                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DEONDRE ARTHUR STATEN,                    No. 17-99008
            Petitioner-Appellant,
                                           D.C. No.
                 v.                     2:01-cv-09178-
                                            MWF
RONALD DAVIS, Warden, Warden,
California State Prison at San
Quentin,                                   OPINION
                Respondent-Appellee.


     Appeal from the United States District Court
         for the Central District of California
    Michael W. Fitzgerald, District Judge, Presiding

        Argued and Submitted January 13, 2020
                 Pasadena, California

                  Filed June 18, 2020

    Before: Susan P. Graber, Marsha S. Berzon, and
         Michelle T. Friedland, Circuit Judges.

               Opinion by Judge Graber;
               Dissent by Judge Berzon
2                         STATEN V. DAVIS

                            SUMMARY*


                Habeas Corpus / Death Penalty

    The panel affirmed the district court’s denial of Deondre
Staten’s habeas corpus petition challenging his conviction
and capital sentence for murdering his parents.

     Staten alleged that he received ineffective assistance of
trial counsel because his lawyer failed to present additional
evidence of third-party culpability. The panel held that
Staten’s trial counsel rendered deficient performance by
failing to present testimony that gang members appeared to
claim credit for the murders, but that counsel did not perform
deficiently by failing to find and call a gang expert to counter
the testimony of the prosecution’s gang expert. The panel
held that fairminded jurists could disagree as to whether the
testimony of five witnesses regarding the gang members’
boasting was reasonably likely to have changed the outcome
of Staten’s trial, and that the California Supreme Court’s
summary denial of the ineffective-assistance claim was
therefore not objectively unreasonable.

    Staten also brought claims that a contract for indigent
defense services between Los Angeles County and the
Pomona Contract Lawyers Association (PCLA) violated his
constitutional rights because it interfered with his ability to
obtain second trial counsel. The panel held that the
California Supreme Court’s summary denial of these claims
was reasonable because there is no evidence in the record that

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

trial counsel was appointed to represent Staten pursuant to the
contract, was a member of the PCLA at the time the initial
contract was signed, or was a signatory to the original
contract.

    Judge Berzon dissented from the majority’s holding that
the California Supreme Court’s imputed holding as to
whether trial counsel’s deficient performance likely
prejudiced the outcome of Staten’s trial was a reasonable
application of clearly established Supreme Court law. She
would hold that there was prejudice under Strickland v.
Washington, 466 U.S. 668 (1984), that any conclusion to the
contrary was unreasonable, and that 28 U.S.C. § 2254(d)
therefore does not preclude habeas relief.
4                      STATEN V. DAVIS

                         COUNSEL

Jerry L. Newton (argued), Carmel, California; Norman D.
James, Corvallis, Montana; for Petitioner-Appellant.

Scott A. Taryle (argued), Supervising Deputy Attorney
General; A. Scott Hayward, Deputy Attorney General; Lance
E. Winters, Senior Assistant Attorney General; Gerald A.
Engler, Chief Assistant Attorney General; Xavier Becerra,
Attorney General; Attorney General’s Office, Los Angeles,
California; for Respondent-Appellee.


                          OPINION

GRABER, Circuit Judge:

    Petitioner Deondre Staten appeals the district court’s
denial of habeas relief in this capital case. Petitioner was
convicted in state court, after a jury trial, of murdering his
parents. The jury returned verdicts of death for both murder
counts. On federal habeas review, Petitioner alleges that he
received ineffective assistance of trial counsel because his
lawyer failed to present additional evidence of third-party
culpability. His other claims allege that a contract for
indigent defense services between Los Angeles County and
the Pomona Contract Lawyers Association (“PCLA”)
violated his constitutional rights because it interfered with his
ability to obtain second trial counsel. The district court
denied his petition. Petitioner timely sought our review. We
affirm.
                            STATEN V. DAVIS                           5

                            BACKGROUND1

    A. The Crimes

    Petitioner lived with his parents, Arthur and Faye Staten,
in Los Angeles County. Petitioner’s parents owned and
managed a beauty supply store and salon. They had four life
insurance policies worth, in total, more than $300,000. In
August 1990, Arthur and Faye revised three of those policies
to name Petitioner as the sole beneficiary and the fourth
policy to name Petitioner and his brother as co-beneficiaries.
The prosecution argued that Petitioner murdered his parents
to obtain the proceeds from those policies.

    The prosecution presented evidence that Petitioner and his
father had a strained relationship, that they argued often, and
that Arthur had evicted Petitioner from the parents’ house on
prior occasions.       Prosecution witnesses testified that
Petitioner had boasted that he would “take his father out,”
that he would “take care of him,” and that he would come
into a large sum of money if his parents died. Two witnesses
testified that Petitioner told them that they would be paid a
“five-digit” sum of money if they would “bump off” two
people who lived around the corner and owned a beauty
supply and hair salon. A witness recalled that Petitioner,
while watching a television program about the Menendez
brothers,2 commented that the brothers “did it wrong” and
“shouldn’t have gotten caught.”


    1
        The facts, as recited here, are not disputed.
    2
      The Menendez brothers were convicted of the 1989 murders of their
parents. Menendez Brothers Sentenced to Life in Prison, N.Y. Times, July
3, 1996, at A15.
6                     STATEN V. DAVIS

    In September 1990, Arthur and Faye left for a vacation,
leaving Arthur’s truck at a relative’s house and leaving
Faye’s car for Petitioner to drive. Arthur and Faye kept a
.38 caliber revolver with a brown handle at the beauty supply
shop. Petitioner’s friend, John Nichols, testified that he saw
Petitioner carrying that revolver about a week after Arthur
and Faye left. Nichols testified that Petitioner told him on
more than one occasion that he had hollow-point bullets in
the revolver.

    Two or three evenings before Arthur and Faye returned,
Nichols and another friend were at Petitioner’s house when
Petitioner told them that he heard something in the backyard.
Petitioner took the revolver and looked around in the
backyard but said that he did not see anyone. Petitioner said
that he was worried because he had received threatening
phone calls from members of a local Latino gang, the East
Side Dukes (“ESD”), whose territory bordered Petitioner’s
street. Petitioner and his family are African-American, and
witnesses testified that there was animosity between the ESD
and the African-American community. The following day,
Petitioner showed his friends the letters “ESD” spray-painted
on the backyard patio.

     Arthur and Faye returned from vacation on October 11,
1990, and stayed with their relatives overnight and for most
of the next day. Petitioner asked his cousin, who lived near
where Arthur and Faye stayed, to call him when they left to
drive home. Petitioner called his cousin repeatedly that day
to find out when his parents would return home. Petitioner’s
friends testified that, throughout the afternoon, Petitioner was
drinking malt liquor, acting fidgety, and wearing a
                         STATEN V. DAVIS                               7

characteristic pair of 501 Levi’s blue jeans3 with the brown
handle of a revolver sticking out of his waistband.
Petitioner’s relatives invited him to join his parents for
dinner, but he declined. He told them that his mother’s car
was not working.

    According to the timeline established by prosecution
witnesses, Petitioner’s parents left to drive home between
11:20 and 11:25 p.m. on October 12. Petitioner’s neighbor,
Bertha Sanchez, testified that she saw Arthur’s truck arrive
home at approximately 11:40 p.m. Sanchez and her husband
testified that, sometime between 11:50 and 11:55 p.m., they
heard three gunshots. Another neighbor testified that he also
heard gunshots around that time. No witness testified to
hearing shots fired later than that. At 12:04 a.m., Petitioner’s
aunt called the parents’ house; Petitioner answered. He told
his aunt that his parents had not yet arrived home and that he
was getting ready to leave. At 12:31 a.m., she called again
and, when Petitioner answered, he told her that his parents
had arrived home, but he did not offer to put them on the line
as he normally did. At some point after midnight, Sanchez
testified that she heard what she thought was Arthur’s truck
starting, driving away, and returning about 20 minutes later.

    Around 1:00 a.m., Petitioner knocked on another
neighbor’s door and said that his parents had been killed. He
was crying and seemed to be dry-heaving. The neighbor
went with Petitioner to his house and found Faye’s body face
down near the entryway and Arthur’s body in a bedroom.
The words “ESD kills” were spray-painted on a mirrored wall
in the living room.

    3
      A friend of Petitioner’s testified that Petitioner had the nickname
“501 man” because he often wore 501 Levi’s blue jeans.
8                       STATEN V. DAVIS

    When police arrived, Petitioner did not answer their
questions and appeared to be in a trance-like state. The
neighbor testified that Petitioner was overdoing or “faking”
his state of mind, because he had been able to communicate
earlier. Petitioner had a cut with dried blood on one finger
and was wearing shorts. Later, at the police station,
Petitioner collapsed and appeared unconscious but was
revived and fully oriented by the time paramedics arrived,
and he stated that he did not require medical attention.

    Arthur died of a single gunshot wound to the back of the
head, caused by a .38 or .357 caliber hollow-point bullet.
Faye died of multiple stab wounds, seven of which could
have been fatal. The police found no evidence of forced entry
or robbery, and Faye’s purse was left on a table in plain view
with cash inside. Police found a book of historic Los Angeles
Times headlines on a table in the den, open to the front page
describing the Sharon Tate murders4 with a page of
handwritten notes that appeared to be “verses to a potential
song” on the facing page. Investigators found Petitioner’s
fingerprints on that page.

    The prosecution and the defense stipulated that blood
sample evidence taken throughout the house showed that
some of the blood came from Arthur and that some of the
blood could have come from either Petitioner or Faye. A
partial handprint on the mirrored wall below “ESD kills”
matched Petitioner’s handprint. An expert testified for the
prosecution that there was a 90-percent probability that the
same person spray-painted the “ESD” on the back porch and


    4
      In 1969, actress Sharon Tate and four others were murdered by
Charles Manson’s followers. Dial Torgerson, “Ritualistic Slayings”:
Sharon Tate, Four Others Murdered, L.A. Times, Aug. 10, 1969, at A1.
                       STATEN V. DAVIS                         9

“ESD kills” inside the house. The paint from both samples
was made up of the same commercial formula, which
matched a can of spray paint found in a hall closet.

    On October 14, police arrested Petitioner’s friend,
Nichols, for a probation violation. Nichols agreed to
cooperate with the police and met with Petitioner while
wearing a wire. In the recording played for the jury,
Petitioner claimed that he had gotten rid of the .38 revolver
before his parents returned home. He asked Nichols to tell
the police that Staten did not have a revolver, reassuring him
that the police would not find it and that there would be no
case if they stuck to their stories. In the recording, Petitioner
said: “[T]hey can’t do shit. All they can do is close the
mother fucker. If they still can’t find it, I’m still going to
blame it on the Dukes.”

     After an initial investigation, the sheriff’s department
concluded that the murders were not gang-related. Detective
David Watkins testified as a gang expert for the prosecution.
He testified that the graffiti found on the back patio and in the
house did not match the distinctive style favored by the ESD.
Detective Watkins and two of the Statens’ neighbors drew
examples of typical ESD lettering, and the prosecution
presented exemplar photographs of ESD graffiti to the jury.
Detective Watkins also testified that a gang would not place
its graffiti out of public view, but would instead tag the front
of the house and include the names of the targets and gang
members to increase the level of intimidation.

     Detective Watkins further testified that the ESD tended to
kill in drive-by shootings or after calling someone outside.
He had not seen the gang engage in a home-invasion murder
of neighborhood residents. He also testified that the ESD
10                    STATEN V. DAVIS

generally focused on killing rival gang members and, when
non-combatants were killed, it tended to be the result of
collateral damage. ESD members denied involvement in the
murders to an investigator. A neighbor also testified that he
had asked ESD members about the murders and they denied
involvement, even though they had readily admitted to a
drive-by shooting at another house.

     A relative of Petitioner’s, with whom he stayed after his
parents’ deaths, testified that she did not see him wear blue
jeans until he bought a new pair about three weeks after the
killings. She twice searched the Statens’ house, the beauty
shop, and the salon, but she did not find any jeans in Staten’s
size. Detectives also searched for Petitioner’s jeans and the
missing .38 revolver, but found neither.

    The defense theory at trial was that ESD gang members
committed the murders when Petitioner left the house to get
food between 12:45 and 1:00 a.m. The defense introduced
evidence that Petitioner had a strong relationship with his
parents and was especially close to his mother. Petitioner
testified that he never spoke to friends about killing his
parents for insurance money. Petitioner and other witnesses
testified about threats that ESD had made against Petitioner
and about intimidation and harassment from ESD members
in their neighborhood.

    Petitioner testified that he took the .38 revolver from his
parents’ beauty supply shop for protection because he had
received threatening calls from ESD members. Petitioner
testified that the revolver disappeared during a party while his
parents were out of town, but he did not mention it to Nichols
because he suspected that one of Nichols’s friends had taken
the weapon. Petitioner said that he had cut his finger while
                      STATEN V. DAVIS                        11

gardening, when he was trying to get the house and yard
cleaned up before his parents returned home, and that he
might have left blood in the house when he walked through
it looking for a bandage. He testified that he had worn shorts
all day and that his blue jeans were either in his bedroom or
in the laundry. He also testified that, while working on lyrics
for a rap song, he looked through the book of historic
headlines. He was looking for headlines about Dr. Martin
Luther King, Jr., not about the Sharon Tate murders.

     The defense highlighted inconsistencies in the neighbors’
initial accounts to the police regarding whether and when
they heard gunshots. And Petitioner testified that his parents
did not arrive home until shortly after midnight. According
to Petitioner, when his aunt called the first time, around
12:04 a.m., his parents were not yet home. When his aunt
called back at 12:30 a.m., his mother indicated that she did
not want to talk on the phone. Petitioner testified that he left
in his father’s truck to get food between 12:30 and 12:45 a.m.
and returned home around 1:00 a.m. after he realized that he
had left home without cash. When he returned, he discovered
his parents’ bodies and the “ESD kills” graffito inside the
house.

   The police never found the murder weapons, and no
gunshot residue was found on Petitioner’s hands. Petitioner
did not file an insurance claim during the three months
between the killings and his arrest.

   B. Procedural Background

   The jury found Petitioner guilty of both murder counts
and found true the special circumstances of multiple murders
and murder for financial gain. The jury returned verdicts of
12                    STATEN V. DAVIS

death for both murder counts. The trial court sentenced
Petitioner to death on January 16, 1992.

   The California Supreme Court affirmed the convictions
and sentence. People v. Staten, 11 P.3d 968, 988 (Cal. 2000).
The United States Supreme Court denied certiorari. Staten v.
California, 534 U.S. 846 (2001).

    Petitioner filed his first state habeas petition in the
California Supreme Court in 2002, alleging ineffective
assistance of trial counsel for failing to present additional
evidence of third-party culpability (corresponding to Claim
7 in this case). The California Supreme Court denied the
petition “on the merits for failure to state a prima facie case
for relief” and, alternatively, dismissed most of the claims as
untimely.

    In a second state petition, Petitioner reiterated the
ineffective assistance of counsel claim. He also argued that
the denial of a second appointed trial lawyer violated due
process and equal protection principles and that his trial
counsel rendered ineffective assistance by making an
inadequate showing in support of his request for second
counsel. The California Supreme Court dismissed all claims
as untimely and procedurally barred, and the court also
summarily denied all claims on the merits for failure to state
a prima facie case.

     Petitioner filed a third state habeas petition in which he
asserted that the terms of a contract between Los Angeles
County and the PCLA violated his constitutional rights.
Under the terms of the contract, the County paid the PCLA a
flat fee to provide indigent defense services when the public
defender’s office had a conflict. The public defender’s office
                       STATEN V. DAVIS                        13

had a conflict of interest in Petitioner’s case, and so could not
represent him. Instead, the trial court appointed John Tyre to
represent Petitioner at trial. Petitioner alleged that Tyre was
appointed pursuant to the contract and that there was a
contractual limitation of one lawyer per case. For the PCLA
to add a second lawyer to a case, Staten alleged, either a
PCLA lawyer would have to provide the services pro bono or
the PCLA would have to reimburse the County for fees paid
to a non-PCLA lawyer. Petitioner argued that those funding
limitations were the reason why he did not have a second
lawyer at trial, and not the trial court’s stated reason that the
case was not so complex as to require a second lawyer. He
argued that the contract thus created a conflict of interest in
violation of his Sixth Amendment right to counsel (Claim 11
in this case); and he reasserted his previous due process,
equal protection, and ineffective assistance claims regarding
the denial of a second counsel in light of the PCLA contract
(Claims 1, 2, and 3 in this case). The California Supreme
Court dismissed the claims as untimely and repetitive and
also denied them on the merits for failure to state a prima
facie case for relief.

    Petitioner filed an initial 28 U.S.C. § 2254 petition in the
district court in 2003 and a first amended petition in 2005.
Petitioner moved for an evidentiary hearing on several
claims, including those at issue in this appeal. The district
court denied the motion for an evidentiary hearing and denied
all claims, except Claim 11, for failing to meet the
requirements of 28 U.S.C. § 2254(d)(1). After additional
briefing on Claim 11, the district court granted summary
judgment to the State and entered judgment denying the
petition.
14                    STATEN V. DAVIS

   The district court granted a certificate of appealability for
Claims 1, 2, 3, 7, and 11. Petitioner timely filed a notice of
appeal.

                STANDARDS OF REVIEW

    We review de novo the district court’s denial of a petition
for habeas corpus. Stanley v. Schriro, 598 F.3d 612, 617 (9th
Cir. 2010). We review for abuse of discretion the district
court’s determination that a petitioner is not entitled to an
evidentiary hearing. Id.

    Because Petitioner filed his § 2254 habeas petition after
April 24, 1996, the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214, governs his petition. Lambert v. Blodgett, 393 F.3d
943, 965 (9th Cir. 2004). Under AEDPA, we must defer to
a state court’s decision with respect to any claim that was
adjudicated on the merits unless the decision was:
(1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States”; or (2) “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).

                        DISCUSSION

    The California Supreme Court denied Petitioner’s claims
on state procedural grounds and summarily on the merits.
Although the decision “is unaccompanied by an explanation,”
Petitioner still has the burden to show that “there was no
reasonable basis for the state court to deny relief.”
Harrington v. Richter, 562 U.S. 86, 98 (2011).
                     STATEN V. DAVIS                       15

    Because we conclude that Petitioner’s claims do not
survive review under § 2254(d), we decline to address the
State’s procedural default arguments. Franklin v. Johnson,
290 F.3d 1223, 1232–33 (9th Cir. 2002).

   A. Ineffective Assistance of Counsel (Claim 7)

    Petitioner argues that his trial counsel, John Tyre,
rendered deficient performance because he failed to
investigate and present evidence that the ESD claimed credit
for the murders and because he failed to call a gang expert to
counter the prosecution’s expert.

    To prevail, Petitioner must show (1) “that counsel’s
representation fell below an objective standard of
reasonableness”; and (2) that there is “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Petitioner must further show that the California Supreme
Court’s denial of his ineffective assistance of counsel claim
was not only “incorrect or erroneous,” but “objectively
unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Only where “there is no possibility fairminded jurists could
disagree” may we reverse the state court’s ruling on the
claim. Richter, 562 U.S. at 102; see also id. at 105 (“Federal
habeas courts must guard against the danger of equating
unreasonableness under Strickland with unreasonableness
under § 2254(d).”).

   1. Deficient Performance

   Under the first prong, Strickland requires a showing that
counsel’s performance was deficient, measured by a standard
16                    STATEN V. DAVIS

of reasonable professional assistance. This standard gives a
“strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Strickland, 466 U.S. at 687 (internal
quotation marks omitted). Below, we consider Tyre’s failure
to: (a) investigate and present evidence that ESD members
claimed credit for the murders; and (b) call a gang expert.

     a. Evidence that ESD Members Claimed Credit for the
        Murders

     We conclude that Tyre rendered deficient performance by
failing to present testimony that ESD members appeared to
claim credit for the murders. It was objectively unreasonable
for the California Supreme Court to conclude otherwise.
Richter, 562 U.S. at 102.

    Robert Oseguera, Brian Ellis, and Keith Taylor stated in
declarations that on the morning after the murders they saw
a car containing ESD members drive by the Staten home and
say, “yeah we got them.” Pat Oseguera declared that she also
saw ESD members drive by, but she did not hear what they
were bragging about. Quincy Murphy stated in a declaration
that he saw ESD members drive by “giving us hard stares.”

    Tyre interviewed all five witnesses. Both Pat Oseguera
and Ellis mentioned the incident to him. Ellis stated that Tyre
did not seem particularly interested in the incident. The
record thus suggests not that Tyre thoroughly probed the
issue and determined that the witnesses’ stories were not
credible, but rather that he did not recognize the possible
                      STATEN V. DAVIS                        17

significance of the incident and failed to investigate it fully.
Strickland, 466 U.S. at 690–91.

    Tyre’s choice not to present evidence of a direct
connection between the ESD and the murders was not
reasonable. Although the witnesses’ declarations are not
entirely consistent with one another regarding certain details
about the incident, the basic account is consistent: ESD
members drove by and behaved in a way that suggested that
they were claiming credit for the murders. Tyre called Ellis,
Murphy, and the Osegueras as witnesses, suggesting that he
had determined they were sufficiently credible. Any
credibility problems they did have were already before the
jury; asking a few additional questions would not have
changed the credibility calculus. It would not have been a
reasonable trial strategy for Tyre to choose not to present his
only evidence (besides the “ESD” graffiti at the Staten
residence) linking the ESD to the murders simply because the
witnesses’ accounts were not consistent on every detail.

    The testimony of those witnesses fit squarely into Tyre’s
defense theory: that ESD gang members committed the
murders when Petitioner left the house that night. The only
direct evidence presented at trial that the murders were gang-
related was the presence of “ESD” graffiti, of disputed
authenticity, found at the house. Staten, 11 P.3d at 974.
Tyre’s choice not to make use of readily available evidence,
from apparently disinterested witnesses, that would have
enhanced his chosen defense theory was unreasonable. See
Alcala v. Woodford, 334 F.3d 862, 869–71 (9th Cir. 2003)
(concluding that counsel was deficient for failing to present
testimony and records that would have been “far more
helpful” for establishing the defense’s theory than the
evidence that was presented); Lisker v. Knowles, 651 F. Supp.
18                    STATEN V. DAVIS

2d 1097, 1121 (C.D. Cal. 2009) (noting that, where the
defense strategy was to show that the petitioner did not
commit the murder, there was “no logical reason” for failing
to present evidence that someone else had); cf. Clark v.
Chappell, 936 F.3d 944, 979 (9th Cir. 2019) (per curiam)
(declining to determine that counsel had provided ineffective
assistance for failing to present third-party culpability
evidence where trial counsel considered that theory but
reasonably rejected it), amended on denial of reh’g, 948 F.3d
1172 (9th Cir. 2020). Testimony that the ESD had claimed
credit for the murders would not have weakened other aspects
of the guilt- or penalty-phase defense. The potential benefit
of introducing the evidence was high, and any disadvantage
was negligible.

    In short, it was objectively unreasonable for the California
Supreme Court to conclude that Tyre’s performance was not
deficient. Richter, 562 U.S. at 102.

     b. Gang Expert

    By contrast, we conclude that Tyre did not perform
deficiently by failing to find and call a gang expert to counter
the testimony of the prosecution’s gang expert. Tyre stated
in a declaration that he sought funds for a gang expert, but
that the trial court denied the request. Tyre “was entitled to
formulate a strategy that was reasonable at the time and to
balance limited resources in accord with effective trial tactics
and strategies.” Id. at 107. The prosecution’s gang expert,
Detective Watkins, testified that the graffiti found in and
around the Staten home was not authentic and that the
murders of Petitioner’s parents were not gang-related. Rather
than call a gang expert, Tyre chose to challenge Detective
                      STATEN V. DAVIS                        19

Watkins’ testimony through effective cross-examination and
the presentation of other witnesses.

    For example, Tyre challenged Detective Watkins’s
opinion that the “ESD” graffiti were not authentic by showing
him and other witnesses samples of ESD graffiti that were
consistent with the graffiti found at the scene. And Tyre
elicited testimony from the assistant principal at the local
high school that the graffiti at the Staten home looked like the
ESD graffiti with which he was familiar. Tyre also cross-
examined Detective Watkins regarding other violent activities
by the ESD, and he questioned many neighbors regarding
animosity between the ESD and African-Americans. Tyre
questioned Petitioner and other witnesses about the history of
threats that the ESD had made against them. Finally, Tyre
challenged the prosecution’s case directly by cross-examining
the investigating detectives on their lack of substantive
investigation into the possibility that the ESD committed the
crimes. Tyre argued in closing that the detectives’ refusal to
investigate a possible gang killing reflected both an early bias
and incomplete work.

    Tyre’s choice to undermine the prosecution’s case with
cross-examination and other witnesses, rather than through
the presentation of a counter-expert, was a reasonable tactical
decision given the known and available resources. Id. at 107;
see Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998)
(emphasizing that the relevant inquiry under Strickland is
whether “the choices made by defense counsel were
reasonable” (internal quotation marks omitted)). At a
minimum, it was not unreasonable for the California Supreme
Court to conclude that Tyre’s choice not to call a gang expert
met Strickland’s deferential standard. Richter, 562 U.S.
at 106–07.
20                     STATEN V. DAVIS

     2. Prejudice

    Claim 7 nevertheless fails because fairminded jurists
could disagree as to whether the testimony of the five
witnesses regarding ESD members’ boasting was reasonably
likely to have changed the outcome of Petitioner’s trial.
Richter, 562 U.S. at 102; Strickland, 466 U.S. at 694. Thus,
the California Supreme Court’s summary denial of that claim
was not objectively unreasonable. Lockyer, 538 U.S. at 75.

   The prosecutor acknowledged from the start that the case
was “entirely circumstantial” and that he might not be able to
prove that Petitioner “killed these people himself or by
himself,” but only that he was “involved in these murders.”
The murder weapons were never found, and the results of the
blood sample tests were inconclusive.

    But even though the prosecution’s case was not
overwhelming, there was compelling evidence of Petitioner’s
guilt. Petitioner’s friends testified that he talked about killing
his parents and told them about his parents’ life insurance
policies, bragging of a windfall if his parents died. He told a
cousin on the night of his parents’ funeral that it was “time to
party and get high.” Another witness saw Petitioner, after his
parents’ deaths, opening a safe in his parents’ bedroom that
contained stacks of cash. Petitioner had been carrying his
parents’ .38 revolver the day of the murders and had told
friends he had hollow-point bullets for it. The weapon used
to kill his father was never found, but the bullets at the scene
matched the caliber of the .38 revolver and were hollow-point
bullets. A partial handprint on the mirrored wall below the
“ESD kills” graffito matched Petitioner’s. And there was no
evidence of a forced entry or of entry into the backyard.
Despite the inconclusive blood tests, Petitioner conceded that
                         STATEN V. DAVIS                             21

his blood might be in the house, testifying that he had cut his
finger earlier in the day and may have left a trail of blood.
Petitioner, characteristically, had been wearing blue jeans on
the day of the murders, but when police arrived at the scene
he was in shorts. Detectives searched for his jeans but never
found them, and the relative with whom Petitioner stayed
after his parents’ deaths testified that she did not see him
wear jeans again until he bought a new pair about three weeks
after the killings. And there was sufficient leeway in the
timeline given by prosecution witnesses to permit the jury to
conclude that events unfolded as the prosecution described.
Against the backdrop of that evidence, a reasonable jurist
could conclude that testimony about the overheard boasting
of ESD members would not have had a reasonable probability
of changing the outcome of the guilt phase of the trial.5

    Additionally, although the defense that Tyre presented
was not as strong as it could have been, he presented evidence
that ESD gang members could have been responsible for the
murders. The assistant principal testified that the graffiti
appeared authentic. Tyre elicited testimony that ESD
members had made threats against Petitioner personally; that
there was animosity between the ESD and the African-
American community; and that the ESD claimed territory in
Petitioner’s neighborhood, including the row of houses
behind his house. The testimony about the ESD members’


    5
       The dissent argues that much of the evidence that composed the
prosecution’s case is open to multiple interpretations and innocent
explanations. But viewing the evidence in the light most favorable to
Petitioner does not accord with AEDPA deference where the inquiry is
whether a reasonable jurist could conclude that the deficient performance
did not undermine confidence in the outcome. Richter, 562 U.S.
at 111–12.
22                    STATEN V. DAVIS

boasting could have bolstered the existing defense theory, but
it was not a new theory that the jury never heard.

    When we have found the omission of cumulative
evidence prejudicial, the evidence has been so persuasive that
it would have meaningfully altered the jury’s view of the
case. See, e.g., Vega v. Ryan, 757 F.3d 960, 968, 973 (9th
Cir. 2014) (per curiam) (holding that cumulative evidence
was prejudicial where the omitted testimony of a priest
“would have brought credibility” to the claims of another
witness who had motivation to lie); Cannedy v. Adams,
706 F.3d 1148, 1164–66 (9th Cir. 2013) (holding that defense
counsel’s failure to present testimony about the victim’s
recantation was prejudicial in a “he said, she said” case where
the defendant was the only defense witness). Here, by
contrast, the omitted testimony may have been more direct
than the evidence that Tyre presented, but it was no more
reliable and would not have significantly changed the nature
of the defense.

    And in the cases in which we and the California Supreme
Court have concluded that failure to present evidence of
third-party culpability was prejudicial, the omitted evidence
was far more compelling than it was here and would have
supplemented weaker defense evidence than what Tyre put on
in Petitioner’s trial. In Thomas v. Chappell, 678 F.3d 1086
(9th Cir. 2012), for example, defense counsel presented a
“bare defense” that a third party was responsible for the
murder: the “seemingly incoherent” grand jury testimony of
one woman that was read to the jury because she could not be
located to testify at trial. Id. at 1092–93, 1100, 1105.
Defense counsel failed to present testimony from several
other witnesses that would have corroborated the woman’s
testimony, identified the man that she implicated, and
                           STATEN V. DAVIS                               23

described that man’s incriminating behavior and statements
after the murders. Id. at 1106. The prosecution’s case was
also weaker than that against Petitioner: the prosecution
presented no motive, murder weapon, witnesses to the crime,
or fingerprint or blood evidence. Id. at 1103.

     Similarly, in In re Hardy, 163 P.3d 853 (Cal. 2007), the
evidence that defense counsel failed to present was more
significant both in quantity and quality than the testimony
that Tyre failed to elicit. There, the prosecution’s key witness
had made incriminating statements before and after the
murder and there was evidence that his alibi was false. Id.
at 886–87. Had defense counsel presented that testimony, it
would not only have provided strong evidence of third-party
culpability, but also would have undermined the critical
testimony that implicated the defendant.6 The testimony was
all the more likely to have affected the outcome of the trial
because there were no eyewitnesses, no witnesses to place the
defendant at the crime scene, no forensic evidence, and no
murder weapon or evidence that the defendant typically
carried anything like the murder weapon. Id.

   Here, the testimony that Tyre failed to present did not
have similar probative value. The witnesses the jury would
have heard from were either not new or not more credible.


     6
       Although the California Supreme Court concluded that Hardy was
prejudiced as to the theory that he was the actual killer, it ultimately held
that his ineffective assistance of counsel claim failed because he could
have been found guilty of murder under a derivative theory. Hardy,
163 P.3d at 887. On appeal, we held that was an unreasonable application
of clearly established federal law because the prosecution’s entire theory,
including its arguments under the derivative theories, rested on the
defendant’s being the actual killer. Hardy v. Chappell, 849 F.3d 803,
820–21 (9th Cir. 2016).
24                    STATEN V. DAVIS

And the testimony would have inconsistently described an
incident that only implicitly implicated ESD members. Tyre
performed deficiently because that was better evidence that
ESD was responsible than anything he presented and there
was no justifiable reason for him not to present it—not
because the testimony was compelling. Tyre, unlike the
defense counsel in Thomas or Hardy, offered a credible—if
not strong—defense that included several witnesses
connecting ESD gang members to Petitioner and to the
neighborhood. But the jury rejected that theory, and the
additional testimony would not have significantly changed
that defense. Moreover, the inclusion of the testimony would
have left the prosecution’s case intact—it would not have
undermined any of the evidence that the prosecution
presented. And that evidence was stronger than that
presented in either Thomas or Hardy: here, the prosecution
presented evidence of a motive; testimony placing Petitioner
at the scene at the time of the murders; and evidence that, on
the day of the murders, Petitioner had been in possession of
a firearm that was consistent with the murder weapon. The
additional testimony would not have changed the light in
which the jury viewed that evidence.

    The dissent discusses additional evidence that Tyre did
not present to the jury—regarding Petitioner’s and Arthur
Staten’s drug dealing activity, gang associations, and the
resulting tension with ESD—and argues that the evidence
would have made the omitted testimony more persuasive.
But Petitioner did not challenge Tyre’s failure to present that
evidence on appeal, so that issue is forfeited. See Orr v.
Plumb, 884 F.3d 923, 932 (9th Cir. 2018). Even if we were
to consider it, we would disagree with the dissent’s
suggestion that Tyre may have made a different decision
about introducing that evidence had he considered the ESD
                      STATEN V. DAVIS                       25

members’ boasting. There were good reasons for Tyre to
keep the evidence out intentionally. With or without the
testimony that ESD members claimed credit, testimony about
Petitioner’s and Arthur Staten’s drug dealing and gang
associations could have damaged Petitioner’s credibility,
could have hurt the penalty phase defense, and—perhaps
most significantly—could have provided the prosecution with
another argument that Petitioner had a financial motive to kill
his father. In our prejudice analysis, we cannot consider the
cumulative effect of non-errors. Williams v. Filson, 908 F.3d
546, 570 (9th Cir. 2018).

    If we reviewed only for prejudice under Strickland,
Tyre’s failure to introduce the witness testimony might be
enough to “undermine [our] confidence in the outcome.”
Strickland, 466 U.S. at 694. But when § 2254(d) applies, that
is not the question. Richter, 562 U.S. at 105. Instead, the
question is whether the state court reasonably could have
concluded that the evidence of prejudice fell short of
Strickland’s deferential standard. Id. at 111–12. Here, there
were reasonable grounds for the California Supreme Court to
conclude that the omitted testimony would not have altered
the outcome.

   B. PCLA Contract Claims (Claims 1, 2, 3, and 11)

    Petitioner’s remaining claims concern a contract between
Los Angeles County and the PCLA. The contract provided
that the PCLA would act as conflict counsel to represent
indigent defendants when the public defender’s office legally
could not. The initial contract ran from November 1, 1990,
to October 31, 1991. Under the terms of that contract, the
PCLA agreed to represent up to 500 defendants during the
contract year in criminal actions ranging from infractions and
26                     STATEN V. DAVIS

misdemeanors to parole violations, guilty pleas, and felony
trials, including capital cases. Los Angeles County paid a flat
fee of $495,833 and agreed to pay an additional $991.67 for
each defendant in excess of 500. Petitioner alleged that the
trial court appointed his counsel, Tyre, under the terms of the
initial contract. He further alleged that funding limitations
contained in the terms of the contract were the reason why he
did not have a second trial lawyer, which violated his
constitutional rights.

     Petitioner’s claims concerning the contract fail for lack of
evidence to support the underlying premise. There is no
evidence in the record that Petitioner’s trial counsel was
appointed to represent Petitioner pursuant to the contract.
Nor is there evidence that Tyre was a member of the PCLA
at the time the initial contract was signed or was a signatory
to the original contract. The PCLA contract is not mentioned
in the trial record. The California Supreme Court could
reasonably have concluded that Petitioner’s allegations on all
those points are unsupported and that his argument therefore
collapses.

    Because of this lack of support, the California Supreme
Court’s summary denial of Petitioner’s claims was
reasonable. See id. at 98 (“Where a state court’s decision is
unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reasonable
basis for the state court to deny relief.”); see also Schriro v.
Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes
the applicant’s factual allegations or otherwise precludes
habeas relief, a district court is not required to hold an
evidentiary hearing.”); Hibbler v. Benedetti, 693 F.3d 1140,
1148 (9th Cir. 2012) (noting that, “if a district court would be
within its discretion in denying an evidentiary hearing, a state
                      STATEN V. DAVIS                       27

court’s similar decision is probably not objectively
unreasonable”).

    The state court had a copy of the original PCLA contract,
which neither included a signature page for the contracting
PCLA attorneys nor named them. But the original contract
contained a brief description of the contractors, stating “that
each of the attorneys has practiced law for more than ten
(10) years.” During the first contract year—the year in which
Tyre was appointed to represent Staten—that description did
not apply to Tyre, who had been practicing for only eight
years. The description did apply to Tyre during subsequent
extensions for the second and third contract years, when the
record shows that Tyre signed on as a member of the PCLA.
Although Tyre submitted two declarations discussing the
assistance that he received from investigators, difficulties he
encountered getting funds approved for investigators and
experts, and the application for second counsel, he did not
mention the PCLA contract.

    Petitioner’s state and federal habeas counsel submitted
declarations stating that they believed Tyre had been
appointed to represent Petitioner under the PCLA contract,
but they provided no reasons for that belief. To the contrary,
each noted that Tyre expressly denied that he was appointed
under the contract.

    Additionally, the record contains evidence tending to
refute the assertion that the PCLA contract governed Tyre’s
compensation or remuneration for expenses. For example,
Tyre filed motions for funds under California Penal Code
§ 987.2, for expenses including stationery, travel, phone,
photographic materials, medical records, video and audio
materials, copying, and scanning costs. The trial court
28                    STATEN V. DAVIS

granted most of those motions in full or in part. But those
types of expenses were included in the flat fee of the original
PCLA contract, which stated that the contracting attorneys
would provide “all legal defense services typically provided
by the Office of the Public Defender, including . . . legal
research, preparation of documents, secretarial and clerical
support services, and travel.” Had Tyre been appointed under
the PCLA contract, the trial court likely would have denied
his requests.

    Even if we considered Petitioner’s additional declaration,
which he did not submit to the California Supreme Court,
nothing in that declaration suggests that Tyre was appointed
under the contract. Petitioner averred that Tyre never told
him that he was appointed under an agreement for legal
services and never discussed the PCLA contract. Petitioner
asserted that he first heard of the PCLA contract from his
federal habeas attorneys. The declaration does not present
any additional justification for concluding that Tyre accepted
appointment under the PCLA contract.

    We therefore hold that the California Supreme Court’s
summary denial on the merits of Claims 1, 2, 3, and 11 was
not unreasonable. Richter, 562 U.S. at 97–98.

     AFFIRMED.



BERZON, Circuit Judge, dissenting in part:

    I concur in the majority’s analysis of Deondre Staten’s
(“Staten”) claims regarding the Pomona Contract Lawyers
Association Contract, Part B, and its holding that it was
                       STATEN V. DAVIS                         29

objectively unreasonable for the California Supreme Court to
conclude that Staten’s counsel’s performance during the guilt
phase of the trial was not deficient, Part A.1. But I dissent
from the majority’s holding that the California Supreme
Court’s imputed holding as to whether trial counsel’s
deficient performance likely prejudiced the outcome of
Staten’s trial was a reasonable application of clearly
established Supreme Court law. I would hold that there was
prejudice under the standard established in Strickland v.
Washington, 466 U.S. 668 (1984), that any conclusion to the
contrary was unreasonable, and that 28 U.S.C. § 2254(d)
therefore does not preclude habeas relief.

     In Staten’s state habeas petition, he alleged that his
counsel provided ineffective assistance of counsel (“IAC”) by
failing to investigate and present certain third-party
culpability evidence. In support of this claim, Staten
submitted five witness declarations that described members
of the East Side Dukes’ gang (“the ESD gang”) driving by the
Statens’ house the morning after the murders and behaving
“in a way that suggested that they were claiming credit for the
murders.” Robert Oseguera, Brian Ellis, and Keith Taylor
heard the ESD gang members say “yeah we got them,” Pat
Oseguera saw the ESD gang members who “seemed to be
bragging,” and Quincy Murphy described the ESD gang
members “giving . . . hard stares” as they drove by.

     The opinion explains that Staten’s counsel likely “did not
recognize the possible significance of the incident [described
in the declarations] and failed to investigate it fully,” and that
any “choice not to make use of readily available evidence,
from apparently disinterested witnesses, that would have
enhanced his chosen defense theory was unreasonable.”
Majority Opinion (“Maj. Op.”) at 16–17. It was therefore
30                    STATEN V. DAVIS

“objectively unreasonable for the California Supreme Court
to conclude that [Staten’s counsel’s] performance was not
deficient.” Maj. Op. at 18. I agree with that conclusion. But
the majority goes on to maintain that a fairminded jurist could
decide that the failure to investigate and present third-party
culpability evidence did not prejudice Staten. Maj. Op. at 20.
On that point, I respectfully disagree.

    The case against Staten was based almost entirely on
circumstantial evidence. There were no witnesses to the
murders; no murder weapon was ever found; blood samples
from the crime scene were inconclusive. The evidence Staten
introduced in his state habeas filing, if credited, was direct
and compelling. Given that contrast, even under the
deference to the state courts required under § 2254(d) of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the conclusion that the jury would not likely
have been swayed had the five witnesses testified to the ESD
gang’s bravado is not minimally persuasive. As 28 U.S.C.
§ 2254(d) therefore does not bar federal habeas relief, I would
either require supplemental briefing or remand to the district
court to consider whether Staten’s IAC claim was
procedurally defaulted, an issue not adequately briefed on
appeal.

                              I

                              A

    Staten filed his petition after the effective date of
AEDPA. Under AEDPA, we defer to a state court’s decision
regarding any claim adjudicated on the merits unless that
decision was: (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
                      STATEN V. DAVIS                       31

by the Supreme Court of the United States”; or (2) “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). “An unreasonable application must be objectively
unreasonable, not merely wrong.” Andrews v. Davis,
944 F.3d 1092, 1107 (9th Cir. 2019) (en banc) (citation and
quotation marks omitted).

    To prove his IAC claim, in addition to showing that
“counsel’s representation fell below an objective standard of
reasonableness,” Staten must demonstrate that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 688, 694. “A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Id. at 694. Strickland “does not require a
showing that counsel’s actions more likely than not altered
the outcome.” Cannedy v. Adams, 706 F.3d 1148, 1165 (9th
Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86,
111–12 (2011)). As I agree with the majority’s conclusion
that it was objectively unreasonable for the state court to
determine that Staten’s counsel was not deficient in failing to
investigate and present the third-party culpability evidence,
as well as its explanation for that conclusion, I focus on
Strickland’s prejudice requirement.

                              B

    To determine whether counsel’s errors prejudiced the
outcome of the trial, we “must compare the evidence that
actually was presented to the jury with that which could have
been presented had counsel acted appropriately.” Hardy v.
Chappell, 849 F.3d 803, 826 (9th Cir. 2016) (quotation marks
omitted). Unlike cases in which the evidence of guilt was
32                       STATEN V. DAVIS

“overwhelming,” see, e.g., United States v. Mikhel, 889 F.3d
1003, 1046 (9th Cir. 2018); Murray v. Schriro, 882 F.3d 778,
825 (9th Cir. 2018), the prosecution’s case against Staten was
fairly weak, and was based nearly entirely on circumstantial
evidence. The prosecutor recognized as much in his opening
statement, explaining “I do not necessarily expect to prove to
you that Mr. Staten . . . killed these people himself or by
himself.” A close look at the evidence presented and the
culpability evidence that could have been presented confirms
that § 2254(d) does not bar federal habeas relief for Staten’s
IAC claim.

                                    i

    The majority summarizes the facts of the case and
describes the evidence most relevant to its holding that Staten
was not prejudiced by his counsel’s deficient performance.
See Maj. Op. at 5–11, 20–25. I will not repeat those details
here. In my view, the most damaging evidence against Staten
included:     testimony that Staten had mentioned in
conversation with friends getting money from killing his
parents;1 Staten’s uncorroborated and questionable alibi that
his parents were killed in 15 minutes he was out of the house
to get food; and testimony about Faye and Arthur Staten’s
.38 caliber revolver. Witnesses testified the Statens’
.38 revolver was in Deondre’s possession on the day of the
murders; the prosecution introduced evidence that a
.38 revolver could have been used to shoot Arthur Staten; and
the Statens’ .38 revolver was never found after the murders.
This evidence, taken together, amounted to a circumstantial


     1
      The majority mentions this encounter, Maj. Op. at 5, but does not
explain that Staten’s two friends, John Nichols and Bishop Higgins,
“didn’t take [Staten] serious[ly]” and described Staten as “just joking.”
                      STATEN V. DAVIS                        33

case against Staten adequate to support the verdict. Still, no
direct evidence connected Staten to the murders.

    Troublingly, the majority’s prejudice analysis also
emphasizes evidence that seems more distracting than
convincing. Although I agree with the majority that we do
not view evidence “in the light most favorable to [Staten],”
this evidence lacks probative value in any light. Maj. Op.
at 21 n.5. Evidence the majority relies on that does not merit
much, if any, weight in my view includes:

    (1) Staten’s partial handprint on the mirrored wall below
the “ESD kills” graffiti. This palm print was found in a
hallway Staten traveled frequently as a resident of the house.

    (2) Blood samples from the crime scene that could have
been Staten’s.       The blood evidence was relatively
vague—this was not DNA evidence, but a stipulation from
the defense and the prosecution that some blood samples
taken from the crime scene “could have” come from Staten
and others “could have” come from Faye. The majority
acknowledges that the blood sample tests were
“inconclusive.” Maj. Op. at 20. Also, Staten gave an
explanation as to why his blood may have been in the
house—that it came from a finger that he cut while trimming
the hedges earlier that day.

    (3) Neither the detectives nor Staten’s aunt could find
jeans in Staten’s size at his house after the crime, even though
Staten frequently wore jeans and was seen in jeans on the day
of the murders. The implication of this evidence seems to be
that Staten was wearing jeans when he murdered his parents
but disposed of them, along with the murder weapon, before
reporting the murders to his neighbors. But that version of
34                     STATEN V. DAVIS

events would not explain why none of Staten’s jeans were
found at his house. Staten testified to owning three pairs of
jeans, and was known by at least one friend as “501 man”
because he wore Levi jeans so often.

    (4) Staten told his cousin that it was “time to party and get
high” on the night of his parents’ funeral.                 This
statement—which could have been an inappropriate attempt
to comfort his crying cousin—did not meaningfully implicate
Staten in his parents’ murders. And there was evidence that
Staten was emotionally affected by his parents’ murders—
several witnesses testified to seeing Staten upset after over his
parents’ death.

    (5) Staten was seen opening a safe in his parents’
bedroom, which one witness described as having “[m]aybe
ten inches” of bills, but which Staten described as containing
less than 300 dollars and his parents’ will. There is nothing
unusual about Staten opening his parents’ safe to find their
will after their deaths, even if a substantial amount of money
was also in the safe.

    Considered together, then, the evidence implicating Staten
in the murders was fairly weak. And other evidence
introduced at trial supported Staten’s innocence.

    First, that Arthur Staten was shot but Faye Staten was
stabbed to death suggests, as the defense argued and the
prosecution acknowledged in its opening statement, that more
than one person was likely involved in the murders. But the
jury was never presented with a theory as to who else could
or would have helped Staten murder his parents. Second,
numerous witnesses testified that Staten had a very close
relationship with his mother, making it unlikely that Staten,
                          STATEN V. DAVIS                             35

who had no history of violence, would have stabbed her
18 times. Third, Staten did not test positive for gunshot
residue on the night of the murders. Finally, the recorded
conversation between Staten and his friend John Nichols,
described in part by the majority, Maj. Op. at 9, partially
supports Staten’s defense. Nichols, who was cooperating
with the police and wearing a wire, repeatedly asks if Staten
was involved in Arthur’s and Faye’s murders. Over the
course of the conversation, Staten says a version of “I didn’t
do it” five times; explains that he “left to get something to
eat,” before coming home to find his parents dead; states that
he did not have the .38 revolver when his parents returned;
and expresses how much he loved his mother, and how upset
he was after his parents died.

     The majority argues that “in the cases in which [the Ninth
Circuit] and the California Supreme Court have concluded
that failure to present evidence of third-party culpability was
prejudicial,” (1) “the omitted evidence was far more
compelling than it was here,” and (2) “[t]he prosecution’s
case was . . . weaker.” Maj. Op. at 22–23. As discussed
below, the omitted evidence here was both compelling and
fundamentally different than any other evidence admitted at
trial. See infra, Section I.B.ii.

    As to the strength of the prosecution’s case, analogous
case law supports the conclusion that the case against Staten
was weak. The only Ninth Circuit case the majority discusses
to support its position that the prosecution’s evidence against
Staten was stronger than in analogous cases is Thomas v.
Chappell, 678 F.3d 1086 (9th Cir. 2012).2 Maj. Op. at 22.

    2
      See infra, page 40 for discussion of the other case relied on by the
majority, In re Hardy, 163 P.3d 853, 886–87 (Cal. 2007).
36                        STATEN V. DAVIS

The strength of the evidence against Thomas was, in fact,
very similar to that in the case against Staten.

    The majority, summarizing the evidence against Staten,
states that “the prosecution presented evidence of a motive;
testimony placing [Staten] at the scene at the time of the
murders; and evidence that, on the day of the murders,
[Staten] had been in possession of a firearm that was
consistent with the murder weapon.” Maj. Op. at 24. In
Thomas, the jury was presented with evidence that Thomas
“possessed a rifle that could have been the murder weapon,”
that Thomas had fired the rifle the night before the murders,
that the rifle had disappeared by the next morning and was
never found, and that “[t]he rifle had some peculiarities such
that, if a person unfamiliar with the rifle used it, it might
jam.” 678 F.3d at 1102. The jury also heard that Thomas
“asserted that he could think of many motives for killing the
victims but declined to offer one when asked,” and “was seen
with the victims shortly before the likely time of murder . . .
[and] appeared angry.” Id. This Court held that, despite the
“circumstantial evidence that cast considerable suspicion
upon [Thomas],” the testimony of three additional witnesses
supporting “the theory of the alternative credible killer . . .
created a reasonable doubt as to [Thomas’s] guilt,” and so
Thomas was prejudiced by his attorney’s failure to investigate
and present third-party culpability evidence. Id. at 1102,
1104, 1106.3 The similarities between Thomas and this case

     3
       Staten’s case is also similar to Thomas’s because “the objective
clues as to the jury’s assessment of the case strongly suggest that the case
was close.” Thomas, 678 F.3d at 1103. Here, the jury deliberated for two
days and requested readbacks of certain testimony, which “is an indication
that the jury was clearly struggling to reach a verdict.” Id. (quotation
marks and citation omitted). See also Daniels v. Woodford, 428 F.3d
1181, 1209–10 (9th Cir. 2005) (holding that “[t]he jury deliberat[ing] for
                           STATEN V. DAVIS                                 37

support the conclusion that Staten was prejudiced by his
counsel’s deficient performance, and undermine the
majority’s proposition that cases in which this Court has
found evidence of third-party culpability to be prejudicial
involved weaker cases by the prosecution.4

    Not only is this case, in the words of the prosecutor’s
opening statement, an “entirely circumstantial case” with “no
direct evidence,” the trial record is notable for the paucity of
direct evidence regarding the involvement of the ESD gang.
Defense counsel elicited and presented some evidence to
support its primary defense—that the ESD gang murdered the
Statens. That evidence included that the ESD gang claimed
territory bordering the Statens’ street and graffitied its name
widely and frequently in the Statens’ neighborhood; that the
ESD gang had a record of confronting African-Americans,5
and repeatedly painted graffiti stating “ESD Kills Niggers” in
the Statens’ neighborhood; that the assistant principal at
Staten’s school had seen “ESD” graffiti in the same style as
the spray-painted letters found inside the Statens’ house;6 and


two days before returning a verdict . . . suggests that the jury may have
been influenced by [additional] evidence had it been offered”). Notably,
the jury requested during their deliberations a transcript of the recorded
conversation between Nichols and Staten in which Staten repeatedly
denies having anything to do with the murders and maintains that the ESD
gang was likely responsible.
    4
     Thomas did not involve AEDPA deference, and so only considered
whether Thomas was prejudiced by his counsel’s deficient performance.
    5
        Staten and his family are African American.
    6
       This testimony contradicted the prosecution’s gang expert, who
testified that the graffiti found in the Statens’ house did not match the style
of the ESD gang’s graffiti.
38                        STATEN V. DAVIS

that Staten had had several confrontations with the ESD gang.
Staten and other witnesses testified that Staten received
threatening phone calls from and was shot at by ESD gang
members. Defense counsel also emphasized that the police
did not conduct a thorough investigation of possible gang
involvement before ruling out the ESD gang as suspects. But
the defense did not present any evidence, aside from the
graffiti in the Statens’ house, that directly connected the ESD
gang to Arthur and Faye Staten or to their murders.

                                    ii

    As to the importance of the exculpatory evidence that
could have been submitted at trial but was not, the evidence
Staten presented in his habeas petition of the ESD gang
members claiming credit for Arthur’s and Faye’s murders is
fundamentally different from any evidence presented to the
jury. I strongly disagree with the majority’s assertion that the
new evidence “would not have significantly changed the
nature of the defense.”7 Maj. Op. at 22. Staten presented
declarations of five witnesses, all of whom would have
testified that they saw members of the ESD gang driving by
the Statens’ house the morning after the murders. The
declarations explained that the ESD gang members were


     7
      The majority also asserts that the evidence offered in Staten’s state
habeas petition is less probative because it involved witnesses who “were
either not new or not more credible.” Maj. Op. at 23. For one thing, we
cannot know how credible the jury would have found Keith Taylor, who
did not testify at Staten’s trial. But more importantly, even if the
witnesses would not have been new to the jury, their testimony connecting
the ESD gang to the murders would have been. That these witnesses
provided other unrelated testimony does nothing to diminish the probative
value of testimony regarding the ESD gang claiming credit for the
murders.
                       STATEN V. DAVIS                         39

“giving . . . hard stares,” and three witnesses heard the gang
members say “yeah we got them.”

    Had it been presented at trial, this evidence would have
been the only “direct connection between the ESD and the
murders” aside from the “ESD kills” graffiti, which the
prosecution’s gang expert debunked. Maj. Op. at 17. This
evidence would therefore not be “cumulative.” Maj. Op.
at 22. The majority rightly points out that the evidence of
ESD gang members’ responsibility for the murders did not
present a “new theory.” Maj. Op. at 21–22. But to say that
the defense already had a theory about who committed the
murders does not mean that critical evidence supporting that
theory would not have made it materially more likely that the
theory would have been accepted rather than rejected.

    Analogous case law, unpersuasively relied on by the
majority, confirms that habeas evidence can be prejudicial
when it supports the same defense theory presented at trial.
Vega v. Ryan, 757 F.3d 960, 974 (9th Cir. 2014), for example,
held “that the state court’s findings that [the victim’s priest’s]
testimony [regarding victim’s recantation] would have been
cumulative and would have had no effect on the verdict [was]
an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings,” even
though the jury had heard evidence that the victim recanted
to her mother. In In re Hardy, the California Supreme Court
held that Hardy was prejudiced by his counsel’s deficient
performance at the penalty phase because counsel failed to
investigate and present third-party culpability evidence, even
though counsel’s closing argument “made clear that his
strategy was to create a reasonable doubt in the minds of the
jurors by convincing them it was [a third party]” who
committed the murders. 163 P.3d 853, 885, 893 (Cal. 2007).
40                    STATEN V. DAVIS

    The majority makes an unhelpful comparison in relying
on In re Hardy as a case in which the potential impact of
third-party culpability evidence was stronger than it was here.
Maj. Op. at 23. Although the California Supreme Court
concluded that Hardy was prejudiced by his counsel’s
deficient performance at the penalty phase, that court had
held that Hardy was not prejudiced by counsel’s deficient
performance in the guilt phase because of the “ample
evidence” that Hardy was a member of the conspiracy and
aided and abetted others in the commission of the murders.
In re Hardy, 163 P.3d at 891. This Court, however, held that
conclusion unreasonable and granted habeas relief. Hardy v.
Chappell, 849 F.3d at 826–27.

    The evidence of Hardy’s involvement in the conspiracy,
which made him as liable for the murders as if he committed
them himself, was much stronger than the circumstantial
evidence against Staten here. Hardy’s girlfriend at the time
of the murders testified that Hardy was paid $1,000 for his
role in the murders, told her at least twice that he had been to
the victims’ home the night of the murders, told her and his
brother to dispose of a rifle that was allegedly stolen from the
victim’s house, and told her to destroy a pair of his shoes
after he learned that police had discovered a footprint at the
crime scene. Id. at 862. Despite the strength of this evidence,
this Court held, applying AEDPA deferential review, that the
California Supreme Court unreasonably applied Strickland in
holding that Hardy was not prejudiced in the guilt phase by
his counsel’s deficient performance. Hardy v. Chappell held
that, had counsel performed competently, “the jury would
have been torn between two conflicting theories on the
identity of the . . . killer.” 849 F.3d at 826.
                     STATEN V. DAVIS                       41

    The same is true here. Analogously to Hardy v. Chappell,
the defense in this case rested on the jury believing that the
ESD gang could well have murdered Arthur and Faye
Staten—not that the gang did commit the murders—and so
Staten was not guilty beyond a reasonable doubt. Defense
counsel presented no alternative theory of who could have
committed the crime and repeatedly emphasized the possible
role of the ESD gang throughout the trial. But the general
evidence about the ESD gang’s proximity to the Statens and
conflict with other African Americans, and even the specific
testimony that the ESD gang threatened and harassed Staten,
does not compare to direct evidence presented in the habeas
declarations that the ESD gang claimed responsibility for
Arthur’s and Faye’s murders. This evidence is also distinct
from the evidence admitted at trial and important to Staten’s
defense, because it would have countered testimony that the
ESD gang denied responsibility for the murders when
interviewed by a police investigator.

    The prejudicial effect of Staten’s counsel’s deficient
performance must also be considered in conjunction with
other third-party culpability evidence Staten’s counsel failed
to present. In his state habeas filing, Staten presented the
California Supreme Court with evidence that Arthur and
Deondre Staten sold drugs in ESD gang territory. Three
witness declarations described Arthur Staten’s drug dealing
and indicated that his activities caused problems between the
ESD gang and the Statens. Keith Taylor stated that Arthur
Staten “advertised that he was a successful drug dealer” by
wearing expensive jewelry and clothes and going on
42                       STATEN V. DAVIS

expensive vacations.8 Brian Ellis and Quincy Murphy also
described Arthur Staten buying a new truck and making
expensive improvements to the Statens’ house and beauty
salon with the money he made selling drugs. Murphy
explained that Arthur’s and Deondre’s drug sales “caused big
time problems with the Dukes, who wanted to control the
entire drug trade in the area.”

     This evidence “cannot simply be ignored when assessing
prejudice” of Staten’s counsel’s deficient performance in
failing to present critical evidence of third-party culpability.
See Williams v. Filson, 908 F.3d 546, 570 (9th Cir. 2018).
That Staten’s counsel made a tactical decision to avoid
presenting evidence of Deondre Staten as a gang associate or
drug dealer while presenting little direct evidence that the
ESD gang was involved does not mean that he would have
made the same decision with such evidence, or that the
decision would have been reasonable on an expanded record
of gang responsibility for the murders. And evidence that the
ESD gang had both a motive to kill Arthur Staten and
publicly claimed credit for the murders likely would have
created reasonable doubt in the mind of the jury.

    Despite the hole-ridden case the prosecution presented to
the jury and the unique nature of the third-party culpability
evidence presented in Staten’s habeas petition, the majority
concludes that it was reasonable for the California Supreme
Court to conclude that the omitted evidence would not have
altered the outcome. I would instead hold that “[w]ith all due
respect for our state colleagues, the state court’s application


     8
      The fact that Arthur and Faye Staten had recently returned from a
trip to Egypt when they were murdered would have supported this
testimony.
                      STATEN V. DAVIS                        43

of Strickland was objectively unreasonable.” Vega, 757 F.3d
at 974.

                              II

     The Government briefly argues that Staten’s IAC claim
has been procedurally defaulted. Neither the district court nor
the majority assesses whether review of Staten’s IAC claim
has been barred by an “independent and adequate” state
procedural rule. Assuming that Staten’s IAC claim was
barred by an independent and adequate state rule, Staten
would have to show cause and prejudice to excuse that
procedural default under Martinez v. Ryan, 566 U.S. 1, 13–14
(2012), by demonstrating ineffective assistance during the
state habeas proceedings resulting in the failure to properly
raise a substantial claim of ineffective assistance at trial. I
note that establishing cause and prejudice under Martinez
largely depends on the strength of the underlying claim of
trial counsel IAC, see Clabourne v. Ryan, 745 F.3d 362,
377–78 (9th Cir. 2014), and, as described in the majority
opinion (as to deficient performance) and this dissent (as to
prejudice), Staten has quite a strong underlying claim. Still,
the issue of procedural default has not been adequately
briefed before this court, and Staten’s counsel was
unprepared to answer questions about procedural default at
oral argument. I therefore would either order supplemental
briefing on the procedural default issue, or remand to the
district court to address the issue of procedural default in the
first instance.

    For the foregoing reasons, I respectfully dissent. I would
hold that § 2254(d) does not bar federal habeas relief for
Staten’s IAC claim, and order supplemental briefing or
remand to the district court for further proceedings.
