                                               Volume 1 of 2

                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MICHAEL EMERSON CORRELL,                    No. 03-99006
               Petitioner-Appellant,           D.C. No.
                 v.                        CV-87-01471-PHX-
                                                 SMM
CHARLES L. RYAN, Warden, Acting
Director, Arizona Department of             ORDER AND
Corrections; DORA B. SCHRIRO,                 AMENDED
Director,                                   OPINION AND
              Respondent-Appellee.            AMENDED
                                              DISSENT

       Appeal from the United States District Court
                for the District of Arizona
      Stephen M. McNamee, District Judge, Presiding

                 Argued and Submitted
      September 26, 2005—San Francisco, California

                    Filed May 14, 2008

 Before: Mary M. Schroeder, Diarmuid F. O’Scannlain and
            Sidney R. Thomas, Circuit Judges.

                Opinion by Judge Thomas
               Dissent by Judge O’Scannlain




                            5409
                     CORRELL v. RYAN                  5413


                       COUNSEL

Thomas Phalen and Jon M. Sands, Phoenix, Arizona, for the
appellant.

James P. Beene, Kent E. Cattani, and Terry Goddard, Phoe-
nix, Arizona, for the appellee.


                         ORDER

   In response to the petition for rehearing, the panel has
elected to file an amended opinion and amended dissent. The
amended opinion and dissent are filed concomitantly here-
5414                    CORRELL v. RYAN
with. With the filing of the amended opinion and dissent,
Judges Schroeder and Thomas voted to deny the petition for
rehearing and rehearing en banc. Judge O’Scannlain voted to
grant the petition for rehearing and rehearing en banc.

   The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the mat-
ter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc con-
sideration. Fed. R. App. P. 35.

   The petition for rehearing and rehearing en banc is
DENIED. The Court will entertain a further petition for
rehearing and rehearing en banc as to the amendments made
to the opinion. See Ninth Circuit General Order 5.3(a).

  All pending motions are DENIED.

  Judge Callahan’s dissent from rehearing en banc follows:



CALLAHAN, Circuit Judge, with whom KOZINSKI, Chief
Judge, and O’SCANNLAIN, KLEINFELD, TALLMAN, and
BEA, Circuit Judges, join, in dissenting from the denial of
rehearing en banc:

   I respectfully dissent from our denial of rehearing en banc
because the panel majority fails to give deference to the dis-
trict court’s factual findings as required by Hovey v. Ayers,
458 F.3d 892, 900 (9th Cir. 2006), and improperly interprets
the test for ineffective assistance of counsel set forth in Strick-
land v. Washington, 466 U.S. 668 (1984), so as to create an
almost irrebutable presumption of prejudice.

   Over twenty years ago, Michael Correll was convicted of
three counts of first-degree murder, with four aggravating cir-
cumstances, and sentenced to death. State v. Correll, 148
                        CORRELL v. RYAN                     5415
Ariz. 468, 471, 478-81 (1986). The Arizona Supreme Court
affirmed the convictions, three of the aggravating circum-
stances, and the sentence. Id. at 485. In his federal habeas
petition Correll contends that he was denied the effective
assistance of counsel at trial as guaranteed by the Sixth
Amendment. On remand from this court, the district court
conducted a nine-day evidentiary hearing. The district court
concluded that although the performance of Correll’s attorney
at sentencing was deficient, Correll was not prejudiced.

   The panel majority’s opinion reweighs the evidence before
the district court and reverses its conclusion by ignoring the
district court’s factual findings as well as the second prong of
the Strickland test for ineffective assistance of counsel. The
majority opinion collapses the two Strickland prongs into one
prong. The opinion implies that if counsel makes a strategic
decision not to investigate or present what it calls “classic
mitigating circumstances” that would nonetheless open the
door to more damaging aggravating evidence, prejudice will
be presumed. It compounds this mistake by failing to appreci-
ate that in this case even if a presumption of prejudice arises,
the presumption was, as the district court found, rebutted.
Moreover, if the facts in this case do not rebut the majority’s
presumption of prejudice, the presumption in effect becomes
irrebutable. For these reasons, I dissent from our decision not
to rehear this matter en banc.

                               I

   Although it is not clear from the panel majority opinion, the
district court in its 109-page opinion found that trial counsel’s
performance had been deficient on only two matters. First, the
district court held:

    Notwithstanding Strickland’s recognition that
    defense counsel’s duty to investigate, develop and
    present mitigating evidence can be reasonably based
    on a judge’s sentencing tendencies, the Court reluc-
5416                    CORRELL v. RYAN
    tantly and narrowly concludes that [counsel’s] per-
    formance was deficient because he failed to review
    Petitioner’s mental health records . . . before making
    sentencing strategy decisions.

Second, the district court again narrowly concluded that given
the overwhelming aggravating circumstances that Correll
faced, counsel “should have obtained the medical treatment
records” concerning Correll’s head injury when a wall fell on
him when he was seven years old.

   The district court, however, rejected a number of other
challenges to the attorney’s performance. For example, the
district court noted:

    The Court specifically finds that [counsel] did main-
    tain regular contact with Petitioner prior to sentenc-
    ing and rejects Petitioner’s allegation that [counsel]
    only spent five minutes with him between conviction
    and sentence. . . . Petitioner did provide names of
    persons for [counsel] to contact prior to sentencing,
    including Susan Curry. [Counsel] followed-up and
    interviewed or tried to interview the persons Peti-
    tioner suggested. . . . The witnesses were not able to
    provide relevant useful mitigation information. In
    fact, in many instances, the witnesses only pro-
    vided inculpatory and non-mitigating informa-
    tion.

(Emphasis in original.) The district court rejected the conten-
tion that counsel had improperly failed to present mitigating
evidence concerning drug use. It also found that counsel’s
performance was not deficient in failing to present expert tes-
timony on methamphetamine intoxication at the time of the
crime because “there was no lay witness testimony to support
Petitioner’s intoxication at the time of the crimes.” In addi-
tion, the district court rejected challenges to counsel’s limited
investigation of Correll’s family background. It concluded
                            CORRELL v. RYAN                            5417
that information concerning incest in the family was not avail-
able to counsel because neither Correll nor any of the family
members that counsel interviewed provided him with any
information. The district court also concluded that counsel
“was not deficient in failing to present evidence corroborating
the child abuse allegations because such corroborating testi-
mony was not reasonably available to, and thus could not
have been obtained by [counsel] at sentencing.” As to the
charge that Correll suffered from his mother’s religious fanat-
icism, the district court concluded that counsel had the avail-
able information regarding Petitioner’s mother being a
Jehovah’s Witness, but reasonably chose to present such evi-
dence as an abandonment issue.

   Thus, as indicated by Judge O’Scannlain’s dissent, a review
of the district court’s 109-page memorandum of decision and
order, although confirming that counsel provided deficient
representation when he failed to seek documents relating to
Correll’s mental health and medical conditions, also shows
that counsel’s efforts on behalf of his client were considerably
more nuanced than implied by the panel majority.

                                     II

   The panel majority alleges that defense counsel basically
abandoned his client at sentencing because Arizona law, as it
then existed, mandated the death penalty when a defendant
had a qualifying prior conviction, and there was no mitigating
evidence. Indeed, this would be a much easier case if this
assertion were true. However, it misstates the law in a critical
manner, and implies the existence of clearly mitigating evi-
dence where no clearly mitigating evidence exists.

   The Arizona Supreme Court affirmed Correll’s conviction,
the presence of three aggravating circumstances, and his sen-
tence.1 The Arizona Supreme Court did not find that counsel
had abandoned Correll. Rather it held:
  1
    It should be noted that the majority does not suggest that any investiga-
tion or effort by counsel could have prevented the Arizona courts’ finding
three aggravating factors.
5418                   CORRELL v. RYAN
    The trial court found no mitigating circumstances
    which called for leniency. Defendant offered five
    mitigating circumstances: upbringing, cooperation in
    preparation of the pre-sentence report, psychological
    problems such that he did not understand the wrong-
    fulness of his conduct, his minor participation in the
    murders, and age. A.R.S. § 13-703(G) provides that
    any relevant mitigating circumstance proffered must
    be considered in determining whether to impose the
    death penalty. We find that none of these factors,
    alone or in combination, are sufficiently substantial
    to call for leniency.

State v. Correll, 148 Ariz. at 482. Later in its opinion, after
affirming the existence of three aggravating factors, the Ari-
zona Supreme Court noted that it had “also considered the
mitigating circumstances offered by defendant, and [ ] con-
clude[d] that even in combination the mitigating circum-
stances are not sufficiently substantial to call for leniency.”
Id. at 483. Thus, it appears that Arizona law did not mandate
the death penalty, but required that the courts determine
whether there were factors that were “sufficient to call for
leniency.” Furthermore, the Arizona Supreme Court’s opinion
rebuts the panel majority’s suggestion that counsel had aban-
doned Correll at the sentencing hearing.

   In addition, much of the majority’s criticism of counsel’s
performance fails to recognize the critical difference between
raising reasonable doubt as to the prosecutor’s case for the
death penalty and presenting affirmative evidence of mitigat-
ing circumstances. In Williams v. Woodford, 384 F.3d 567
(9th Cir. 2004), we recognized the validity of the lingering-
doubt defense at the penalty phase, particularly as it “did not
require introduction of mitigating evidence that would open
the door to damaging rebuttal evidence.” Id. at 624. We
wrote:

    based upon our review of the reasons underlying
    [counsel’s] penalty-phase strategy, we cannot fault
                            CORRELL v. RYAN                           5419
      [counsel’s] sound tactical decision to present a
      lingering-doubt defense in lieu of a defense based
      upon mitigating evidence of Williams’s family and
      life history, drug use, or mental state. We note in this
      regard that the defense of “ ‘residual doubt has been
      recognized as an extremely effective argument for
      defendants in capital cases.’ ” Lockhart v. McCree,
      476 U.S. 162, 181, 106 S.Ct. 1758, 90 L.Ed.2d 137
      (1986) (quoting Grigsby v. Mabry, 758 F.2d 226,
      248 (8th Cir. 1985) (en banc) (Gibson, J., dissent-
      ing)). A comprehensive study on the opinions of
      jurors in capital cases concluded:

            ‘Residual doubt’ over the defendant’s guilt
            is the most powerful “mitigating fact.” . . .
            [T]he best thing a capital defendant can do
            to improve his chances of receiving a life
            sentence has nothing to do with mitigating
            evidence strictly speaking. The best thing
            he can do, all else being equal, is to raise
            doubt about his guilt.

      Stephen P. Garvey, Aggravation and Mitigation in
      Capital Cases: What Do Jurors Think?, 98 Colum.
      L. Rev. 1538, 1563 (1998) (footnote omitted);
      accord William S. Geimer & Jonathan Amsterdam,
      Why Jurors Vote Life or Death: Operative Factors
      in Ten Florida Death Penalty Cases, 15 Am. J.
      Crim. L. 1, 28 (1988) (“The existence of some
      degree of doubt about the guilt of the accused was
      the most often recurring explanatory factor in the life
      recommendation cases studied.”).

Williams, 384 F.3d at 624.

  Here counsel represented a client who insisted on his inno-
cence.2 Under such circumstances, a lingering-doubt defense
  2
   The district court noted:
      Based on Petitioner’s continuing claim of innocence and Petition-
5420                       CORRELL v. RYAN
was not only reasonable, but in light of then existing Arizona
law and the double-edged nature of the so-called “classic mit-
igating evidence,” perhaps the only reasonable approach
available.

                                   III

   It follows that because Arizona law did not mandate the
entry of the death penalty and counsel did not abandon Cor-
rell, the second prong of the Strickland test for ineffective
assistance of counsel cannot be presumed. Indeed, the pur-
poses of the district court’s nine-day evidentiary hearing was
to determine whether the evidence that counsel failed to dis-
cover could possibly have been “sufficiently substantive to
call for leniency.” What the district court found, and the
majority does not really dispute, is that there was no evidence
that might humanize Correll or portray Correll as sympa-
thetic. Rather, the evidence concerning Correll’s sociopathic
or antisocial personality disorder, drug use, and troubled fam-
ily was double-edged. Although the evidence might offer
some explanation for Correll’s criminal acts, the evidence
would also shed light on his prior criminal acts, violent ten-
dencies, and unremorseful attitude. The Supreme Court has
held that evidence of a troubled upbringing and mental issues
can be mitigating. See Rompilla v. Beard, 545 U.S. 374, 392-
93 (2005); Wiggins v. Smith, 539 U.S. 510, 534-35 (2003).
However, such evidence is also recognized to be double-
edged, and it can be a reasonable strategic choice not to pre-
sent such evidence. Williams, 384 F.3d at 619-20.3 This case

     er’s failure to prove otherwise, the Court concludes that Peti-
     tioner did not discuss or attempt to help [counsel] prove that he
     was intoxicated when he committed the crime or that his condi-
     tion at that time of the crimes would mitigate his sentence.
  3
    In Williams, we stated:
    The Supreme Court and this court have consistently held that
    counsel’s performance is not deficient for the failure to present
                           CORRELL v. RYAN                           5421
requires a determination of whether the mitigating evidence
could have been sufficiently substantial to call for leniency.
In other words, whether 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 694.

   This question must be asked in the context of Arizona law
as it then existed. When Correll was tried, the death penalty
was not the province of a jury, but the responsibility of the
trial judge and the Arizona Supreme Court. Accordingly, the
inquiry is not whether a juror might possibly have been
moved to alter his or her view of the case, but whether there
is a reasonable possibility that any of the mitigating evidence
would have changed the trial judge’s or the Arizona Supreme
Court’s positions.

                                   IV

   By not asking this question, the panel majority fails to
appreciate that Correll has not, and cannot, meet the second
prong of the Strickland test for ineffective assistance of coun-
sel. Instead the majority (a) improperly substitutes its view of
the evidence for the district court’s findings, (b) fails to appre-

    evidence in mitigation at the penalty phase when counsel’s deci-
    sion is based upon a reasonable tactical determination that the
    mitigating evidence would allow for the introduction of rebuttal
    evidence ‘that might be literally fatal.’ Burger [v. Kemp], 483
    U.S. [776,] at 791-94, 107 S.Ct. 3114 [(1987)] (counsel’s failure
    to present any mitigating evidence, including the defendant’s
    own testimony or the testimony of the defendant’s mother that he
    had an exceptionally unhappy and physically abusive childhood,
    or the expert testimony of a psychologist, was reasonable profes-
    sional judgment because the testimony would risk bringing
    before the jury evidence of the defendant’s unremorseful attitude,
    violent tendencies, and prior criminal acts).
384 F.3d at 619-20.
5422                   CORRELL v. RYAN
ciate Arizona’s death penalty provisions that were in exis-
tence when Correll was tried, and (c) ignores the fact that
presentation of the alleged “classic mitigating evidence”
would have opened the door to overwhelmingly damaging
rebuttal evidence.

   A. The panel majority’s improper substitution of its inde-
pendent analysis of the record is well presented in Judge
O’Scannlain’s dissent; however, its treatment of two issues —
Correll’s alleged brain injury and the allegation that he was
under the influence of drugs at the time of the crimes — illus-
trates the extent to which the majority’s conclusions differ
from the evidence in the record and the district court’s per-
spective.

  Addressing Correll’s alleged brain injury, the panel stated:

    When Correll was seven, a brick wall collapsed on
    his head. Although he was unconscious for some
    time after the accident, his parents did not seek med-
    ical treatment until several days later when he was
    still not back to normal. Several experts testified that
    this type of accident and the symptoms Correll
    exhibited then and now indicate a high likelihood of
    brain impairment.

The district court, however, made the following findings:

    Petitioner received a head injury on April 8, 1967,
    when he was 7, at which time his parents took him
    to see their family doctor. Four days later, Petitioner
    was vomiting and again taken to the family doctor
    where an X-ray was taken and an EEG scheduled.
    On April 14, 1967, an EEG was done. On April 15,
    in response to more vomiting, Petitioner’s parents
    took him to the emergency room at Children’s Hos-
    pital of Los Angeles. At the hospital, he was seen by
    a treating physician, who diagnosed a subgaleal
                            CORRELL v. RYAN                           5423
      hematoma, which is a bruise or collection of blood
      under the scalp, but above the skull. The treating
      physician recommended a neurosurgery consulta-
      tion, which was done. The doctor in the neurosur-
      gery clinic also diagnosed Petitioner with a subgaleal
      hematoma. On May 3, 1967, Petitioner was brought
      back to the neurosurgery clinic for a follow-up visit.
      The follow-up visit noted that Petitioner’s hematoma
      cleared in 5 days and that Petitioner was alert and
      well.

   In addition, the record indicates that when Correll was
examined by experts around 2000, his brain functioned at a
high level, although there was some evidence of impairment
in the prefrontal lobe.4 Also, there was little in the record to
connect the alleged impairment in 2000 to the 1967 accident.
The district court, having had the benefit of hearing from both
parties’ neuropsychologists, concluded that Correll did not
suffer any brain injury from the 1967 accident.

   The majority, however, chastises the district court for mak-
ing such a finding asserting that it should “have decided only
whether there existed a ‘reasonable probability’ that ‘an
objective fact-finder’ in a state sentencing hearing would have
concluded that Correll had a brain injury that impaired his
judgment at the time of the crimes.” But the majority’s cor-
rection of the standard cannot change the fact that the district
court determined that there was no reasonable probability that
a fact-finder would find that Correll had a brain injury that
impaired his judgment, and that the majority, rather than defer
to this reasonable perspective, improperly substitutes its view
of the record for that of the district court.
  4
   The district court noted that Dr. Martell, a neuropsychologist, testified
that this mild impairment did not “have a lot of import for [Correll’s]
everyday behavior” and that “of all the capital defendants he has tested,
[Correll] is one of the highest functioning defendants.”
5424                   CORRELL v. RYAN
   The majority’s myopic view of the record also allows it to
conclude that “the evidence of Correll’s methamphetamine
use on the night of the crimes, had it been fully presented,
could have risen to the level of a statutory mitigator.” The
majority states that there was undisputed evidence induced
that Correll was addicted to methamphetamine and had used
it on the day of the crime, and further relies on expert testi-
mony “that gross methamphetamine intoxication, unlike gross
alcohol intoxication, is not necessarily apparent to outside
observers.”

   The majority’s conclusion cannot be reconciled with Ari-
zona law at the time of the crimes and the evidence in the
record. As noted by Judge O’Scannlain, Arizona law provided
“[a] defendant’s intoxication or alcoholism at the time of the
offense is a mitigating circumstance if the evidence shows
that it significantly impaired the defendant’s capacity to
appreciate the wrongfulness of his conduct or to conform his
conduct to the requirements of the law.” State v. Zaragoza,
659 P.2d 22, 30 (Ariz. 1983) (emphasis added).

  The district court, after holding a nine-day evidentiary
hearing, found:

    * due to Correll’s continued maintenance of his
    innocence, Correll did not discuss his mental state
    with counsel and did not attempt to help counsel
    prove that he was intoxicated when he committed the
    crimes;

    * counsel interviewed the persons Correll indicated
    he was with prior to when the crimes were commit-
    ted and they did not indicate that he was grossly
    intoxicated by alcohol abuse or drug abuse on the
    day of the crimes, but did indicate that Correll had
    been using methamphetamine prior to the day the
    crimes were committed;
                             CORRELL v. RYAN                            5425
       * “none of the witnesses could have testified that
       they observed Petitioner injecting methamphetamine
       in close proximity to the time the crimes occurred”;5

       * the first thing that Correll and Nabors asked
       Snelling when they gained entry into his trailer home
       was whether he had any speed;

       * Correll had spent the vast majority of his life
       incarcerated in prison where his access to drugs was
       limited;6

       * Correll’s self-reporting of drug use was severely
       limited due to the lack of corroboration;7
  5
   The district court noted that at the evidentiary hearing, Robin Correll,
petitioner’s sister, testified that on the morning before the crimes she wit-
nessed Correll inject some amount of methamphetamine. However, Robin
did not testify at the trial. The district court explained:
      Had Robin testified about Petitioner’s use of methamphetamine
      the day prior to the crimes, she could have been cross-examined
      about her knowledge of Petitioner’s whereabouts at the time of
      the crimes. Had Robin testified concerning Petitioner’s conversa-
      tions about his need to leave town quickly, she would have dis-
      closed that Petitioner was with John Nabors and had wanted an
      immediate ride out-of-state very soon after the murders occurred.
      Such testimony would have totally eliminated any mitigating
      weight from Petitioner’s claim of innocence and residual doubt
      (i.e., the guilt phase misidentification defense).
   6
     The district court noted that except for 229 days, Correll had been
incarcerated for the 9-year period between October 1975 and March 1984,
a month before the crimes.
   7
     The district court concluded:
      The court does not credit Petitioner’s unsubstantiated self-report
      that he abused methamphetamine every day before the crimes
      were committed. Petitioner chose not to testify at the evidentiary
      hearing; Petitioner chose not to fully cooperate with Dr. Mat-
      thews’s examination regarding the issue of drug abuse. Because
      of the obvious motive to fabricate, Petitioner’s self-serving state-
      ments about his drug usage prior to the crimes is unreliable and
      subject to searching skepticism.
5426                    CORRELL v. RYAN
    * Correll’s expert’s testimony was “thoroughly
    impeached” because he admitted that he only mini-
    mally considered the facts of the crimes before
    reaching his conclusion, he admitted that the facts
    did not necessary establish that Correll had promi-
    nent hallucinations or delusions, and the facts of the
    crimes show that Correll “was involved in deliberate
    acts, planning, conspiring, avoiding detection,
    awareness of wrongdoing, and that he was oriented
    to time, place and reality.”

    * the determination by Arizona’s expert in addic-
    tion that Correll was not in a substance abuse psy-
    chosis was credible because “he utilized the facts of
    the case to support his opinion and tied his opinion
    to the facts of the case;”

    * “the evidence shows that it was Petitioner who
    remained calm when the gun misfired as Nabors was
    trying to kill Robin Cady. It was Petitioner who
    encouraged Nabors to remain calm as there were no
    cars coming, to get a shell chambered and shoot
    Cady. Such behavior at the time of the crime does
    not demonstrate intoxication and, in fact, undercuts
    an assertion of intoxication.”

   Accordingly, the majority’s assertions that there is a rea-
sonable probability that a fact-finder could have found that
Correll had a brain injury or that he was intoxicated by drugs
at the time of the crimes are not supported by the record.
More importantly, the majority’s reweighing of the evidence
violates our established law of deferring to the district court’s
findings. Hovey, 458 F.3d at 900 (“[F]actual findings made by
the district court are reviewed under the ‘significantly defer-
ential’ clearly erroneous standard, in which we accept the dis-
trict court’s findings of fact absent a ‘definite and firm
                             CORRELL v. RYAN                              5427
conviction that a mistake has been committed.’ ”) (citations
omitted).8

   Here, the district court held a nine-day evidentiary hearing
and made detailed findings of fact on remand from this court.
We abuse our role as an appellate court when we cavalierly
ignore the findings that a district court makes on remand.
Again, the question is not whether reasonable minds might
differ, but whether a review of the record creates “a definite
and firm conviction that a mistake has been committed.”9 The
majority, in pursuing “some mitigating evidence [that] could
have spared Correll’s life,” fails to appreciate — as it is
required to — that the district court’s contrary position is rea-
sonable and entitled to deference.

   B. Although counsel’s decision not to investigate Cor-
rell’s medical and psychiatric records fell below an acceptable
level of competence, his underlying reasons may be relevant
to a determination of whether the failure to investigate was
prejudicial. The district court explained defense counsel’s per-
spective as follows:
  8
     Our deference to the district court’s factual findings did not arise in
Hovey, 458 F.3d at 900, but is of a longstanding principle of habeas
review. See Silva v. Woodward, 279 F.3d 825, 835 (9th Cir. 2002) (“[O]ur
review for clear error is ‘significantly deferential,’ in that we must accept
the district court’s factual findings absent a ‘definite and firm conviction
that a mistake has been committed.’ ”); United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000) (“Clearly erroneous review is ‘significantly defer-
ential,’ requiring that the appellate court accept the district court’s findings
absent a ‘definite and firm conviction that a mistake has been commit-
ted.’ ”); McMillan v. United States, 112 F.3d 1040, 1044 (9th Cir. 1997)
(quoting Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers
Pension Trust, 508 U.S. 602 . . . (1993).).
   9
     In Hayes v. Woodford, 301 F.3d 1054, 1067 n.8 (9th Cir. 2002), we
noted that “[t]o be clearly erroneous, a decision must strike us as more
than just maybe or probably wrong; it must, as one member of this court
recently stated during oral argument, strike us as wrong with the force of
a five-week-old, unrefrigerated dead fish.” (internal quotation omitted).
5428                   CORRELL v. RYAN
    [Counsel] estimated that Petitioner had one chance
    in twenty for a life sentence if he did not present the
    psychological diagnosis but only one chance in fifty
    if he presented Petitioner’s psychological diagnosis
    to Judge Howe [the trial judge]. . . . Rather than
    argue Petitioner’s personality disorder to Judge
    Howe, [counsel] decided that Petitioner had a better
    chance to avoid the death penalty if he portrayed that
    Petitioner was involved in a drug ripoff which had
    gone terribly wrong, that Petitioner had only been a
    follower in the matter, that he had not been the
    trigger-man as to the three people who died, that
    Gary Snelling had reported to police that Petitioner
    was under the influence of drugs and/or alcohol at
    the time of the crimes, and that he should be shown
    sympathy because his family abandoned him at the
    age of 14. . . . [Counsel] concluded that any psycho-
    logical diagnosis of Petitioner could not be presented
    and argued without producing witnesses and other
    evidence that might destroy any residual doubt aris-
    ing from the presentation of his misidentification
    defense at trial and the mitigation theory [counsel]
    intended to present regarding Petitioner being only a
    follower in the drug mishap and not the trigger-man.

The district court further explained:

    [Counsel] acknowledged that Judge Howe would
    consider and give effect to constitutionally relevant
    mental health evidence, but believed that once Judge
    Howe knew Petitioner’s diagnosis, he would find it
    easier not to show sympathy and sentence him to
    death. . . . Likewise, [counsel] did not believe that
    Judge Howe would give substantial mitigating
    weight to antisocial personality disorder evidence.
    . . . On the other hand, [counsel] did believe that
    there was some possibility that Judge Howe might
                            CORRELL v. RYAN                           5429
       give Petitioner a break for not being the trigger-man
       in the murders.

   Although the panel majority opines that defense counsel
“was afraid of the sentencing judge,” a review of the record
indicates that counsel’s evaluation of Judge Howe’s outlook
was probably accurate and definitely reasonable. Furthermore,
the panel majority’s criticism of counsel’s focus on Judge
Howe ignores that under existing Arizona law, it was Judge
Howe who was responsible for sentencing Correll. If Judge
Howe imposed the death sentence, the Arizona Supreme
Court would review that decision. However, if Judge Howe
had declined to impose the death sentence, it is doubtful that
Arizona or the Arizona Supreme Court could have, or would
have, sought to change that decision.10

   C. Perhaps the most critical factor, which is not really
denied by the majority, is that the introduction of the “classic
mitigating circumstances” would open the door to the admis-
sion of overwhelming negative evidence. The district court
explained:

       Although the Court has attempted to recount the mit-
       igation evidence presented at Petitioner’s evidentiary
       hearing in detail, the bottom line is clear: a strategy
       of presenting Petitioner’s emotional and mental
  10
     The majority dismisses counsel’s perspective concerning Judge Howe
by labeling it a presumption that “the judge would not follow the law.”
The district court, however, specifically rejected the suggestion that Judge
Howe would not follow the law. Rather, counsel thought that if Judge
Howe found out that Correll was a sociopath or psychopath, he was more
likely to sentence him to death. The district court found counsel’s perspec-
tive to be credible. Moreover, Judge Howe’s alleged perspective does not
appear to be either irrational or illegal. In Strickland, the Supreme Court
recognized that the trial judge’s known views could be considered by
counsel. 468 U.S. at 699. The trial judge’s views were particularly impor-
tant in Correll’s case as three aggravating circumstances were established
beyond dispute and a life sentence depended on Judge Howe finding suffi-
cient mitigating circumstances to warrant leniency.
5430                    CORRELL v. RYAN
    problems, his condition at the time of the crime, or
    as a victim of an abusive and tragic upbringing,
    would have required the following additional disclo-
    sures of facts, none of which are “mitigating:” (i)
    Petitioner’s rape of a female psychotic patient while
    he was undergoing mental health treatment for his
    antisocial personality disorder and mild depression
    . . . ; (ii) Petitioner’s numerous escapes from mental
    health treatment facilities and rejections of institu-
    tional efforts to provide him with mental health treat-
    ment . . . ; (iii) Petitioner’s hostage taking and armed
    aggression against mental health workers in an
    escape attempt from a mental health treatment facil-
    ity . . . ; (iv) the underlying factual basis of Petition-
    er’s prior conviction for armed robbery . . . ; (v) the
    revelation that, shortly after the murders were com-
    mitted, Petitioner and Nabors woke up Robin Correll
    and informed her that they needed a ride out-of-state
    right away . . . ; (vi) Petitioner’s lack of effort to
    seek any type of treatment for his substance abuse
    problem . . . ; (vii) Petitioner’s acts of regularly
    molesting his sister Robin . . . ; (viii) the conclusion
    of the social evaluation at age 18 that Petitioner was
    not a candidate for probation and was a danger to the
    community . . . ; (ix) additional information showing
    the efforts of Petitioner’s parents to deal with his
    drug abuse problem and obtain psychological treat-
    ment for him following his armed threat against a
    teacher at school . . . ; (x) that Petitioner had no
    desire to work but only wished to enjoy himself . . . ;
    and (xi) Petitioner’s statement that when he commit-
    ted the 1978 armed robberies that it gave him a
    strong sense of power and excitement . . . .

The district court also agreed with counsel that the prosecutor
“had a reputation of excellent preparation and that she would
have left no stone unturned in her opportunity to rebut any
mitigation evidence presented.”
                            CORRELL v. RYAN                           5431
   The panel majority seeks to minimize the negative impact
of this evidence by suggesting that a “significant portion” of
the “damaging rebuttal evidence was already available
through the pre-sentence report.” This is a misleading over-
statement. Such facts as Correll’s molestation of his sister, his
use of minors to facilitate armed robberies, and his rape of a
psychotic female patient were not set forth in the pre-sentence
report. Moreover, as has already been noted, there is a world
of difference between raising questions as to the sufficiency
of the State’s presentation and introducing “mitigating evi-
dence that would open the door to damaging rebuttal evi-
dence.” Williams, 384 F.3d at 624.

   Regardless of how much of the negative evidence was
already before the trial court, the inquiry remains whether fur-
ther presentation of the evidence would have been substantial
enough to mitigate a death sentence.11 The majority does not
really take issue with the district court’s determination that
Correll, at most, had an antisocial personality disorder, and
that there was “insufficient evidence to support that [Correll]
has ever suffered from any major mental illness, whether
PTSD, a major depressive disorder, or a bipolar disorder.”
Instead, the panel majority opines that the damaging rebuttal
evidence “could, in the hands of a competent attorney, have
been used to support Correll’s claims of dysfunctional
upbringing and continuing mental disorder.” This may be true
in the abstract, but in light of the horrific nature of the crimes,
Correll’s defense of innocence, the extant standard for the
imposition of the death penalty, and the damaging rebuttal
evidence, the majority engages in wishful thinking.

  Here we are concerned with the possible impact of damag-
ing rebuttal evidence on Judge Howe and the Arizona
  11
    Ironically, the panel majority’s suggestion that the evidence was in the
pre-sentence report would appear to weigh against its conclusion that the
presentation of the evidence would have made a difference.
5432                   CORRELL v. RYAN
Supreme Court. The district court properly noted that the stan-
dard is high:

    Based on both the horrific facts surrounding these
    murders and [Correll’s] prior criminal history, this is
    the type of case that demands powerful mitigation
    before it may be said that confidence in the outcome
    at sentencing has been undermined. See Bonin v.
    Calderon, 59 F.3d 815, 836 (9th Cir. 1995); see also
    Gerlaugh v. Stewart, 129 F.3d 1027, 1042-43 (9th
    Cir. 1997) (horrific crime facts require substantial
    mitigation before it may be said that the balance of
    aggravating factors did not warrant death); Campbell
    [v. Kincheloe], 829 F.2d [1453,] 1464 [(9th Cir.
    1987)] (overwhelming aggravating factors and the
    heinous nature of the crime required more than
    insubstantial mitigation to establish prejudice).

Also, Arizona argues that under Arizona law:

    Correll’s personality disorder, his alleged drug
    addiction, his past psychological and medical his-
    tory, and his dysfunctional family, as non-statutory
    mitigators, are not entitled to any significant mitigat-
    ing weight, because Correll failed to demonstrate
    any causal nexus between these mitigators and the
    crimes he committed. [State] v. Murdaugh, 209 Ariz.
    19, 35 . . . (2004) (drug impairment, personality dis-
    order, and paranoia not entitled to significant miti-
    gating weight because there was no proven causal
    nexus between them and the defendant’s crimes);
    [State] v. Hoskins, 199 Ariz. 127, 151-53 . . . (2000)
    (antisocial or borderline personality disorder, and
    dysfunctional family, not mitigating in absence of
    causal link to crime.).

Furthermore, even the panel majority does not question that
the state proved three aggravating factors. In light of the hor-
                           CORRELL v. RYAN                          5433
rific nature of the murders, the reasonably perceived nature of
the trial judge’s jurisprudence, and the incredibly damaging
nature of some of the rebuttal evidence, it is not reasonable to
conclude that the admission of the evidence would have had
any mitigating impact on either Judge Howe or the Arizona
Supreme Court.

                                   V

   This case presents an instance in which counsel’s instinct
that an investigation into Correll’s medical and mental history
would not yield any positive evidence, although an unaccept-
able reason for not conducting an investigation, turns out after
17 years, a full investigation, and a 9-day evidentiary hearing,
to have been correct. The panel majority does not really deny
that there is no positive evidence, but argues that evidence
concerning Correll’s alleged brain damage, sociopathic or
antisocial personality disorder, drug use, and troubled family,
constitute “classic mitigating circumstances.” The second
prong of the Strickland test, however, does not call for an
abstract analysis of what might be mitigating evidence, but a
determination of whether 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 694.

   The Supreme Court reiterated this standard in Woodford v.
Visciotti, 537 U.S. 19, 22 (2002), when it reversed this court
for failing to defer to the California Supreme Court’s determi-
nation that trial counsel’s inadequacy was not prejudicial.12
  12
     The Supreme Court’s description of the California Supreme Court’s
determination — that it held we had improperly failed to accept — bears
an uncanny resemblance to the district court’s determination in this case.
The Supreme Court noted:
    The California Supreme Court concluded that despite the failure
    to present evidence of respondent’s “troubled family back-
    ground,” which included his being “berated,” being “markedly
5434                      CORRELL v. RYAN
Moreover, in Allen v. Woodford, 395 F.3d 979 (9th Cir.
2005), we first found that “counsel’s failure to prepare for the
sentencing phase until a week before that phase began, and
his resulting failure to thoroughly investigate and present
Allen’s mitigation case, was constitutionally deficient,” id. at
1002, but denied relief because we could not “conclude that
there is a reasonable probability, had trial counsel presented
the potential mitigation evidence developed during habeas,
that the jury would have weighed the evidence in favor of a
life sentence.” Id. at 1005. Although Allen presented a very
different factual situation, it does require that we look beyond
the fact of counsel’s deficient performance to determine
whether it had any effect on the result.

   The record in this case clearly shows that the presentation
of evidence of Correll’s alleged brain damage, sociopathic or
antisocial personality disorder, drug use, and troubled family
would not have made any difference to the trial judge or the
Arizona Supreme Court. This conclusion is solidly based on
the horrific nature of the murders, the applicable constitu-
tional and state law as it existed when Correll was tried, the
perceived nature of the trial judge’s jurisprudence, and the
incredibly damaging nature of the rebuttal evidence. It is one

    lacking in self-esteem and depressed,” having been “born with
    club feet,” having “feelings of inadequacy, incompetence, inferi-
    ority,” and the like, moving “20 times” while he was growing up,
    and possibly suffering a “seizure disorder,” the aggravating fac-
    tors were overwhelming. In the state court’s judgment, the cir-
    cumstances of the crime (a cold-blooded execution-style killing
    of one victim and attempted execution-style killing of another,
    both during the course of a preplanned armed robbery) coupled
    with the aggravating evidence of prior offenses (the knifing of
    one man, and the stabbing of a pregnant woman as she lay in bed
    trying to protect her unborn baby) was devastating. The Califor-
    nia Supreme Court found these aggravating factors to be so
    severe that it concluded respondent suffered no prejudice from
    trial counsel’s (assumed) inadequacy.
Woodford, 537 U.S. at 26 (citations omitted).
                          CORRELL v. RYAN                        5435
thing to cast about for alternate theories after the imposition
of the death penalty, and an entirely different thing to argue
that a defendant who has been convicted by a jury of first-
degree murder should not receive the death penalty because
he is a sociopath who cannot control himself. Correll’s coun-
sel thought that there was a one in twenty chance that Judge
Howe would not impose the death penalty if the murders were
presented as the result of a “routine robbery, drug rip off that
went bad.” The presentation of further evidence of Correll’s
mental and medical records, antisocial behavior, and prior
crimes — far from eliciting sympathy — would have ren-
dered a death sentence a certainty rather than a probability.

   The panel majority’s opinion is not only factually wrong,
but more importantly for Ninth Circuit law, fails to follow the
standard for ineffective assistance of counsel mandated by the
Supreme Court and followed in our prior cases. First, instead
of fairly asking separately whether counsel’s performance
was deficient and whether the deficient performance was prej-
udicial, the opinion collapses the two standards into a single
inquiry of whether counsel’s performance was deficient. In
other words, it in effect allows a finding of a deficient strate-
gic decision to carry an irrebutable presumption of prejudice.
Second, it fails to recognize that even assuming that a pre-
sumption of prejudice may arise from a determination of defi-
cient performance, here the presumption was rebutted. It does
this by insisting that there were “classic mitigating circum-
stances,” without acknowledging the seriously damaging
nature of this evidence.13

   The panel majority’s opinion makes it almost impossible
for defense counsel in a death penalty to render effective
assistance of counsel. Where, as here, defense counsel recog-
nizes that what might arguably be mitigating evidence is also
  13
    As previously noted, we have held that the double-edged nature of
arguably mitigating evidence may justify a decision not to present such
evidence. Williams, 384 F.3d at 619-20.
5436                    CORRELL v. RYAN
damaging, he or she faces an impossible decision. If counsel
decides to forego presentation of the evidence, counsel’s per-
formance may be subsequently determined to be ineffective
because the choice was prejudicial (the client received the
death penalty). If defense counsel proffers the controversial
evidence, and the client gets the death penalty, counsel will be
chastised for introducing evidence that was prejudicial to the
client. Moreover, every criminal defendant who persuades a
court that his or her counsel was ineffective will argue that if
the deficiency was prejudicial in this case, it must be prejudi-
cial in his or her case. Because the panel majority miscon-
ceives the Strickland standard for ineffective assistance of
counsel and then applies it in such a way as to suggest an irre-
butable presumption of prejudice from a counsel’s deficient
strategic decision, I dissent from our decision not to rehear
this matter en banc.


                           OPINION

THOMAS, Circuit Judge:

  Michael Emerson Correll, an Arizona inmate sentenced to
death, appeals the district court’s denial of his petition for writ
of habeas corpus following our remand for an evidentiary
hearing. We reverse.

                                 I

   This capital case arises under a federal habeas corpus pro-
visions that have been supplanted by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214 (“AEDPA”), and a state capital sentencing
statute that has since been repealed.

  The factual history of this case was detailed in our earlier
opinion, Correll v. Stewart, 137 F.3d 1404, 1408-10 (9th Cir.
                        CORRELL v. RYAN                       5437
1998) (“Correll I”). Briefly, Correll was convicted by an Ari-
zona jury in 1984 of first degree murder, attempted first
degree murder, kidnapping, armed robbery, and first degree
burglary, all for his role in a triple homicide. Id. at 1408. He
was sentenced to death by the trial judge, id. at 1410, and the
Arizona Supreme Court upheld his conviction, State v. Cor-
rell, 715 P.2d 721 (Ariz. 1986). The Supreme Court, however,
modified his death sentence as to one of the victims and inval-
idated one aggravating factor. Id. at 730-31; 734-35.

   In 1987, Correll timely filed a petition for post-conviction
relief pursuant to Arizona Rule of Criminal Procedure 32. In
this petition, Correll asserted multiple violations of his consti-
tutional rights, including his right to the effective assistance
of counsel during the guilt and penalty phases of his trial, his
right to confrontation, and his right to reliability in capital
sentencing. Correll later filed five supplements to his petition,
adducing evidence of his mental impairment and his attor-
ney’s ineffectiveness. The Arizona trial court summarily dis-
missed Correll’s petition and subsequently denied Correll’s
motion for rehearing. The Arizona Supreme Court denied
review without comment.

   Correll subsequently filed a petition for writ of habeas cor-
pus in federal district court under 28 U.S.C. § 2254. Correll
alleged fifty-three constitutional violations at trial, at sentenc-
ing, and during the appellate process. The district court deter-
mined that twenty-six of Correll’s claims were procedurally
barred, then granted summary judgment against Correll on his
remaining constitutional claims.

  On appeal, we affirmed all of the district court’s order
except as to Correll’s contention that he was entitled to an
evidentiary hearing on his claim of ineffective assistance of
counsel at sentencing. Correll I, 137 F.3d at 1420. We
remanded that issue to the district court with instructions to
hold an evidentiary hearing. Id.
5438                    CORRELL v. RYAN
   On remand, the district court conducted a nine day eviden-
tiary hearing. Applying the standards set forth in Strickland v.
Washington, 466 U.S. 668 (1984), and its progeny, the district
court concluded that the performance of Correll’s attorney at
sentencing was deficient but that Correll had suffered no prej-
udice. The district court therefore granted judgment against
Correll on his federal habeas corpus petition. This timely
appeal followed.

   Because Correll’s petition for a writ of habeas corpus was
filed before the effective date of AEDPA, pre-AEDPA law
governs our consideration of the merits. Lindh v. Murphy, 521
U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1494
(9th Cir. 1997) (en banc). Under pre-AEDPA law, we con-
sider a claim alleging ineffective assistance of counsel as a
mixed question of law and fact, which we review de novo.
Rios v. Rocha, 299 F.3d 796, 799 n.4 (9th Cir. 2002). We
review the district court’s denial of Correll’s habeas petition
de novo and the district court’s factual findings for clear error.
Id.

                                II

   [1] As the Supreme Court has long instructed, the Sixth
Amendment right to counsel in a criminal trial includes “the
right to the effective assistance of counsel.” McMann v. Rich-
ardson, 397 U.S. 759, 771 n.14 (1970). This right extends to
“all critical stages of the criminal process,” Iowa v. Tovar,
541 U.S. 77, 80-81 (2004), including capital sentencing, Silva
v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002). “Because of
the potential consequences of deficient performance during
capital sentencing, we must be sure not to apply a more
lenient standard of performance to the sentencing phase than
we apply to the guilt phase of trial.” Mak v. Blodgett, 970
F.2d 614, 619 (9th Cir. 1992).

   Under the familiar Strickland standard, to prevail on his
claim of ineffective assistance of counsel during the penalty
                         CORRELL v. RYAN                       5439
phase of his trial, Correll must demonstrate first that the per-
formance of his counsel fell below an objective standard of
reasonableness at sentencing and, second, that “there is a rea-
sonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” 466 U.S. at 694. Under Strickland, we measure an attor-
ney’s performance against an “objective standard of
reasonableness,” calibrated by “prevailing professional
norms.” Id. at 688.

   There are two aspects of Correll’s penalty phase defense
that are at issue in this appeal: the investigation of possible
defenses and the presentation of valid ones.

                                 A

   [2] Counsel has a duty at penalty phase “to conduct a thor-
ough investigation of the defendant’s background.” Williams
v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000). “To perform effectively in the penalty phase of
a capital case, counsel must conduct sufficient investigation
and engage in sufficient preparation to be able to ‘present[ ]
and explain[ ] the significance of all the available [mitigating]
evidence.’ ” Mayfield v. Woodford, 270 F.3d 915, 927 (9th
Cir. 2001) (en banc) (quoting Williams, 529 U.S. at 399)
(alterations in original). When it comes to the penalty phase
of a capital trial, “[i]t is imperative that all relevant mitigating
information be unearthed for consideration.” Caro v. Calde-
ron, 165 F.3d 1223, 1227 (9th Cir. 1999), as amended.

   The ABA Standards for Criminal Justice provide guidance
as to the obligations of criminal defense attorneys in conduct-
ing an investigation. Rompilla v. Beard, 545 U.S. 374, 387,
125 S.Ct. 2456, 2466 (2005); Williams, 529 U.S. at 396. The
standards in effect at the time of Correll’s capital trial clearly
described the criminal defense lawyer’s duty to investigate,
providing specifically:
5440                    CORRELL v. RYAN
    It is the duty of the lawyer to conduct a prompt
    investigation of the circumstances of the case and to
    explore all avenues leading to facts relevant to the
    merits of the case and the penalty in the event of
    conviction. The investigation should always include
    efforts to secure information in the possession of the
    prosecution and law enforcement authorities. The
    duty to investigate exists regardless of the accused’s
    admissions or statements to the lawyer of facts con-
    stituting guilt or the accused’s stated desire to plead
    guilty.

ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982
Supp.).

   As measured against these prevailing professional norms,
there can be little doubt that Correll’s penalty phase counsel
fell below an objective standard of reasonableness.

   [3] First, Correll’s attorney did little to counsel Correll
about potential mitigating arguments, even though
“[a]dequate consultation between attorney and client is an
essential element of competent representation of a criminal
defendant.” United States v. Tucker, 716 F.2d 576, 581 (9th
Cir. 1983) (citation omitted). Correll alleges that defense
counsel met with him only once, for five minutes, between
trial and sentencing. Correll I, 137 F.3d at 1412. At the evi-
dentiary hearing, his attorney contradicted that allegation, tes-
tifying that he met with Correll “[p]robably two or three
times.” Based on the attorney’s testimony, the district court
rejected Correll’s assertion of minimal consultation, specifi-
cally finding that Correll’s attorney “did maintain regular con-
tact with Petitioner prior to sentencing.”

   The record, however, reveals that the district court’s find-
ing of adequate consultation was clearly erroneous. Even if
counsel’s efforts to communicate with Correll exceeded one
five-minute meeting, his penalty phase consultation was
                        CORRELL v. RYAN                      5441
unreasonably limited. Indeed, Correll’s attorney was not even
confident that he had met with Correll more than once; he tes-
tified, “I know definitely one time that I can recall, but I think
probably two or three times.” His hand-written notes from the
time period confirm only two meetings. More importantly, the
attorney’s notes make clear that Correll failed to grasp the sig-
nificance of the sentencing hearing and that his attorney
made, at best, minimal efforts to explain it to him. In fact,
Correll asked to be sentenced as soon as possible so that he
could go to the Department of Corrections in time to pick up
a Christmas package, and his attorney acquiesced in that
request. At no point did Correll’s counsel explain to Correll
the possibility of a mitigation defense arising from Correll’s
drug use, brain damage, family history, or psychiatric record,
and at no point did counsel ask Correll for information or con-
tacts specifically related to those issues. We therefore con-
clude that the district court’s factual finding on this issue was
clearly erroneous and that the district court’s legal conclusion
was in error. Correll’s attorney did not maintain constitution-
ally adequate contact or engage in constitutionally adequate
consultation with Correll in between conviction and sentenc-
ing.

   [4] Second, penalty phase investigations in capital cases
should include inquiries into social background, including
investigation of any family abuse, mental impairment, physi-
cal health history, and substance abuse history. Summerlin v.
Schriro, 427 F.3d 623, 630 (9th Cir. 2005) (en banc). That
investigation should include examination of mental and physi-
cal health records, school records, and criminal records. Id.
“Defense counsel should also personally review all evidence
that the prosecution plans to introduce in the penalty phase
proceedings, including the records pertaining to criminal his-
tory and prior convictions.” Id. (citing Rompilla, 125 S.Ct. at
2465). In this case, although defense counsel was aware that
potential mitigating evidence existed, he did not explore any
avenues that might lead to development of that evidence.
5442                   CORRELL v. RYAN
   [5] The district court excused defense counsel’s failure to
investigate many of these mitigating factors on the ground
that Correll “had not informed” his attorney of the various
“allegations” that amounted to classic mitigating circum-
stances. On that basis, the district court apparently concluded
that defense counsel was unaware of — and could not investi-
gate — many of the mitigating factors that Correll proffered
during the evidentiary hearing. Although the district court was
apparently right to conclude that Correll did not specifically
inform his counsel of some mitigating factors, the court’s
implicit conclusion that the attorney was ignorant of those
factors is clearly erroneous. When questioned during the miti-
gation hearing, Correll’s trial counsel explicitly confirmed
that he was aware of Correll’s mental health disorders, psy-
chiatric commitments, drug abuse history, brain injury, and
family dysfunction. Defense counsel testified as follows:

    Q.    Were you aware that [Correll] had spent nearly
          his entire teen life, from ages 14 to 18, as a
          ward of the State of California and an inmate of
          the California Youth Authority?

    A.    Yes.

    ...

    Q.    [T]hese [referring to exhibit] are notes from
          your first interview and your first meeting with
          Mr. Correll?

    A.    Yes.

    Q.    And you see there noted, don’t you, that you
          learned of mental disorders. You checked the
          mental disorders box, and that he had been
          committed twice, and “in joint.” Do you see
          that?
                   CORRELL v. RYAN                        5443
A.   Yes.

Q.   So you knew from the inception of this case that
     Mr. Correll had a couple of commitments to
     psychiatric or mental institutions?

[Objection colloquy omitted.]

THE WITNESS: Yes, I definitely knew that.

[Colloquy omitted.]

Q.   You also learned, during the course of your rep-
     resentation of Mr. Correll, that he had a rather
     lengthy drug abuse history, didn’t you?

A.   Yes.

Q.   Did you also learn, during the course of your
     representation, that other of the Correll brothers
     had criminal records and themselves had been
     incarcerated in the Youth Authority?

A.   Yes.

Q.   Did you learn that his sister Robin was residing
     in a foster home?

A.   I believe I was aware of that. I don’t recall at
     this point.

Q.   Did you then, conclude that there were prob-
     lems of some description within the Correll
     household that may have contributed to the Cor-
     rell childrens’ [sic] poor record of success?

A.   Oh, it was obviously an extremely dysfunc-
     tional family.
5444                   CORRELL v. RYAN
This testimony makes perfectly clear that Correll’s trial coun-
sel was aware of many if not all relevant mitigating factors.
The district court’s implicit conclusion to the contrary was
clearly erroneous.

   Indeed, in light of the abundance of classic mitigation evi-
dence of which counsel was aware, his almost complete fail-
ure to investigate is startling. Despite his knowledge that
Correll was a drug user with an extremely troubled childhood,
defense counsel did not interview witnesses about these issues
or obtain records concerning these matters. The district court
found that Correll’s attorney “interviewed or tried to inter-
view” about forty or fifty witnesses but that “[t]he witnesses
were not able to provide relevant useful mitigation informa-
tion.” On that basis, the district court found that counsel’s
investigative efforts, at least with respect to the interviews,
were adequate. Once again, the district court’s factual finding
and legal conclusion are clearly erroneous.

   Admittedly, counsel did meet with some witnesses during
the trial phase, including those members of Correll’s family
who would cooperate. But counsel testified that he met only
once with Correll’s father, sister, and brother, “around the
kitchen table at the same time,” and probably spent only “[a]
couple hours” with them. Furthermore, Correll’s counsel
admitted that he interviewed witnesses only during the guilt
phase, not during the sentencing phase. Although the attorney
testified that he was looking for mitigation information as
well as exculpatory information during those pre-trial inter-
views, he failed to ask any direct questions or to conduct any
direct investigation related to the mitigating factors that are
now at issue. When counsel was asked at the evidentiary hear-
ing whether he had questioned the interviewees about Cor-
rell’s drug abuse, head injury, psychiatric history, or family
dysfunction, counsel testified that he asked no such specific
questions but, rather, asked the interviewees simply to “tell
[him] anything [they could] tell [him] that would help.” As a
result, counsel’s interviews were substantively worthless.
                          CORRELL v. RYAN                        5445
Thus, his failure to gather mitigating information did not
result from its unavailability; it resulted from counsel’s com-
plete failure to ask any relevant questions. The district court’s
conclusion to the contrary was clearly erroneous.

   Additionally, trial counsel did not obtain records from Cor-
rell’s schools or from psychiatric institutions, even though
counsel admitted that those records may have contained miti-
gating evidence. Counsel also failed to obtain police reports
on prior convictions and records regarding the time that Cor-
rell was in the custody of the California Youth Authority.
Counsel did not obtain Correll’s medical records, and he
made no inquiry into whether an X-ray or other diagnostic test
was performed to determine whether Correll suffered any
brain injury following an incident in which a wall fell on Cor-
rell’s head.

   During the evidentiary hearing, counsel could not recall
what efforts he made to gather Correll’s psychiatric records,
though he did remember that he failed to obtain records from
Correll’s stays at various mental health centers.1 As the dis-
trict court correctly concluded, counsel’s failure to obtain
these relevant records constituted deficient performance.

   In sum, defense counsel’s investigation into classic mitiga-
tors was extremely limited. Two of the district court’s conclu-
sions were clearly erroneous: that counsel was unaware of
some mitigators and that counsel conducted sufficient inter-
views to investigate the mitigators of which he was aware.
The district court correctly concluded that counsel failed to
obtain relevant records that were available at the time. Taken
together, this evidence demonstrates that counsel’s investiga-
tion into classic mitigators was unreasonably limited — that
counsel’s penalty phase representation was constitutionally
inadequate.
  1
   As the district court found, some of these records were destroyed
between the time of the trial and the time of the habeas investigation.
5446                       CORRELL v. RYAN
   Of course, Correll’s attorney was not wholly without a mit-
igation strategy. But the limited strategy that he developed
was unreasonably constricted, and even with respect to that
anemic strategy, counsel’s investigative efforts were unrea-
sonably weak.

   Defense counsel testified that the principal mitigation evi-
dence he sought was information that would show Correll as
a “good person” and one who had “done good deeds.” Such
a limitation on the scope of the mitigation investigation was,
in and of itself, unreasonable given the extreme unlikelihood
that any testimony about Correll’s character would have been
sufficient to “humanize[ ] him during the time frame of the
murder conspiracy at issue.” Allen v. Woodford, 366 F.3d 823,
851 (9th Cir. 2004). Rather, as Correll’s attorney knew at the
time, the most likely type of evidence available was the type
that would portray Correll as a “person whose moral sense
was warped by abuse, drugs, [or] mental incapacity.” Id.

  Even assuming, however, that reliance on a character
defense was a reasonable strategy in this case, counsel’s
investigation into character evidence was inadequate. For
example, Correll’s attorney was aware that a chaplain with the
California Youth Authority, Reverend Curry, might have been
willing to testify on Correll’s behalf, but the attorney never
even attempted to contact Reverend Curry.2

  [6] Based on the foregoing, we conclude that Correll’s
counsel provided constitutionally deficient representation dur-
  2
    The district court concluded that this failure was not prejudicial
because Reverend Curry’s employer did not permit him to testify on Cor-
rell’s behalf. The district court, however, completely misunderstood Rev-
erend Curry’s testimony. The California Youth Authority prohibited
Reverend Curry from initiating contact with Correll’s attorney, but it did
not prohibit him from appearing on Correll’s behalf at the hearing. Rever-
end Curry testified repeatedly that he would have been happy to speak on
Correll’s behalf if Correll’s attorney had initiated contact (which, again,
he never did).
                        CORRELL v. RYAN                     5447
ing his investigation into possible mitigation defenses. The
district court was correct in its limited holding that defense
counsel failed to seek and obtain mental health and other
medical records, and we further conclude that the rest of
defense counsel’s investigative efforts, including his contact
and consultation with Correll, his interviews with relevant
witnesses, and his development of a character-based mitiga-
tion strategy, were also constitutionally inadequate. Defense
counsel’s failure to investigate falls far short of any objective
standard against which we might measure reasonable attorney
performance under the Sixth Amendment.

                               B

   Compounding his errors during the investigative phase of
sentencing, Correll’s attorney then presented to the court vir-
tually none of the little mitigating evidence that he had devel-
oped. “There is no more important hearing in law or equity
than the penalty phase of a capital trial.” Gerlaugh v. Stewart,
129 F.3d 1027, 1050 (9th Cir. 1997) (Reinhardt, J., concur-
ring and dissenting). At the penalty phase, a capital defendant
has a “constitutionally protected right [ ] to provide the jury
with . . . mitigating evidence.” Williams, 529 U.S. at 393.
“Failure to present mitigating evidence at the penalty phase of
a capital case constitutes ineffective assistance of counsel.”
Bean v. Calderon, 163 F.3d 1073, 1079 (9th Cir. 1998).

   [7] As anemic as the defense counsel’s investigation was,
his presentation of mitigating evidence at the penalty phase
was worse. In fact, defense counsel put on no affirmative pen-
alty phase defense whatsoever. He did not call a single wit-
ness to testify. He did not introduce any evidence. The state
trial court record states: “Defendant waives presentation of
mitigating evidence.”

  Indeed, the only proactive effort that Correll’s attorney
made at sentencing was to write a short response to the pre-
sentence report. In that written submission, he included a list
5448                  CORRELL v. RYAN
of mitigating arguments, but he did not support those argu-
ments with any evidence, affidavits, or testimony. The
entirety of the written submission in mitigation reads as fol-
lows:

    A.   Defendant was under the influence of alcohol
         and drugs at the time the offenses were commit-
         ted.

         Guy Snelling stated in an interview with police
         officers on April 12, 1984, that there was alco-
         hol on the breath of Defendant at the time the
         offenses were committed. It is obvious from
         this and the conduct of the perpetrators, that
         they were under the influence of alcohol or
         drugs or both at the time the offenses were com-
         mitted.

    B.   Defendant was only a follower in the commis-
         sion of the crimes.

         Guy Snelling stated in an interview with
         defense counsel on August 14, 1984 that it was
         clear that John Nabors was the leader of the two
         perpetrators and was making the decisions. This
         is further corroborated by the fact that it was
         John Nabors who knew Guy Snelling would
         have illicit drugs and money and therefore, John
         Nabors must have done the planning of the rob-
         bery.

    C.   Prior to the robbery, there was no reason to
         believe that anyone would be present other than
         Guy Snelling, and therefore, there was no prior
         plan to kill Debra Rosen, Robin Cady or Shawn
         Di’Brito.
                        CORRELL v. RYAN                      5449
    D.   Defendant has cooperated with the Adult Proba-
         tion Office in the preparation of his presentence
         report.

    E.   Defendant’s age.

Predictably, the Arizona Supreme Court and the federal dis-
trict court concluded that this mitigation argument was not
sufficiently significant to call for leniency.

   [8] The anemia of counsel’s mitigation presentation was a
critical error, certainly rising to the level of constitutionally
deficient representation. “The failure to present mitigating
evidence during the penalty phase of a capital case, where
there are no tactical considerations involved, constitutes defi-
cient performance, since competent counsel would have made
an effective case for mitigation.” Smith v. Stewart, 189 F.3d
1004, 1008-09 (9th Cir. 1999).

   [9] The error’s full magnitude, however, does not become
apparent until we consider the effect it had under Arizona law
in particular. At the time of the penalty phase proceedings,
Arizona law mandated the death penalty if the trial judge
found any one of the enumerated aggravating factors and
determined that there were no mitigating factors that were
sufficiently substantial to call for leniency. Ariz. Rev. Stat.
§ 13-703 (1984). One of the enumerated aggravating circum-
stances is a previous violent felony, for which Correll unques-
tionably qualified. State v. Correll, 715 P.2d at 731. In
Correll’s case, therefore, the failure to present any evidence
in mitigation “all but assured the imposition of a death sen-
tence under Arizona law.” Summerlin, 427 F.3d at 640; see
also Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (not-
ing that in Arizona, once an aggravating circumstance like a
prior aggravated felony was found, death was inevitable with-
out mitigating evidence, and thus holding that the failure to
pursue psychiatric evidence constituted prejudicially deficient
performance).
5450                   CORRELL v. RYAN
   In fact, the State argued five aggravating factors, and Cor-
rell’s defense counsel disputed only a few of them. He dis-
puted that the crimes were cruel, heinous, and depraved, and
he argued that convictions for more than one homicide could
not be used as an aggravating factor because the statute autho-
rizing this factor was not in effect on the offense date. At the
evidentiary hearing in the district court, he conceded that he
thought “it was a veritable certainty” that the court would find
“at least two, and probably all five of [the] aggravating fac-
tors.” The court found four.

   Defense counsel’s sentencing memo does not even attempt
to rebut three of the five aggravating factors urged by the
State. In his oral presentation at sentencing, counsel men-
tioned the aggravating factors, but in form only, without any
substantial legal position or evidentiary support. The entirety
of his oral argument at the penalty phase consists of approxi-
mately 7 pages of transcript.

   Given counsel’s virtual concession of most of the aggravat-
ing factors argued by the State and his waiver of the presenta-
tion of mitigation evidence, the outcome was obvious:
imposition of the death penalty. The Arizona Supreme Court,
in re-weighing the aggravating and mitigating factors, found
no mitigating factors “sufficiently substantial to call for
leniency.” State v. Correll, 715 P.2d at 735. The Court high-
lighted the lack of evidence presented in mitigation and noted
that the “defendant has offered no evidence or expert testi-
mony on which we could base a finding that he was unable
to appreciate the wrongfulness of his conduct.” Id. The Court
was particularly dismissive of his attempt to count coopera-
tion in the pre-sentence investigation as a mitigating factor,
noting “[i]t is in defendant’s interest to cooperate at sentenc-
ing; defendant should not be rewarded for self-serving acts.”
Id.

   [10] In sum, Correll’s counsel was constitutionally defi-
cient in failing to investigate and present mitigating evidence.
                        CORRELL v. RYAN                     5451
Particularly in light of Arizona’s death penalty regime, the
failure to develop a robust mitigation defense — and the fail-
ure to defend against the State’s aggravation case — was
unreasonable, falling below any objective standard of ade-
quate representation.

                               C

   The State contends that the failure to put on penalty phase
evidence was a strategic choice, protected under Strickland.
To be sure, under Strickland, we must defer to trial counsel’s
strategic decisions. “A reasonable tactical choice based on an
adequate inquiry is immune from attack under Strickland.”
Gerlaugh, 129 F.3d at 1033. However, to be considered a
constitutionally adequate strategic choice, the decision must
have been made after counsel has conducted “reasonable
investigations or [made] a reasonable decision that makes par-
ticular investigations unnecessary.” Strickland, 466 U.S. at
691. In addition, “[e]ven if [a] decision could be considered
one of strategy, that does not render it immune from attack —
it must be a reasonable strategy.” Jones v. Wood, 114 F.3d
1002, 1010 (9th Cir. 1997) (emphasis in original). In this case,
because of defense counsel’s failure to investigate potential
mitigation evidence, he had too little information to make any
informed strategic decision. Furthermore, when considered
objectively, his purported “strategy” cannot be considered
reasonable.

                               1

  [11] A decision by counsel not to present mitigating evi-
dence cannot be excused as a strategic decision unless it is
supported by reasonable investigations. See Williams, 529
U.S. at 394 (recognizing a constitutional right to present miti-
gating evidence to the jury); Silva, 279 F.3d at 843 (recogniz-
ing “the breadth of a criminal defendant’s constitutional
protection against his attorney’s failure to investigate mitigat-
ing evidence when defending his client against a capital sen-
5452                    CORRELL v. RYAN
tence”). In Wiggins, the Supreme Court held that the
traditional deference owed to the strategic judgments of coun-
sel is not justified where there was not an adequate investiga-
tion “supporting those judgments.” 539 U.S. at 521.

   Here, as we have discussed, defense counsel failed to make
a reasonable investigation into potential mitigating evidence.
Therefore, his decision not to put on a mitigation case cannot
be considered to be the product of a strategic choice. An unin-
formed strategy is not a reasoned strategy. It is, in fact, no
strategy at all. Cf. Strickland, 466 U.S. at 690-91 (holding that
“strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable profes-
sional judgments support the limitations on investigation”).

  In Silva, for example, we held that in the absence of dili-
gent investigation, counsel cannot make a reasoned tactical
decision regarding whether or not to present mitigating evi-
dence. 279 F.3d 846-47. Indeed, we determined that even if
a client forecloses certain types of mitigation evidence, “it
arguably becomes even more incumbent upon trial counsel to
seek out and find alternative sources of [mitigating evi-
dence].” Id.

   [12] Here, an abundance of classic mitigation evidence
existed. However, counsel failed to investigate these potential
avenues and was therefore unable to make an informed deci-
sion as to whether to present the evidence and arguments that
were available. His choice not to present mitigation evidence,
therefore, cannot be justified as strategic.

                               2

  To the extent that there was any strategy involved in the
penalty phase presentation, it cannot be considered a reason-
able strategy by any objective measure.

  Defense counsel chose to rely on the pre-sentence report
prepared by a state probation officer, despite his own charac-
                       CORRELL v. RYAN                     5453
terization of that report as “one-sided.” During his short sen-
tencing argument, defense counsel criticized the author of the
pre-sentence report for failing to interview several people who
could have provided mitigating statements. The irony, of
course, is that defense counsel could have introduced during
the penalty phase the very mitigating evidence that he felt the
probation officer should have gathered.

   The sentencing report described the crimes as “particularly
heinous” and speculated that “the murder scene in the desert
must have been particularly gruesome.” The probation officer
concluded that, given the circumstances of the crime, “[t]hey
obviously planned the murders ahead of time and then cal-
culatingly and unemotionally carried out their plans.” The
pre-sentence report described Correll’s history as “a text book
of psychopathology,” and “riddled with instances of violent
behavior and armed aggression.” The probation officer deter-
mined that Correll “was not capable of functioning in soci-
ety.” The report concluded with the observation that “[h]e is
a threat, a menace, and in my opinion, the community at large
should never again be subjected to the risk of recurrence of
this type of behavior.” These statements are hardly the words
of mitigation, and no competent capital defense counsel
would have relied upon such a report as providing mitigation
evidence, much less as the sole source of mitigation evidence.

   [13] Defense counsel testified at the evidentiary hearing
that he “was basically hoping [the judge] would think it was
a one-time incident and want to give Mr. Correll a break and
find a mitigating factor.” However, the pre-sentence report
contained explicit references to an extensive criminal history
that belied this theory. Indeed, the page and a half of criminal
convictions reported is longer than defense counsel’s entire
mitigation presentation in his sentencing memorandum. It was
not a reasonable strategy to rely on the pre-sentence report to
prove that the crime was a “one-time incident” when the
entire report drew the opposite conclusion.
5454                        CORRELL v. RYAN
   When asked at the evidentiary hearing, “what was your
sentencing strategy,” trial counsel responded that it was “hop-
ing that [the judge] liked Mr. Correll” and hoping that the
judge found that the crime “was a drug ripoff that went bad[,]
that Michael was under the influence,” and that “he wasn’t the
leader in the crimes.” When pressed, however, defense coun-
sel was forced to admit that portraying the crime as a one-
time drug ripoff gone bad was not something that would con-
stitute a mitigating factor.

   Throughout the evidentiary hearing, defense counsel
revealed a fundamental misconception of mitigation evidence.
He referred to the sentencing hearing as “a dog and pony
show” and “so much smoke.” He said he felt that the judge
would not have been receptive to mitigation evidence that was
“touchy-feelly [sic] fuzzy-headed kind of stuff.” When asked
about the classic mitigation evidence that was available, such
as potential brain injury,3 a history of drug addiction, and
abuse suffered as a child, counsel testified that he didn’t think
of the evidence as favorable evidence. However, it is pre-
cisely this type of evidence that the Supreme Court has
deemed “powerful.” Wiggins, 539 U.S. at 534.

   It appears clear from examination of his testimony that
defense counsel was afraid of the sentencing judge. In fact, he
forewent psychological testing because he feared that the
judge would learn of it, and he testified that he might have
presented evidence of Correll’s history of drug addiction had
he been before a different judge.4 He believed that the judge
   3
     As the district court noted, the Arizona Courts place significant weight
on brain injuries as mitigating evidence. Similarly, “[w]e have repeatedly
held that counsel may render ineffective assistance if he is on notice that
his client may be mentally impaired, yet fails to investigate his client’s
mental condition as a mitigating factor in a penalty phase hearing.” Caro
v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002) (internal quotations
omitted).
   4
     The dissent characterizes this decision not to present psychological evi-
dence as strategic because it would “make it easier for the judge to sen-
                            CORRELL v. RYAN                             5455
would use mitigating evidence as an aggravating factor, in
violation of the mandatory language of Ariz. Rev. Stat. § 13-
703(E). When asked in a pre-hearing interview about his deci-
sion not to introduce evidence of Correll’s psychological dis-
orders, counsel responded:

     [A]s a practical matter, and certainly with Judge
     Howe [the trial judge], once he found out that this
     man was a sociopath or psychopath, whichever term
     you want to use, he didn’t have a chance in a hun-
     dred of keeping from getting the death penalty.
     ‘Cause even though he can claim that this is a miti-
     gating factor the reality is that when you tell some-
     one in society and certainly Judge Howe, the man is
     a sociopath, that dictates that he’s the kind of person
     who should get the death penalty, that’s what the
     thinking’s going to be.

This entire line of reasoning, however, presumes that the
judge would not follow the law5—speculation that is never
appropriate and that is not supported by the record here.

tence Correll to death because it would cause him to view Correll as
permanently psychologically damaged.” However, counsel’s failure to
investigate Correll’s psychological history for fear of the trial judge cannot
be termed “strategic.” Counsel worried that the trial judge would presume
that any psychological evaluation portrayed Correll in a negative light if
he granted a contact visit order for such an evaluation and the results were
never submitted to the court. This fear presumes that the trial judge would
act inappropriately by considering evidence outside of the record in mak-
ing his sentencing decision, and it fails to recognize the importance of cre-
ating a record for review, even if the trial judge likely would be
unsympathetic. Psychological injury is the type of evidence the Supreme
Court has viewed as classic mitigating evidence. Wiggins, 539 U.S. at 534.
   5
     See State v. Vickers, 129 Ariz. 506, 515, 633 P.2d 315, 324 (1981)
(holding that personality disorders, while they do not qualify as statutory
mitigators, must be considered as potential mitigators, particularly where
there is evidence that the personality disorder influenced the defendant’s
behavior).
5456                    CORRELL v. RYAN
   Fear of a particular sentencing judge’s reaction also ignores
the fact that, in capital cases, the Arizona Supreme Court con-
ducts an independent review of the aggravating and mitigating
factors, re-weighing them afresh. See State v. Johnson, 710
P.2d 1050, 1055 (Ariz. 1985) (“Whenever the trial court
imposes the death sentence we must conduct an independent
review of the facts that established the aggravating and miti-
gating circumstances in order to determine for ourselves if the
latter outweigh the former and justify the sentence.”); see also
State v. Richmond, 560 P.2d 41, 51 (Ariz. 1976) (“[T]he grav-
ity of the death penalty requires that we painstakingly exam-
ine the record to determine whether it has been erroneously
imposed.”). At the time of Correll’s appeal, the Arizona
Supreme Court was also required to conduct an independent
proportionality review. State v. Correll, 715 P.2d at 737-38.
Therefore, even if defense counsel’s fears about the judge
were legitimate, there is no strategic excuse for failing to put
on evidence in support of statutory mitigating factors that the
Arizona Supreme Court could have considered in its indepen-
dent re-weighing of aggravating and mitigating factors.

   [14] In short, to the extent that defense counsel had a strat-
egy at all, it cannot be considered an objectively reasonable
strategy.

                               3

   Counsel’s ineffective assistance at sentencing cannot be
excused as strategic. He failed to conduct an investigation suf-
ficient to make an informed judgment. To the extent that his
decisions reflected any tactical considerations, his approach of
not putting on a mitigation case cannot be considered an
objectively reasonable strategy, even when viewed under the
highly deferential Strickland standard.
CORRELL v. RYAN            5457
                  Volume 2 of 2
5458                    CORRELL v. RYAN
                               III

   [15] It is, of course, not enough for Correll to establish that
his counsel’s performance at sentencing fell below an objec-
tive standard of reasonableness. He must also “show that there
is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. A reasonable probabil-
ity is a probability sufficient to “undermine confidence in the
outcome.” Id.

   In considering this question, we have recognized that defi-
cient performance and prejudice questions may be closely
related. See Summerlin, 427 F.3d at 643 (“[W]e conclude that
the failure of trial counsel to investigate, develop, and present
mitigating evidence at the penalty phase hearing has under-
mined our confidence in the sentence of death imposed by the
trial judge.”); Smith, 189 F.3d at 1011 (“Because of [coun-
sel’s] failure to provide competent representation, our confi-
dence in the outcome of Smith’s sentencing has been
undermined.”). In establishing prejudice under Strickland, it
is not necessary for the habeas petitioner to demonstrate that
the newly presented mitigation evidence would necessarily
overcome the aggravating circumstances. Williams, 529 U.S.
at 398. Accordingly, even where the facts discovered on
habeas review do not rise to the level of statutory mitigation,
we have held that a reasonable probability existed that this
information could have affected the sentence. Smith, 140 F.3d
at 1270; see also Rompilla, 125 S. Ct. at 2469 (noting that “al-
though we suppose that [the sentencer] could have heard it all
and still have decided on the death penalty, that is not the
test”).

  Here, there was a substantial amount of classic mitigating
evidence that could have been presented, but was not.

   Correll had endured an abusive childhood. His mother was
a Jehovah’s Witness, whose commitment to her church came
                            CORRELL v. RYAN                            5459
before her commitment to her family. She spent most of her
time with the church, often neglecting her six children’s basic
needs. The children were required to attend adult bible study
class with her three nights a week, for three hours per night.
If they misbehaved or indicated that they were confused or
did not understand the religious doctrine, they were punished.
Correll’s father was largely absent but sometimes aided his
wife in physically punishing their children. There was evi-
dence of incest in the family.

  When Correl was seven, a brick wall collapsed on his head.
Although he was unconscious for some time after the acci-
dent, his parents did not seek medical treatment until several
days later when he was still not back to normal. Several
experts testified that this type of accident and the symptoms
Correll exhibited then and now indicate a high likelihood of
brain impairment.6

   Against this backdrop, Correll began experimenting with
alcohol and drugs around age ten. He was using marijuana,
LSD, and amphetamines regularly by age twelve, behavior
that can be characterized as self-medication for the everyday
  6
    The district court dismissed evidence of Correll’s brain injury, con-
cluding that any organic brain injury played no role in Correll’s crimes.
The district court’s conclusion was based on the judge’s own evaluation
of two conflicting experts. But in the procedural context of this case, the
district court’s role was not to evaluate the evidence in order to reach a
conclusive opinion as to Correll’s brain injury (or lack thereof). The dis-
trict court should have decided only whether there existed a “reasonable
probability” that “an objective fact-finder” in a state sentencing hearing
would have concluded, based on the evidence presented, that Correll had
a brain injury that impaired his judgment at the time of the crimes. Sum-
merlin, 427 F.3d at 643. Because the competing neuropsychologists who
testified at the evidentiary hearing agreed that the evidence of brain injury
was at least strong enough to deserve presentation at a sentencing hearing,
we conclude that Correll’s evidence had at least a “reasonable probability”
of persuading an objective fact-finder. The district court clearly erred
when it concluded that Correll presented insufficient evidence of organic
brain damage.
5460                   CORRELL v. RYAN
trauma of his life and for the mental health illnesses that were
later diagnosed when he became a ward of the state.

   It is notable that each of the six Correll children reported
that they had or have had substance abuse problems beginning
in childhood or adolescence. Further, at least five of the six
children spent time in juvenile correctional facilities, and all
four of the boys in the family have spent time in adult correc-
tional facilities.

   In response to Correll’s obvious substance abuse problems,
his parents intervened with beatings and threats of kicking
him out of the house. Further, the state failed to recommend
drug or alcohol treatment despite Correll’s frequent contact
with the juvenile authorities.

   After Correll was shot in the arm at age 14, the hospital
asked his parents to let him come home. They allowed him to
recuperate at home for three or four days before asking the
state to sever their parental rights. At that time, they cut off
all communication with their son and considered him dead, as
required by their church’s teachings.

   Correll became a ward of the state at age 14 and spent his
teenage years in various state institutions described as “gladi-
ator schools,” which were characterized as cruel and inhu-
mane, even by those who worked there. He was placed in
programs for low-performing students, which were referenced
as “dummy shacks.” Within months of becoming a ward of
the state, 14-year-old Correll became addicted to heroin.

   Correll was committed to psychiatric institutions at least
twice during his teen years and was described at age 16 as
“severely psychologically impaired.” He was treated with a
tranquilizer/anti-psychotic drug while institutionalized, and he
attempted suicide on two occasions. However, there is no evi-
dence that Correll continued to receive treatment after these
stays.
                            CORRELL v. RYAN                           5461
   Methamphetamine eventually became Correll’s drug of
choice, which he used whenever he could. Correll offered
expert testimony during the evidentiary hearing of the effect
of high methamphetamine use, including brain damage,
blackouts, and methamphetamine-induced psychosis, all of
which may be compounded by sleep deprivation.

   At the time of the murders, Correll was injecting a quarter
gram to a gram of methamphetamine in one shot, and he was
injecting three to four shots a day. According to expert testi-
mony at the evidentiary hearing, Correll was in the top 1% of
methamphetamine users in terms of quantity. During the
period of time in which the crimes were committed, Correll’s
typical pattern was to go seven to ten days without sleep, fol-
lowed by one to two days of continuous sleep. He was
observed injecting methamphetamine shortly before the
crimes were committed. Expert testimony indicated that he
was likely having impulse control problems, judgment impair-
ment, and aggressiveness at the time of the crime and that he
may have been experiencing drug-induced paranoia.7

  In sum, there was a substantial amount of mitigating evi-
dence available,8 which, taken together, is sufficient to raise
  7
     The district court discounted much of this evidence on the ground that
it was based on Correll’s self-reported drug habits, which the court con-
cluded were not credible. The conclusion that Correll’s reports were not
credible, however, is clearly erroneous in light of the substantial corrobo-
rating evidence introduced at the evidentiary hearing. Two witnesses,
Dawn Day and Reverend Curry, testified as to their own observations of
Correll’s drug habits, and their observations fully comported with Cor-
rell’s self reports. Medical and prison records indicated that Correll had
issued identical self reports at times when he had no incentive to exagger-
ate the extent of his drug abuse. Furthermore, Correll’s reports of his drug
use have never varied, over the course of several decades. In short, there
was no reason for the district court to doubt the veracity of Correll’s self
reports. On the contrary, there was significant evidence tending to corrob-
orate Correll’s account, including several records showing consistency
over time of Correll’s story.
   8
     The government argues that much of this evidence was already before
the sentencing court in the pre-sentence report. While the bare facts of
5462                       CORRELL v. RYAN
a presumption of prejudice under the Supreme Court’s stan-
dard in Wiggins, 539 U.S. at 534-38.

   But we need not rest on presumption. All of the available
evidence constituted classic mitigation evidence that certainly
had the potential to persuade “an objective fact-finder” that
Correll was, at the time of the crimes, incapable of appreciat-
ing the wrongfulness of his conduct. Summerlin, 427 F.3d at
643. To use the Supreme Court’s words, “[h]ad [a] jury been
able to place petitioner’s excruciating life history on the miti-
gating side of the scale, there is a reasonable probability that
at least one juror would have struck a different balance.” Wig-
gins, 539 U.S. at 537.

   [16] Indeed, in this case, the evidence of Correll’s “excruci-
ating” history could have provided an alternative — and much
more sympathetic — context for the horrific observations and
conclusions that were before the judge in the presentence
report. While the presentence report characterized Correll as
a “threat” and a “menace,” the evidence of Correll’s family
history, personality disorder, and brain injury could have col-
ored Correll as an organically diseased and injured person
who, through no fault of his own, lacks the ability to compre-
hend the immorality of his conduct. Correll’s full history also
had the potential to convince an objective fact-finder that his
criminal behavior has, throughout his life, been his means of
gaining the negative and destructive attention that he was
taught to seek from a very young age. As the Supreme Court
has consistently instructed, these kinds of claims constitute
classic mitigation, which a fact-finder must consider when
deciding between life imprisonment and death.

Correll’s troubled past were indeed presented to the court, without further
investigation and presentation of contextual evidence and argument, such
facts served only to demonize Correll rather than to mitigate the appropri-
ateness of imposing the death penalty for his actions.
                       CORRELL v. RYAN                     5463
   Perhaps more compellingly, the evidence of Correll’s
methamphetamine use on the night of the crimes, had it been
fully presented, could have risen to the level of a statutory
mitigator. Under Arizona law, gross intoxication at the time
of the crime constitutes a statutory mitigator if that intoxica-
tion impaired the defendant’s “capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of law.” A.R.S. § 13-703(G)(1). There was
undisputed evidence adduced at the evidentiary hearing that
Correll was addicted to methamphetamine, that Correll used
some methamphetamine on the day of the crime, that Correll
habitually used methamphetamine in astonishingly and unusu-
ally high dosages, and that drug addicts generally are incapa-
ble of using their drug of choice in any dosage that is lower
than their usual dosage. Thus, the evidence strongly indicated
that Correll used an extremely high dosage of methamphet-
amine on the day of the crime.

  The district court, however, concluded that there was no
evidence of gross intoxication at the time of the crimes
because certain witnesses indicated that Correll was oriented
during the commission of the crimes. This conclusion rests on
a critical misunderstanding of the evidence.

   At the evidentiary hearing, expert testimony made it clear
that gross methamphetamine intoxication, unlike gross alco-
hol intoxication, is not necessarily apparent to outside observ-
ers. The experts described a state known as
“methamphetamine blackout,” during which the user would
be capable of performing complex tasks but would be incapa-
ble of understanding or remembering his behavior. One of the
experts, a recovered methamphetamine addict, specifically
confirmed the possibility that “those observing a person in a
methamphetamine blackout [wouldn’t] know that the person
is in a methamphetamine blackout.” This evidence severely
undermines the propriety of the district court’s reliance on
witness observation in concluding that Correll was not intoxi-
5464                   CORRELL v. RYAN
cated on the night of the crimes. Those witnesses might not
have known whether Correll was intoxicated or not.

   Furthermore, the experts also testified that gross metham-
phetamine intoxication impairs a person’s inhibition and judg-
ment, rendering the intoxicated person incapable of measuring
and understanding the consequences of his actions. A person
in a methamphetamine blackout, the experts implied, would
not be capable of understanding the “wrongfulness of his con-
duct.”

   [17] Thus, the district court was clearly wrong to conclude
that there was no available evidence that Correll was grossly
intoxicated — to the point of being unable “to appreciate the
wrongfulness of his conduct” — on the night of the crime.
Expert testimony at the evidentiary hearing clearly established
that methamphetamine use, in the quantities that Correll
undisputably used the drug on a regular basis, would signifi-
cantly impair judgment and consciousness without causing
perceptible symptoms of intoxication. We conclude that this
evidence — had it been developed and presented — could
reasonably be expected to persuade an objective fact-finder
that Correll was incapable of understanding the wrongfulness
of his conduct on the night of the murders.

   The dissent argues that Correll was not prejudiced by the
failure to investigate and present mitigation evidence and
argument because the presentation of such evidence and argu-
ment “would have enabled the prosecution to present very
damaging evidence in rebuttal.” However, a significant por-
tion of that damaging rebuttal evidence was already available
through the pre-sentence report. For example, the “numerous
escapes from mental health treatment facilities” and the “hos-
tage taking and armed aggression against mental health work-
ers” were both clearly delineated in the pre-sentence report.

  Furthermore, all of the so-called “damaging rebuttal evi-
dence” could, in the hands of a competent attorney, have been
                            CORRELL v. RYAN                            5465
used to support Correll’s claims of dysfunctional upbringing
and continuing mental disorder. For example, Correll’s state-
ment that he felt “a strong sense of power and excitement”
when he committed armed robbery could show either that
Correll is dangerous — as the presentence report concluded
— or that Correll has a diseased perception of social interac-
tion, which prevents him from conforming his conduct to the
law. Indeed, all of the facts on which the dissent relies could
be either dehumanizing or mitigating, depending on the con-
text and history given for each cited fact.9

   In view of the record developed at the evidentiary hearing,
we conclude that there is a reasonable probability that the out-
come of Correll’s sentencing would have been different had
he received competent representation. This was an unusual
case in the capital context because it involved a defendant
who had not killed any of the victims, although he certainly
attempted to kill one person who fortunately survived. The
actual murders were committed by another person. The failure
to present a mitigation case was particularly indefensible
under Arizona law that existed at the time, which required the
imposition of the death penalty absent a case in mitigation.
Given all of these factors, there is a significant possibility that
the introduction of some mitigating evidence could have
spared Correll’s life.

                                    IV

   [18] Correll was constitutionally entitled to the presentation
of a mitigation defense. He did not receive one, although sub-
stantial mitigation evidence existed. Most importantly,
because Arizona law required the imposition of a death sen-
tence if aggravating factors were proven and no mitigating
  9
    That some of the defense witnesses at sentencing might have presented
inculpatory testimony is not particularly significant, given that counsel had
abandoned at sentencing any claims of actual innocence or misidentifica-
tion.
5466                    CORRELL v. RYAN
factors presented, the failure to present any mitigation defense
constituted ineffective assistance of counsel under the stan-
dards set forth in Strickland. The fear of a trial judge cannot
be considered strategic justification for forgoing the presenta-
tion of a mitigation defense, particularly given that (1) Ari-
zona law required imposition of the death penalty when no
mitigating factors were found, and (2) the Arizona Supreme
Court was required to re-weigh the aggravating and mitigating
factors. Furthermore, the evidence adduced at the evidentiary
hearing revealed several classic mitigators that a reasonable
attorney could have used to contextualize Correll’s violent
past and to mitigate Correll’s current culpability.

   [19] We conclude the Correll is entitled to relief in the form
of a new penalty phase trial. We reverse the judgment of the
district court and remand with instructions to issue a writ of
habeas corpus.

  REVERSED.



O’SCANNLAIN, Circuit Judge, dissenting:

   I respectfully dissent from the court’s conclusion that Cor-
rell has met the “highly demanding and heavy burden of
establishing actual prejudice” in the pursuit of his claim of
ineffective assistance of counsel during the penalty phase of
the trial. Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.
2005) (quoting Williams v. Taylor, 529 U.S. 362, 394 (2000))
(internal quotation marks omitted). The majority ignores the
mountain of precedent which requires us, in assessing preju-
dice, to consider not only the likely benefits of the mitigating
evidence Correll’s counsel failed to present, but also its likely
drawbacks. In addition, the majority substitutes its indepen-
dent analysis of the record for that of the district court, relying
on its own view of the evidence rather than considering, as we
must, the effect the evidence would have had on an Arizona
                           CORRELL v. RYAN                           5467
sentencing judge 23 years ago. Because I do not believe that
Correll has met his burden “affirmatively [to] prove preju-
dice,” I would affirm the judgment of the district court deny-
ing the petition for writ of habeas corpus. See Strickland v.
Washington, 466 U.S. 668, 693 (1984).

                                     I

  The facts of Correll’s brutal crimes are disturbing, but must
be recounted to illustrate the unlikelihood that Correll’s new
evidence would have convinced the sentencing judge not to
impose the death penalty.1

                                    A

   On the night of April 11, 1984, as Guy Snelling and his
girlfriend Debra Rosen were getting ready to go to sleep, a
knock came at the door. Snelling answered the door and
found John Nabors, his co-worker, and Correll, whom he had
not met.

   After Snelling let the two men into his home, Nabors pulled
a gun and demanded money. Correll secured Snelling and
Rosen with duct tape. When Robin Cady and Shawn D’Britro,
two friends of Snelling, unwittingly arrived at the house, Cor-
rell secured them with duct tape as well. Then Correll and
Nabors escorted Snelling throughout his home to search for
money and valuables.

   After raiding the house for approximately 45 minutes,
Nabors and Correll exited with Cady, D’Brito, and Snelling,
whom they forced into Cady’s car. Nabors briefly went back
inside to secure Rosen. While holding the gun on the three
  1
   Although it is normally not necessary to restate the facts and proce-
dural history in a dissenting opinion, the reader will understand that this
exercise is necessary due to the sharp divergence between the majority’s
presentation of the facts and the district court’s factual findings.
5468                       CORRELL v. RYAN
victims, Correll drove to a deserted area where Nabors’s truck
was parked. Nabors took his truck and followed Correll, who
was still driving Cady’s car with the three victims, to a desert
area north of Phoenix. There, they forced the three victims out
of the car and made them lie face down on the ground. Correll
shot Snelling in the back of the head. Nabors then shot and
killed D’Britro, and then tried to shoot Cady. The gun mis-
fired a couple of times and Correll said “hurry up, hurry up,
. . . okay, it’s cool, no cars coming, get a shell chambered.”
After reloading the gun, Nabors was finally successful in
shooting and killing Cady. After Correll and Nabors left,
Snelling, who miraculously did not die, reported the crime.
Rosen, whom Nabors and Correll had left in the house when
they drove the other three victims into the desert, was later
found in the house, killed by strangulation.

                                      B

   At trial, Correll’s sole defense was misidentification—
namely, that Snelling, who was under the influence of drugs
and alcohol when the crimes occurred, had wrongly identified
Correll as one of his assailants, and that it was reasonably
likely that Correll’s brother Terry, who resembled Correll,
had committed the crimes instead. Unpersuaded by this
defense, a jury convicted Correll of three counts of first
degree murder, one count of attempted first degree murder,
one count of armed robbery, one count of first degree bur-
glary, and four counts of kidnaping.

   At sentencing, the government urged the court to impose
the death penalty. The government asserted that five statutory
aggravating factors were present: (1) a previous violent felony
conviction;2 (2) grave risk of death to others in addition to the
persons murdered;3 (3) commission of the murders in antici-
  2
   Ariz. Rev. Stat. § 13-703(F)(2).
  3
   Id. § 13-703(F)(3).
                           CORRELL v. RYAN                           5469
pation of pecuniary gain;4 (4) commission of the murders in
an especially heinous, cruel or depraved manner;5 and (5) con-
victions for multiple murders during the offense.6

   In response, Correll’s attorney argued that the prosecution
had failed to prove, as required by Enmund v. Florida, 458
U.S. 782 (1982), that Correll intended to kill Rosen, Cady,
and D’Brito. Although the sentencing court did not accept this
argument, Correll’s attorney preserved it for appeal and the
Arizona Supreme Court later modified one of Correll’s death
sentences to life imprisonment on this ground. See State v.
Correll, 715 P.2d 721, 730-31 (Ariz. 1986). Correll’s attorney
also countered each of the government’s proffered aggravat-
ing factors.7 He argued—and the sentencing court agreed—
that the “grave risk of death to others” aggravating factor did
not apply. He also argued that the multiple murder aggravat-
ing factor could not be considered. Although the sentencing
court did not accept this argument, Correll’s attorney pre-
served it for appeal and the Arizona Supreme Court later
invalidated this aggravating factor. See id. at 734-35. Correll’s
attorney further argued, unsuccessfully, that the evidence did
not support the remaining aggravating factors.
  4
     Id. § 13-703(F)(5).
  5
     Id. § 13-703(F)(6).
   6
     Id. § 13-703(F)(8).
   7
     The majority unduly discounts defense counsel’s attack of the govern-
ment’s asserted aggravating factors. See Maj. Op. at 5450-51. Both the
Arizona Supreme Court and the state trial court disagreed with the majori-
ty’s assessment of counsel’s performance with respect to the “grave risk
of death to others” and the “multiple murders” aggravating factors, agree-
ing with counsel’s assertion that the first factor was unsupported and the
second was unconstitutional in this case. The Arizona Supreme Court also
found persuasive defense counsel’s argument that the government failed
to prove beyond a reasonable doubt that Correll intended to kill one victim
and therefore the death penalty could not be imposed on that count. Fur-
thermore, counsel made compelling substantive legal and factual argu-
ments with respect to the other aggravating factors.
5470                        CORRELL v. RYAN
   In addition to challenging the government’s aggravating
factors, Correll’s attorney also presented substantial mitigat-
ing evidence.8 First, counsel emphasized that it was John
Nabors, not Correll, who actually shot the three victims who
died. Second, counsel endeavored to present Nabors as the
“leader” and “planner” of the criminal endeavor, accentuating
the facts that “Mr. Nabors was the one that knew Guy Snell-
ing was a drug dealer,” and that “Snelling would have money
and drugs [when] the robbery occurred. In addition, counsel
drew the court’s attention to Snelling’s statement that “it
appeared to him that John Nabors was the leader, was the one
calling the shots, so to speak.” Finally, counsel pointed out
that, prior to the robbery, it was impossible for Correll reason-
ably to have anticipated that anyone would be present in the
home other than Snelling, and that, consequently, Correll
could not have planned the three deaths.9

   Third, Correll’s attorney also argued for mitigation, both in
his sentencing memorandum and at oral argument, on the
grounds that Correll was under the influence of drugs and
alcohol at the time of the murders.10 Counsel specifically drew
the sentencing judge’s attention to Snelling’s statement to the
police that he smelled alcohol on Correll’s breath during the
crimes.
  8
     The majority quotes the state trial court record, which reads that “De-
fendant waive[d] presentation of mitigating evidence.” Maj. Op. at 5447.
This excerpt, however, was merely the conclusion of the court clerk. In the
district court proceedings, defense counsel adamantly maintained that
“[w]e didn’t waive” the presentation of mitigating evidence.
   9
     At the time of sentencing, Arizona state law explicitly provided that
such inability reasonably to foresee that one’s conduct would cause death
to another person was a statutory mitigating factor. Ariz. Rev. Stat. § 13-
703(G)(4).
   10
      A defendant’s inability to appreciate the wrongfulness of his conduct
or to conform his conduct to the requirements of law is a statutory mitigat-
ing factor. See Ariz. Rev. Stat. § 13-703(G)(1).
                            CORRELL v. RYAN                             5471
   Fourth, counsel presented Correll’s troubled family history,
explaining that “the reason that Mike [Correll] has had prob-
lems is the fact that when he was 14 years old, that both of
his parents abandoned him and what can be expected when
someone is abandoned by their parents at such an early age?”
Finally, Correll’s attorney also argued that Correll’s age—24
—was mitigating.11

  Although Correll’s attorney knew that Correll had received
psychological counseling, he declined to develop psychologi-
cal evidence because he believed, based on his conversations
with Correll, that the only possible diagnosis was antisocial
personality disorder. As counsel explained at the evidentiary
hearing, he believed such a diagnosis would carry little, if
any, mitigating weight with the sentencing judge and would,
in fact, make it easier for the judge to sentence Correll to
death because it would cause him to view Correll as perma-
nently psychologically damaged.12

                                     C

  The sentencing judge ultimately found four statutory aggra-
vating circumstances.13 Determining that the mitigating evi-
  11
      A defendant’s age is a statutory mitigating factor. See Ariz. Rev. Stat.
§ 13-703(G)(5).
   12
      As the district court summarized the evidence presented at the sen-
tencing hearing:
      Rather than argue Petitioner’s personality disorder to Judge
      Howe, [counsel] decided that Petitioner had a better chance to
      avoid the death penalty if he portrayed that Petitioner was
      involved in a drug ripoff which had gone terribly wrong, that
      Petitioner had only been a follower in the matter, that he had not
      been the trigger-man as to the three people who died, that Guy
      Snelling had reported to police that Petitioner was under the
      influence of drugs and/or alcohol at the time of the crimes, and
      that he should be shown sympathy because his family abandoned
      him at the age of 14.
   13
      The Supreme Court has since held that Arizona’s practice of judges
finding aggravating factors violates the Sixth Amendment right to a jury.
5472                      CORRELL v. RYAN
dence did not outweigh these factors, the judge sentenced
Correll to death on each of the murder counts. The Arizona
Supreme Court affirmed Correll’s convictions, with the modi-
fications previously mentioned. It then re-weighed the aggra-
vating and mitigating factors and determined that the death
penalty was appropriate. Correll, 715 P.2d at 736.

   In his state petition for postconviction relief, Correll
alleged that his counsel rendered ineffective assistance at sen-
tencing. He contended that during the month that elapsed
between the jury verdict and the sentencing hearing, his attor-
ney met with him for just five minutes. He also contended that
his attorney failed to investigate and to develop available evi-
dence relating to his psychiatric history and condition at the
time of the crimes. The state trial court summarily dismissed
Correll’s petition, concluding that Correll raised “no colorable
issues” relating to ineffective assistance of counsel. The court
went on to explain that “the Court specifically recalls that the
trial work of defense counsel was precise, careful, and compe-
tent, and manifested strategic and tactical judgments of the
same high quality.” The Arizona Supreme Court denied
review without comment.

   Correll later filed a federal petition for writ of habeas cor-
pus and the district court entered summary judgment against
him. On appeal (“Correll I”), we held that Correll’s ineffec-
tive assistance allegations, which had not been fully explored
in state court, entitled him to an evidentiary hearing. We held
that Correll had established (1) that the state court trier of fact
had not conducted a full and fair hearing to find the relevant
facts, and (2) that his allegations, if proven, might constitute
a colorable ineffective assistance claim. Correll v. Stewart,
137 F.3d 1404, 1411-12 (9th Cir. 1998).

See Ring v. Arizona, 536 U.S. 584 (2002). Ring does not apply, however,
to cases such as this one that were already final on direct review. See
Schriro v. Summerlin, 542 U.S. 348, 358 (2004).
                        CORRELL v. RYAN                     5473
                               D

   Pursuant to our instructions on remand, the district court
conducted an evidentiary hearing on Correll’s ineffective
assistance of counsel claim. The evidentiary hearing lasted
nine days. The district court heard testimony from 17 wit-
nesses, 14 called by Correll (who waived his appearance), and
three called by the government. In addition, the district court
reviewed reams of documents, including Correll’s attorney’s
notes, which were nearly a quarter-century old, and Correll’s
childhood medical records, which were two decades older.

   After outlining all the evidence in a detailed 109-page dis-
position, the district court made several findings. First, as to
the sufficiency of counsel’s consultation with Correll, the
court rejected Correll’s allegation that counsel spent only five
minutes with him between conviction and sentence. Instead,
the district court found that “[p]rior to sentencing, [counsel]
had multiple face-to-face meetings and phone calls with Peti-
tioner” in which he “discuss[ed] with Petitioner the overall
mitigation case and the specific reasons he would present to
the court in favor of a life sentence rather than the death pen-
alty.”

   Second, as to the sufficiency of counsel’s investigation of
possible mitigating evidence, the district court found that
counsel spoke to between 40 and 50 witnesses, including
every member of Correll’s family who would cooperate. The
district court further found that, unfortunately, “[t]he wit-
nesses were not able to provide relevant useful mitigation
information.” In fact, “in many instances, the witnesses only
provided inculpatory and non-mitigating information.”

   The district court did find that counsel’s performance was
constitutionally deficient in two respects: (1) counsel’s failure
to obtain medical treatment records relating to the head injury
Correll suffered at seven years old and (2) counsel’s failure to
thoroughly review Correll’s mental health records. The court
5474                       CORRELL v. RYAN
determined that a reasonable attorney would have investigated
these matters for possible mitigating evidence rather than
relying on his own impression, based on his interaction with
the defendant, that the defendant had no intellectual or psy-
chological deficits that could serve as mitigating evidence.

   Nevertheless, the district court found that Correll was not
prejudiced by these errors. After Correll’s postconviction
counsel developed all the evidence relating to Correll’s head
injury and mental health history, the district court still found
Correll to be a “highly functioning adult” who never suffered
from brain damage or a major psychological disorder. Thus,
the district court found that Correll’s medical and mental
health records provided no substantial evidence of mitigation.
Furthermore, the district court found that much of the new
evidence Correll offered would have been counterproductive
if put before the sentencing judge because it would have
“opened the door for the prosecution to come forward with
strong damaging rebuttal information to counter its mitigating
effect.”

                                    II

   In reversing the district court’s judgment, the majority con-
cludes that the district court committed “clear error” in find-
ing that counsel’s investigation and presentation of possible
mitigating defenses was constitutionally sufficient. Under the
clearly erroneous standard of review, our scrutiny of a district
court’s factual findings must be “significantly deferential, in
that we must accept the district court’s factual findings absent
a definite and firm conviction that a mistake has been com-
mitted.” Hovey v. Ayers, 458 F.3d 892, 900 (9th Cir. 2006)
(quoting Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.
2002)) (internal quotation marks omitted).14 In other words, as
  14
    Because Correll’s petition for a writ of habeas corpus was filed before
the effective date of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, pre-AEDPA law
governs our review. Lindh v. Murphy, 521 U.S. 320, 327 (1997).
                        CORRELL v. RYAN                     5475
long as the district court’s account of the evidence “ ‘is plau-
sible in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the evi-
dence differently.’ ” Phoenix Engineering and Supply Inc. v.
Universal Elec. Co., Inc., 104 F.3d 1137, 1141 (9th Cir. 1997)
(quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74
(1985)).

   Unfortunately, the majority ignores these instructions and
embarks on its own independent examination of the facts
presented to the district court. By contrast, as indicated by its
exhaustive 109-page disposition, the district court’s findings
were well-supported by the facts and reached only after a
thorough review of all available evidence. I simply cannot
agree that the district court’s findings were erroneous at all,
let alone clearly erroneous.

   More alarming than its reconstruction of the record, how-
ever, the majority jumps with startling speed from its new fac-
tual determination that Correll received ineffective assistance
of counsel to its ultimate conclusion that his habeas petition
must be granted. In so doing, the majority ignores Strick-
land’s second requirement, that even if Correll proves ineffec-
tive assistance of counsel, he must also prove that the result
was actually prejudicial. Wiggins, 539 U.S. at 534 (citing
Strickland, 466 U.S. at 692). As the Supreme Court has made
clear, we do not presume prejudice from counsel’s ineffective
assistance. Strickland, 466 U.S. at 693. Rather, even if coun-
sel’s performance was deficient, Correll still bears the “highly
demanding and heavy burden of establishing actual preju-
dice.” Allen, 395 F.3d at 1000 (internal quotation marks omit-
ted) (emphasis added). This burden “affirmatively [to] prove
prejudice” requires Correll to show more than the mere possi-
bility that counsel’s performance prejudiced the outcome.
Strickland, 466 U.S. at 693. Instead, Correll must demonstrate
“a reasonable probability” that, but for counsel’s constitution-
5476                    CORRELL v. RYAN
ally deficient performance, he would have received a lesser
sentence. Id. at 695.

   In assessing prejudice in this case, it is important to remem-
ber that “we are not asked to imagine what the effect of cer-
tain testimony would have been upon us personally,” Stewart
v. Smith, 140 F.3d 1263, 1270 (9th Cir. 1998), or even to
imagine the effect of such testimony on an abstract juror.
Instead, we must determine what the effect of Correll’s new
evidence would have been upon the Arizona sentencing judge
at the time of Correll’s sentencing hearing 23 years ago. Id.
As discussed below, none of the evidence unearthed during
the district court’s evidentiary hearing creates a “reasonable
probability” that Correll would have received a lesser sen-
tence had it been presented at the sentencing phase of his trial.
Accordingly, I cannot conclude that Correll has met the heavy
burden required to establish prejudice.

                               A

   First, Correll’s attorney’s failure to obtain the medical
records relating to Correll’s childhood head injury was not
prejudicial because these records did not, in fact, demonstrate
any brain damage. After receiving testimony from neuropsy-
chologists, the district court found that Correll “did not suffer
any brain injury from the block wall that fell on him when he
was 7 years old.” Quite to the contrary, the district court cred-
ited a neuropsychologist’s testimony that “of all the capital
defendants he has tested, Petitioner is one of the highest func-
tioning.”

   The medical records from the incident support this assess-
ment. After his childhood injury, Correll was diagnosed with
a subgaleal hematoma, which is a bruise or collection of
blood under the scalp, but above the skull. The hematoma
cleared in five days, at which time a doctor described the
seven-year-old Correll as alert and well. I accordingly cannot
agree with the majority’s conclusion that Correll has carried
                       CORRELL v. RYAN                     5477
his burden to establish a reasonable probability that he would
have received a lesser sentence if the records relating to his
childhood head injury had been before the sentencing judge.
Indeed, as we have suggested before, counsel’s failure to
present “mitigating evidence may be irrelevant when no sub-
stantial mitigating evidence is available.” Smith v. Stewart,
189 F.3d 1004, 1013 n.4 (9th Cir. 1999) (citing Gerlaugh v.
Stewart, 129 F.3d 1027, 1042 (9th Cir. 1997)). The medical
records, which led the district court to conclude that Correll
was a “highly functioning adult,” presented no opportunity for
mitigation.

                               B

   In assessing the remainder of Correll’s mitigating evidence,
it is important to emphasize that the majority’s conclusion
that Correll has met the heavy burden of demonstrating actual
prejudice ignores a mountain of precedent which requires us
to consider not only the benefits of the ostensibly mitigating
evidence counsel failed to present, but also its potential draw-
backs. In Darden v. Wainwright, 477 U.S. 168, 186 (1986),
trial counsel’s failure to present any mitigating evidence did
not constitute deficient performance because the presentation
of such evidence would have opened the door to damaging
rebuttal evidence. Similarly, in Burger v. Kemp, 483 U.S. 776
(1987), trial counsel’s failure to present psychological records
did not amount to ineffective assistance because the records
were “by no means uniformly helpful to petitioner,” as they
suggested “violent tendencies” that would have undermined
counsel’s strategy of portraying petitioner’s actions as the
result of another person’s “strong influence upon his will.” Id.
at 793. Based on these cases, we have held that an attorney
who failed to present psychological testimony relating to the
defendant’s antisocial personality disorder was not ineffective
because such testimony “would have allowed the prosecution
during cross-examination and rebuttal to rehash the horrific
details of [the] crimes.” Bonin v. Calderon, 59 F.3d 815, 836
(9th Cir. 1995). Most recently, the Supreme Court, in Wiggins
5478                    CORRELL v. RYAN
v. Smith, 539 U.S. 510 (2003), repeatedly emphasized that the
Darden-Burger line of cases remains in effect. In Wiggins, the
Court held that the petitioner had met his heavy burden of
proving actual prejudice because “Wiggins d[id] not have a
record of violent conduct” that the State could have intro-
duced to offset the mitigating evidence his attorney failed to
offer. Id. at 537. The majority fails to realize that unlike Wig-
gins, much of the new mitigating evidence Correll offers
would have enabled the prosecution to present very damaging
evidence in rebuttal. Indeed, Correll’s mitigating evidence
presents precisely the type of “double edge” the Supreme
Court found lacking in Wiggins’s case. Id. at 535 (distin-
guishing the mitigating evidence presented by Wiggins from
the double-edged evidence presented in Burger, 483 U.S. 776,
and Darden, 477 U.S. 168).

                               1

   I begin with Correll’s new psychiatric evidence, which
would not have significantly helped his case. The district
court found that “there is insufficient evidence to support that
Petitioner has ever suffered from any major mental illness,
whether PTSD [post traumatic stress disorder], a major
depressive disorder, or a bipolar disorder.” The district court
reached this factual finding after two psychological experts
testified that there was no evidence Correll has ever suffered
from these disorders. The sole witness who speculated that
Correll might have suffered from post traumatic stress disor-
der acknowledged that such a diagnosis was “only a possibili-
ty.” The district court found Correll’s self-reporting of bipolar
disorder and severe depression incredible in light of Correll’s
obvious motive to fabricate and in light of the fact that these
diagnoses do not appear in his records and Correll indicated
that he was never given medication to treat them.

  The district court also found that the evidence did not sup-
port Correll’s contention that he was given anti-psychotic
medications while in custody. In reaching this factual finding,
                       CORRELL v. RYAN                     5479
the district court noted that the mental health experts for both
parties scrutinized Correll’s medical records from the Califor-
nia Department of Corrections (“CDC”) and reported the
absence of any indication that anti-psychotic medication was
ever prescribed. Although it appears that Correll was given
Mellaril for a period of time as a juvenile, the government’s
mental health expert, Dr. John Scialli, M.D., testified without
opposition that the dosage—25 milligrams—would have
served as a mild tranquilizer and was far lower than the dos-
age that would be utilized to counteract psychosis (approxi-
mately 625 milligrams).

    Accordingly, had Correll’s attorney thoroughly reviewed
Correll’s mental health records, he would have only had cred-
ible evidence for the diagnosis he already suspected: antiso-
cial personality disorder accompanied by mild depression. As
we have repeatedly acknowledged, a diagnosis of antisocial
personality disorder may be “potentially more harmful to [a]
petitioner than [helpful].” Gerlaugh, 129 F.3d at 1035. We
have explained that, because of its “obvious countervailing
tactical dangers,” such evidence “[i]n its best possible light,
it is a basket of cobras.” Id. Accordingly, in a prior case, “we
c[ould] identify no prejudice flowing from counsel’s failure to
develop” psychiatric testimony relating to a defendant’s anti-
social personality disorder. Id.; see also Darden, 477 U.S. at
186-87 (counsel’s decision not to present mitigating character
or mental-state evidence was sound trial strategy because it
would have opened the door to damaging rebuttal evidence,
including a psychiatric opinion that the defendant had a socio-
pathic personality); Daniels v. Woodford, 428 F.3d 1181,
1204, 1210 (9th Cir. 2005) (indicating that testimony suggest-
ing that a capital defendant is a “sociopath” is aggravating
rather than mitigating); Beardslee v. Woodford, 358 F.3d 560,
583 (9th Cir. 2004) (acknowledging that an antisocial person-
ality diagnosis can be damaging to a capital defendant); Caro
v. Woodford, 280 F.3d 1247, 1257 (9th Cir. 2002) (concluding
that a psychologist’s testimony did not help the defendant’s
mitigation case because it tended “to paint him as a violent
5480                   CORRELL v. RYAN
psychopath”); Clabourne v. Lewis, 64 F.3d 1373, 1384 (9th
Cir. 1995) (noting that mental health records omitted from the
sentencing hearing “hardly turned out to be helpful” because
they indicated that the defendant had “an antisocial personali-
ty”); Williams v. Calderon, 52 F.3d 1465, 1472 (9th Cir.
1995) (“We have no doubt that . . . statements [suggesting that
the defendant is sociopathic] did nothing to advance Wil-
liams’s cause.”).

   Furthermore, had counsel presented Correll’s mental health
records at sentencing, he would have opened the door for the
prosecution to present extremely damaging rebuttal evidence
that would have likely eviscerated the minimal mitigating
impact these records carried. The district court “credit[ed
counsel’s] testimony that the prosecutor, Sidney Davis, had a
reputation for excellent preparation and that she would have
left no stone unturned in her opportunity to rebut any mitiga-
tion evidence presented.” Accordingly, the district court
found that, had Correll’s attorney presented mental health evi-
dence, this “highly skilled” prosecutor would have presented
a great deal of aggravating evidence that was not already
before the sentencing judge, specifically: (1) Correll’s rape of
a female psychotic patient while being treated for his antiso-
cial personality disorder and mild depression; (2) Correll’s
numerous escapes from mental health treatment facilities and
numerous rejections of institutional efforts to provide him
with mental health treatment; (3) an incident where Correll
took hostages in an armed attempt to escape from a mental
health treatment facility; (4) the underlying factual basis of
Correll’s prior convictions for armed robbery; (5) the conclu-
sion of a social evaluation at age 18 that Correll was a danger
to the community and was not a candidate for probation; (6)
additional information showing the efforts of Correll’s parents
to deal with his drug abuse problem and to obtain psychologi-
cal treatment for him following his armed threat against a
teacher at school; (7) Correll’s statement that he had no desire
to work but only wished to enjoy himself; and (8) Correll’s
                        CORRELL v. RYAN                     5481
statement that when he committed the 1978 armed robberies
that it gave him a strong sense of power and excitement.

   Finally, presentation of Correll’s antisocial personality dis-
order at sentencing would have severely undermined coun-
sel’s strategy of arguing that Correll was merely following
Nabors’s lead during the commission of the crimes. Had
counsel introduced evidence of Correll’s antisocial personal-
ity disorder diagnosis, the prosecution would have almost cer-
tainly responded by pointing out that Correll, at age 18,
instigated the armed robbery of three convenience stores at
gunpoint, an effort in which he enlisted the assistance of his
13-year-old brother and 15-year old girlfriend. We have pre-
viously held that counsel’s failure to present psychological
evidence is not prejudicial where it would have distracted the
fact-finder from counsel’s main mitigation theory and other
mitigation evidence. See Bonin, 59 F.3d at 836 (finding that
counsel’s failure to present expert psychological testimony
was not prejudicial because it “would have distracted jurors
. . ., reduced [the defendant’s] credibility with the jury, and
opened the door to powerful cross-examination and rebuttal”);
see also Burger, 483 U.S. at 793 (holding that a petitioner
failed to prove ineffective assistance where the affidavits
detailing the defendant’s behavioral history his attorney failed
to present “are by no means uniformly helpful to petitioner
because they suggest violent tendencies that are at odds with
the defense’s strategy of portraying petitioner’s actions on the
night of the murder as the result of [another person’s] strong
influence upon his will”).

   In sum, the psychological evidence, if presented, would
have demonstrated only that Correll has an antisocial person-
ality with mild depression. Such evidence has tremendous
potential to be more harmful than helpful. Further, such evi-
dence would have opened the door for the prosecution to
introduce a laundry list of extremely damaging information
not already before the sentencing judge and would have crip-
pled Correll’s chances of convincing the sentencing judge that
5482                       CORRELL v. RYAN
he was merely following Nabors’s lead during the crimes.15
Accordingly, contrary to the majority’s conclusion, Correll
cannot prove a reasonable probability that he would have
received a lesser sentence if the available psychological evi-
dence had been before the sentencing judge.

                                    2

   Given the lack of substantial mitigation found in Correll’s
medical and psychiatric records, Correll cannot claim to have
been prejudiced by counsel’s failure to offer further evidence
of Correll’s drug use beyond what he already presented to the
sentencing judge. The district court found that there was no
evidence—other than Correll’s self-serving statements—that
Correll was significantly impaired at the time of the crimes.
Arizona law at the time provided that “[a] defendant’s intoxi-
cation or alcoholism at the time of the offense is a mitigating
circumstance if the evidence shows that it significantly
impaired the defendant’s capacity to appreciate the wrongful-
ness of his conduct or to conform his conduct to the require-
ments of the law.” State v. Zaragoza, 659 P.2d 22, 30 (Ariz.
1983) (emphasis added). The district court specifically found
that Correll’s behavior during the murders indicated he was
not intoxicated:

     [I]t was Petitioner who remained calm when the gun
   15
      While the majority concludes that “a significant portion of that dam-
aging rebuttal evidence was already available through the pre-sentence
report,” Maj. Op. at 5464, it fails to acknowledge what Correll’s counsel
realized, that the introduction of some potentially mitigating evidence
would open the door to a parade of horribles. For example, while the pre-
sentence report summarily discloses Correll’s conviction of three counts
of armed robbery in 1978, Correll’s attorney understandably wanted to
preclude damning rebuttal evidence revealing that Correll enlisted his 13-
year-old younger brother and his 15-year-old girlfriend in these crimes.
Furthermore, the pre-sentence report is silent regarding other extremely
damaging information that the prosecutor would have surely brought to
light in rebutting certain potentially mitigating evidence.
                        CORRELL v. RYAN                     5483
    misfired as Nabors was trying to kill Robin Cady. It
    was Petitioner who encouraged Nabors to remain
    calm as there were no cars coming, to get a shell
    chambered and shoot Cady. Such behavior at the
    time of the crime does not demonstrate intoxication
    and, in fact, undercuts an assertion of intoxication.

See Williams v. Woodford, 384 F.3d 567, 624 (9th Cir. 2004)
(reasoning that there is little basis for believing that drugs
materially affected the defendant’s behavior at the time of the
crimes when the facts of the crimes reflect deliberate and
methodical action).

   Furthermore, no witnesses could have established that Cor-
rell was intoxicated on the date of the crimes. The best evi-
dence Correll can point to would have come from his sister,
who could have testified that Correll used methamphetamine
in the morning on the day before the crimes. Correll was not
prejudiced by counsel’s decision not to present his sister’s tes-
timony, however, because cross-examination would have
eviscerated any remaining residual doubt in the sentencing
judge’s mind as to Correll’s guilt. Correll maintained his
innocence throughout the sentencing proceedings. However,
Correll’s sister knew he was with Nabors at the time of the
crimes and that they had sought a ride out of the state very
soon after the murders occurred. Accordingly, as the district
court found, her testimony would have “totally eliminated any
mitigating weight” and residual doubt from Correll’s assertion
at the guilt phase of his trial that it was his brother, not he,
who had committed the murders. See Allen, 395 F.3d at 1004
(explaining that “mitigation witnesses proffered by [the
defendant] would not have proved helpful given their own
involvement in [the defendant]’s criminal enterprise.”); Wil-
liams v. Woodford, 384 F.3d 567, 624 (9th Cir. 2004) (“[T]he
best thing a capital defendant can do to improve his chances
of receiving a life sentence has nothing to do with mitigating
evidence strictly speaking. The best thing he can do, all else
being equal, is to raise doubt about his guilt.”).
5484                       CORRELL v. RYAN
   The only other witness Correll’s postconviction counsel
presented relating to drug use was Dawn Day, who testified
that she used methamphetamine with Correll during a four
month period from November 1982 until February 1983. We
cannot consider Day’s testimony, however, because Correll
failed to establish that Day was available to testify at his sen-
tencing hearing. See Douglas v. Woodford, 316 F.3d 1079, at
1086 n. 2 (9th Cir. 2003) (explaining that testimony presented
at a district court evidentiary hearing that was not available to
counsel at the sentencing hearing may not be considered for
prejudice purposes). Furthermore, even if Correll had estab-
lished that Day would have been available, Day’s testimony
that Correll used methamphetamine more than one year
before the crime would have provided little support for Cor-
rell’s argument that, at the time of the crime, he was so
impaired that he was unable “to appreciate the wrongfulness
of his conduct or to conform his conduct to the requirements
of the law.” Zaragoza, 659 P.2d at 30.16

   The majority attempts to minimize counsel’s complete
inability to present any corroborating evidence that Correll
either used methamphetamine on the date of the crimes or
appeared intoxicated to anyone he encountered that day by
instead pointing to expert testimony that “gross methamphet-
amine intoxication, unlike gross alcohol intoxication, is not
necessarily apparent to outside observers.” Maj. Op. at 5463.
Consequently, the majority appears content to rely exclusively
on Correll’s self-serving statement that he was intoxicated at
the time of the crimes to reach the conclusion that counsel’s
failure to present further evidence of his drug use was prejudi-
cial. I, on the other hand, would prefer to rely on the credibil-
ity findings made by the district court. Those findings bear
repeating in full:
  16
    Indeed, there was evidence in the record that suggested that Correll
was not intoxicated at the time of the crimes. Specifically, when Correll
and Nabors entered Snelling’s trailer home, the first thing they asked
Snelling was “whether he had any speed.”
                   CORRELL v. RYAN                         5485
The Court does not credit [Correll’s] unsubstantiated
self-report that he abused methamphetamine every
day before the crimes were committed. Petitioner
chose not to testify at the evidentiary hearing; Peti-
tioner chose not to fully cooperate with [the govern-
ment’s drug abuse expert’s] examination of him
regarding the issue of drug abuse. Because of the
obvious motive to fabricate, Petitioner’s self-serving
statements about his drug usage prior to the crimes
is [sic] unreliable and subject to searching skepti-
cism. See, e.g., [State v.] Medrano, 914 P.2d [192,]
227 [(Ariz. 1996) (“the defendant provided most of
the information concerning his use of cocaine in the
past and on the night of the murder, as well as the
drug’s effect on him. Because of the obvious motive
to fabricate, such self-serving testimony is subject to
skepticism and may be deemed insufficient to estab-
lish mitigation.”)]; see also Bernard Smith [v. Stew-
art], 140 F.3d [1263,] 1270 [1998] (evaluating
evidence based on impartial sentencing judge apply-
ing Arizona law); see generally, Strickland, 466 U.S.
at 695 (“The assessment of prejudice should proceed
on the assumption that the decision maker is reason-
ably, conscientiously, and impartially applying the
standards that govern the decision.”). The Court’s
searching skepticism toward Petitioner’s self report
is corroborated by Respondent’s drug abuse expert,
Dr. Matthews, who opined as follows: “Antisocial
personality disorder is characterized by malingering
and deceit; instances of [Petitioner’s] lifelong pattern
of deceptiveness abound throughout his penal and
other records. He has been deceitful about a great
many matters, including his history of substance
abuse. Because of [Petitioner’s] history of deceit, it
is a major clinical error to accept [Petitioner’s] self-
serving view of his condition at the time of the
offense as accurate.
5486                    CORRELL v. RYAN
   Because there was no other evidence to establish that Cor-
rell was intoxicated at the time of the crimes, I cannot agree
with the majority that Correll was prejudiced by counsel’s
failure to present expert testimony regarding the effects of
methamphetamine addiction at the sentencing hearing. Con-
versely, I agree with the district court that counsel’s decision
reflects a reasonable strategic choice. First, the district court
found that “any expert would have to take into account the
underlying facts of the crimes, which show that [Correll] was
involved in deliberative acts, such as planning, conspiring,
avoiding detection, . . . awareness of wrongdoing,” and the
fact that he was “generally orientated [as] to time, place, and
reality.” This would have materially undermined counsel’s
strategy of portraying Correll as merely following Nabor’s
lead. Second, the district court acknowledged that any expert
“would have been forced to utilize hypothetical supposition
regarding [Correll’s] conduct at the time of the crimes,” and
that “[s]uch hypothetical supposition would have opened the
door for contrary rebuttal argument and reiteration by the
prosecution regarding the lack of factual support and incredu-
lity of [Correll’s] alleged intoxicated condition at the time of
the crimes.”

   Yet it is solely on the strength of such “hypothetical suppo-
sition” that the majority now declares that the district court
was “clearly wrong” to conclude that there was no evidence
to support Correll’s assertion that, on the night of the crimes,
he was “grossly intoxicated—to the point of being unable to
appreciate the wrongfulness of his conduct,” as required for
mitigation. Maj. Op. at 5464. The majority points to the testi-
mony of two drug abuse experts presented by Correll’s post-
conviction counsel at the evidentiary hearing. The district
court, however, reasonably declined to credit these experts’
opinions because they were not based on an examination of
Correll but instead were based on a hypothetical set of facts
provided by Correll’s postconviction counsel. As the district
court explained:
                        CORRELL v. RYAN                       5487
    Dr. Sullivan did not examine Petitioner nor did he
    look at Petitioner’s Arizona Department of Correc-
    tions or CDOC records. Rather, Dr. Sullivan was
    asked to assume [a set of] hypothetical facts [that] do
    not accurately or reliably portray Petitioner’s alleged
    drug abuse. . . . [H]is opinion was based on unsub-
    stantiated and unreliable assumptions.

   In addition, Correll’s other expert witness on drug addic-
tion, Dr. Shaw, whom the majority quotes for the proposition
that Correll “may have been experiencing drug-induced para-
noia” at the time of the murders, Maj. Op. at 5461, was “thor-
oughly impeached” at the evidentiary hearing. As the district
court explained, “Dr. Shaw admitted that he only minimally
considered the facts of the crime before reaching his conclu-
sion.” The district court found Dr. Shaw’s opinion “entirely
not credible and wholly speculative” because, like Dr. Sulli-
van’s opinion, it was “based upon hypothetical drug usage at
the time of the crimes that was not established.”

   In stark contract to the hypothetical assumptions on which
Drs. Sullivan and Shaw based their opinions, the district court
found that, except for 229 days, Correll was incarcerated
throughout the nine-year period between October 1975 (when
he was first incarcerated, at age 14) and March 1984 (one
month before the murders) and that Correll “was not a
methamphetamine addict or a long-term abuser of metham-
phetamine during the time he was incarcerated.”

   Consequently, I agree with the district court that counsel’s
failure to present further evidence of Correll’s drug use was
not prejudicial. Counsel had already stated that Correll had
been using alcohol and drugs and presented Snelling’s state-
ment that he smelled alcohol on his captor’s breath. I agree
with the district court that if Correll’s attorney had called an
expert to testify, “it is highly likely any lay witness basis for
the expert’s opinion could have been cross-examined at sen-
tencing and impeached by virtue of the fact that no lay wit-
5488                       CORRELL v. RYAN
ness could testify that Petitioner was intoxicated at the time
of the crimes.” I also credit the district court’s observation
that “if an expert had testified based solely on Petitioner’s
self-reporting . . . it is very likely that the expert’s opinion
would have been severely undermined by undisputed evi-
dence that Petitioner had spent almost 9 of the last 10 years
incarcerated with little or no access to drugs.”

   Nevertheless, the majority’s independent review of the
expert testimony leads it to conclude that the evidence
“clearly established that methamphetamine use, in the quanti-
ties that Correll indisputably used the drug on a regular basis,
would significantly impair judgment and consciousness with-
out causing perceptible symptoms of intoxication.” Maj. Op.
at 5464 (emphasis added). I do not quarrel with the notion that
severe use of methamphetamine may significantly impair
judgment and consciousness. Whether the symptoms of
methamphetamine intoxication are perceptible or not, how-
ever, it is quite disputable that Correll used the drug “on a
regular basis” and it is entirely unproven that Correll used the
drug on the date of the crime.

  Accordingly, I share the district court’s inability to find that
Correll was prejudiced by counsel’s decision not to present
additional evidence of drug use beyond what he already had.17
  17
     I would further note that a drug defense likely would have evoked less
sympathy from an Arizona sentencing judge 22 years ago than it does
from the court today. See Mayfield v. Woodford, 270 F.3d 915, 931 (9th
Cir. 2001) (crediting testimony that there were “no death penalty cases
tried in San Bernardino County prior to 1983 where a drug defense had
been successful in gaining either an acquittal or in reducing the sentence
from death to life without parole.”). The sentencing judge very likely
would have taken note of the fact that Correll never sought treatment for
his substance abuse problem and repeatedly secured his removal from the
mental health programs in which he was placed either by escaping or by
violently assaulting the staff.
                            CORRELL v. RYAN                             5489
                                      3

   Finally, Correll has presented no credible evidence about
his childhood that his attorney could have placed before the
sentencing judge other than the evidence the sentencing judge
already had before him. The district court, who is in the best
position to determine credibility, found Correll’s uncorrobo-
rated allegation that his mother banged his head against a
kitchen table incredible. In regard to the head injury Correll
suffered at age seven when a cinder block wall fell on him,
the district court expressly found that Correll’s parents were
not negligent in securing medical care. After reviewing the
medical records presented at the evidentiary hearing, the dis-
trict court found that Correll’s parents took him to the family
doctor the same day the accident occurred and “acted reason-
ably in caring for Petitioner, which included two visits to their
family doctor, one emergency room visit and a follow-up visit
for additional specialized testing.”

   The majority cites evidence of Correll’s family history pro-
vided by Reverend Curry, whom the district court found “was
not an available witness” for counsel at the time of the sen-
tencing hearing. The district court found “that if [Reverend
Curry] had been contacted by [counsel] prior to sentencing, he
would have informed him that he would not discuss informa-
tion about Petitioner or appear at sentencing because it was
against California law for him to discuss former residents of
the CYA.”18 Accordingly, Reverend Curry’s testimony cannot
  18
     While the majority quotes Reverend Curry’s testimony that he “would
have unhesitatingly come to help” Correll, see Maj. Op. at 5446 n.2, I
credit the district court’s finding that at the time of the sentencing hearing
he was unavailable to help. Reverend Curry testified that he “cannot offer
testimony or assertions regarding people who have been in California
Youth Authority [because] [i]t is forbidden by law.” Reverend Curry testi-
fied that while others could contact him, he “could not make contact with”
counsel and when he “talked with [his] supervisors about it, . . . they said
no.” Furthermore, defense counsel testified that when he contacted Rever-
end Curry’s wife, she informed him that the Reverend “didn’t really want
to be involved.”
5490                    CORRELL v. RYAN
factor into the prejudice analysis. See Douglas, 316 F.3d at
1086 (explaining that testimony presented at a district court
evidentiary hearing that was not available to counsel at the
sentencing hearing may not be considered for prejudice pur-
poses).

   The majority suggests that counsel should have presented
evidence of Correll’s parents’ religious fanaticism as Jeho-
vah’s Witnesses, specifically their decision, “[a]fter Correll
was shot in the arm at age 14,” to “cut off all communication
with their son and consider[ ] him dead, as required by their
church’s teachings.” Maj. Op. at 5460. Of course, the majori-
ty’s analysis ignores the district court’s finding that, by age
14, Correll had “already been arrested several times,” that his
parents had responded by providing him with “extensive psy-
chological treatment,” and that only after “another arrest” did
his parents allow him to become a ward of the state.

   Similarly, the majority suggests that counsel should have
presented evidence that Correll’s parents used corporal pun-
ishment “in response to his obvious substance abuse prob-
lems.” Maj. Op. at 5460. Once again, the majority ignores the
district court’s finding that, had counsel emphasized such evi-
dence, the prosecution would have countered with evidence
that Correll’s parents took him to a private psychologist and
participated in a six-month treatment program with him after
Correll was expelled from the eighth grade for threatening a
teacher with a knife.

   Finally, the majority indicates that evidence of incest in the
family could have served as mitigating evidence. Maj. Op. at
5459. At the evidentiary hearing, Correll’s sister Patty testi-
fied that their father had been arrested and convicted of child
molestation. Correll’s sister Robin testified that she suffered
“repeated and continual” sexual molestation at the hands of
her father and her brothers, specifically Correll himself.
Because the prosecution almost certainly would have pres-
ented such evidence in rebuttal, Correll cannot claim that he
                       CORRELL v. RYAN                     5491
was prejudiced by counsel’s failure to present evidence of
incest as a mitigating fact.

   Accordingly, on balance, presentation of family history evi-
dence would have been counterproductive. I cannot agree
with the majority’s conclusion that Correll has met his burden
to prove that, had counsel presented more detailed evidence
about his childhood, he would have received a lesser sen-
tence.

                              III

   The sum of the majority’s analysis in this case simply evis-
cerates the requirement that a habeas petitioner demonstrate
actual prejudice in order to prevail on a claim for ineffective
assistance of counsel. See Wiggins, 539 U.S. 510. Not satis-
fied with merely reconstructing the facts, the majority also
reinvents Supreme Court authority, asserting that Correll pre-
sented evidence sufficient to establish a presumption of preju-
dice under Wiggins, and that this “classic mitigation evidence
. . . certainly had the potential to persuade at least one fact-
finder that Correll was, at the time of the crimes, incapable of
appreciating the wrongfulness of his conduct.” Maj. Op. at
5462. These statements, of course, are patently absurd, as
even a cursory review of the facts in Wiggins reveals that Cor-
rell fell drastically short of carrying the demanding burden of
proving actual prejudice the Supreme Court found sufficient
in that case.

   In holding that Wiggins had met his burden to prove actual
prejudice, the Supreme Court explained that Wiggins “experi-
enced severe privation and abuse in the first six years of his
life while in the custody of his alcoholic, absentee mother,”
that he suffered “physical torment, sexual molestation, and
repeated rape” during his subsequent years in foster care, and
that he spent time homeless. Id. at 512. Perhaps most criti-
cally, Wiggins was mentally retarded. Id.
5492                   CORRELL v. RYAN
   In stark contrast, Correll’s history, which reveals that he
was “a highly functioning adult” at the time of his crimes,
comes nowhere close to the “powerful mitigating narrative”
present in Wiggins. Id. at 513. Furthermore, the Supreme
Court noted that Wiggins lacked a “record of violent con-
duct,” id. at 537, and found no evidence “suggest[ing] that a
mitigation case, in its own right, would have been counterpro-
ductive.” Id. at 525. Correll’s history, on the other hand, lit-
tered with numerous examples of his violent and destructive
lifestyle, stands at the very opposite end of the spectrum.
Indeed, the district judge, who was in the best position to
evaluate all the evidence, concluded that, after considering
both the positive and negative repercussions of Correll’s new
evidence, the balance of aggravation and mitigation had
“barely been altered.”

   Viewed against the standard set forth by Strickland and
rearticulated in Wiggins, the majority’s conclusion that the
insubstantial mitigating evidence Correll now offers was suf-
ficient to meet the “highly demanding and heavy burden of
establishing actual prejudice” not only misapplies the test
these cases impose, it essentially writes the prejudice require-
ment out of our circuit jurisprudence altogether.

  Accordingly, I must respectfully dissent.
