                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


FRANCIS G. HERNANDEZ,                    No. 11-99013
              Petitioner-Appellant,
                                            D.C. No.
                 v.                      2:90-cv-04638-
                                             RSWL
KEVIN CHAPPELL, Warden,
California State Prison at San
Quentin,                                 ORDER AND
                Respondent-Appellee.      OPINION



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

       Argued and Submitted September 24, 2018
                 Pasadena, California

                Filed January 14, 2019

  Before: Kim McLane Wardlaw, Milan D. Smith, Jr.,
      and Jacqueline H. Nguyen, Circuit Judges.

               Opinion by Judge Nguyen
2                  HERNANDEZ V. CHAPPELL

                          SUMMARY *


                         Habeas Corpus

    The panel filed an order withdrawing the prior opinion
in this case, and filed a new opinion, which affirmed the
district court’s denial of a writ of habeas corpus as to Francis
Hernandez’s guilt-phase claims relating to his California
state convictions for first-degree murder.

    The panel addressed two claims of ineffective assistance
of counsel. The panel held that trial counsel was
constitutionally deficient by failing to present a diminished
capacity defense based on mental illness, but that Hernandez
did not suffer any prejudice because the evidence of his
specific intent to rape and kill both victims was
overwhelming when compared to the relatively weak
diminished capacity evidence that counsel could have
presented, but failed to present. The panel held that trial
counsel was not ineffective for failing to subpoena Laura
Kostiuk as a witness.


                           COUNSEL

Tracy Casadio (argued) and Margo A. Rocconi, Deputy
Federal Public Defenders; Hilary Potashner, Federal Public
Defender; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.


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

Gary A. Lieberman (argued) and Xiomara Costello, Deputy
Attorneys General; Jason Tran, Supervising Deputy
Attorney General; Lance E. Winters, Senior Assistant
Attorney General; Gerald A. Engler, Chief Assistant
Attorney General; Xavier Becerra, Attorney General; Office
of the Attorney General, Los Angeles, California; for
Respondent-Appellee.

Kent S. Scheidegger and Kymberlee C. Stapleton, Criminal
Justice Legal Foundation, Sacramento, California, for
Amicus Curiae Criminal Justice Legal Foundation.


                          ORDER

    The prior opinion in this case, found at Hernandez v.
Chappell, 878 F.3d 843 (9th Cir. 2017), is hereby
withdrawn. A new opinion is being filed concurrently with
this order. Further petitions for rehearing or rehearing en
banc may be filed.



                         OPINION

NGUYEN, Circuit Judge:

    In the winter of 1981, Francis Hernandez brutally raped,
sodomized, and strangled to death two women, Edna Bristol
and Kathy Ryan. Hernandez committed the crimes five days
apart and in a strikingly similar manner, including strangling
the victims, mutilating their bodies, and leaving them near
schools in Long Beach, California. After his arrest,
Hernandez confessed, walking the police through every
detail of his crimes and his thoughts and motivations as he
committed them. In April 1983, a jury convicted Hernandez
4                    HERNANDEZ V. CHAPPELL

of two counts each of first-degree murder, forcible rape, and
forcible sodomy, and sentenced him to death. The California
Supreme Court denied his state habeas petitions.

   Hernandez filed a federal habeas petition alleging,
among other claims, ineffective assistance of trial counsel.
After extensive litigation, including a six-year evidentiary
hearing, the district court granted relief in part, vacating the
death sentence. The district court denied guilt-phase relief.

    Hernandez now appeals the district court's denial of
relief as to the guilt-phase claims relating to his first-degree
murder convictions. 1        We find that trial counsel’s
performance was deficient in one respect—he should have
investigated and considered presenting a diminished
capacity defense based on Hernandez’s mental condition.
We hold, however, that Hernandez did not suffer any
prejudice as a result of counsel’s deficient performance.
Because the evidence of his specific intent to rape and kill
both victims was overwhelming when compared to the
relatively weak diminished capacity evidence that counsel
could have presented, but failed to present, there was no
reasonable probability of a different outcome in this case.
We therefore affirm.




    1
      The state on appeal does not challenge the district court’s grant of
penalty-phase relief.
                 HERNANDEZ V. CHAPPELL                     5

                             I.

                     BACKGROUND

A. The Murders of Bristol and Ryan

    In January 1981, Edna Bristol’s nude body was found
near a middle school in Long Beach, California. Five days
later, Kathy Ryan’s nude body was found near a high school
in the same city. According to a pathologist, Bristol and
Ryan both died of asphyxiation due to strangulation or
suffocation, and their bodies suffered “extremely similar and
extremely rare” trauma to the anal and vaginal areas,
suggesting a large object—consistent with a baseball bat—
had been inserted. Their bodies were mutilated, with bite
marks on their breasts, and their pubic hair was singed.
Bristol had ligature marks around her wrists and ankles.
Ryan’s nose was fractured, and a tic-tac-toe pattern had been
carved into her abdomen post-mortem.

    On February 4, 1981, Hernandez was arrested for the
crimes.

B. Hernandez’s Detailed Confession

    Hernandez gave a detailed, taped confession. He
chillingly recounted not only his horrific acts, but also the
thoughts and feelings that went through his mind as he
committed the crimes. Hernandez explained that on the
night of Bristol’s death, he “was in a weird mood” and
decided to “find . . . a homosexual to beat up on.” He found
a male victim, beat him up, and robbed him “for his last ten
dollars.” When he was done, Hernandez was still feeling
“frustrated.” It was then that he picked up Bristol
hitchhiking.
6                  HERNANDEZ V. CHAPPELL

    He became angry when Bristol started telling him “about
all her problems” and ordered her out of his van. When she
refused, he began to hit her and physically drag her out.
Bristol then pleaded that “she’d do anything,” and after he
“thought about that for a minute,” he decided to drive to
another location. Once parked, he ordered Bristol to “get in
the back” of the van, where there was no exit, and “to take
off her clothes.” Hernandez explained that he had intended
to “let her out” or “let her go” after they “had sexual
intercourse,” but he went “bezerk” because she was kicking
and screaming and damaging his van. He taped her ankles,
wrists, and mouth “around the hair,” and then, as he
described it, “I proceeded to fuck her in her ass.” He pushed
her body against the hot engine cowling of his van to burn
her nipple because he was “mad at her.” He then pushed
“some piece of material” “over [Bristol’s] face” while
holding her by the throat until she stopped moving. He threw
her body out of the van onto the lawn of a middle school in
Long Beach, California. Thinking Bristol was still alive,
Hernandez flicked matches onto her pubic area and another
match “on her nipple” to “hurt her” for kicking him “in the
nuts” and kicking a hole in his van.

    Hernandez’s confession also walked the police through
the night of Ryan’s death. He had gone to play pool with
friends, including Ryan. 2 After the group disbanded, he
went over to Ryan’s house and invited her into his van.
When he tried to kiss her, “she sort of resisted.” She also
refused his order to take off her clothes but then said, “oh,

    2
       The evidence shows that Ryan had repeatedly rejected
Hernandez’s aggressive advances all evening during the group outing.
Hernandez told one friend that night that he intended “to make a
sandwich out of [Ryan],” “fuck her in the butt until she screams,” and
“get some [from Ryan either] tonight or tomorrow night.”
                 HERNANDEZ V. CHAPPELL                      7

okay,” when he got angry and “pushed her arms back.” At
one point, he “thought she wanted it in her ass,” and
sodomized her. Like Bristol, Ryan was screaming and
kicking and, in response, he “grabbed her, [held] onto her,
and . . . then she gargled—she . . . sputtered up.” He thought
that he “was choking her too hard” and “let go.” Hernandez
told her “to mellow out” but when she started screaming
again, he grabbed her throat with one hand and covered her
mouth with the other hand. Because “she started struggling
really bad,” he realized he “must have used too much
pressure, but then she stopped struggling.” He burned
Ryan’s pubic hair with a lighter, and decided to cut her
stomach and nipple “to make the two bodies look different
from one another so that the police could not link the cases
together.” Hernandez took Ryan’s body to the high school
“[b]ecause it was his understanding . . . that police
sometimes think criminals return to the scene of the crime,
and they might have been there waiting for him, had he . . .
gone back to the first location” where he left Bristol’s body.

C. Trial and Subsequent History

    At trial, Hernandez’s counsel attempted to present a
diminished capacity defense based solely on voluntary
intoxication. Trial counsel argued that Hernandez’s heavy
drinking prevented him from forming the specific intent
necessary for first-degree murder. Counsel tried to persuade
the jury that Hernandez’s intoxication caused Hernandez to
believe that the encounters with Bristol and Ryan were
consensual, and that he did not intend to kill them.

    The jury was unconvinced and convicted Hernandez of
two counts of first-degree murder, two counts of forcible
rape, and two counts of forcible sodomy, and found true
special circumstances: that each murder occurred during the
commission of rape and sodomy, and that he committed
8                 HERNANDEZ V. CHAPPELL

more than one murder. People v. Hernandez, 47 Cal. 3d 315,
327 (1988). The jury returned a death sentence as to each
murder. On each count of rape and sodomy, the trial court
sentenced Hernandez to eight years, to be served
consecutively.

   On direct appeal, the California Supreme Court vacated
one multiple-murder special circumstance, but affirmed the
judgment in all other respects.

D. Habeas Proceedings

    In 1989, Hernandez filed a state habeas petition in the
California Supreme Court, raising claims of ineffective
assistance of counsel, which the California Supreme Court
summarily denied. Hernandez then filed a federal habeas
petition and returned to state court to exhaust his claims. The
California Supreme Court summarily denied Hernandez’s
second habeas petition as untimely and on the merits.
Hernandez subsequently filed an amended federal petition.
The state filed a motion for summary judgment, which the
district court granted in part and denied in part. The district
court then ordered a bifurcated evidentiary hearing as to
Hernandez’s juror misconduct and ineffective assistance of
counsel claims.

    In 2011, the district court granted relief in part, vacating
the death sentence partly because, at the penalty phase,
counsel presented virtually no mitigating evidence. Had
counsel investigated, he would have discovered that
Hernandez suffered from a deeply troubled childhood and
certain mental deficiencies. On appeal, the state does not
challenge the penalty-phase relief.

    As to the guilt phase, however, the district court denied
the petition. There are two claims of ineffective assistance
                  HERNANDEZ V. CHAPPELL                       9

of counsel that are relevant here. On the first claim, the
district court found that counsel was ineffective for failing to
present mental health evidence to support a diminished
capacity defense, but that Hernandez did not suffer any
prejudice. As to Hernandez’s claim that counsel was
ineffective for failing to call Laura Kostiuk as a witness, the
district court ruled that counsel’s performance was not
deficient, and Hernandez was not prejudiced.

                              II.

                      JURISDICTION

     The district court granted a certificate of appealability
(“COA”) only on Hernandez’s claim that counsel was
ineffective for failing to call Kostiuk as a witness, declining
to certify the remaining ineffective assistance of counsel
claims. We treat Hernandez’s appeal from the district
court’s ruling on the uncertified issues as an application for
a COA, Fed. R. App. P. 22(b)(2), and grant the application
as to Hernandez’s claim that counsel was ineffective by
failing to investigate and present a diminished capacity
defense based on mental impairment, see 28 U.S.C.
§ 2253(c)(2). We decline to grant a COA as to the remaining
claims.

                              III.

                STANDARD OF REVIEW

    Hernandez filed his federal habeas petition before the
enactment of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), and therefore, pre-AEDPA
standards of review apply. Carrera v. Ayers, 699 F.3d 1104,
1106 (9th Cir. 2012). “Ineffective assistance of counsel
claims present mixed questions of law and fact.” Id. Under
10                HERNANDEZ V. CHAPPELL

pre-AEDPA law, we review questions of law or mixed
questions of law and fact de novo. Id. “We review the
district court’s findings of fact for clear error.” Id. (quoting
Robinson v. Schriro, 595 F.3d 1086, 1099 (9th Cir. 2010)).

                              IV.

                       DISCUSSION

    To prevail on an ineffective assistance of counsel claim,
the defendant must show both that counsel’s performance
was deficient, and that he suffered prejudice due to counsel’s
deficiency. Strickland v. Washington, 466 U.S. 668, 687
(1984). “The essence of an ineffective-assistance claim is
that counsel’s unprofessional errors so upset the adversarial
balance between defense and prosecution that the trial was
rendered unfair and the verdict rendered suspect.”
Kimmelman v. Morrison, 477 U.S. 365, 374 (1986).

A. Counsel Rendered Ineffective Assistance by Failing
   to Investigate and Present a Diminished Capacity
   Defense Based on Mental Illness

    Hernandez argues that his counsel was constitutionally
deficient by failing to present a diminished capacity defense
based on his mental illness. We agree.

     “The proper measure of attorney performance remains
simply reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688. While defense counsel
“is strongly presumed to have rendered adequate assistance,”
we accord deference to counsel only for “strategic choices
made after thorough investigation of law and facts relevant
to plausible options.” Id.
                 HERNANDEZ V. CHAPPELL                    11

    “An attorney’s ignorance of a point of law that is
fundamental to his case combined with his failure to perform
basic research on that point is a quintessential example of
unreasonable performance under Strickland.” Hinton v.
Alabama, 571 U.S. 263, 274 (2014); see also United States
v. Span, 75 F.3d 1383, 1390 (9th Cir. 1996) (finding
counsel’s performance deficient because his errors with
regard to the jury instructions were based on “a
misunderstanding of the law” rather than strategic
judgment); Morris v. California, 966 F.2d 448, 454–55 (9th
Cir. 1991) (finding counsel’s performance deficient because
he had not “done his homework” in researching the relevant
law).

    Here, Hernandez’s trial counsel admitted that he was
ignorant of the law that was central to a diminished capacity
defense, which the district court correctly characterized as
Hernandez’s “best possible defense.” Counsel did not
realize that diminished capacity based upon mental illness
was an available defense under then-existing California law.
See People v. Saille, 54 Cal. 3d 1103, 1110 (1991)
(“[S]omeone who is unable, because of intoxication or
mental illness, to comprehend his duty to govern his actions
in accord with the duty imposed by law, cannot act with
malice aforethought.”). Rather than focus on Hernandez’s
mental condition, counsel instead chose to limit the evidence
to Hernandez’s intoxication because, as he explained, he
mistakenly believed that the defense “could only be based
on a lack of capacity arising from the use of drugs and/or
alcohol.” Worse still, counsel admitted that he had no prior
experience with presenting the defense, and yet he “neither
investigated, nor made a reasonable decision not to
investigate” whether the defense would be available. See
Kimmelman, 477 U.S. at 385–87 (holding that counsel’s
performance was deficient where his actions “betray[ed] a
12               HERNANDEZ V. CHAPPELL

startling ignorance of the law[—]or a weak attempt to shift
blame for inadequate preparation”). Because counsel’s
failure to investigate and present a diminished capacity
defense based on mental illness was unreasonable, his
assistance to Hernandez in this respect was constitutionally
deficient.

    We are unpersuaded by the state’s argument that we
should reject counsel’s stated explanations in favor of
hypothetical strategic choices that could have supported
counsel’s conduct. According to the state, a reasonable
defense attorney could have decided not to present mental
illness evidence in order to limit potentially damaging
evidence that Hernandez was a sociopath. “Generally, we
credit the statements of defense counsel as to whether their
decisions at trial were—or were not—based on strategic
judgments.” Doe v. Ayers, 782 F.3d 425, 445 (9th Cir.
2015). Where, as here, “it ‘would contradict [counsel’s]
testimony’” to presume that counsel’s conduct was strategic
when counsel clearly stated otherwise, we are guided by
counsel’s own statements. See id. (quoting Heishman v.
Ayers, 621 F.3d 1030, 1040 (9th Cir. 2010)). To do
otherwise would “contraven[e] the Supreme Court’s
admonition against adopting a post hoc rationalization of
counsel’s conduct instead of relying on an accurate
description of their deliberations.” Id. (internal quotation
marks omitted). We have no reason to doubt counsel’s
admission that he based his actions on lack of investigation
and knowledge, not on any strategic judgment. Accepting
counsel’s explanations, his conduct was unreasonable under
Strickland.
                 HERNANDEZ V. CHAPPELL                      13

B. Counsel’s Failure to Present a Diminished Capacity
   Defense Based on Mental Illness Did Not Result in
   Prejudice to Hernandez

    To establish prejudice, the defendant must show “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland,
466 U.S. at 694. To make this assessment, we “compare the
evidence that actually was presented to the jury with the
evidence that might have been presented had counsel acted
differently.” Clark v. Arnold, 769 F.3d 711, 728 (9th Cir.
2014) (quoting Murtishaw v. Woodford, 255 F.3d 926, 940
(9th Cir. 2001)). A defendant faces a higher burden of
showing prejudice at the guilt phase than at the penalty
phase. See Raley v. Ylst, 470 F.3d 792, 802 (9th Cir. 2006)
(“The bar for establishing prejudice is set lower in death-
penalty sentencing cases than in guilt-phase challenges and
noncapital cases.”).

   1. The Jury Heard Overwhelming Evidence of
      Hernandez’s Specific Intent to Rape and Kill
      Bristol and Ryan

     Although Hernandez’s trial counsel’s performance was
deficient, Hernandez must also show that he suffered
prejudice due to counsel’s conduct. See Strickland, 466 U.S.
at 687. To succeed here, Hernandez must show a reasonable
probability of a different outcome as to both first-degree
murder theories that were available to the jury: (1) willful,
deliberate, and premeditated murder, and (2) felony murder
with rape as the predicate felony. That is because the jury
had two independent paths to convict Hernandez of first-
degree murder. While the jury was required to find that the
killing was willful, deliberate, premeditated, and with malice
14                HERNANDEZ V. CHAPPELL

aforethought under the first theory, it needed only to find that
Hernandez had the specific intent to rape under the second
theory of felony murder. See Hernandez, 47 Cal. 3d at 346–
51.

    Ample evidence of Hernandez’s specific intent to rape
and kill both Bristol and Ryan supported the jury’s verdict.
First, the two crimes were committed within days of each
other and were strikingly similar, strongly suggesting
premeditation. Bristol and Ryan were around the same
age—twenty-one and sixteen, respectively—and both had
shoulder-length blonde hair and similar body types.
Hernandez, 47 Cal. 3d at 328, 341. Both victims were
enticed into Hernandez’s van, raped, and sodomized. Id. at
332–33. Hernandez taped Bristol’s wrists, ankles, and
mouth with duct tape; tape was also found near Ryan’s body.
Id. at 328, 332. Both victims suffered “extremely similar
and extremely rare” wounds to the vagina and anus, likely
caused by forcible insertion of a large object, possibly a
baseball bat. After each woman struggled and screamed,
Hernandez strangled them. Both women were found in the
early morning hours, lying naked on their backs, abandoned
in grassy fields near schools. Hernandez threw both of their
clothes out of his van after driving away from their bodies.
Their bodies bore other similar injuries—wounds inflicted
by punches to the mouth, significant bruising around their
necks, bite marks on their breasts, “puncture-wound type
injuries to the nipples,” and “singed or burned pubic hair.”
The injuries “carried significant sexual overtones,” and
“specifically sexual violence [was] repeated in almost every
detail with both victims.” Id. at 350. The substantial
similarities between the crimes showed that Hernandez
intended and premeditated both rapes and murders. Cf. id.
at 341 (characterizing the offenses as “‘signature’ crimes—
because of the unique nature of each killing, it was
                 HERNANDEZ V. CHAPPELL                     15

reasonable to believe the same person committed them
both”).

    Second, Hernandez’s confession was powerful evidence
of his intent. He explained the beginning of his attack on
Bristol as follows:

       [Bristol] started telling me about all her
       problems, and I was mad, and I told her not
       to tell me about her problems, and then she
       started bitching, and I just stopped my van. I
       got out, walked around and told her to get out,
       and she wouldn’t get out, so I hit her, and I
       dragged her out of my van, and then she told
       me that she’d do anything, and I thought
       about that for a minute, and—I don’t know it
       was just that I was drunk and I was in a weird
       mood, and I just took her and I threw her in
       the back . . . and then I told her to get out and
       get in the front, . . . and I proceeded to drive
       ....

(Emphases added). Hernandez parked at another location
and told Bristol to “get in the back” and “take off her
clothes.” There was no exit from the back of the van.
Hernandez, 47 Cal. 3d at 345 n.18. Hernandez described
what happened next:

       [We] had sexual intercourse once, then I was
       getting up and getting ready to let her go, and
       I didn’t really have her—you know—
       forcibly. I guess maybe she thought I did, but
       I don’t know—you know. I proceeded to get
       up and get my clothes on, and I was going to
       let her out . . . .
16               HERNANDEZ V. CHAPPELL

(Emphases added). While Hernandez tried to minimize his
conduct by claiming that they had consensual intercourse,
his statement reveals, in several respects, his awareness of
Bristol’s lack of consent and his specific intent to rape her—
pondering her plea that she would “do anything[;]” driving
to a different location; ordering her to get into the back of
the van and take off her clothes; and, after raping her,
admitting that he was preparing to “let her go” or “let her
out.”

   Tragically, Hernandez’s violence only increased as the
evening progressed. As Bristol struggled and screamed,
Hernandez went “bezerk,” and, in his own words:

       I just threw her over, taped her up . . . I taped
       her wrists. I taped her legs . . . [a]round the
       ankles, and then I taped her around the hair,
       and then I proceeded to fuck her in the
       ass. . . . [A]nd then I told her that if she was
       good after that; I told her if she was going to
       be cool, I’d let her up[,] and I was going to let
       her go, and then when I let her up, she started
       just kicking and hitting, and kicking and
       hitting me, so I just put my hand over her and
       I grabbed some piece of material . . . I pushed
       that over her face . . . and then—uh—she
       stopped moving.

Hernandez also admitted to “forc[ing] [Bristol] up against
the hot engine cowling of the van in order to burn her
breasts.” Hernandez, 47 Cal. 3d at 332. His motivation was
clear by his own admission: he suffocated Bristol as
punishment for not “being cool” after he violently raped and
sodomized her. And the acts Hernandez took to render
Bristol “totally defenseless”—attacking her in the back of
                   HERNANDEZ V. CHAPPELL                         17

the van, from which she could not escape, and taping her
arms, legs, and mouth—also suggested premeditation and
intent to kill. See Crittenden v. Ayers, 624 F.3d 943, 963
(9th Cir. 2010) (viewing petitioner’s gagging and tying of
his victims as evidence of premeditation supporting a first-
degree murder conviction). In fact, Bristol’s “wrists and
ankles had been bound so tightly that there were ligature
marks on the skin and hemorrhage in the underlying tissues.”
Hernandez, 47 Cal. 3d at 344–45.

    Hernandez’s confession contains even more compelling
details of his intent to rape and murder Ryan. Ryan and
Hernandez were friends, and spent time together in a group
the evening of her death. The California Supreme Court
described Hernandez’s actions as follows:

        During the evening of playing pool and
        drinking beer, it was evident to several in the
        group that defendant was focusing
        considerable unwelcome attention on Ryan.
        He tried to put his arms around her, pinched
        her in the buttocks and put his hands on her
        hips, but she kept pushing him away. . . .
        Outside, defendant told Jackson he wanted to
        make a “sandwich” out of Ryan; he wanted
        to “fuck her in the butt until she screams.” He
        told Jackson he would “get some tonight or
        tomorrow night.”

Hernandez, 47 Cal. 3d at 329–30. 3 Hernandez’s aggressive
unwanted sexual touching of Ryan at the bar, and his stated

    3
      Ryan’s stepmother also testified to suspicious circumstances
surrounding her daughter’s room. The morning after Ryan’s death, her
stepmother “found the living room lights still on and the drapes and
18                   HERNANDEZ V. CHAPPELL

intent to later “make a ‘sandwich’” out of Ryan and “fuck
her in the butt until she screams” strongly suggest that he
planned ahead of time to sexually assault and rape her. That
same evening, Ryan ended up in his van, and although
Hernandez again tried to minimize his conduct by claiming
that she “submitted freely,” the evidence suggests that she
was forced. Before the group of friends dispersed from the
bar, Ryan’s friend overheard Hernandez asking Ryan to
meet up with him after the gathering, and Ryan responding
“no.” Hernandez admitted to the police that Ryan was
“hesitant” about having sex with him but when he got
“mad,” she finally “said oh, okay” because he had pushed
her arms down and was about to force himself upon her.
Despite Hernandez’s self-serving statements minimizing the
amount of force used, his intent to rape Ryan is clear.

    Hernandez’s confession, coupled with the physical
evidence, also revealed his intent to murder Ryan. After she
was raped and forcibly sodomized, Ryan, like Bristol, was
screaming, kicking, and resisting. Hernandez described his
response as follows:

         I grabbed her, [held] onto her, and—uh—
         then she gargled—she like sputtered up—you
         know—I guess I was choking her too hard,
         and then I let go, and then she was—I told her
         to mellow out and to start putting her clothes
         on, and I turned around to start doing it again,

sliding glass door open. . . . [H]er bedroom window was open and
missing its screen.” Hernandez, 47 Cal. 3d at 328–29. Ryan had told
her stepmother she was going out to play pool, but her pool cue and
jacket were on the living room floor. Id. at 329. “[Her] purse was outside
on the ground and items from the purse were spilled out.” Id. The jury
could have believed that Hernandez kidnapped Ryan, which would
support a finding of specific intent to rape.
                 HERNANDEZ V. CHAPPELL                      19

       and then she started screaming again and
       everything, and I just—I don’t know—I
       grabbed her, and I just—I tried to shut her up
       and . . . [g]rabbed her around the throat . . .
       [w]ith one of my hands, and put one of my
       hands over her mouth to keep her quiet.

As Hernandez strangled Ryan, he was thinking of how he
had killed Bristol in the same way just days before. Ryan
had significant bruising around her neck—showing his
intent to kill her, not simply quiet her screams. See People
v. Frank, 38 Cal 3d. 711, 733–34 (1985) (stating that
“strangulation . . . [is] a manner of killing [that] shows at
least a deliberate intent to kill” and that can “support an
inference of premeditation and deliberation”). Significantly,
not only was he fully aware of his actions, Hernandez also
had the presence of mind to contemplate the consequences.
After he killed Ryan, he cut her torso with a piece of glass in
a deliberate attempt to make her body look different from
Bristol’s. Hernandez’s chilling insight into his own
motivations gave the jury powerful, direct evidence of his
willfulness, deliberation, and premeditation.

    Finally, the level of detail in Hernandez’s confession
provided further compelling proof that he was aware of and
intended his actions. In a largely chronological fashion,
Hernandez walked the police through the events leading up
to the rapes and murders, including very specific
descriptions of his actions. Apart from detailing his thoughts
and motivations, see supra, Hernandez admitted to
mutilating both of his victims’ bodies and described the
nature of the markings in detail. Hernandez described
burning Bristol and Ryan’s pubic hair, explaining that he
acted out of anger. He specifically remembered burning
Bristol’s left breast with a match, distinguishing that burn
20              HERNANDEZ V. CHAPPELL

from the burns to her right breast caused by pushing her up
against the hot car during forcible sodomy. He recounted
cutting Ryan’s nipple with a piece of broken glass.
Significantly, Hernandez described all these details before
seeing any pictures of Bristol or Ryan’s bodies.

    In sum, the jury heard overwhelming evidence that
Hernandez had the specific intent to rape both Bristol and
Ryan, and that he murdered both women willfully,
deliberately, and with premeditation.

     2. The Relatively Weak Diminished Capacity
        Evidence Would Not Have Resulted in a
        Reasonable Probability of a Different Outcome

    The strength of the evidence of Hernandez’s intent to
rape and kill contrasts sharply with the relatively weak
“evidence that might have been presented had counsel acted
differently”—specifically, evidence that his mental
condition rendered him incapable of forming the requisite
intent. See Clark, 769 F.3d at 728 (quoting Murtishaw,
255 F.3d at 940).

    At his post-conviction hearing, Hernandez presented
testimony from five experts: psychologist June Madsen
Clausen, psychiatrist Dorothy Otnow Lewis, criminologist
Sheila Balkan, clinical psychologist Charles Sanislow, and
neuropsychologist Ruben Gur. Hernandez v. Martel, 824 F.
Supp. 2d 1025, 1043 (C.D. Cal. 2011). Dr. Sanislow’s and
Dr. Gur’s testimony was used to rebut the findings of the
                   HERNANDEZ V. CHAPPELL                         21

state’s expert, clinical psychologist Daniel Martell. 4 Id. at
1062–65.

    Dr. Sanislow merely reviewed and commented on
Martell’s discredited evaluation of Hernandez. He found
that the absence of bipolar indications in Martell’s then-
recent testing of Hernandez “[was] not a sufficient basis on
which to conclude that Mr. Hernandez is not bipolar,” and
that a negative finding on the administered psychometric test
“does not rule out the presence or past presence of
psychopathology (e.g., dissociative disorders, bipolar or
other affective disorders).” (Emphases added). While his
conclusions were sufficient, among other reasons, to lead the
district court to discount Martell’s evaluation, they are
certainly not a conclusive diagnosis of bipolar disorder.

    Dr. Gur, the second rebuttal expert, believed Hernandez
suffers from brain dysfunction.          He found “clear[]
indicat[ions] that [] Hernandez has deficits in understanding
and interpreting facial expressions of affect, which would
provide” the basis “for such confusion and misperceptions
to have occurred during the commission of the crimes[,] . . .
interfer[ing] with his ability to comprehend and formulate an
appropriate response to the victims’ expressions of
resistance and fear,” and “significantly interfer[ing] with his
ability to make the right judgment.” But a lack of good
judgment is not equivalent to the inability to form specific
intent. Moreover, Hernandez’s own statements—even those



    4
      We give no independent consideration to Martell’s findings
because the district court found significant problems with his
methodology and credibility. See Hernandez, 824 F. Supp. 2d at 1056.
22                  HERNANDEZ V. CHAPPELL

made to Dr. Gur himself during their evaluation 5—belie the
notion that Hernandez could not perceive the emotions of his
victims. On the contrary, Hernandez was able to articulate
that his victims were afraid, did not consent to sexual
activity, and resisted him. And while, in deposition, Dr. Gur
concluded that “either schizophrenia or bipolar illness is
probably applicable in his case,” he also admitted that
Hernandez could suffer from something else entirely, “such
as attention deficit, hyperactivity disorder, [or] impulse
control.” Hernandez, 824 F. Supp. 2d at 1063 (emphasis
added) (quoting Dr. Gur’s Dep. Tr.).

    Dr. Lewis diagnosed Hernandez with psychosis and
bipolar disorder, found that he had “compromised mental
functioning,” and concluded that his “capacity to form the
specific intent to rape and kill[] was substantially impaired”
at the time he committed the crimes. Dr. Balkan, a
criminologist, provided a social history of Hernandez’s life
and otherwise largely quoted Dr. Lewis’s conclusions.
While these evaluations raise concerns about Hernandez’s
mental stability, they do not show that Hernandez lacked the
ability to form the necessary specific intent for these crimes.
Dr. Lewis found Hernandez’s mental state to be
“compromised” and “substantially impaired,” but not
necessarily inconsistent with the ability to form specific
intent to murder and rape. And, as she acknowledged, no
single factor in Hernandez’s difficult life accounts for his
violent crimes.


     5
       Hernandez told Dr. Gur that Bristol “did not consent to anal
intercourse.” Dr. Gur does not explain how he concludes that Hernandez
could have the mental capacity to commit forcible sodomy in that instant,
but lack the capacity to form specific intent immediately before (while
raping Bristol) or after (while strangling Bristol).
                  HERNANDEZ V. CHAPPELL                      23

    The final habeas expert was Dr. Clausen, whose opinion
comes closest to stating definitively that Hernandez could
not have had the necessary specific intent. Dr. Clausen
opined that “Hernandez was in a trauma-induced
dissociative state” at the time of his crimes, “and as a result,
has no subsequent actual recollection of the events that
transpired.” But the suggestion by Dr. Clausen that
Hernandez was in a dissociative state and “had no
subsequent actual recollection” of his crimes is totally
contradicted by his detailed confession, the voluntariness
and reliability of which Hernandez does not dispute.

     Even generously construed, these opinions are grossly
inadequate to undermine the evidence that Hernandez was
capable of forming, and in fact formed, the intent to rape and
kill Bristol and Ryan. First, the experts fail to account for
the striking similarities between the two crimes. Dr. Gur
theorized that mental impairments like Hernandez’s could
cause someone to “engage in a complex set of behaviors
without intent or premeditation,” leading to “highly
organized if somewhat ritualistic behavior.”               But
Hernandez’s behavior does not suggest ritual so much as it
expresses an intent to rape and murder Bristol and Ryan
because, as Hernandez himself explained, he was angry at
their resistance. And none of the other experts even
attempted to explain how Hernandez could have committed
two such similar crimes within a five-day period without
intending to do so.

    Second, the experts’ reports also fail to counter the
overwhelming evidence that Hernandez intended to rape
Bristol and Ryan. The habeas experts uncovered no
evidence to suggest Hernandez was in a dissociative state
when he “thought about” Bristol’s offer to “do anything” to
save herself from his violence; when, earlier in the evening,
24               HERNANDEZ V. CHAPPELL

he sexually harassed Ryan and bragged of plans to “get
some” later; or when he pushed Ryan’s arms down and raped
her after she said no to sexual intercourse. In fact, even Dr.
Clausen, who speculated that the police fed Hernandez the
details of his confession and that Hernandez in fact did not
remember much of the crimes due to dissociation, stated that
Hernandez had “personal memory up to and including
having sex with Edna Bristol in the back of his van.” Dr.
Gur’s dissociation theory was similarly temporally limited,
noting that Hernandez’s “clinical profile is further indication
that he was in a dissociative state during his commission of
the crimes, or at least during some portion of that epoch,
e.g., when he killed or inflicted post-mortem injuries.”
(Emphasis added).        Thus, even assuming Hernandez
dissociated during the murders, the experts’ conclusions
actually support the inference that Hernandez was at least
aware of, and intended, his actions during the rapes. The
intent to rape alone is enough to support the murder
convictions.

    Finally, the experts’ dissociation theory fails to account
for Hernandez’s detailed explanation of his actions,
thoughts, and motivations during the crimes. Drs. Gur and
Lewis surmised that Hernandez’s confession suggested that
he was in “an altered mental state” on the nights of the
crimes based on his statement that he “wasn’t even feeling
[that] [he] did it,” and his request for psychiatric help
because he “[didn’t] know what would make [him] do this.”
But “a reasonable jury could have easily chosen to disbelieve
[these] self-serving” statements in light of Hernandez’s
extensive account of his innermost thoughts and motivations
on the nights of the crimes. See United States v. Nicholson,
677 F.2d 706, 709 (9th Cir. 1982). Moreover, while Drs.
Gur and Lewis make much of the fact that Hernandez is
persistently “unable” to explain why he committed the brutal
                 HERNANDEZ V. CHAPPELL                     25

murders, this assertion is squarely contradicted by the
record. Hernandez provided a plausible, albeit deeply
disturbing explanation of his motives—he was angry at
Bristol for talking too much, kicking him, and kicking a hole
in his van, and he was angry at Ryan for screaming and
trying to escape. His explanation of how he expressed that
anger (rape, forced sodomy, and strangulation) suggests
intentional, premeditated actions and not dissociation or a
lack of control that would negate the mens rea required for a
first-degree murder conviction. As the California Supreme
Court correctly explained, “clearly the killings occurred
when the victims screamed and struggled to get away. They
occurred as a direct product of the sexual assaults and to
silence the victims.” Hernandez, 47 Cal. 3d at 348.

    Given the weakness of the omitted experts’ evaluations
when compared to the overwhelming evidence presented to
the jury, we hold that there is no reasonable possibility of a
different outcome. See Strickland, 466 U.S. at 694. Thus,
Hernandez’s ineffective assistance of counsel claim
predicated on counsel’s failure to present a diminished
capacity defense based on mental illness fails.

C. Defense Counsel Was Neither Ineffective for Failing
   to Subpoena Kostiuk as a Witness, Nor Was
   Hernandez Prejudiced

    Hernandez argues that counsel was ineffective for failing
to call Laura Kostiuk as a witness. Kostiuk, according to
Hernandez, might have offered testimony that Hernandez
and Ryan had previously engaged in consensual sex.
Hernandez contends that this evidence would have undercut
the state’s theory that he intended to rape Ryan.

    Prior to trial, Hernandez’s trial counsel had planned to
call Kostiuk as a defense witness and had subpoenaed her.
26               HERNANDEZ V. CHAPPELL

But when the trial date was continued, counsel “simply
forgot” to re-subpoena Kostiuk. Defense counsel explained
that his failure to re-subpoena Kostiuk was due to his
diagnosis of cancer around the time of the second, actual trial
date. He would have wanted Kostiuk’s testimony “because
the issue was whether . . . [Hernandez] had voluntary or
involuntary sexual intercourse” with Ryan, and he “could
[have done] a lot with [her testimony] and didn’t.”
Hernandez’s counsel’s failure to call Kostiuk as a witness
was based on neglect, not strategy.

    Nevertheless, we agree with the district court that
counsel’s failure to call Kostiuk as a witness does not
constitute deficient performance.            While “simply
forg[etting]” to subpoena a witness certainly could constitute
deficient performance, see, e.g., Lord v. Wood, 184 F.3d
1083, 1093–96 (9th Cir. 2009), the error did not rise to the
level of deficient performance in this case. “While the Sixth
Amendment requires an attorney to look for evidence that
corroborates the defense he pursues, the Sixth Amendment
has not been expanded to require an attorney to hunt down
such marginally relevant and indirectly beneficial evidence.”
Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995).
At best, Kostiuk may have testified that on a prior occasion,
Hernandez and Ryan engaged in consensual sex. Such
evidence has minimal probative value, especially in light of
the significant evidence that, on the evening of her death, she
was brutally raped and sodomized. As the medical examiner
explained, Ryan’s vagina and anus suffered from “extremely
rare” pre-mortem bruising and tearing. Because “the failure
to take a futile action can never be deficient performance,”
Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), counsel
did not render ineffective assistance by failing to call
Kostiuk to testify during Hernandez’s trial.
                 HERNANDEZ V. CHAPPELL                     27

    Even assuming that counsel’s performance was
constitutionally deficient, as discussed, Hernandez did not
suffer any prejudice due to the overwhelming evidence of
his intent to rape and murder Ryan.

                      *       *       *

     We affirm the district court’s denial of a writ of habeas
corpus as to Hernandez’s guilt-phase claims relating to the
first-degree murder convictions.

   AFFIRMED.
