States District Court
            for the Central District of California
          Gary L. Taylor, District Judge, Presiding

                     Argued and Submitted
              April 11, 2007—Seattle, Washington

                         Filed May 2, 2008

  *Pursuant to Fed. R. App. P. 43(c)(2), Robert L. Ayers, the current cus-
todian, is substituted for Jeanne S. Woodford as Warden of the California
State Prison at San Quentin.

                                  4729
4730               PINHOLSTER v. AYERS
Before: Alex Kozinski, Chief Judge, Raymond C. Fisher and
            Richard C. Tallman, Circuit Judges.

              Opinion by Judge Tallman;
          Concurrence by Chief Judge Kozinski;
                Dissent by Judge Fisher
                   PINHOLSTER v. AYERS              4733


                      COUNSEL

Kristofer Jorstad, Deputy Attorney General, Los Angeles,
California, for the respondent-appellant, cross-appellee.

Sean K. Kennedy, Federal Public Defender, Los Angeles,
California, for the petitioner-cross appellant/appellee.
4734                 PINHOLSTER v. AYERS
                         OPINION

TALLMAN, Circuit Judge:

   Scott Lynn Pinholster faces a death sentence in California
for murdering Thomas Johnson and Robert Beckett on Janu-
ary 9, 1982, robbing Johnson and Beckett with intentional
infliction of great bodily injury and with personal use of a
knife, robbing Todd Croutch with a firearm, and burglarizing
Michael Kumar’s residence. The jury found two special cir-
cumstances: Pinholster, in the same proceeding, was con-
victed of more than one murder, Cal. Penal Code
§ 190.2(a)(3) (1984), and he committed the murders during a
robbery and a burglary, id. § 190.2(a)(17)(i), (vii). The jury
fixed Pinholster’s penalty at death, and on June 4, 1984, the
Los Angeles County Superior Court so sentenced him.

   On automatic appeal, the California Supreme Court, in an
opinion written by Justice Stanley Mosk, set aside one
multiple-murder special-circumstance finding but otherwise
affirmed the judgment. See People v. Pinholster, 824 P.2d
571 (Cal. 1992). Pinholster sought a writ of habeas corpus. He
challenged his convictions and death sentence. The California
Supreme Court summarily denied Pinholster’s state petition
for habeas corpus. Pinholster filed a federal habeas corpus
petition but the district court dismissed it when the parties
stipulated that the petition contained unexhausted claims. Pin-
holster returned to state court to exhaust those claims. On
October 1, 1997, the California Supreme Court denied Pinhol-
ster’s second habeas petition.

   Pinholster then filed an amended federal habeas petition
and requested an evidentiary hearing on several claims. The
district court granted the State’s motion for summary judg-
ment on Pinholster’s claims challenging the constitutionality
of his convictions. Pinholster appeals the district court’s
denial of his request for an evidentiary hearing on his guilt
phase ineffective assistance of counsel claims. However, the
                           PINHOLSTER v. AYERS                           4735
district court concluded that his counsel inadequately investi-
gated and deficiently presented mitigating evidence at the
penalty phase and granted Pinholster’s habeas petition with
respect to the death penalty. The State cross-appeals the dis-
trict court’s judgment setting aside Pinholster’s death sen-
tence.

   We affirm the district court’s denial of an evidentiary hear-
ing on Pinholster’s claims of ineffective assistance during the
guilt phase. We reverse the district court’s grant of habeas
relief on Pinholster’s death sentence.

                                      I

                                      A

   On January 9, 1982, Pinholster fatally stabbed the victims,
Johnson and Beckett, during Pinholster’s burglary of Kumar’s
residence.1 Pinholster, 824 P.2d at 582. Kumar was a known
drug dealer and acquaintance of Pinholster. Charles Kempf,
another acquaintance of Pinholster, testified that in mid-
December 1981, Pinholster suggested to Kempf and three oth-
ers that they rob Kumar of his drug stash.2 Id. According to
Kempf, Pinholster considered Kumar “an easy mark.” Id. The
five went to Kumar’s home, but soon aborted the plan. Kumar
was not home during the December visit, and they preferred
to gain access through Kumar rather than break in. Id. Kempf
testified that Pinholster carried a buck knife, and Pinholster
claimed he would get Kumar’s drugs “one way or the other.”
In addition, Kempf testified that Pinholster bragged about
  1
     We extract many of the facts and procedural history from the Califor-
nia Supreme Court opinion affirming Pinholster’s convictions and death
sentence on direct appeal, Pinholster, 824 P.2d 571, which are confirmed
by our own independent review of the record.
   2
     Kempf had a previous conviction for receiving stolen property and was
under arrest when he first talked with the police. He told the jury that the
authorities did not promise leniency or other benefits in return for his testi-
mony. Pinholster, 824 P.2d at 582.
4736                  PINHOLSTER v. AYERS
having stabbed someone in the rectum during a previous rob-
bery. Id.

   Art Corona—an accomplice in the crimes—served as the
State’s primary witness. He testified that on January 8, 1982,
he attended a social gathering at Pinholster’s apartment com-
plex. Id. Corona agreed to help Pinholster and co-defendant
Brown rob Kumar. Id. En route, Corona drove the two in his
car and stopped at Lisa Tapar’s residence. Id. Pinholster
wanted Tapar to help them gain access to Kumar’s residence.
Id. After Tapar refused to allow Pinholster into her apartment,
he used his buck knife to vandalize the door of her apartment
and the hood of her car. Id. Tapar, her father, and another wit-
ness corroborated Corona’s version of this incident. The
group then left Tapar’s apartment to burglarize Kumar’s resi-
dence.

   Corona testified about the events that took place during the
burglary. Pinholster gained entry by breaking a window in the
rear of the home and Brown entered through an open sliding-
glass door. Id. at 582-83. The three ransacked the house. Id.
at 583. Pinholster found marijuana in a bedroom and spilled
a green substance in the kitchen. Id. At this time, victims
Johnson and Beckett (Kumar’s housesitters) arrived, opened
the front door, discovered the crime, and shouted they would
call the police. The three burglars attempted to leave through
the rear sliding-glass door, but Johnson and Beckett came
around to the back. As Johnson tried to enter, Pinholster
stabbed Johnson in the chest three to four times with the
knife. The California Supreme Court summarized Corona’s
description of the robbery, stabbing, and murders as follows:

    [Pinholster] backed [Johnson] out of the house and
    onto the patio, demanding drugs and money and
    repeatedly striking him. Johnson dropped his wallet
    on the ground and obeyed [Pinholster’s] order to sit.
    Then Beckett approached, and [Pinholster] attacked
    him. Corona saw that [Pinholster] was stabbing
                      PINHOLSTER v. AYERS                     4737
      Beckett, striking him in the chest as Corona had seen
      [Pinholster] strike Johnson. [Pinholster] repeatedly
      stabbed Beckett, again demanding money and drugs.
      [Pinholster] picked up Johnson’s wallet and took a
      wallet from Beckett’s pocket. [Pinholster] repeatedly
      kicked Beckett in the head. Corona then saw code-
      fendant Brown stabbing Johnson in the chest. The
      three men withdrew, and Corona drove them back to
      [Pinholster’s] apartment. Brown and [Pinholster]
      commented that they had “gotten them good,” and
      Brown said he had “buried his knife to the hilt” in
      Johnson.

Id.

  After the murders, the three returned to Pinholster’s apart-
ment and split the proceeds. Pinholster washed his knife and
a woman named Debbie washed Brown’s knife. Id. The next
day, Pinholster telephoned Corona and told him to “lie low.”
Two weeks later, Corona turned himself in and gave a state-
ment to the police. Corona testified at trial consistent with his
earlier statement except that at trial he also mentioned seeing
Brown stab Johnson and that he, Brown, and Pinholster
divided the proceeds. Id.

   Casey Corona, Art Corona’s wife, was at Pinholster’s
apartment when Pinholster, Brown, and Art Corona returned
from Kumar’s house. At trial, Casey corroborated Corona’s
testimony about the planning, execution, and cover up of the
robbery/murders. She testified that she saw Pinholster wash
blood off his knife and she heard him say: “It had to be done
the way it was done. We had to do what we had to do.” Id.
Police had recently arrested Casey on a drug charge, and she
testified that the prosecution assisted her entry into a diver-
sion program.

  Art Corona also testified that Pinholster had threatened him
on numerous occasions. Specifically, prior to the preliminary
4738                  PINHOLSTER v. AYERS
hearing, Pinholster threatened to “blow up” Corona on his
way to court if Corona testified against him. Pinholster
impeached Corona with Corona’s prior burglary conviction
and Corona’s admission that he was a professional burglar. Id.

   The State introduced physical evidence to corroborate Pin-
holster’s presence in Kumar’s residence after it had been ran-
sacked. Corona testified that Pinholster wore jeans and boots
on the night of the murders. Police found boots with micro-
scopic blood stains and a towel with a blood stain in Pinhol-
ster’s apartment. Police also found a pair of jeans with a blood
stain; however, investigators could not confirm whether the
blood was human. In addition, when police arrested Brown,
he had a buck knife with dimensions that corresponded to one
of Johnson’s stab wounds. Id. at 583-84. Investigators also
discovered traces of human blood near the hilt of Brown’s
knife. The police found human blood on the inside forearm of
the sleeve of Corona’s shirt, but they found no blood on his
knife. Id. at 584.

   Pinholster presented an alibi when he testified in his own
defense at trial. He characterized himself as a “professional
robber” who used guns while preying on drug dealers, not a
murderer who used knives. He boasted of being a “very good
robber,” claiming that he had committed “hundreds” of rob-
beries and that he had only been caught by the authorities one
time. To support his defense, Pinholster admitted to robbing
Thomas Croutch at gunpoint on another occasion, and having
planned to rob Kumar, but denied having recruited Kempf and
the three other individuals to do so. Pinholster also admitted
to breaking into Kumar’s house on the night of the murders.

   By way of his alibi, Pinholster claimed he had thrown a
party in memory of his best friend, “Shotgun,” on the night
of the murders. Id. He testified that around 8 p.m. he left the
party and went to Kumar’s house, broke a window, and
gained access through the kitchen. He took a bag of mari-
juana, touched a bluish substance in a bedroom, and spilled a
                          PINHOLSTER v. AYERS                           4739
bag with green material in the kitchen. He denied ransacking
the house or killing anyone.3 Id. Pinholster said he had
returned to his house around 9 p.m., and smoked a consider-
able amount of marijuana and consumed a lot of alcohol.
Around 11:30 p.m., Corona asked Pinholster for an ounce of
marijuana to sell. Pinholster said he gave Kumar’s address to
Corona in exchange for a third of whatever drugs Corona took
from Kumar’s house. Corona could not find Kumar’s resi-
dence and returned around 1 a.m. Pinholster gave him the
directions again, and around 1:30 a.m. Pinholster went to
Tapar’s house to tell her that “Shotgun” had died.4 Id. at 585.
He admitted to stabbing her door and carving a swastika and
lightning bolt on her car after she refused to admit him. Pin-
holster claimed that he returned to his apartment around 2
a.m., and Corona returned around 4 a.m. Pinholster’s brother
and several friends corroborated his version of the events. The
superior court jury by its verdict obviously rejected Pinhol-
ster’s alibi defense.

                                     B

   The State sought the death penalty. On March 22, 1983, the
prosecution mailed a California Penal Code section 190.3 let-
ter to Pinholster at the Los Angeles County Jail, notifying him
that the State intended to offer aggravating evidence at the
penalty proceedings. Pinholster and his counsel5 contended
  3
     During rebuttal, the state called Eric Klemetti who testified that he had
purchased marijuana from Johnson at the Kumar residence at 9 p.m. He
claimed that the house was not ransacked and everything was in order.
Pinholster, 824 P.2d at 585.
   4
     On rebuttal, Tapar contradicted Pinholster when she testified that Pin-
holster arrived at her house in Corona’s car, not his own as he had said.
She also claimed not to have known “Shotgun,” giving Pinholster no rea-
son to discuss his death with her.
   5
     Between April 20, 1982, and January 19, 1983, court-appointed coun-
sel Marvin Part represented Pinholster. Attorney James Armstrong was
appointed in his place in January 1983. Pinholster requested to proceed
4740                     PINHOLSTER v. AYERS
they were not informed of the letter until the guilt phase con-
cluded on April 24, 1984. Pinholster moved to exclude aggra-
vating evidence based on the prosecution’s failure to comply
with California Penal Code section 190.3. The court denied
the motion.6 Rather than move to continue the penalty phase
—a request the state trial court indicated it would grant—
Pinholster’s counsel (Brainard and Dettmar) elected to pro-
ceed. The penalty phase began on May 1, 1984. The court
instructed the jury on May 2, 1984, and the jury returned a
verdict of death on each of the two murder counts on May 7,
1984.

   The prosecution called eight penalty phase witnesses. First,
Jack Taube, Pinholster’s juvenile probation officer, testified
that Pinholster had previously struck a bailiff without cause
after a court proceeding. Several bailiffs had to physically
restrain Pinholster, and, as Pinholster left the proceeding, he
continued to orally threaten the wounded bailiff. Taube also
testified about Pinholster’s involvement in juvenile gangs.
Second, Los Angeles Police Department (“LAPD”) patrol
officer David Kaufman testified that shortly after he and his
partner responded to a fight involving Pinholster, Pinholster
appeared to fake an epileptic seizure. Officer Kaufman also
testified that once handcuffed, Pinholster became belligerent
and threatened to kick the officers. After the officers trans-
ferred Pinholster to a facility for possible medical treatment,

without counsel, and from March 17, 1983, to July 13, 1983, Pinholster
represented himself. On July 12, 1983, the Los Angeles County Superior
Court appointed Harry W. Brainard after Pinholster changed his mind. On
December 20, 1983, the superior court also appointed Wilbur G. Dettmar
as second counsel under California Penal Code section 1095. Brainard and
Dettmar represented Pinholster during the guilt and penalty phases of his
trial.
   6
     On state habeas review, the Los Angeles County Superior Court held
an evidentiary hearing and determined that Pinholster, while representing
himself pre-trial, received actual notice of the State’s intent to seek the
death penalty. Pinholster does not challenge that finding here.
                     PINHOLSTER v. AYERS                  4741
and upon removing Pinholster’s leg restraints, Pinholster
kicked Officer Kaufman in the head.

   Third, Ernest Guzman, another LAPD officer, testified that
after refusing to enter his police vehicle on a different occa-
sion, Pinholster seemingly faked an epileptic seizure. After
the officers placed Pinholster in the police car he became vio-
lent, kicking at Officer Guzman’s head. After Pinholster told
the officers that he had a knee injury, they transported him to
Valley Receiving Hospital for an evaluation. During that time,
Pinholster spat in Guzman’s partner’s face, and refused to
allow doctors to examine his knee. Pinholster kicked and
broke one of the glass panes in the x-ray machine. Fourth,
Deputy Sheriff Michael Loper testified to having “numerous
run-ins” with Pinholster in a Los Angeles County Jail. Pinhol-
ster struck Loper as he assisted another deputy in gaining con-
trol over Pinholster, who had refused to comply with jail
rules.

   Fifth, Operations Sergeant Thomas Piggott testified about
Pinholster’s violent reputation and disciplinary record at the
Los Angeles County Central Jail. He described eleven docu-
mented incidents of Pinholster’s violence or recalcitrance and
stated that Pinholster had a reputation of throwing cups of
urine at the deputies as they walked by his cell. Piggott also
testified that he tried to counsel Pinholster, but Pinholster
insisted that he wanted to go to prison. Piggott recalled Pin-
holster saying, “They better send me now, because if they
don’t I’ll just go out on the streets and do something to get
back in, go to prison.”

  Sixth, Theodore Mesquita testified about fighting with Pin-
holster over a woman Mesquita dated, which resulted in Pin-
holster cutting Mesquita’s arm with a straight razor, requiring
approximately fifty stitches. Pinholster’s wife, Cathy Ann
Smith, testified that Pinholster once broke her jaw while
seeming to have an epileptic seizure. Finally, Sheriff’s Ser-
4742                  PINHOLSTER v. AYERS
geant Joseph Barrett testified that Pinholster told Barrett he
would kill Art Corona when released from prison.

   In addition, to minimize the inconvenience of gathering
witnesses from San Luis Obispo, Pinholster’s counsel stipu-
lated that (1) Pinholster’s prior kidnaping conviction involved
a knife, but that no plea bargain governed the knife use allega-
tion (Pinholster admitted to carrying the knife and placing it
at the victim’s throat), and (2) Pinholster committed numer-
ous prison disciplinary infractions, including throwing urine
at and threatening various corrections officers. Counsel stipu-
lated that Pinholster threatened to stab a corrections officer
and to throw another corrections officer off of the prison tier.
Pinholster’s disciplinary infractions resulted in the Director of
Corrections ordering Pinholster to be placed on a special
disciplinary diet for a nine-day period in 1979, a procedure
reserved for only the most disruptive inmates.

   Pinholster’s counsel, Dettmar, waived making an opening
statement in the penalty phase of his trial and immediately
called Pinholster’s mother, Burnice Brashear. She testified
about Pinholster’s strained relationship with his step-father,
Bud Brashear; Pinholster’s head injury at age two and one-
half years when she ran over him with her car; his head injury
shortly thereafter when his head cracked the windshield dur-
ing a car accident; his disruptive behavior at school; a psy-
chologist’s recommendation that Pinholster be committed to
a mental hospital when he was ten; his time in a class for the
emotionally handicapped; his view of himself as a neighbor-
hood Robin Hood because he stole things to distribute to the
neighborhood children; his frequent stays at boys’ homes,
juvenile halls, and juvenile camps; and his epilepsy, which
she believed resulted from a severe beating at age eighteen in
county jail.

                               C

   Following Pinholster’s unsuccessful direct appeal, he initi-
ated habeas proceedings in state and federal court. We detail
                       PINHOLSTER v. AYERS                     4743
his submissions with regard to his penalty phase ineffective
assistance of counsel claim because the State contends that,
by the time of the federal evidentiary hearing, this claim had
transmogrified into a completely new theory for which Pin-
holster now relies on yet a third set of mental health experts.

                                 1

   Pinholster raised fifty claims for relief in his state habeas
petition. Relevant to this appeal, Pinholster claims his counsel
provided ineffective assistance at the guilt and penalty phases
of his trial. Regarding his death sentence, he argues that his
trial counsel unreasonably failed to investigate, prepare, and
present mitigating evidence, and unreasonably presented evi-
dence that hurt his mitigation case. Had his counsel investi-
gated mitigating evidence, he contends, his lawyers would
have uncovered a wealth of mitigating evidence—a turbulent,
dysfunctional, violent and abusive home life; serious, well-
documented educational disabilities; and profound mental dis-
orders. To support this claim, Pinholster submitted declara-
tions from family members and from his trial attorney,
Brainard; various medical, legal, and school records of Pin-
holster and his relatives; and a declaration obtained during
habeas proceedings from psychiatrist Dr. George Woods.

   Dr. Woods diagnosed Pinholster with a long standing bipo-
lar mood disorder with psychotic features. Dr. Woods opined
that, during the murders, Pinholster was substantially
impaired by a bipolar mood disorder operating synergistically
with a seizure disorder.7 Dr. Woods also criticized Dr. John
Stalberg’s psychiatric evaluation. Dr. Stalberg had previously
examined Pinholster at defense counsel’s request on March
11, 1984, after trial began. He reviewed case materials sup-
plied by counsel, including police reports and a probation
report. Dr. Stalberg concluded that Pinholster did not manifest
  7
  “Seizure disorder” is the medically preferred term for what is com-
monly known as epilepsy.
4744                      PINHOLSTER v. AYERS
by history any significant signs of mental disorder or defect
other than Antisocial Personality Disorder.8 Dr. Stalberg
stated he saw no mitigating evidence, and defense counsel
decided not to pursue this issue at the time. Habeas counsel
disavowed Dr. Stalberg as a credible expert after retaining Dr.
Woods to criticize Dr. Stalberg’s mid-trial evaluation of Pin-
holster.

   After the parties filed briefing in the state habeas case, the
California Supreme Court issued an order to show cause, but
subsequently vacated it as “improvidently granted.” The court
then denied the writ “on the substantive ground that it is with-
out merit.” The California Supreme Court also denied several
other claims on procedural grounds.

                                     2

   In Pinholster’s first federal habeas petition, he continued to
maintain that his trial counsel unreasonably failed to investi-
gate, prepare, and present mitigating evidence during the pen-
alty phase. This time, however, Pinholster switched tactics
and renamed Dr. Stalberg as his psychiatric expert. In April
1997, Pinholster’s habeas counsel asked Dr. Stalberg to
review additional materials pertaining to Pinholster and his
family. Dr. Stalberg reviewed the materials and spoke with
several of Pinholster’s family members. Dr. Stalberg then
concluded that knowledge of Pinholster’s family history of
   8
     The Diagnostic and Statistical Manual of Mental Disorders (DSM),
DSM-III, the American Psychiatric Association’s handbook in effect in
1984 for diagnosing mental disorders, describes Antisocial Personality
Disorder as a personality disorder with a history of continuous and chronic
antisocial behavior in which the rights of others are violated, persistence
into adult life of a pattern of antisocial behavior that began before the age
of 15, and failure to sustain good job performance over a period of several
years. Lying, stealing, fighting, truancy, and resisting authority are typi-
cally prevalent in early childhood, and in adulthood these kinds of behav-
ior continue and include the failure to accept social norms with respect to
lawful behavior.
                      PINHOLSTER v. AYERS                  4745
severe psychiatric disorders, Pinholster’s disturbed behavior
during childhood, and his irrational and highly aggressive
actions immediately before the homicides would have caused
him to inquire further before concluding that Pinholster
merely had a personality disorder. Dr. Stalberg also would
have inquired further to determine if the homicides related to
a mental impairment caused by organic/neurological dysfunc-
tion. Dr. Stalberg now declared that the new information he
reviewed would have materially modified his previous opin-
ion regarding mitigating circumstances, and that his review
now demonstrated the existence of voluminous mitigating
evidence.

   Because the declaration contained new material facts, the
parties stipulated that certain claims, including the penalty
phase ineffective assistance of counsel claim, were unex-
hausted. The district court allowed Pinholster to exhaust the
claims in state court.

                               3

   Pinholster filed a copy of his federal petition and Dr. Stal-
berg’s new declaration in the California Supreme Court. The
court denied Pinholster’s petition “on the substantive ground
that it was without merit” and denied other claims on proce-
dural grounds.

                               4

   Pinholster filed a “First Amended Petition for Writ of
Habeas Corpus” in federal court on November 14, 1997. On
April 13, 1999, Pinholster filed a request for a federal eviden-
tiary hearing. Applying pre-Antiterrorism and Effective Death
Penalty Act (“AEDPA”) standards, the district court granted
an evidentiary hearing on Pinholster’s penalty phase ineffec-
4746                      PINHOLSTER v. AYERS
tive assistance of counsel claim, and two other claims not rel-
evant to this appeal.9

   Dr. Stalberg anticipated testifying as a witness at the fed-
eral evidentiary hearing. Pinholster submitted two new decla-
rations from Dr. Stalberg to support his amended federal
habeas petition. The first, dated January 24, 2000, explained
that it was Dr. Stalberg’s custom and practice in 1984 when
retained by defense counsel in a capital case to form an opin-
ion about a defendant’s mental state during the offense and to
identify mitigating circumstances. The second, dated June 5,
2001, expanded upon and specified the factual bases for the
opinions Dr. Stalberg previously presented to the district
court. In July 2001, the State Attorney General’s Office
deposed Dr. Stalberg. The Deputy Attorney General ques-
tioned Dr. Stalberg about his earlier declarations, and Pinhol-
ster’s counsel asked Dr. Stalberg to elaborate on various
aspects of his opinions, and to express his opinions about Pin-
holster’s mental health.

   Dr. Stalberg testified that the additional materials he
reviewed did not alter his conclusion that Pinholster suffers
from Antisocial Personality Disorder. As a result of this dam-
aging testimony, on May 9, 2002, Pinholster’s current coun-
sel, the Federal Public Defender, advised Dr. Stalberg that he
would no longer call him as a witness during the evidentiary
hearing, and he no longer considered Dr. Stalberg to be Pin-
holster’s expert.

   The district court nonetheless proceeded with an evidenti-
ary hearing in September 2002. The Federal Public Defend-
er’s Office now utilized two new experts—Dr. Sophia
Vinogradov and Dr. Donald Olson—to bolster Pinholster’s
  9
    At this time, the district court also granted the State’s motion for sum-
mary judgment on select claims, including Pinholster’s claims of ineffec-
tive assistance of counsel at the guilt phase discussed in section III of this
opinion.
                      PINHOLSTER v. AYERS                  4747
penalty phase ineffective assistance of counsel claim. Dr.
Vinogradov and Dr. Olson both submitted declarations as
direct testimony at the evidentiary hearing. Dr. Vinogradov
concluded that Pinholster suffered “personality change,
aggressive type, due to serious childhood head trauma.” Dr.
Olson, a pediatric neurologist, testified that Pinholster likely
suffered brain damage from two head injuries in his early
childhood, which created a risk of epilepsy.

   On March 25, 2003, the district court granted Pinholster’s
habeas petition and vacated his death sentence. The district
court noted that Pinholster’s attorneys admitted they had not
“prepared any evidence by way of mitigation,” yet trial coun-
sel declined an offer for a penalty phase continuance to pre-
pare extenuating evidence. The district court further reasoned
that trial counsel called one witness—Pinholster’s mother—
and her testimony was damaging, incomplete, and inaccurate.
The district court found Pinholster’s attorneys’ performance
deficient because they failed to adequately investigate miti-
gating evidence and lacked a reasonable strategic decision for
their failure. The district court ultimately found prejudice
based on the significant evidence of Pinholster’s childhood
abuse and mental impairments, combined with the prosecu-
tor’s emphasis during summation on the lack of mitigating
evidence and the length of the jury’s deliberations.

   The district court revisited its March 25, 2003, Order
Granting Writ of Habeas Corpus, after determining that
AEDPA applied under Woodford v. Garceau, 538 U.S. 202
(2003). The Supreme Court filed Woodford on the same day
the district court had filed its Order. The district court none-
theless concluded that: (1) Pinholster timely filed his federal
habeas petition; (2) Pinholster was entitled to an evidentiary
hearing under AEDPA; and (3) AEDPA did not affect its
Order granting Pinholster habeas relief because the California
Supreme Court “did not adjudicate Pinholster’s claim that
counsel was ineffective for failing to investigate and present
mitigating evidence at the penalty phase.”
4748                      PINHOLSTER v. AYERS
                                    II

  We review de novo the district court’s decision to grant or
deny a petition for writ of habeas corpus. Lambert v. Blodgett,
393 F.3d 943, 964 (9th Cir. 2004). We review factual findings
and credibility findings made in the context of granting or
denying the petition for clear error. Id.

   Neither party disputes that AEDPA now governs Pinhol-
ster’s petition. AEDPA requires us to defer to the state court’s
determination of federal issues, unless that determination
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law,
as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1).10
Deference to state court decisions applies only to claims the
state court adjudicated on the merits.11 Lambert, 393 F.3d at
965. De novo review applies if the state court did not reach
  10
      The court may also grant a petition where the state court adjudication
of a claim is based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding. 28 U.S.C.
§ 2254(d)(2). We will address § 2254(d)(2) only when applicable to Pin-
holster’s appeal.
   11
      The district court incorrectly concluded that the California Supreme
Court’s decision disposing of Pinholster’s penalty phase ineffective assis-
tance of counsel claim was not an adjudication on the merits entitled to
deference. The California Supreme Court’s denial of a habeas petition
without comment or citation constitutes a decision on the merits of the
federal claims. See Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir.
1992); see also Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Cir. 2005).
Though we would ordinarily look through the California Supreme Court’s
summary denial to the “last reasoned decision [in the state court system],”
Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000), no other
state court determination addresses ineffective assistance of counsel at the
penalty phase. Absent a last-reasoned state court decision on this claim,
we must “perform an ‘independent review of the record’ to ascertain
whether the state court decision was objectively unreasonable.” Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (quoting Delgado v. Lewis,
223 F.3d 976, 982 (9th Cir. 2000)); see also Greene v. Lambert, 288 F.3d
1081, 1089 (9th Cir. 2002).
                       PINHOLSTER v. AYERS                    4749
the merits of a particular issue. Lewis v. Mayle, 391 F.3d 989,
996 (9th Cir. 2004).

   A decision is “contrary to” federal law when the state court
applies a rule of law that contradicts the governing law set
forth in Supreme Court precedent or when the state court
makes a determination contrary to a Supreme Court decision
on materially indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). A state court unreasonably applies
federal law when its application of Supreme Court precedent
to the facts of petitioner’s case is objectively unreasonable. Id.
at 409.

                                III

   We first address Pinholster’s appeal of the district court’s
grant of summary judgment in favor of the State on his claims
of ineffective assistance of counsel during the guilt phase of
his trial. Pinholster seeks an evidentiary hearing, arguing that
he has provided a colorable claim that his counsel performed
deficiently. His primary contention is that his counsel failed
to adequately investigate the State’s physical evidence placing
him at the scene during the murders and this resulted in an
uninformed decision to have Pinholster testify in his own
defense. See United States v. Curtis, 742 F.2d 1070, 1076 (7th
Cir. 1984) (per curiam) (“When a defendant asserts that he
desires to exercise his constitutional right to testify truthfully,
counsel’s duty is to inform the defendant why he believes this
course will be unwise or dangerous.”).

   At the time the California Supreme Court rendered its last
decision—October 1, 1997—the Supreme Court’s two-part
standard for analyzing ineffective assistance of counsel was
clearly established law. See Strickland v. Washington, 466
U.S. 668, 687 (1984). To establish a Sixth Amendment viola-
tion, Pinholster had to show that: (1) his counsel’s perfor-
mance was deficient, i.e., it fell below an objective standard
of reasonableness, and (2) the deficient performance preju-
4750                      PINHOLSTER v. AYERS
diced him. Id. In reviewing counsel’s performance, we “must
be highly deferential” and should make every effort “to elimi-
nate the distorting effects of hindsight.” Id. at 689. Even if we
conclude that counsel performed deficiently, to obtain relief
the “defendant must show that there is a reasonable probabil-
ity that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable prob-
ability is a probability sufficient to undermine confidence in
the outcome.” Id. at 694.

                                     A

   [1] To satisfy the first prong of Strickland, Pinholster must
“identify[ ] the acts or omissions ‘that are alleged not to have
been the result of reasonable professional judgment.’ ” Earp
v. Ornoski, 431 F.3d 1158, 1173-74 (9th Cir. 2005) (quoting
Strickland, 466 U.S. at 690). The State offered during its case-
in-chief the following pieces of physical evidence to corrobo-
rate Corona’s testimony and place Pinholster at the scene of
the crime at the time of the murders: (1) investigators found
dried blood on the bottom of the boots taken from Pinholster’s
closet and the sole print matched a bloody boot print near the
victims’ bodies; and (2) investigators found a palm print
matching Pinholster’s print located within the Kumar resi-
dence.12 Pinholster contends that trial counsel’s failure to
investigate this evidence constituted deficient performance,
leading to an ill-advised decision to have Pinholster testify in
his own defense, during which he admitted to several incrimi-
nating facts.
  12
    Pinholster requests that we take judicial notice of the following docu-
ments to support his assertion that the State unlawfully destroyed all of the
physical evidence after trial: (1) an excerpt of the Master Index with a list
of the State’s physical evidence; (2) a certificate from the Los Angeles
County Superior Court ordering the exhibits listed on the “non-valuable
exhibit” list destroyed; and (3) the “non-valuable exhibit” list. We deny
his request as these documents are not relevant to the resolution of this
appeal. See Santa Monica Food Not Bombs v. City of Santa Monica, 450
F.3d 1022, 1025 n.2 (9th Cir. 2006).
                      PINHOLSTER v. AYERS                  4751
                               1

   Assuming trial counsel’s failure to investigate the physical
evidence fell below the objective standard of reasonableness,
we nevertheless conclude that the district court properly
granted the State’s motion for summary judgment because
Pinholster failed to raise a colorable claim that the deficient
performance prejudiced him. See Strickland, 466 U.S. at 697
(stating that a court may presume ineffective assistance to dis-
pose of a claim on prejudice grounds).

   At the homicide scene, the police detectives discovered
boot prints left in blood near the victims’ bodies. When exe-
cuting the search warrant for Pinholster’s apartment, homicide
detectives found a pair of black boots that appeared to have
tread marks that were similar to the prints left at the scene.
Testing revealed microscopic stains on the boots that gave
positive reactions for blood. Specifically, investigators
detected blood in all of the crevices of the right boot. Crimi-
nalist Steven Schliebe also testified that the treads on the
boots taken from Pinholster’s apartment were consistent with
the treads that left the boot prints at the crime scene.

   During cross-examination of Detective Coffey—the detec-
tive who discovered the boots in Pinholster’s apartment—
Pinholster’s counsel asked whether the boots had a common
tread. The detective responded, “I’m not a boot expert, but I
had not seen this type of tread on boots. I have seen other
types of tread. Not to say it’s not common or uncommon. To
me, I have not seen that type of tread before.” In his habeas
petition, however, Pinholster offered a declaration from
Criminalist Schliebe that stated otherwise: Schliebe declared
that, “had he been asked if the sole pattern [of Pinholster’s
boots and the boot prints found at the crime scene were] com-
mon in the Southern California area,” he would have
answered, “the shoe sole pattern is fairly common and is fre-
quently found on work and sport boots.”
4752                  PINHOLSTER v. AYERS
   The district court denied Pinholster’s claim of ineffective
assistance of counsel for lack of prejudice. It reasoned that
“the boot that was found in [Pinholster’s] home had a trace of
blood on it[,] which distinguishes it from other boots with the
same tread.” The district court also denied Pinholster’s claim
that trial counsel were ineffective for eliciting Detective Cof-
fey’s opinion that the boot print was uncommon. It reasoned
that Detective Coffey “never testified that the boot print was
uncommon”; rather, he “stated that he had not seen the sole
pattern before” and “clarified that he was not a boot print
expert.”

   The second piece of physical evidence was a palm print
lifted from a closet door frame in the Kumar residence that
matched a palm print later taken from Pinholster. During
direct examination, the fingerprint expert testified that he con-
ducted two prior identification attempts before he was able to
conclusively determine that the print lifted from the door
matched Pinholster’s. The expert explained that the palm print
lifted from the closet door came from the far outside portion
of the left palm. In the two prior attempts, the lab used exem-
plar cards that excluded the outside portion of the palm. Nor-
mally, when a person is palm printed, the palm is laid flat on
the exemplar card. Therefore, as the expert testified, “it was
not until [Detective] Coffey provided [his] office with this
exemplar card with the palm prints, and also a roll of the far
left-hand side, that [he was] able to find the area that matched
up with the print that [he] lifted from the door frame.”

   Pinholster argues that his trial counsel were ineffective for
failing to independently test the palm print. In support of his
argument, Pinholster offered a declaration of an independent
fingerprint expert, Clarence Collins. After examining both the
lifted print and the rolled palm print taken from Pinholster,
Collins concluded that the prints “were not made by the same
person.” In addition, Pinholster offers a declaration taken
from Brainard stating that, “[h]ad I known Scott Pinholster
did not deposit the latent print found at the Kumar residence,
                           PINHOLSTER v. AYERS                             4753
I would have conducted the defense differently, and would
have appropriately changed my advice to my client. I proba-
bly would have advised Scott Pinholster not to testify during
[the] guilt phase.”

   The district court denied Pinholster’s request for an eviden-
tiary hearing on the basis that he again failed to show preju-
dice. First, Pinholster admitted that he was inside Kumar’s
residence on the night of the murders. Second, Pinholster’s
trial counsel merely stated that he probably would have
advised Pinholster not to testify.13 This does not necessarily
show that Pinholster’s admission would not otherwise have
been made. The record is quite clear that Pinholster was eager
to take the stand so he could convince the jury that, although
he saw himself as a professional thief who preyed on drug
dealers, his modus operandi was to carry a gun, not to stab his
victims with knives.

   [2] We agree with the district court and hold that Pinholster
failed to show a colorable claim that he was prejudiced by
trial counsel’s alleged failure to independently investigate the
State’s physical evidence. Despite Pinholster’s contention,
Collins’s declaration does not prove that the State’s finger-
print expert was lying or misinformed. At most, it creates a
battle of the experts.14 Moreover, the jury heard the State’s
  13
      We are not holding, nor do we think the district court found, that Pin-
holster’s counsel’s statement that he “probably” would not have advised
Pinholster to testify is sufficient to establish that counsel’s failure to inves-
tigate was non-prejudicial. See Dissent Op. at 4785 n.2. Indeed, Pinholster
uses counsel’s declaration to argue that he was prejudiced. Pinholster
argues that had his trial counsel investigated the palm print he would have
known there was a discrepancy and therefore never would have advised
Pinholster to testify. Pinholster argues that without his testimony there was
no evidence that he was in Kumar’s residence at the time of the murders
and therefore counsel’s failure to investigate was prejudicial. As we dis-
cuss infra these arguments are simply unpersuasive as there was a wealth
of other evidence proving Pinholster’s presence in the Kumar residence.
   14
      Contrary to the dissent’s assertion, we are not saying that the existence
of a “battle of the experts” reduces any prejudice resulting from counsel’s
4754                      PINHOLSTER v. AYERS
fingerprint expert testify that he could not match Pinholster’s
print until the third attempt. Although Pinholster argues that
the “State’s expert was pressured to find a match,” no evi-
dence supports such a contention. In addition, the State pre-
sented the palm print evidence to place Pinholster in the
Kumar residence at the time of the murders. This evidence
was cumulative as Corona testified that Pinholster was in the
Kumar residence at the time of the murders, and substantial
portions of Corona’s testimony were corroborated by Lisa
Tapar, her father, and Casey Corona. Pinholster’s admission
to the jury that he was inside Kumar’s house at some point
that night further convinces us that the alleged ineffectiveness
did not prejudice him. Therefore, we hold that the jury’s ver-
dict would not have been affected even if Pinholster’s trial
counsel had conducted an independent investigation and
introduced evidence that the palm print was not Pinholster’s.

   [3] Pinholster also failed to show a colorable claim that he
was prejudiced by trial counsel’s failure to investigate the
boot prints. The State did not argue that this evidence con-
nected Pinholster to the crime because the sole prints were
unique; rather, the state argued that this evidence connected
Pinholster to the crime scene because (1) the sole prints were
consistent, and (2) Pinholster’s boots were found to have
traces of human blood on the bottom. Therefore, even if the
jury heard evidence that the sole prints were common in
Southern California, this would not have changed the verdict.
Pinholster offers no other evidence to suggest that the boot
print evidence was faulty.

                                     2

  Because we conclude that Pinholster failed to raise a color-
able claim that he was prejudiced by trial counsel’s failure to

failure to investigate the palm print. See Dissent at 4785 n.2. We are sim-
ply saying that Collins’s declaration creates only a battle of the experts;
it does not prove Pinholster’s contention that the State’s expert was misin-
formed, improperly influenced, or lying.
                      PINHOLSTER v. AYERS                   4755
investigate the State’s physical evidence, we cannot conclude
that trial counsel’s decision to advise Pinholster to testify in
his own defense amounted to ineffective assistance. The dis-
sent is ensnared in the trap of 20/20 hindsight. It fails to give
a sufficient level of deference to counsel’s judgments given
the evidence and the type of defense Pinholster wanted to pur-
sue. See Rompilla v. Beard, 545 U.S. 374, 381 (2005) (“In
judging the defense’s investigation, as in applying Strickland
generally, hindsight is discounted by pegging adequacy to
counsel’s perspective at the time investigative decisions are
made and by giving a heavy measure of deference to coun-
sel’s judgments.” (internal quotation marks and citation omit-
ted)).

   “An accused’s right to testify is a constitutional right of
fundamental dimension.” United States v. Joelson, 7 F.3d
174, 177 (9th Cir. 1993). When reviewing ineffective assis-
tance of counsel claims that question the attorney’s trial strat-
egy, it is important to “note that a defendant’s Sixth
Amendment rights are his alone, and that trial counsel, while
held to a standard of ‘reasonable effectiveness,’ is still only
an assistant to the defendant and not the master of the
defense.” Mulligan v. Kemp, 771 F.2d 1436, 1441 (11th Cir.
1985). The reasonableness of counsel’s chosen trial strategy
depends critically “on informed strategic choices made by the
defendant and on information supplied by the defendant.”
Strickland, 466 U.S. at 691. The record amply demonstrates
that this strategic tactical decision was deliberate and consid-
ered. Pinholster actively participated in all key decisions, as
he represented himself pro se at one point before the trial, and
strongly directed the strategy he wished counsel to pursue.

   The record shows that Pinholster directed his trial counsel
to pursue an alibi defense on his behalf. On June 24, 1983, the
trial court held a hearing on a motion to dismiss filed by Pin-
holster while representing himself. Pinholster argued that his
first appointed trial counsel, Marvin Part, coerced him into
waiving his right to a speedy trial. During the hearing, Pinhol-
4756                     PINHOLSTER v. AYERS
ster called Part to testify, waiving his attorney-client privilege.
Pinholster questioned why Part refused to interview possible
alibi witnesses in the face of physical evidence linking Pin-
holster to the crime scene. Pinholster’s insistent decision to
pursue an alibi defense necessarily impacted his counsel’s
trial strategy.15

   Even without the physical evidence, the State presented
overwhelming evidence that Pinholster was at the Kumar resi-
dence on the day of the murders. Corona’s testimony not only
placed Pinholster at the scene during the murders, but it also
detailed Pinholster’s participation in the murders. Several
other witnesses corroborated Corona’s testimony.

   [4] In light of the evidence placing Pinholster at the scene,
Pinholster’s failure to show prejudice from his trial counsel’s
failure to investigate the physical evidence, and Pinholster’s
strong desire to pursue an alibi defense, we cannot second
guess trial counsel’s decision to advise Pinholster to testify.16
In Strickland, the Court recognized that “[c]ounsel’s actions
are usually based . . . on informed strategic choices made by
the defendant and on information supplied by the defendant.”
466 U.S. at 691. To support Pinholster’s alibi defense, trial
counsel needed to explain the overwhelming evidence prov-
  15
    Brainard declared:
      The strategy decided upon prior to trial was to demonstrate Scott
      committed robberies and not burglaries, and that Scott used guns,
      not knives, as weapons. I assumed Scott would admit to having
      committed a few robberies, not hundreds, although we never
      explicitly discussed the number. Part of [the] strategy decided
      upon prior to trial was to admit the Croutch robbery during trial.
   16
      The dissent assumes that trial counsel never advised “Pinholster
against testifying, because the jury would likely conclude he was lying.”
See Dissent at 4786. There is a dearth of evidence in the record detailing
any discussion between trial counsel and Pinholster about his decision to
testify during the guilt phase. Pinholster does not allege, and there is no
evidence to support, the dissent’s assumption that trial counsel neglected
to discuss the risks of testifying with their client.
                          PINHOLSTER v. AYERS                          4757
ing that Pinholster intended to rob the Kumar residence on the
night of the murders. In other words, counsel needed Pinhol-
ster to tell his version of the events—that he was a robber, not
a burglar, and that he used guns, not knives. Given the evi-
dence presented by the State, trial counsel’s tactical decision
to advise Pinholster to testify was reasonable. See id. Such a
decision does not amount to constitutionally deficient perfor-
mance. To declare that it was wrong because in hindsight it
proved unsuccessful and must have been uninformed is not
what the Supreme Court intended when we analyze a Strick-
land claim after the fact.

                                     B

   We also conclude that Pinholster has failed to present a col-
orable claim that he was prejudiced by the other alleged
instances of ineffective assistance of counsel during the guilt
phase of his trial.

                                     1

   One alleged instance concerned Art Corona’s police inter-
view. Through stipulation of counsel, the State introduced the
unredacted tape recording and transcription of Corona’s
police interview. During the interview, Corona claimed that
Pinholster admitted involvement in the shooting of two “wet-
backs,” that he had beaten an elderly woman, was involved in
a cocaine “rip-off,” sold drugs, committed robberies, and had
affiliated with white supremacist prison gangs.17

   The California Supreme Court rejected Pinholster’s ineffec-
tive assistance of counsel claim, concluding that trial counsel
had a “rational tactical reason” for deciding not to object to
admission of the entire interview. Pinholster, 824 P.2d at 604.18
  17
     Trial counsel did not object to replaying the tape during deliberations,
or allowing the jury to keep the transcript while deliberating.
  18
     Unlike Pinholster’s other ineffective assistance of counsel claims, the
California Supreme Court reached the merits of this claim in the direct
appeal. It therefore constitutes the “last reasoned decision” of the state
court. See Shackleford, 234 F.3d at 1079 n.2.
4758                  PINHOLSTER v. AYERS
The court reasoned that “[Pinholster] needed to create an
impression of candor to carry his testimony that he had bro-
ken into the Kumar house on the night of the murder[s], but
had stolen the drugs and left before Corona arrived and
stabbed the murder victims.” Id. Pinholster himself testified
about his violent criminal past and the references that Corona
made to specific instances “simply confirmed what [Pinhol-
ster] was willing to say about himself.” Id.

   The California Supreme Court called Corona’s reference to
the Aryan Brotherhood “clearly innocuous,” as Corona testi-
fied that it was Brown who was affiliated with the group, not
Pinholster. Id. Moreover, the interview could reasonably be
seen as favorable to Pinholster’s defense. “[T]he tape con-
tained statements inconsistent with Corona’s trial testimony,
showed Corona’s eagerness to cooperate with the police, and
contained some reference to Corona’s contact with one
‘Butch,’ who [Pinholster] claimed was Corona’s actual
accomplice.” Id. The district court denied Pinholster’s motion
for an evidentiary hearing because certain aspects of the tape
were “beneficial to Pinholster’s case” and therefore trial coun-
sel “arguably were not deficient for failing to object to it.”
The district court concluded that admitting the tape was not
prejudicial because the case against Pinholster was strong and
the prosecution successfully discredited his defense.

   [5] Whether counsel’s actions constituted a “tactical” deci-
sion is a question of fact, and we must decide whether the
state court made an unreasonable determination of the facts in
light of the evidence before it. See Edwards v. Lamarque, 475
F.3d 1121, 1126 (9th Cir. 2007) (en banc) (citing Taylor v.
Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004)). For the
reasons expressed by the district court, we hold that the Cali-
fornia Supreme Court’s conclusion that counsel made a tacti-
cal decision to admit the entire tape was not an unreasonable
determination of fact. Accordingly, the court’s conclusion that
counsel made a reasonable decision was not objectively
                      PINHOLSTER v. AYERS                  4759
unreasonable. See id. (stating that the “reasonableness of
counsel’s decision is best described as a question of law”).

                               2

   Pinholster also claims his counsel were ineffective in fail-
ing to object to Detective Coffey’s testimony. Detective Cof-
fey testified that Terry Pinholster, Pinholster’s brother, said
Scott Pinholster’s arrest was “no big deal” because his brother
had been arrested for murder before. Pinholster argues that
because he had never before been arrested or charged with
murder, his trial counsel had no tactical basis for failing to
object to this statement. The district court granted summary
judgment to the State on this issue, concluding that Pinholster
had failed to show prejudice as the jury had “already heard
that [Pinholster] was involved in a shoot-out in which two
‘wetbacks’ had been killed. The jury could easily have sur-
mised that [Pinholster] was arrested for murder as a result of
that incident.”

   [6] Trial counsel’s failure to object to this evidence raises
concerns: The portion of the Corona tape discussing the “wet-
back” murders and the hearsay statement of Pinholster’s
brother undermine the heart of Pinholster’s defense—that he
is a robber not a murderer. Nevertheless, because the Califor-
nia Supreme Court’s decision regarding the Corona tape was
objectively reasonable, it cannot be said that Pinholster suf-
fered prejudice from admission of his brother’s statement. As
the district court reasoned, it is likely the jury put the two
together, making his brother’s statement no more prejudicial
than admission of the “wetback” statement.

                               3

  Pinholster contends that his trial counsel were ineffective
by admitting into evidence a prior felony conviction for kid-
naping after the trial court granted a motion in limine to pro-
hibit the State from using the evidence on cross-examination.
4760                        PINHOLSTER v. AYERS
In a declaration filed with Pinholster’s state and federal
habeas petitions, Brainard admitted that he “d[id] not recall
why [he] elicited Scott Pinholster’s kidnapping conviction
after the court ruled that this conviction was inadmissible for
impeachment purposes.”

   Brainard’s question opened the door for the prosecution to
question Pinholster about prior offenses in which he used a
knife rather than a gun. The trial court—without objection
from Pinholster’s attorneys—allowed the State to recall Pin-
holster to the stand and question him as to whether he used
a knife during the course of the kidnaping. Pinholster testified
that he pled guilty to using a knife but denied actually having
used the knife during the commission of the offense.
Although use of a knife is alleged in the criminal information,
it was not a term of the plea agreement.19 Brainard filed a dec-
laration stating that he could “not recall whether [he] knew
the knife enhancement allegation was not found true.”

   [7] We hold that Pinholster has failed to show a colorable
claim that he was prejudiced by his trial counsel’s allegedly
deficient performance. The jury heard other evidence that Pin-
holster possessed knives, including his own admission that he
used a buck knife to vandalize Lisa Tapar’s car on the night
of the murders. The district court properly denied Pinholster
an evidentiary hearing on this ineffective assistance of coun-
sel claim.
  19
    The colloquy during the change of plea hearing went as follows:
       The court: Mr. Pinholster, Count I of the information charges
                   that on August 21st of last year you kidnapped a
                   person named Jena, J-e-n-a, Rae, R-a-e, Burdett, B-
                   u-r-d-e-t-t; that is, that you forcefully took her from
                   one place to another. Do you understand that
                   charge?
       Pinholster: Yes, sir.
       The court: Is that what you did?
       Pinholster: Yes, sir.
                     PINHOLSTER v. AYERS                  4761
                              4

   Charles Kempf testified that during an aborted robbery
attempt at Kumar’s residence Pinholster bragged about stab-
bing an unidentified individual in the rectum. Pinholster con-
tends that his trial counsel were ineffective for failing to
object to Kempf’s statement and failing to impeach Kempf
with a prior statement in which he claims that Pinholster’s
friend did the stabbing.

   [8] Pinholster cannot make out a colorable claim that he
was prejudiced by the admission of this evidence. During his
own testimony, which was dramatic and unusual in the candor
Pinholster displayed in bragging about his life of crime, Pin-
holster admitted to several violent acts and the evidence pres-
ented against him was overwhelming. The California
Supreme Court so found, see Pinholster, 824 P.2d at 601,
604, and we cannot say that the district court erred by failing
to grant an evidentiary hearing.

                              5

   During rebuttal, Eric Klemetti testified that he purchased
marijuana from Johnson at the Kumar residence around 9
p.m. on the night of the murders. To impeach his credibility,
Pinholster’s trial counsel asked Klemetti whether he had ever
committed a burglary with Pinholster, and whether he had
acted as an informant during that case. Pinholster argues that
this amounted to ineffective assistance because the conviction
undercut his testimony that he committed robberies rather
than burglaries and was otherwise inadmissible.

   [9] We agree with the district court. Trial counsel made a
rational tactical decision to impeach Klemetti’s testimony
with this evidence as the witness would have otherwise gone
unchallenged. Moreover, Pinholster failed to show prejudice
because he had already admitted that he burglarized Kumar’s
residence on the night of the murders.
4762                  PINHOLSTER v. AYERS
                               6

   Pinholster challenges his trial counsel’s decision to admit
evidence that the police had recovered narcotics during the
search of his apartment. He also claims ineffective assistance
due to his trial counsel’s failure to exclude evidence that he
had thrown a gun from the window of a different apartment
while the police executed a search warrant on his apartment.
Although his trial counsel challenged the officers’ identifica-
tion of Pinholster, Pinholster admitted during cross-
examination that he threw the gun.

   [10] The district court concluded that (1) Pinholster failed
to show prejudice, as he admitted to using drugs and possess-
ing guns in his testimony; (2) that even without Pinholster’s
testimony, the narcotics evidence was not prejudicial, as the
jury heard from other sources, including Corona, that Pinhol-
ster used drugs; and (3) that though trial counsel attempted to
challenge the officers’ identification of Pinholster as the man
who threw the gun, it is reasonable to believe that the jury
found the officers’ testimony credible. We agree and hold that
the district court properly denied Pinholster’s request for an
evidentiary hearing.

                               7

   Pinholster argues that trial counsel were ineffective for ask-
ing prospective jurors questions about white supremacist
gangs such as the Aryan Brotherhood. The district court con-
cluded that trial counsel were not deficient because they knew
the Corona tape contained references to the Aryan Brother-
hood, and they made a tactical decision to forewarn the jurors
that the subject might arise. On appeal, Pinholster argues that
trial counsel were ineffective for failing to object when the
prosecution returned to this theme throughout the guilt phase
of the trial.

   [11] Pinholster has again failed to make a colorable claim
that he was prejudiced by the alleged deficient performance.
                          PINHOLSTER v. AYERS                         4763
Given the strong evidence against Pinholster, it is not reason-
ably probable that trial counsel’s failure to exclude all refer-
ences to Pinholster’s connection to white supremacists
affected the verdict.

                                    IV

   We now turn to the State’s appeal. The State contends that
the district court improperly found, based on evidence not
before the state court, that Pinholster’s trial counsel inade-
quately investigated and deficiently presented mitigating evi-
dence at the penalty phase. We hold that Pinholster properly
exhausted his ineffective assistance of counsel claim, and that
any error the district court may have committed in holding an
evidentiary hearing is harmless because, even with the evi-
dence presented at the hearing, Pinholster has not shown that
he was prejudiced by counsel’s failure to offer additional mit-
igating evidence.20

                                    A

   A state prisoner must exhaust all available remedies in state
court before a federal court may grant him habeas relief. 28
U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). A state prisoner must describe the operative
facts and federal legal theory on which he grounds his claim
so the state court has a “ ‘fair opportunity’ to apply control-
ling legal principles to the facts bearing upon his constitu-
tional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per
  20
    The State contends the district court abused its discretion by granting
Pinholster a federal evidentiary hearing. The State argues that the district
court failed to consider whether Pinholster—given his shifting medical
impairment theories and new lay witness declarations—properly devel-
oped a factual basis for his claim in state court. See Baja v. Ducharme,
187 F.3d 1075, 1078 (9th Cir. 1999). The State waived this issue by fail-
ing to raise it in its opening brief. See United States v. Kama, 394 F.3d
1236, 1238 (9th Cir. 2005). Moreover, as we discuss infra, any error was
harmless.
4764                  PINHOLSTER v. AYERS
curiam) (quoting Picard v. Connor, 404 U.S. 270, 276
(1971)). Presenting additional facts to the district court does
not evade the exhaustion requirement when the prisoner pres-
ents the substance of his claim to the state courts. See Vasquez
v. Hillery, 474 U.S. 254, 257-58, 260 (1986) (rejecting chal-
lenge to new evidence because it did not fundamentally alter
the legal claim the state courts previously considered).

   [12] We review de novo whether Pinholster failed to
exhaust California remedies. See Castillo v. McFadden, 399
F.3d 993, 998 (9th Cir. 2005). The California Supreme Court
had a sufficient opportunity to hear Pinholster’s claim of inef-
fective assistance of counsel at the penalty phase. Throughout
the habeas proceedings, Pinholster has continued to press the
same legal claim (ineffective assistance at the penalty phase)
and the same factual basis (e.g., counsel failed to present sig-
nificant mitigating evidence and, instead, presented harmful,
false evidence at the penalty phase). The federal and state
petitions detail many identical facts. Both describe trial coun-
sel’s failure to seek a continuance to prepare for the penalty
phase; counsel’s introduction of Mrs. Brashear’s testimony;
Pinholster’s childhood home life; and Pinholster’s back-
ground, including his educational, medical, psychological,
social, and family history. Pinholster did not, as the State con-
tends, “present vague and conclusory constitutional claims in
the state court, phrased with sweeping generality and sup-
ported by skimpy factual allegations.”

   [13] Though during the proceedings Pinholster relied on
different experts with differing mental impairment theories,
the evolving theories have not significantly changed the evi-
dentiary basis for his arguments. These experts relied on the
same background information Pinholster presented to the state
court, and their testimonies represent only a fragment of the
mitigating evidence submitted in the state habeas proceedings.
Accordingly, the facts adduced at the evidentiary hearing
have not fundamentally altered the legal claim the California
Supreme Court already considered and rejected, and we con-
                          PINHOLSTER v. AYERS                         4765
clude that Pinholster has exhausted this claim. See Weaver v.
Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (rejecting
exhaustion argument as “unwarranted hairsplitting” where at
each step the legal claim remained the same, but the precise
factual predicate for the claim changed after the evidentiary
hearing).

                                    B

   Habeas relief is proper if the California Supreme Court’s
decision was either “contrary to, or involved an unreasonable
application of” Strickland.21 Williams, 529 U.S. at 391 (inter-
nal quotation marks omitted). We need not determine whether
Pinholster’s trial counsel performed deficiently because we
find the prejudice inquiry dispositive. See Strickland, 466
U.S. at 697 (“[T]here is no reason . . . to address both compo-
nents of the inquiry if the defendant makes an insufficient
showing of one. In particular, a court need not determine
whether counsel’s performance was deficient before examin-
ing the prejudice suffered by the defendant as a result of the
alleged deficiencies.”).

  Pinholster bears the “heavy burden” of establishing actual
prejudice. See Williams, 529 U.S. at 394 (internal quotation
marks omitted). He must demonstrate that there is a reason-
able probability the sentencer would have found death unwar-
ranted absent his counsel’s errors. Strickland, 466 U.S. at 695.
“A reasonable probability is a probability sufficient to under-
mine confidence in the outcome. [I]t is insufficient to show
only that the errors had some conceivable effect on the out-
come of the proceeding, because virtually every act or omis-
  21
    Because the California Supreme Court summarily denied Pinholster’s
penalty phase ineffective assistance of counsel claim, we have indepen-
dently reviewed the record to ascertain whether the state court decision
was objectively unreasonable. See Himes, 336 F.3d at 853; Pirtle v. Mor-
gan, 313 F.3d 1160, 1167 (9th Cir. 2002). Though unable to analyze the
basis for the state court’s decision, we still view the decision through the
“objectively unreasonable” lens. See Delgado, 223 F.3d at 982.
4766                      PINHOLSTER v. AYERS
sion of counsel would meet that test.” Williams, 529 U.S. at
394 (quoting Strickland, 466 U.S. at 693-94 (citation omit-
ted)). In Wiggins v. Smith, 539 U.S. 510 (2003), the Supreme
Court explained that we must reweigh the evidence in aggra-
vation against the totality of available mitigating evidence to
assess prejudice. Id. at 534. In so doing, “we evaluate the
totality of the evidence—‘both that adduced at trial, and the
evidence adduced in the habeas proceeding[s].’ ” Id. at 536
(emphasis omitted) (quoting Williams, 529 U.S. 397-98).22

   The dissent relies heavily on the Supreme Court’s decisions
in Williams, Wiggins,23 and Rompilla. However, as Justice
O’Connor stated in her concurrence in Rompilla, we must
apply a “case-by-case approach to determining whether an
attorney’s performance was unconstitutionally deficient under
Strickland.” Rompilla, 545 U.S. at 393-94 (O’Connor, J., con-
curring). The Supreme Court has not gone so far as to say that
an attorney’s failure to uncover a certain class of mitigating
evidence automatically results in a showing of prejudice. See
id. Therefore, we must conduct an independent review of the
evidence presented, reweighing what the State produced in
the form of aggravating evidence against that which Pinhol-
ster produces in mitigation. Like the California Supreme
Court, we conclude that the potential mitigating evidence is
insufficient to outweigh the overwhelming aggravating evi-
  22
      Despite Chief Judge Kozinski’s misgivings, Rompilla v. Beard, 545
U.S. 374 (2005), does not signal a change in the Supreme Court’s
approach to analyzing the prejudice prong under Strickland. See Kozinski
Concurrence at 4780. The Court’s decision not to address the aggravating
evidence in Rompilla more likely resulted from its conclusion that peti-
tioner was clearly prejudiced from his counsel’s ineffective assistance, see
545 U.S. at 390 (“We think Rompilla has shown beyond any doubt that
counsel’s lapse was prejudicial; Pennsylvania, indeed, does not even con-
test the claim of prejudice”), rather than from an express desire to overrule
prior precedent.
   23
      But even the dissent concedes that the aggravating evidence here is
stronger than that in Wiggins because Wiggins, unlike Pinholster, did not
have a record of violent conduct. See Dissent at 4802.
                         PINHOLSTER v. AYERS                        4767
dence. We are heavily influenced by the damage Pinholster
did to himself when he took the stand in the guilt phase and
testified to an unrepentant life of violent crime.

   [14] During the state and federal habeas proceedings, Pin-
holster submitted evidence to the state court showing that he
suffered years of significant neglect and physical and emo-
tional abuse as a child. Pinholster’s step-father, Bud Brashear,
frequently beat Pinholster with his fists, a belt, or anything
else available, including a two-by-four board. Moreover, Pin-
holster presented evidence during the habeas proceedings that,
because he resembled his biological father, he was severely
beaten by his grandparents.

   Pinholster painted somewhat of a different picture during a
July 16, 1991, interview with a defense investigator Sheryl
Duvall, who at the time worked as an independent Criminal
Justice Consultant. She was hired by an attorney named Leon-
ard Tauman to prepare a social history on Pinholster. As
reflected in her interview notes, Pinholster discussed his
social history, including his relationship with various family
members.24 Pinholster rejected his mother’s claim that his
step-father “abused” him growing up. Although he admitted
that his step-father used a homemade paddle freely on him
and his brothers, Pinholster claimed that they “benefitted”
from the “discipline.” Pinholster’s primary complaint about
   24
      The district court refused to consider statements made in Duvall’s
interview notes on the basis that the notes constituted inadmissible hear-
say. However, the parties stipulated to the admission of these interview
notes during the evidentiary hearing; Pinholster’s habeas counsel made no
objection based on hearsay. See United States v. Foster, 711 F.2d 871, 877
(9th Cir. 1983) (stating that, where there is no objection to hearsay evi-
dence, “such evidence is to be given its natural probative effect as if it
were in law admissible” (internal quotation marks omitted)). Furthermore,
the Supreme Court has instructed us to “ ‘evaluate the totality of the
evidence—both that adduced at trial, and the evidence adduced in the
habeas proceeding[s].’ ” Wiggins, 539 U.S. at 536 (quoting Williams, 529
U.S. at 397-98)).
4768                       PINHOLSTER v. AYERS
his step-father was that “he didn’t seem to want the kids
around.”

   Although Pinholster presented evidence of physical abuse
from his maternal grandmother, Pinholster claimed that he
and his maternal grandfather were very close. He spent sum-
mers with his grandparents, working on their chicken farm.
He claimed that his “[grandfather] was affectionate with the
boys. He made them work hard on the farm but he was quick
to praise their efforts.” Pinholster’s grandfather made him feel
good about himself. When Duvall asked Pinholster whether
he believed his life would have been different had his grand-
father lived, Pinholster responded “definitely.” He claimed
that, after his first arrest, he would have been sent to live with
his grandparents. These sentiments were supported in a medi-
cal report developed upon Pinholster’s release from the Cam-
arillo State Hospital in 1971 when Pinholster was eleven-
years-old. Pinholster was reported as being “very close” to his
maternal grandfather, with his grandfather’s death being an
“emotional shock.”

   During the interview with Duvall in 1991, Pinholster also
described his relationship with his mother, Mrs. Brashear. He
claimed that he always “felt very close to his mother,” and he
had nothing but praise for her. He stated that “[s]he’s always
been supportive of all the kids. She’s always the first there
and last to leave. She always had a hot dinner on the table.”
At the time of the interview, Pinholster remained in close con-
tact with his mother.25
  25
    The dissent questions our consideration of Pinholster’s description of
his social history. See Dissent at 4794. We are not crediting Pinholster’s
description of the events over that of other family members. We recognize
that Pinholster was likely beaten and abused by both his step-father and
maternal grandmother. While we in no way condone such treatment of any
child, our role in these inquiries is to try and assess the extent of the miti-
gating evidence as it relates to the potential prejudice to Pinholster. In
doing so, Pinholster’s own perception of his childhood and its affect on
him is certainly relevant. We also find relevant the fact that Pinholster’s
paternal grandfather provided some stability during Pinholster’s early
childhood.
                      PINHOLSTER v. AYERS                  4769
   [15] In addition, the jury did hear some mitigating evidence
from Pinholster’s mother during her penalty phase testimony.
We recognize that Mrs. Brashear inaccurately portrayed her-
self as a dedicated, caring mother, and, indeed, she failed to
present Pinholster’s troubled childhood and mental and emo-
tional problems in the most compelling manner. Nonetheless,
the jury heard mitigating facts from her testimony. Mrs.
Brashear described Pinholster’s strained relationship with his
step-father, conceding that Bud Brashear’s attempts to disci-
pline Pinholster sometimes rose to the level of abuse.

   On cross-examination, she admitted that her daughter,
Tammy Brashear, was currently on probation, and that her
other son, Alvin Pinholster, died after attempting to evade the
authorities. Mrs. Brashaer recounted an accident when she ran
over Pinholster (who was a toddler) with her car, nearly tear-
ing off one of Pinholster’s ears and causing a shoulder injury
that required just over a week in the hospital. She also dis-
cussed Pinholster’s second head injury resulting from another
car accident; a psychologist’s recommendation to commit
Pinholster to a mental hospital at age ten; his time in a class
for emotionally handicapped children; and his epilepsy, which
she believed resulted from a severe beating at age eighteen in
county jail. The penalty phase verdict reflects the jury’s obvi-
ous rejection of such mitigating circumstances in light of all
that Pinholster had said and done as a recidivist and the bru-
tality of these robbery/murders.

   [16] It is unlikely Pinholster’s evidence of mental impair-
ment would have had a significant impact on the jury. As a
toddler, Pinholster was in two separate car accidents that
allegedly resulted in head injuries, and throughout his child-
hood and early adolescence, Pinholster displayed symptoms
of and received treatment for epilepsy. Nevertheless, the
experts’ opinions about Pinholster’s psychological impair-
ments and whether these impairments resulted from a head
injury have varied considerably, becoming somewhat of a
4770                      PINHOLSTER v. AYERS
moving target for the California Supreme Court and federal
courts on habeas review.

   The California Supreme Court has denied two habeas peti-
tions, one in which Pinholster relied on Dr. Woods as his
expert, and another in which he relied on Dr. Stalberg as his
expert. Dr. Woods opined that, during the murders, Pinholster
was substantially impaired by a bipolar mood disorder operat-
ing synergistically with a seizure disorder. Declining to pre-
sent Dr. Woods’s diagnosis,26 Pinholster rehired Dr. Stalberg
as his expert for the second state habeas petition. Dr. Stalberg
stated that he had reviewed the materials presented by Pinhol-
ster’s habeas counsel and that, had he known of “Pinholster’s
family history of severe psychiatric disorders, his disturbed
behavior during childhood, and his irrational and highly
aggressive actions immediately before the homicides,” he
would have “ma[de] further inquiry before concluding that
[Pinholster] had merely a personality disorder.” He further
stated that “[t]he new material” would have “materially modi-
fied [his] opinion regarding mitigating circumstances.” After
the California Supreme Court again denied Pinholster’s
habeas petition, he appeared ready to proceed to federal court
with Dr. Stalberg as his expert.
   26
      None of the other experts agreed with Dr. Woods’s diagnosis of bipo-
lar mood disorder. In his June 2001 declaration, Dr. Stalberg stated that
Pinholster “was substantially impaired by a bipolar mood disorder operat-
ing synergistically with intoxication and a seizure disorder at the time the
crime was committed.” However, during the evidentiary hearing, Dr. Stal-
berg rejected that statement as his own testimony. He stated, “I never said
that and never testified to [Pinholster having bipolar mood disorder].”
Subsequently, in August 2002, Dr. Stalberg filed another declaration in
which he stated simply that Dr. Woods’s diagnosis of bipolar mood disor-
der was “incorrect.” Dr. David Rudnick, a neuropsychiatrist who served
as an expert for the State during the federal evidentiary hearing, stated in
his declaration of July 11, 2001, that “[t]here is no evidence for the diag-
nosis of bipolar disorder at any time in Mr. Pinholster’s life.” Similarly,
Dr. Vinogradov stated that she found “no clear information supporting
true full-blown hypomanic or depressive episodes.”
                         PINHOLSTER v. AYERS                         4771
   On June 5, 2001, Dr. Stalberg executed a more detailed
declaration in which he stated that the penalty phase testi-
mony of Mrs. Brashear was “profoundly misleading” as she
failed to truthfully describe Pinholster’s early childhood,
which “was marked by significant deprivation, physical
abuse, and extreme neglect.” Dr. Stalberg again acknowl-
edged that Pinholster likely suffers from a seizure disorder,
and went on to opine that some of the violent incidents in Pin-
holster’s past—the breaking of his wife’s jaw and his assault
on Officer Kaufman—could have been attributed to his sei-
zure disorder.

   After Dr. Stalberg refused, despite all of the new mitigating
evidence, to alter his diagnosis of Antisocial Personality Dis-
order, Pinholster’s habeas counsel informed him that he
would no longer be serving as their expert. Instead, in support
of his amended federal habeas petition, Pinholster choose to
rely on the new expert testimony of Dr. Vinogradov and Dr.
Olson. Dr. Olson concluded that “it is reasonably probable
that Mr. Pinholster has suffered from partial epilepsy since at
least 1968.” In support of his conclusion, Dr. Olson relied on
the two head injuries Pinholster suffered as a child, Pinhol-
ster’s abnormal EEG at age nine,27 the descriptions of Pinhol-
ster’s seizures provided by other witnesses, and Pinholster’s
treatment for seizures with standard anti-seizure medication.

   Dr. Vinogradov relied on the same evidence as the other
experts and conducted two face-to-face interviews with Pin-
holster. She implicitly rejected Dr. Woods’s diagnosis, stating
there was “no clear information supporting true full-blown
hypomanic or depressive episodes.” However, she diagnosed
Pinholster with “personality change, aggressive type, due to
  27
    Dr. Rudnick testified that Pinholster’s abnormal EEG in 1968 could
have been caused by his Attention Deficient Hyperactivity Disorder, or by
the fact that he was only nine-years-old at the time. As Dr. Rudnick
described, maturation of the brain is “characterized by a reduction in slow
wave activity of the same frequencies observed” in Pinholster.
4772                      PINHOLSTER v. AYERS
serious childhood head trauma.” She opined that, “[o]n the
night of the crimes, while intoxicated on multiple substances,
Mr. Pinholster experienced perceptual aberrations and possi-
ble psychotic symptoms.”

   [17] The dissent believes that Pinholster has presented evi-
dence of “substantial neurological and emotional disorders.”
Dissent at 4794. However, the only constant with regard to
the evolving defense expert testimony has been Dr. Stalberg’s
diagnosis of Antisocial Personality Disorder and the experts’
agreement that it is reasonably probable that Pinholster suf-
fered from epilepsy.28 The California Supreme Court has
faced a revolving door of experts, each presenting his or her
own theory on Pinholster’s mental health. Although we have
no pronounced reason to question the credibility of Pinhol-
ster’s new experts, we conclude that no newly-minted expert
theory to explain his behavior would have made a difference
in the face of what Pinholster said and did.

  Though the Supreme Court has recently highlighted
defense counsel’s constitutional duty to adequately investigate
mitigating evidence, we cannot say from the record either
before the state or federal district court that it was objectively
   28
      Dr. Rudnick agreed with Dr. Stalberg’s diagnosis and also noted in his
declaration that John Geiger, M.D., a staff psychiatrist at San Quentin
State Prison, diagnosed Pinholster with Antisocial Personality Disorder
and concluded that his violent behavior was “approximately that of the
average condemned area inmate.” Charles E. Steinke, Ph.D., a staff psy-
chologist at San Quentin, also agreed with Dr. Geiger’s diagnosis of Anti-
social Personality Disorder. We have previously noted that a diagnosis of
Antisocial Personality Disorder is “potentially more harmful to [a] peti-
tioner than [helpful].” Gerlaugh v. Stewart, 129 F.3d 1027, 1035 (9th Cir.
1997); see also Daniels v. Woodford, 428 F.3d 1181, 1204-05 (9th Cir.
2005) (concluding that the jury “never heard any mitigating psychological
explanation for Daniels’s behavior” because trial counsel relied solely on
testimony suggesting that Daniel was a “sociopath”); Clabourne v. Lewis,
64 F.3d 1373, 1384 (9th Cir. 1995) (stating that omitted mental health
records were “hardly . . . helpful” as they indicated that the defendant had
“an antisocial personality”).
                      PINHOLSTER v. AYERS                   4773
unreasonable for the California Supreme Court to deny relief.
While trial counsel could have presented more detailed miti-
gating evidence—in the form of Pinholster’s social history
and mental health history—that evidence falls short when
compared to the mitigating evidence available in Williams,
Wiggins, and Rompilla, and the overwhelming evidence in
aggravation which Pinholster faced.

   In Williams, had counsel performed effectively the jury
would have learned that Williams’s parents were imprisoned
for criminal neglect; Williams’s father repeatedly beat him;
Williams was borderline mentally retarded and had not
advanced beyond sixth grade; and, while in prison, Williams
helped crack a prison drug ring, he returned a prison guard’s
missing wallet, and prison officials testified that he was the
least likely to act violently out of all the inmates. 529 U.S. at
395-96. As the Supreme Court emphasized, this mitigating
evidence coupled with the evidence the jury did hear—that
“Williams turned himself in, alerting police to a crime they
otherwise would never have discovered, express[ed] remorse
for his actions, and cooperat[ed] with the police after that”—
could have influenced the jury’s view of Williams’s moral
culpability. Id. at 398. In Williams, the additional mitigating
evidence tended to show that Williams’s “violent behavior
was a compulsive reaction rather than a product of cold-
blooded premeditation.” Id. Pinholster, on the other hand,
presented himself to the jury as a classic antisocial personality
who revels in his disobedience to the law and social mores.

   In Wiggins, defense counsel failed to present evidence that
Wiggins’s mother was an alcoholic and abusive to Wiggins
and his siblings, Wiggins entered foster care at age six, two
foster mothers physically abused him, his second foster father
repeatedly raped and molested him, he spent time homeless,
and he was mentally retarded. 539 U.S. at 525, 535, 545. In
finding that Wiggins was prejudiced by his counsel’s ineffec-
tive assistance at the penalty phase, the Supreme Court com-
pared Wiggins to Williams, noting that “Wiggins does not
4774                      PINHOLSTER v. AYERS
have a record of violent conduct that could have been intro-
duced by the State to offset this powerful mitigating narra-
tive.” Id. at 537. Pinholster, in contrast, is the epitome of a
repeat offender who specializes in violent crimes.

   In Rompilla, had defense counsel conducted a sufficient
investigation into mitigating evidence, the jury would have
learned that Rompilla’s parents suffered from severe alcohol-
ism; Rompilla’s mother drank during her pregnancy, causing
Rompilla to develop fetal alcohol syndrom; Rompilla and his
brothers also developed serious drinking problems; Rompil-
la’s father severely beat both Rompilla and his mother; Rom-
pilla’s mother and father fought violently, with one incident
resulting in his mother stabbing his father; and that Rompilla
suffered a depraved childhood, during which he was locked
in a mesh dog pen, isolated from other children, and slept in
an attic with no heat. 545 U.S. at 391-92. In addition, counsel
would have found evidence suggesting that Rompilla suffered
from schizophrenia and other mental disorders.

   [18] In contrast to the petitioner in Wiggins, who had no
prior convictions nor a record of violent conduct, cf. Wiggins,
539 U.S. at 537, Pinholster’s violent past—a past Pinholster
proudly boasted about to the jury—offsets the mitigating evi-
dence. Pinholster bragged that he had committed hundreds of
armed robberies within a three-year time period. In addition,
he admitted to a prior kidnaping, during which he held a knife
to the victim’s throat. And, unlike the petitioner in Williams,
Pinholster neither expressed remorse over the murders of
Thomas Johnson and Robert Beckett, nor attempted to aid the
police in their investigation. Rather, Pinholster threatened to
kill the State’s lead witness, Art Corona, and proudly
recounted his recusant behavior in front of the jury.29
  29
    During the penalty phase, the jury also heard evidence regarding the
numerous threats and assaults Pinholster inflicted on law enforcement, as
well as several disciplinary infractions while he was arrested and incarcer-
ated. For example, LAPD officers Kaufman and Guzman testified that
                          PINHOLSTER v. AYERS                          4775
   We recognize that, at first glance, Pinholster’s habeas peti-
tion more closely resembles that of the petitioner in Rompilla.
Nevertheless, there are significant differences, and we must
analyze an attorney’s alleged ineffective assistance of counsel
on a case-by-case approach. See Rompilla, 545 U.S. at 393-
94, 396 (O’Connor, J., concurring). California law provides
that, in determining the penalty, the jury shall consider, if rel-
evant, “[t]he circumstances of the crime of which the defen-
dant was convicted in the present proceeding and the
existence of any special circumstances.” Cal. Penal Code
§ 190.3(a). Indeed, the trial court instructed the jury that “[i]n
determining which penalty is to be imposed on the Defendant,
you shall consider all of the evidence which has been received
during any part of the trial of this case.” Here, the jury wit-

Pinholster kicked or attempted to kick them in the head while they tried
to restrain him on different occasions. Los Angeles County Central Jail
Operations Sergeant Thomas Piggott testified to some of the eleven disci-
plinary incidents with Pinholster involving “overt violence or some chal-
lenge to future recalcitrant type behavior.” Finally, the State presented the
testimony of Cathy Ann Smith. She testified that Pinholster broke her jaw
while seemingly having an epileptic seizure. However, because trial coun-
sel could have rebutted some of this aggravating evidence, we do not give
it substantial weight in the reweighing of the aggravating and mitigating
factors. For example, former Los Angeles County Deputy Sheriff Dale
Peroutka would have testified that Pinholster “eventually [ ] turned him-
self around” such that Peroutka and other deputies recommended to reclas-
sify Pinholster from administrative segregation to the general population.
Peroutka no longer saw Pinholster as a danger to other deputies or
inmates; he reached an agreement with Pinholster that he could join the
general population if he behaved and complied with the rules. Likewise,
trial counsel could have diminished the impact of a serious disciplinary
infraction admitted by stipulation. Allan Page Crowder, the corrections
officer Pinholster allegedly threatened to throw off a tier in state prison,
would have testified that had he been a more seasoned officer, he would
not have considered the 1978 verbal altercation worthy of a CDC 115
disciplinary report. Nevertheless, because we find other more substantial
aggravating evidence in the record, this newfound mitigating evidence
does not change our ultimate conclusion that no reasonable juror would
have been persuaded to change his vote.
4776                     PINHOLSTER v. AYERS
nessed first-hand Pinholster’s lack of remorse. Cf. Schriro v.
Landrigan, 127 S. Ct. 1933, 1944 (2007) (noting that the
“postconviction court was well acquainted with Landrigan’s
exceedingly violent past and had seen first hand his belliger-
ent behavior”); see also id. (“In his comments [to the sentenc-
ing judge], defendant not only failed to show remorse or offer
mitigating evidence, but he flaunted his menancing behavior.”
(internal quotation marks and first alteration omitted)). Justice
Mosk specifically emphasized that point in authoring the deci-
sion for the California Supreme Court: “[Pinholster] himself
made his criminal disposition clear [to the jury.] In fact, he
gloried in it.” Pinholster, 824 P.2d at 611.

   [19] Pinholster viciously beat the two murder victims,
repeatedly stabbed them with a knife, and took their wallets
for a gain of $23 and a quarter-ounce of marijuana.30 Yet,
under oath, Pinholster denied murdering the victims and
bragged about the successful hundred-plus robberies he had
previously committed. Pinholster called himself a “profes-
   30
      The dissent questions the heinousness of these murders, comparing
this factual scenario with those found in Belmontes v. Brown, 414 F.3d
1094 (9th Cir. 2005), rev’d on other grounds, Ayers v. Belmontes, 127
S. Ct. 469 (2006); Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006); and
Fields v. Brown, 431 F.3d 1186 (9th Cir. 2005). Dissent at 4797-99. How-
ever, for the jury charged with the duty of weighing the mitigating and
aggravating factors in determining whether this defendant should receive
a life sentence or suffer death, these separate, unconnected murders are
irrelevant. Unlike a trial judge who may try several murder cases, or an
appellate court that may review several different murder convictions in
those states imposing a proportionality review on appeal in capital cases,
this is likely the first and only time these jury members will become so
intimate with facts involving the taking of human lives. The jury does not
compare one murder to another, ranking the heinousness of the individual
crimes on some imaginary scale. California does not require a proportion-
ality review as do some other states in death penalty cases. Rather, as the
Supreme Court has directed appellate courts to do, juries also consider the
underlying facts of a death penalty case on an individualized case-by-case
basis in weighing the aggravating and mitigating facts. Cal. Penal Code
§ 190.3. We do not share our colleague’s view that this was not a particu-
larly heinous double homicide.
                           PINHOLSTER v. AYERS                           4777
sional robber,” and testified that he often wrote his name and
scratched swastikas on other people’s property as a “sideline
to robbery.”31 Moreover, the jury heard evidence that Pinhol-
ster was previously convicted for kidnaping, that he threat-
ened to kill the State’s lead witness, and that, in a jealous
rage, Pinholster slashed the arm of Thomas Mesquita with a
straight razor.

   Pinholster’s detailed account of his version of the events on
the night of the murders would obviously affect the jury’s
view of Pinholster’s mental impairment evidence. And, the
jury also observed firsthand on the witness stand an individual
who failed to respect the gravitas of the multiple murder trial
through his unrepentant attitude. In addition to taking pride in
his criminal background, Pinholster was openly disrespectful
of the deputy prosecutor and ignored the seriousness of his
underlying murders. The record reflects that Pinholster was
either laughing or smirking during numerous stages of the
deputy prosecutor’s cross-examination.

   [20] We cannot ignore the fact that, even while hearing
Pinholster’s defense in the guilt phase of the trial, the jury was
considering facts that were also relevant to appropriate pun-
ishment. See Cal. Penal Code § 190.3(a). In his testimony,
Pinholster portrayed himself as a career criminal who reveled
in his antisocial persona. As Dr. Rudnick explained in his dec-
laration, “individuals with Antisocial Personality Disorder
may have an inflated and arrogant self-appraisal, behave in a
cocky or self-assured manner, lack realistic concern about
their problems and display a glib, superficial charm.”32 The
  31
      Dr. Rudnick stated that “[Pinholster’s] behavior at Lisa Tapar’s house
was a clear, angry reaction to having the door closed on him. After stab-
bing the door, he performed the very deliberate, aggressive act of carving
various Nazi symbols on Lisa’s car.” This analysis, along with Pinhol-
ster’s ability to give a detailed description of his actions during this event,
would not have been forgotten by the jury considering any of the newly
proffered mitigating evidence.
   32
      As detailed above, Dr. Woods used Pinholster’s behavior at trial to
support his diagnosis of bipolar mood disorder. Given that Pinholster
4778                     PINHOLSTER v. AYERS
California Supreme Court, which acknowledged the fact that
Pinholster “gloried” in his criminal history, could reasonably
have concluded that no amount of clever “after-the-fact”
assessment by habeas defense psychiatrists would have con-
vinced even a single juror to change his vote.

                                   V

   We affirm the district court’s denial of Pinholster’s request
for an evidentiary hearing on ineffective assistance of counsel
at the guilt phase and remand for dismissal of the petition. We
reverse the district court’s grant of habeas relief on his inef-
fective assistance of counsel claim at the penalty phase.

  AFFIRMED in part, REVERSED in part, VACATED, and
REMANDED.




chose not to rely on Dr. Woods’s diagnosis in his federal habeas petition,
and that both Dr. Stalberg and Dr. Rudnick discredit this diagnosis, we
cannot believe the jury would have given it much weight.
PINHOLSTER v. AYERS            4779
                      Volume 2 of 2
4780                  PINHOLSTER v. AYERS



KOZINSKI, Chief Judge, concurring:

   I join Judge Tallman’s opinion in full, but I do have one
misgiving: I’m not sure whether Rompilla v. Beard, 545 U.S.
374, 393 (2005), still allows us to “reweigh the evidence in
aggravation against the totality of available mitigating evi-
dence,” Wiggins v. Smith, 539 U.S. 510, 534 (2003), when
counsel fails to uncover mitigating evidence. After all, coun-
sel failed to uncover mitigating evidence in Rompilla, and the
Supreme Court didn’t seem to address the aggravating evi-
dence in assessing prejudice. See Rompilla, 545 U.S. at 393.
Still, I have a hard time believing that Rompilla overruled a
recent case like Wiggins without bothering to say so. See id.
(quoting Wiggins, 539 U.S. at 538).

   Rompilla devotes most of its analysis to describing coun-
sel’s deficiencies, not to assessing the prejudice to petitioner.
The Court found that counsel were ineffective in Rompilla
because they failed to adequately prepare for a penalty phase
hearing where the prosecution focused on petitioner’s prior
conviction, not because they failed to look for evidence of
childhood abuse. See Rompilla, 545 U.S. at 394-96
(O’Connor, J., concurring). As Justice O’Connor’s linchpin
concurrence made clear, counsel’s “trial-preparation” there
was deficient because they failed to obtain petitioner’s prior
conviction file in anticipation of a hearing where the prosecu-
tion would focus on that conviction. Id. at 395. Had defense
counsel properly prepared for the hearing by obtaining that
file, they would have stumbled across a cache of valuable evi-
                      PINHOLSTER v. AYERS                   4781
dence of childhood abuse and mental defect. Id. at 390-91
(majority opinion). I read Rompilla for the unremarkable
proposition that counsel must take the steps a reasonable law-
yer would take in preparing for a hearing, not that counsel are
always ineffective for failing to uncover childhood mitigating
evidence.

   I would therefore find (as an alternative ground for rever-
sal) that petitioner’s counsel weren’t deficient, because they
made a rational decision to pursue what was essentially a
“pity” mitigation case, rather than try to make out a case of
mental defect. Counsel faced a difficult situation: During the
guilt phase, petitioner portrayed himself as a career criminal
and boasted that he had committed hundreds of robberies
using a gun. And petitioner admitted to breaking into Kumar’s
house on the night of the murders. The jury had ample oppor-
tunity to evaluate petitioner’s demeanor. Counsel may well
have felt that petitioner’s articulate and coherent testimony
portrayed him as a clever liar, not as someone who is mentally
deficient. This conclusion would have been bolstered by Dr.
Stalberg, who evaluated petitioner’s mental state and found
him essentially normal. While Dr. Stalberg has since flipped
a couple of times in his conclusions, petitioner doesn’t rely on
him now, so we can’t say that Dr. Stalberg would ultimately
have come up with a helpful diagnosis, had petitioner’s law-
yers only given him more facts. Petitioner’s new lawyers did
eventually manage to find psychiatrists willing to say he is
mentally impaired, but trial counsel had no reason to believe
that they could swiftly find another doctor who would dis-
agree with their own expert’s diagnosis.

   Under these circumstances, it was reasonable for them to
eschew a mental defect defense and pursue another mitigation
strategy. Ultimately, they focused on petitioner’s mother, who
testified about his head injuries, his disruptive behavior in
school, a psychologist’s recommendation that she commit him
to a mental hospital, his frequent stays at juvenile hall and his
epilepsy. The dissent chastises trial counsel for making “no
4782                  PINHOLSTER v. AYERS
investigation into Pinholster’s background at all,” dissent at
4790, but I don’t see why talking to a defendant’s mother
doesn’t count as an investigation into his background. The
investigation may not have been as thorough as our dissenting
colleague would have preferred, but surely it’s wrong to say
that defense counsel conducted no investigation at all.

   Petitioner’s mother was not the perfect mitigation witness,
but it’s not clear that petitioner had a perfect mitigation wit-
ness. Nor is perfection the standard; the question is whether,
applying the broad deference due to counsel under Strickland
v. Washington, 466 U.S. 668, 690-91 (1984), and the even
broader deference due to the California Supreme Court under
AEDPA, 28 U.S.C. § 2254(d), we can say that counsel’s deci-
sion is wholly unreasonable. This was not a case like Rom-
pilla or Williams v. Taylor, 529 U.S. 362, 395 (2000), where
review of a single file would have yielded a treasure trove of
mitigating evidence; finding all the evidence that petitioner’s
current lawyers have amassed after years of effort and expert-
shopping was simply beyond the time and resources available
to counsel at the time of trial.

   Justice O’Connor’s concurrence in Rompilla reaffirmed the
“longstanding case-by-case approach to determining whether
an attorney’s performance was unconstitutionally deficient.”
Rompilla, 545 U.S. at 394 (O’Connor, J., concurring). Rom-
pilla involved a particular hearing regarding petitioner’s prior
conviction, and because counsel failed to adequately prepare
for that hearing by obtaining petitioner’s prior conviction file,
counsel were unable to adequately rebut the prior conviction
evidence. See id. at 394-96. This was a discrete, precisely
identifiable strategy—“a sure bet,” id. at 389 (majority
opinion)—that no competent counsel could overlook or
bypass. It is quite different from counsel’s debatable judg-
ment call here as to how best to present their mitigation case
—after petitioner portrayed himself as a career criminal at the
guilt phase and their mental expert found no basis for mitiga-
tion. Under a “case-by-case approach,” id. at 394 (O’Connor,
                     PINHOLSTER v. AYERS                  4783
J., concurring), I can’t say that counsel’s decision to focus
solely on petitioner’s mother was unreasonable in these diffi-
cult circumstances. Nor was the state court unreasonable in
finding that petitioner’s constitutional rights were not vio-
lated.



FISHER, Circuit Judge, dissenting:

   I respectfully dissent. This case is controlled by a trio of
recent Supreme Court decisions holding that petitioners’ Sixth
Amendment rights were violated when their lawyers failed to
present available mitigating evidence during the penalty
phases of their capital trials. See Rompilla v. Beard, 545 U.S.
374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003); Williams
v. Taylor, 529 U.S. 362 (2000). The majority’s attempts to
distinguish these cases are not persuasive. Pinholster’s coun-
sel performed at least as deficiently as the lawyers in the
Court’s recent decisions; and Pinholster was prejudiced as a
result since the mitigating evidence that could have been
introduced on his behalf was at least as strong as that in Wil-
liams, Wiggins and Rompilla, and the aggravating evidence
against him was if anything weaker than that in Williams and
Rompilla. Binding Supreme Court precedent therefore com-
pels the conclusion that the state court’s summary denial of
Pinholster’s penalty phase ineffective assistance of counsel
(IAC) claim was objectively unreasonable. I would therefore
remand for the district court to issue a writ vacating Pinhol-
ster’s sentence, unless within a reasonable time set by the
court the State conducts a new penalty phase trial or imposes
a lesser sentence consistent with law.

                              I.

  Before addressing the majority’s penalty phase analysis, I
pause to note my partial disagreement with its resolution of
Pinholster’s guilt phase IAC claim. I agree that the district
4784                      PINHOLSTER v. AYERS
court did not err in denying Pinholster’s request for an eviden-
tiary hearing on that claim, but I would base that conclusion
solely on Pinholster’s failure to present a colorable claim of
prejudice. I cannot agree with the majority’s conclusion that
counsel’s decision to advise Pinholster to testify was a reason-
able tactical choice rather than deficient performance.1

   Pinholster’s counsel advised him to testify to a defense that
was not only implausible and nonsensical, but also demon-
strably false. There was compelling evidence disproving
almost every facet of the defense’s case. First, contrary to Pin-
holster’s claim that he was a gun-toting robber and not a
knife-wielding burglar, several witnesses testified at trial that
they saw Pinholster carrying a large buck knife immediately
before and after the murders. Pinholster himself admitted to
carrying a knife on the night of the murders, and a knife
sheath was found in his pocket when he was arrested. Pinhol-
ster also testified, contrary to his claim that he was not a bur-
glar, that he had burglarized Kumar’s home just hours before
the murders took place. In contrast, Corona testified that he
and Pinholster went to Kumar’s house on the night of the
murders intending to rob Kumar, and that the intended rob-
bery turned into a burglary only when they found Kumar’s
home unoccupied. Corona — the State’s lead witness — thus
gave testimony that was more consistent with Pinholster’s
   1
     I also disagree with the majority’s conclusion that the California
Supreme Court reasonably concluded that Pinholster’s counsel was effec-
tive in failing to object to highly prejudicial evidence suggesting that Pin-
holster murdered two other individuals in Sun Valley. That court’s
conclusion was based entirely on the assumption that the evidence would
assist Pinholster’s defense. However, Pinholster’s defense was irrational
and should have never been put forth. The California Supreme Court also
failed to consider whether Pinholster could have received the same benefit
in terms of “candor,” People v. Pinholster, 824 P.2d 571, 604 (Cal. 1992),
by requesting redaction of the prior murder evidence from the Corona tape
and allowing the remainder to be played. Finally, as the prosecution never
produced evidence that two Latino men were killed in a shootout in Sun
Valley, it appears that Corona’s prior murder comments were simply
untrue.
                          PINHOLSTER v. AYERS                          4785
defense than even Pinholster’s own testimony. The second
part of Pinholster’s alibi — that he was at Kumar’s residence
before and not after his visit to Tapar’s house — was also dis-
proved at trial. Contrary to Pinholster’s statement that he went
to Tapar’s residence by himself in order to tell her about Shot-
gun’s death, Tapar testified that she did not know Shotgun
and that Pinholster arrived in Corona’s car and appeared
intent on robbing Kumar. Even more damaging was Klemet-
ti’s testimony that he was at Kumar’s house at 9 p.m. and
found no signs of the burglary that Pinholster claimed to have
committed at 8 p.m.

   On its own, counsel’s chosen defense was misguided. But
in light of counsel’s additional failure to investigate important
physical evidence, including the palm print and the boot print,
it amounted to deficient performance.2 Although a defendant’s
right to testify is his own and may not be overridden by coun-
sel, counsel nonetheless has the responsibility to indepen-
dently investigate and challenge a defendant’s implausible
story. See Phillips v. Woodford, 267 F.3d 966, 978-79 (9th
Cir. 2001) (stating that an attorney has an obligation to inves-
tigate defendant’s “ ‘incredibly lame’ ” alibi and “ ‘confront
the petitioner with the difficulties of his story’ ” (quoting
Johnson v. Baldwin, 114 F.3d 835, 838, 840 (9th Cir. 1997)).
  2
    The majority suggests that Pinholster suffered less prejudice from his
counsels’ failure to investigate the palm print, because counsel “merely
stated that he probably” would have advised Pinholster not to testify had
he known of evidence that the palm print found at the crime scene did not
match Pinholster’s palm. See Maj. Op. at 4753 & n.13. The question is not
what Pinholster’s ineffective counsel would have done but rather what
effective counsel would have done. Competent counsel would have cer-
tainly advised Pinholster not to testify. Nor do I agree that the existence
of only a “battle of the experts” with regard to the palm print evidence
somehow reduces the prejudice from counsel’s failure to investigate. See
id. at 4754-55. Evidence that creates a “battle of the experts” is precisely
the type of evidence that gives rise to reasonable doubt, and thus will typi-
cally support a finding of prejudice. In this case it is only because other
evidence overwhelmingly shows Pinholster’s guilt that the new palm print
evidence does not amount to prejudice.
4786                     PINHOLSTER v. AYERS
Here, an investigation would have revealed that Pinholster’s
alibi was highly suspect, giving rise to counsel’s obligation to
advise Pinholster against testifying, because the jury would
likely conclude he was lying.3 See also id. at 979 (“ ‘The prej-
udice from failing to investigate the alibi and confer more
fully with petitioner is not avoided by the fact the petitioner
misinformed his attorney.’ ”) (quoting Johnson, 114 F.3d at
840). At the very least, counsel’s shortcoming in this regard
makes out a colorable claim of deficient performance for pur-
poses of obtaining an evidentiary hearing. See id. (noting that
the “colorable claim” standard is “far less onerous” than the
standard for granting the writ); see also Earp v. Ornoski, 431
F.3d 1158, 1170 (9th Cir. 2005) (describing the “colorable
claim” standard as “a low bar”).

   Nonetheless, I agree that Pinholster has failed to present a
colorable claim of prejudice. There was overwhelming evi-
dence of Pinholster’s guilt, including: Art Corona’s eyewit-
ness testimony of the murders; Casey Corona’s testimony that
she saw Pinholster washing blood off his knife soon after the
murders while stating “[i]t had to be done the way it was
done”; Kempf’s testimony that Pinholster stated — while
clutching his buck knife — that he wanted to rob Kumar “one
way or the other”; Tapar’s testimony that Pinholster appeared
at her door with a knife just before the murders and that she
had the impression that Pinholster intended to steal from
Kumar; and evidence that one Gian Norelli had heard Pinhol-
ster brag about stabbing two people in Tarzana, where Kumar
lived. In light of this evidence, it is difficult to conceive of
any reasonable juror not voting to convict absent a convincing
defense theory. Pinholster has failed to articulate such a
  3
   The majority’s insistence that Pinholster’s counsel were not ineffective
because Pinholster was “eager to take the stand” is not illuminating. Maj.
Op. at 4753. Counsels’ deficient failure to investigate Pinholster’s alibi
defense, which in turn rendered them unable to provide competent advice
about whether he should testify, made it impossible for Pinholster to make
an informed decision as to whether he should exercise his constitutional
right to do so.
                      PINHOLSTER v. AYERS                   4787
defense theory. Cf. Phillips, 267 F.3d at 980-81 (gauging
whether there was a colorable claim of prejudice by compar-
ing the deficient defense presented at trial to a proposed alter-
native defense). For this reason alone, I would hold that the
district court appropriately denied Pinholster an evidentiary
hearing on guilt phase ineffective assistance and, necessarily,
that the district court properly denied habeas relief with
regard to guilt.

   Notwithstanding that counsel’s deficiencies were not preju-
dicial at the guilt phase, I would hold that they added consid-
erably to the prejudice Pinholster suffered at the penalty
phase. Counsel’s deficient performance at the guilt phase
resulted in the jury hearing Pinholster boast about committing
hundreds of robberies as well as other damaging evidence
suggesting that Pinholster murdered two men. The majority
itself makes evident that counsel’s failure to advise Pinholster
against taking the stand during the guilt phase was prejudicial
at the penalty phase, because it repeatedly invokes the “dam-
age Pinholster did to himself when he took the stand in the
guilt phase and testified to an unrepentant life of violent
crime.” See Maj. Op. at 4767; see also id. at 4772 (“[N]o
newly-minted expert theory to explain his behavior would
have made a difference in the face of what Pinholster said and
did.”); id. at 4774 (noting that any mitigating evidence would
have been offset when Pinholster “proudly boasted to the
jury” about his life of crime). The same jury that decided Pin-
holster’s guilt went on to decide his penalty, so the harmful
guilt phase evidence undoubtedly added to the other prejudi-
cial errors Pinholster’s counsel committed at the penalty
phase, to which I now turn.

                               II.

  The majority holds that the California Supreme Court’s
summary denial of Pinholster’s penalty phase IAC claim was
not objectively unreasonable. I disagree. In my view, the
Supreme Court’s recent decisions in Williams, Wiggins and
4788                  PINHOLSTER v. AYERS
Rompilla compel the conclusion that Pinholster’s counsel per-
formed deficiently and that Pinholster was prejudiced as a
result. The state court’s ruling to the contrary was indeed an
“unreasonable application of[ ] clearly established Federal
law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1).

                              A.

   The majority proceeds straight to the prejudice prong of the
IAC inquiry and does not contend that Pinholster’s trial coun-
sel performed competently. See Maj. Op. at 4765. This is a
wise decision, because counsel manifestly failed to satisfy the
professional standards for penalty phase representation. The
Supreme Court has held that “trial counsel [must] conduct a
thorough investigation of the defendant’s background.” Wil-
liams, 529 U.S. at 396 (citing the applicable American Bar
Association standards); see also Rompilla, 545 U.S. at 387 &
n.7; Wiggins, 539 U.S. at 524 (“[I]nvestigations into mitigat-
ing evidence should comprise efforts to discover all reason-
ably available mitigating evidence . . . .”) (internal quotation
marks omitted). Employing this approach, the Court found
deficient performance — despite AEDPA’s deferential stan-
dard of review — in Williams, Wiggins, and Rompilla. In Wil-
liams, counsel began to prepare for the penalty phase less than
a week before trial, presented only four witnesses and “failed
to conduct an investigation that would have uncovered exten-
sive records graphically describing Williams’ nightmarish
childhood.” 529 U.S. at 369, 395. In Wiggins, counsel pre-
sented no evidence of the petitioner’s life history or family
background, and failed to consult documentary evidence
beyond the petitioner’s presentence investigation (PSI) report
and Department of Social Services (DSS) records. See 539
U.S. at 516, 524-29. And in Rompilla, counsel presented five
witnesses during the penalty phase and reviewed the reports
of three mental health experts, but failed to examine the peti-
tioner’s prior conviction file even though the prosecution had
                      PINHOLSTER v. AYERS                    4789
declared its intention to introduce that file’s contents at trial.
See 545 U.S. at 381-86.

   Pinholster’s attorneys plainly performed even more defi-
ciently than the lawyers in Williams, Wiggins and Rompilla.
According to billing records, they spent only 6.5 hours pre-
paring for the penalty phase of Pinholster’s trial. One week
before the penalty phase began, counsel admitted that they
“had not prepared any evidence by way of mitigation,” and
then declined to request a continuance so that they could con-
duct a proper investigation, telling the court that they did not
think more time “would make a great deal of difference.”
They obtained no medical or psychological records, law
enforcement records or school reports for Pinholster or his
siblings, even though all of this documentary evidence was
readily available. They failed to provide the psychiatrist they
retained, Dr. Stalberg, with any of the materials he needed to
evaluate Pinholster properly. They interviewed and presented
just one witness, Pinholster’s mother, whose testimony at trial
was highly misleading and self-serving. They waived their
opening statement in the penalty phase. If the lawyers in Wil-
liams and Rompilla performed deficiently even though they
interviewed and presented multiple witnesses, and if counsel’s
performance in Wiggins was deficient despite the examination
of the petitioner’s PSI report and DSS records, then Pinhol-
ster’s attorneys cannot have satisfied the professional stan-
dards for penalty phase representation. It is not reasonable for
a lawyer to interview and present just one witness, to fail to
uncover abundant readily available mitigating evidence and to
spend less than a day preparing for a proceeding at which the
jury will decide whether the lawyer’s client should live or die.

   Chief Judge Kozinski, concurring, suggests that this perfor-
mance was not deficient because counsel “made a rational
decision to pursue what was essentially a ‘pity’ mitigation
case, rather than trying to make out a case of mental defect.”
Concurring Op. at 4781. Relying almost exclusively on Jus-
tice O’Connor’s nonbinding concurrence in Rompilla, he
4790                  PINHOLSTER v. AYERS
argues that Rompilla stands only for the “unremarkable prop-
osition” that counsel must take reasonable steps to prepare for
a hearing, not “that counsel are always ineffective for failing
to uncover childhood mitigating evidence.” Id. Even if he
were correct that Rompilla’s holding is so limited, however,
the same cannot be said for Williams, where the Court noted
that it was “barely disputed” that counsel were ineffective
where, as here, they “did not begin to prepare for [the penalty]
phase of the proceeding until a week before the trial” and
“failed to conduct an investigation that would have uncovered
extensive records graphically describing Williams’ nightmar-
ish childhood, not because of any strategic calculation but
because they incorrectly thought that state law barred access
to such records.” 529 U.S. at 395 (emphasis added).

  In this case, counsel failed to conduct an investigation into
Pinholster’s background — not through any mistake of law,
but through apathy or negligence. This hardly seems to be a
more defensible strategic choice. Although in certain cases
counsel may have “sound reason to think it would have been
pointless to spend time and money on . . . additional investi-
gation,” and hence counsel’s failure to uncover additional
mitigating evidence would not be unreasonable, here there
was no investigation into Pinholster’s background at all,
beyond interviewing his mother. Rompilla, 545 U.S. at 383.
Where no meaningful investigation is even attempted, counsel
could hardly have developed any “sound reason” to think that
“additional investigation” would be fruitless. Id. (emphasis
added); see also id. at 389 (explaining that conducting further
investigation may not be necessary “when a lawyer truly has
reason to doubt” that further useful mitigating information
will be found) (emphasis added). Here counsel not only con-
ducted the very barest kind of investigation, they failed to
conduct any follow-up investigation into the limited mitigat-
ing evidence that they did learn from Pinholster’s mother,
such as evidence that Pinholster suffered from epilepsy. Thus
even where counsel developed “sound reason” to believe that
                      PINHOLSTER v. AYERS                  4791
further investigation would yield fruitful evidence, counsel
utterly neglected that duty. Id.

   Lastly, contrary to Chief Judge Kozinski’s suggestion,
counsel could not have made a “rational decision” to pursue
a mitigation strategy that relied solely on Pinholster’s moth-
er’s inaccurate testimony, when counsel failed to explore
meaningfully any other options. See Concurring Op. at 4781.
As the Court has explained, the question is “not whether
counsel should have presented a mitigation case,” but
“whether the investigation supporting counsel’s decision not
to introduce mitigating evidence of [the defendant’s] back-
ground was itself reasonable.” See Wiggins, 539 U.S. at 523.
Even if one could hypothesize a world in which relying on
Pinholster’s mother’s testimony and eschewing a mental
defect defense was a reasonable defense strategy, Pinholster’s
counsel could not have made such a strategic decision where
they “abandoned their investigation of petitioner’s back-
ground after having acquired only rudimentary knowledge of
his history from a narrow set of sources.” Id. at 524. Coun-
sel’s failure to investigate here was even more flagrant than
in Williams, Wiggins or Rompilla, and so was manifestly
unreasonable under clearly established Supreme Court law.

                              B.

                               1.

   The majority holds that even if the performance of Pinhol-
ster’s counsel was deficient, it was not objectively unreason-
able for the state court to rule that Pinholster was not thereby
prejudiced. In reaching this conclusion, the majority mini-
mizes or ignores much of the mitigating evidence that Pinhol-
ster could have presented, overstates the value of what little
mitigating evidence was actually put before the jury, and
exaggerates the aggravating evidence that was introduced
against him. The majority thus imposes a much more stringent
test for prejudice than is required by Strickland v. Washing-
4792                  PINHOLSTER v. AYERS
ton, 466 U.S. 668 (1984), and its progeny. While it is true that
Pinholster must demonstrate that there is a “reasonable proba-
bility that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different,” the Court has
emphasized that a reasonable probability is less than the pre-
ponderance more-likely-than-not standard. See Strickland,
466 U.S. at 693-94; see also Rompilla, 545 U.S. at 393
(“[A]lthough we suppose it is possible that [the sentencer]
could have heard it all and still decided on the death penalty,
that is not the test.”). The gap between the evidence that was
presented and what could have been presented is more than
sufficient to “undermine confidence in the outcome” of the
proceeding. See Strickland, 466 U.S. at 694.

   Beginning with the available mitigating evidence, the
majority ignores or downplays much of the probative infor-
mation that Pinholster could have presented at trial. First, the
“years of significant neglect and physical and emotional
abuse” that Pinholster experienced as a child were not, as the
majority implies, limited to the beatings by his stepfather and
grandmother. Maj. Op. at 4767-68. His birth father, Garland
Pinholster, abandoned the family when Pinholster was an
infant. Pinholster’s family was extremely poor, to the point
that the children would sometimes mix flour and water when
they were hungry. Neither Pinholster’s stepfather nor his
mother evinced any concern for Pinholster and his siblings.
Indeed, Pinholster’s mother often laughed when her children
behaved inappropriately, encouraged them to steal from
nearby rail cars and dressed the children in rags while buying
mink coats for herself.

   Second, the lives of Pinholster’s siblings were worse than
the majority indicates. Pinholster’s half-sister, Tammy Brash-
ear, was convicted of prostitution and forcible sexual battery,
and became a ward of the juvenile court when she was 16.
Pinholster’s brother, Alvin Pinholster, was arrested for rob-
bery, rape, sodomy and other offenses, suffered from severe
depression and schizophrenia and eventually committed sui-
                     PINHOLSTER v. AYERS                  4793
cide. Pinholster’s other brother, Terry Pinholster, suffered
from depression and became a user of PCP. And Pinholster’s
half-brother, Guy Pinholster, suffered from depression as well
as bipolar mood disorder, and was frequently beaten by his
father.

   Third, Pinholster’s own medical history is more problem-
atic than the majority acknowledges. He suffered his first
head injury at age two when he was run over by his mother’s
car, resulting in a two-week hospital stay. He suffered a sec-
ond severe head injury a year later, during a car accident in
which Pinholster’s head hit the front windshield hard enough
to shatter the glass. According to Dr. Woods, these injuries at
the very least supported a post-traumatic diagnosis, and may
have accounted for the abnormal EEG that Pinholster
recorded as a child. Similarly, Dr. Olson and Dr. Vinogradov
stated that the injuries damaged Pinholster’s brain and caused
him to become more aggressive, while Dr. Stalberg described
the injuries as potentially “devastating” and linked them to
Pinholster’s epilepsy. That epilepsy was severe enough that
Pinholster was prescribed medication from age nine onward
and repeatedly suffered complex partial and grand mal sei-
zures. Different doctors also diagnosed Pinholster with bipo-
lar mood disorder (Dr. Woods) and personality change due to
childhood head trauma (Dr. Olson and Dr. Vinogradov),
while agreeing that he was epileptic. At age 11, Pinholster
spent more than four months in a mental institution.

   Fourth, the majority does not even acknowledge that Pin-
holster had severe learning disabilities in school and was
socially isolated and maladjusted as a child. According to his
elementary school teacher, Lois Rainwater, Pinholster “had
no friends at all,” “seemed incapable of relating either to his
peers or to adults,” “seemed like a child who got no attention
or structure at home” and “fell through the cracks emotionally
and every other way.” Lastly, Pinholster had a history of
abusing alcohol, nicotine, marijuana, and heroin. He started
drinking alcohol, smoking, sniffing glue and paint and using
4794                  PINHOLSTER v. AYERS
marijuana between the ages of 10 and 12; using Seconal and
downers between the ages of 13 and 14; and using heroin and
cocaine between the ages of 14 and 16. On the night of the
events in question, Pinholster was heavily intoxicated with
both alcohol and drugs.

   Instead of discussing this substantial available mitigating
evidence that was not put before the jury, the majority instead
dwells on an interview Pinholster gave to a social worker in
1991, where he downplayed the extent of the abuse he suf-
fered as a child. See Maj. Op. at 4767-69. Although the
majority acknowledges that Pinholster’s stepfather “fre-
quently beat Pinholster with his fists, a belt, or anything else
available, including a two-by-four board,” the majority none-
theless focuses on Pinholster’s — the abused child’s — inter-
pretation of these events as nothing but “discipline” that
“benefitted” him and his brothers. Id. at 4767-68. Further,
while the majority goes on at length about the positive rela-
tionship Pinholster may have with his maternal grandfather,
Pinholster’s uncle and aunt testified that it was Pinholster’s
grandmother who would frequently “beat the hell out of” Pin-
holster from the time when he was a toddler. Every medical
professional who evaluated Pinholster concluded that he suf-
fered severe abuse and neglect in his childhood. Further, mul-
tiple doctors who evaluated Pinholster noted his tendency to
portray his own history inaccurately or minimize the serious-
ness of his childhood trauma so as to maintain a facade of per-
sonal control. The majority’s emphasis on Pinholster’s
rationalization of his mother’s neglect therefore seems rather
myopic if not disingenuous.

   The majority also attempts to minimize the evidence of
Pinholster’s substantial neurological and emotional disorders
by emphasizing disagreements among the experts as to some
diagnoses, and stating that “the only constant with regards to
the evolving defense expert testimony has been Dr. Stalberg’s
diagnosis of Antisocial Personality Disorder and the experts’
agreement that it is reasonably probable that Pinholster suf-
                     PINHOLSTER v. AYERS                  4795
fered from epilepsy.” Maj. Op. at 4772. It is unclear why the
majority dismisses the importance of these diagnoses, which
are clearly sufficient of themselves to indicate an organic
basis for some of Pinholster’s behavior. Further, Dr. Woods
concluded that Pinholster suffered from bipolar mood disor-
der and Dr. Olson and Dr. Vinogradov concluded that Pinhol-
ster suffered from brain damage attributable to childhood
trauma, which may have explained in part his aggressive
behavior. Even if not all experts concurred on the exact set of
diagnoses, numerous doctors agreed that Pinholster suffered
from psychological disorders that may have influenced his
criminal acts. Further, this medical testimony might have also
affected the jury’s interpretation of Pinholster’s guilt phase
testimony, again by suggesting an organic basis for his ten-
dency to exaggerate his past. Yet none of this medical evi-
dence or testimony was put before the jury to evaluate, and
the majority acknowledges that it has no reason to doubt the
credibility of these medical professionals.

   The majority also gives too much credit to the penalty
phase testimony of Pinholster’s mother, Burnice Brashear.
While Brashear’s testimony did include some “mitigating evi-
dence,” see id. at 4769 — as was inevitable given Pinholster’s
horrific childhood — the overall impression she conveyed of
Pinholster’s upbringing was not just incomplete but actually
untrue. Contrary to her statements in court, Pinholster’s sib-
lings were not “[b]asically very good children,” and they got
into much more than “small trouble” with drugs, alcohol and
the law. The beatings that Pinholster endured at the hands of
his stepfather were quite certainly child abuse, not mere “dis-
cipline” or “arguments and hassles,” as Brashear also charac-
terized them. Pinholster and his siblings did not have
“everything normally materialwise that most people have,”
“decent clothes” and “a nice house,” but instead suffered from
malnutrition, lack of clothing and neglect. Pinholster’s epi-
lepsy was first diagnosed at age nine, not after he was beaten
at age 18. And Pinholster did not do “much better” at school
after being diagnosed with “perceptive vision” and moved to
4796                  PINHOLSTER v. AYERS
a different classroom; rather, his academic performance con-
tinued to decline, and by his teenage years he was being shuf-
fled from one institutional setting to another. Instead of
minimizing the damage done by Brashear’s testimony, I
would simply adhere to the conclusions of Dr. Stalberg and
the district court. Dr. Stalberg described Brashear’s state-
ments as “profoundly misleading,” while the district court
opined that “[t]he available evidence ‘was far different from
the unfocused snapshot’ presented by Pinholster’s attorneys at
trial.” Hence the majority attributes false weight to the jury’s
supposedly “obvious rejection of such mitigating circum-
stances.” Id. at 4769. The jury was not presented with an
accurate picture of the mitigating circumstances, so it hardly
could have rejected them.

   Finally, the majority not only overvalues Brashear’s testi-
mony, but also ignores the way in which its deficiencies were
turned against Pinholster by the prosecution. During the pen-
alty phase closing arguments, the State was able to claim, on
the basis of Brashear’s inaccurate statements, that Pinholster
had resorted to crime and violence even though he “came
from a good home,” “was not a deprived child” and “had
many things going for him, probably more than many chil-
dren.” The State also was able to discount Brashear’s testi-
mony about Pinholster’s epilepsy — and indeed to accuse her
of lying about it — by pointing to the complete lack of cor-
roborating evidence as well as her own ignorance about the
condition. On cross-examination, Brashear stated that she did
not know what type of epilepsy Pinholster had, that she was
unsure when she found out about the condition and that on
one occasion she had taken Pinholster to a doctor and, as the
prosecutor put it, “lo and behold, just like that the doctor told
them he had epilepsy.” Brashear’s flawed testimony, in com-
bination with Pinholster’s counsel’s failure to present any
other evidence in mitigation, thus made possible the State’s
devastating conclusion: “What did the defendant proffer in
this particular case as to ask you to come back with anything
less than death? . . . Not one person except his mother.” Cf.
                     PINHOLSTER v. AYERS                  4797
Karis v. Calderon, 283 F.3d 1117, 1139 (9th Cir. 2002) (find-
ing prejudice in part because “[t]he defense counsel’s por-
trayal of [petitioner] as intelligent without any indication of
his violent and abusive childhood afforded the prosecution a
very effective argument,” and enabled “[t]he prosecutor [to]
emphasize[ ] the fact that [petitioner] was ‘bright’ and ‘cun-
ning’ and that he ‘well knew exactly what he was doing’ ”).

                              2.

   On the other side of the ledger, the majority describes the
aggravating evidence that was introduced against Pinholster
as “overwhelming.” Maj. Op. at 4766, 4773. This evidence
must not be understated, and Pinholster is obviously not a
sympathetic person, but deeming the aggravating evidence
“overwhelming” does not make it so. First, the murders them-
selves were not as heinous as many of the other terrible
crimes that we have considered in capital cases. Pinholster did
not intend to kill anyone when he went to Kumar’s house, and
indeed was surprised when the housesitters, Johnson and
Beckett, arrived at the scene. Thus to the extent there was any
premeditation, it formed immediately before the instant
offenses took place, when a drunk, high and emotionally dis-
traught Pinholster and his two codefendants, Corona and
Brown, suddenly discovered that they were not alone in
Kumar’s house. Moreover, Brown stabbed Johnson as well
and said that he had “ ‘buried his knife to the hilt’ ” in him,
meaning that it is uncertain whether Pinholster was responsi-
ble for Johnson’s fatal wounds. See Pinholster, 824 P.2d at
582-84.

   We have previously described a very similar crime as “in
essence a robbery gone wrong.” Belmontes v. Brown, 414
F.3d 1094, 1139 (9th Cir. 2005), rev’d on other grounds,
Ayers v. Belmontes, 127 S. Ct. 469 (2006). We commented in
Belmontes that the murder, which involved the bludgeoning
of a single victim with an iron bar during a robbery, “was not
pre-planned, nor did it involve kidnapping, rape, torture . . .
4798                 PINHOLSTER v. AYERS
or any of the other especially heinous elements that usually
are present when a jury votes for the ultimate penalty.” Id.;
see also Summerlin v. Schriro, 427 F.3d 623, 641 (9th Cir.
2005) (en banc) (noting that “instantaneous premeditation” is
“not definitive for the purpose of establishing the especially
heinous, cruel, or depraved aggravator”). Although Pinhol-
ster’s crime was surely vicious, the facts of the crime were
unfortunately far from extreme in either their depravity or
cruelty. See, e.g., Hovey v. Ayers, 458 F.3d 892, 898 (9th Cir.
2006) (defendant abducted a young girl as she was walking
home from school, sexually molested her and abandoned her
on the side of the road with six skull fractures and 14 lacera-
tion wounds); Fields v. Brown, 431 F.3d 1186, 1202 (9th Cir.
2005) (defendant was responsible for a “ ‘one-man crime
wave’ ” during which he committed “a murder and at least
three kidnapings, rapes, and robberies within a three-week
period of time”).

   Second, the aggravating evidence introduced against Pin-
holster that pertained to incidents other than the murders
themselves was also less severe than that in many of our pre-
vious cases. As the majority notes, Pinholster denied murder-
ing Johnson and Beckett, referred to himself as a
“professional robber,” testified that he often scratched peo-
ple’s property, was convicted of kidnaping and received sev-
eral disciplinary infractions while arrested and incarcerated.
See Maj. Op. at 4774-77 & n.29. As presented to the jury,
however, Pinholster’s criminal record was not very extensive,
as it did not include any convictions other than the kidnaping
count. Moreover, although the majority believes this aggra-
vating evidence was of overwhelming importance, the prose-
cutor did not actually refer to Pinholster’s denial of his
involvement in the murders, his prior robberies or his pen-
chant for scratching property at any point during the penalty
phase. Considering analogous aggravating evidence in Bel-
montes, we concluded that it was “not strong,” but was “mini-
mal” and “weak[ ].” 414 F.3d at 1106, 1139-40. The relevant
facts in that case consisted of Belmontes’ “previous[ ] incarc-
                      PINHOLSTER v. AYERS                    4799
erat[ation] in the youth facility for being an accessory after
the fact to voluntary manslaughter, one domestic violence
incident, and two occurrences relating to possession, or possi-
ble possession, of a gun.” Id. at 1139. Similarly, we noted that
the prosecution presented “considerable” aggravating evi-
dence in Boyde v. Brown, 404 F.3d 1159, 1179 (9th Cir.
2005). The incidents introduced in that case included the peti-
tioner’s assaults on former classmates, his throwing bricks at
a van, his theft of his stepfather’s gun, his prior robberies, his
drug use while incarcerated and his plot to escape from
prison. See id.

   The majority dismisses the relevance of any comparisons
between Pinholster’s murders and other crimes, noting that
under California law, the jury reviews only the facts in front
of it and does not conduct a proportionality review by com-
paring the crime to others. See Maj. Op. at 4775-76 n.30. All
jurors, however, consider a case against a background of
social understandings and shared experiences about crime and
criminals, which in turn influences their decision as to
whether someone has committed an offense so heinous as to
warrant the ultimate penalty. Indeed, the majority’s emphasis
on the lack of proportionality analysis in California law
underscores the prejudice that resulted from counsels’ failure
to put forth the reams of the readily available mitigating evi-
dence in Pinholster’s case. Because the jurors could weigh
only the aggravating and mitigating evidence presented to
them, the omissions of and outright misrepresentations about
mitigating evidence on Pinholster’s side of the scale plainly
left the jury with little to tip the balance toward life imprison-
ment over execution.

   Finally, as discussed above, some of the aggravating evi-
dence that the majority cites would never have been intro-
duced had Pinholster’s counsel not performed deficiently
during the guilt phase of the trial. In particular, Pinholster’s
references to his own past robberies — probably the most
damning testimony the jury heard, next to the details of the
4800                  PINHOLSTER v. AYERS
actual murders — and his statements about the swastikas and
signatures he frequently scratched into other people’s prop-
erty would never have been admitted. See Maj. Op. at 4776-
77. Competent representation during the trial’s first stage
would thus have further weakened the prosecution’s argument
during the penalty phase that Pinholster deserved the ultimate
penalty.

                               3.

   The mitigating evidence that Pinholster could have intro-
duced was therefore substantially more compelling than the
majority acknowledges, whereas the aggravating evidence
was somewhat weaker. If the evidence on both sides of the
ledger is fairly characterized, and evaluated in light of the
Supreme Court’s recent decisions in Williams, Wiggins and
Rompilla, it is clear that the California Supreme Court’s
denial of Pinholster’s penalty phase IAC claim was objec-
tively unreasonable.

   The available mitigating evidence in Williams was that the
petitioner had been beaten by his father, that his parents had
been imprisoned for criminal neglect, that he had been placed
under the custody of the social services bureau for two years,
that he was borderline mentally retarded, that he had helped
crack a prison drug ring and that he had been a peaceful pris-
oner. See 529 U.S. at 395-96. The aggravating evidence, on
the other hand, was that the petitioner had been convicted of
armed robbery, burglary and grand larceny prior to the murder
for which he was sentenced to death, and that after the murder
he perpetrated two auto thefts and two separate assaults on
elderly victims. The jury also learned that he was convicted
for setting a fire while in jail. See id. at 368-69. In Wiggins,
the available mitigating evidence was that the petitioner expe-
rienced severe privation and abuse while in his mother’s cus-
tody, that he was abused, sexually molested and raped while
in foster care, that he was homeless for a period and that his
mental capacity was diminished. See 539 U.S. at 535. The
                      PINHOLSTER v. AYERS                  4801
only aggravating evidence was that the petitioner had
drowned his elderly victim and ransacked her apartment; he
had no record of violent conduct before or after the murder.
See id. at 514, 537. Finally, the available mitigating evidence
in Rompilla was that the petitioner grew up in a slum, that he
was abused by his father, that his parents were alcoholics, that
he consumed too much alcohol, that he was mentally retarded
and that he suffered from organic brain damage. See 545 U.S.
at 390-93. The aggravating evidence consisted of the petition-
er’s prior convictions for rape, burglary and theft, as well as
his use of torture in committing the murder for which he was
sentenced to death. See id. at 378; Rompilla v. Horn, 355 F.3d
233, 237 (3d Cir. 2004), overruled by 545 U.S. 374 (2005).

   Although the majority asserts that Pinholster’s available
mitigating evidence “falls short when compared to the miti-
gating evidence available in Williams, Wiggins, and Rompil-
la,” that evidence cannot be meaningfully distinguished from
these cases. Maj. Op. at 4773. Pinholster, Williams, Wiggins
and Rompilla were all badly beaten by their parents. All four
men grew up in extreme poverty with little to no parental
attention. All four spent time in foster homes and other insti-
tutional settings as children. Pinholster and Rompilla suffered
from organic brain damage, while Williams and Wiggins
were mentally retarded or close to it. And both Pinholster and
Rompilla were addicted to alcohol.

  Rather than heed these obvious similarities, the majority
emphasizes the differences that inevitably exist between one
person’s life and another’s. For instance, Williams, unlike
Pinholster, behaved well while in prison and Wiggins, also
unlike Pinholster, was sexually molested and spent time
homeless. Maj. Op. at 4773. These minor factual contrasts
cannot be legally dispositive, particularly given that several
aspects of Pinholster’s available mitigating evidence have no
parallel in Williams, Wiggins and Rompilla. Pinholster’s
mother, for example, did not just neglect him but rather
actively encouraged his illegal activities. His siblings had
4802                  PINHOLSTER v. AYERS
serious problems with alcohol, drugs, mental health and the
law. Pinholster himself is a lifelong epileptic prone to severe
seizures. He was socially isolated and maladjusted as a child.
His substance abuse issues began at an early age and involved
an array of illegal drugs. And Pinholster’s counsel did not just
present incomplete information about him in mitigation, but
rather allowed his mother to give inaccurate testimony that
was then used against him by the prosecution. I do not neces-
sarily contend that these differences make Pinholster’s avail-
able mitigating evidence more powerful than that in Williams,
Wiggins and Rompilla. They do, however, more than offset
the supposedly meaningful contrasts that the majority identi-
fies.

   On the aggravating evidence side, I agree with the majority
that Wiggins can be distinguished because the petitioner in
that case, unlike Pinholster, “[did] not have a record of violent
conduct that could have been introduced by the State to offset
th[e] powerful mitigating narrative.” 539 U.S. at 537; see
Maj. Op. at 4773-74. However, the aggravating evidence
against Pinholster was not dispositively stronger than that in
Williams and Rompilla. It is true, as the majority asserts, that
Pinholster admitted to committing many past robberies — in
guilt phase testimony that would never have taken place had
he been competently represented, and that the prosecutor
never mentioned during the penalty phase — and that he was
an unusually problematic inmate. See Maj. Op. at 4774-76 &
n.29. But Williams also committed theft-related offenses both
before and after his homicide, and, unlike Pinholster, he was
actually convicted of some of those crimes (namely his 1976
armed robbery and his 1982 burglary and grand larceny).
There is also no analogue in Pinholster’s criminal history to
Williams’ “two separate violent assaults on elderly victims
perpetrated after the [relevant] murder,” his proclivity for
starting fires or the testimony by two expert witnesses that he
would “pose a serious continuing threat to society.” 529 U.S.
at 368-69. Rompilla, similarly, was actually convicted of bur-
glary and theft. He was also convicted of rape — a more seri-
                      PINHOLSTER v. AYERS                  4803
ous crime than any Pinholster committed before the instant
murders — and tortured his homicide victim before finally
putting him out of his misery. See 545 U.S. at 378; 355 F.3d
at 237. Again, I do not necessarily argue that these differences
make the aggravating evidence against Pinholster weaker than
that in Williams and Rompilla. But I cannot accept the majori-
ty’s conclusion that the aggravating evidence against Pinhol-
ster was dispositively worse.

   Though the majority does not address them, it is also clear
that none of the Supreme Court decisions that have upheld
state court denials of petitioners’ penalty phase IAC claims
are as relevant here as Williams, Wiggins and Rompilla. In
Strickland, “[t]he evidence that respondent says his trial coun-
sel should have offered at the sentencing hearing would
barely have altered the sentencing profile presented to the
sentencing judge,” and the aggravating factors were “over-
whelming.” 466 U.S. at 699-700. The balance between avail-
able mitigating evidence and aggravating evidence was thus
starkly different from Williams, Wiggins, Rompilla and the
case before us. In Burger v. Kemp, 483 U.S. 776 (1987), and
Bell v. Cone, 535 U.S. 685 (2002), the Court never reached
the prejudice prong of the IAC inquiry because it concluded
that the petitioners’ lawyers had not performed deficiently.
The aggravating evidence in Burger and Bell was also more
severe than in this case, while the available mitigating evi-
dence was less powerful. See Bell, 535 U.S. at 699; Burger,
483 U.S. at 789-94. Woodford v. Visciotti, 537 U.S. 19
(2002), is inapposite for the same reason: The aggravating
evidence, which included the knifing of one man and the stab-
bing of a pregnant woman, was “devastating” while the avail-
able mitigating evidence was not particularly potent. Id. at 26.
Schriro v. Landrigan, 127 S. Ct. 1933 (2007), finally, dealt
primarily with the extraneous issue of a petitioner instructing
his lawyer not to mount a case in mitigation. The Court also
explicitly labeled the available mitigating evidence in that
case as “weak,” and noted the petitioner’s “exceedingly vio-
lent past” of murders, kidnapings and prison escapes. Id. at
4804                  PINHOLSTER v. AYERS
1944. Accordingly, nothing in the Supreme Court’s other pen-
alty phase IAC decisions undermines my conclusion that we
are bound here by Williams, Wiggins and Rompilla — and
that those cases require us to hold that the California Supreme
Court’s denial of Pinholster’s penalty phase IAC claim was
objectively unreasonable.

                              III.

   The California Supreme Court’s summary denial of Pinhol-
ster’s penalty phase IAC claim was an objectively unreason-
able application of Strickland. The performance of
Pinholster’s counsel at the penalty phase was plainly defi-
cient; and the available mitigating evidence in his favor and
the aggravating evidence against him — when they are fairly
characterized — render this case materially indistinguishable
for purposes of prejudice from Williams and Rompilla. I
therefore dissent. I would remand for the district court to issue
a writ vacating Pinholster’s sentence, unless within a reason-
able time set by the court the State conducts a new penalty
phase trial or imposes a lesser sentence consistent with law.
