                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JOHN DOE,                                No. 15-99006
               Petitioner-Appellant,
                                            D.C. No.
                 v.                        [Redacted]

ROBERT L. AYERS, JR., Warden, of
California State Prison at San             OPINION
Quentin,
                Respondent-Appellee.


      Appeal from the United States District Court
        for the [Redacted] District of California
         [Redacted], District Judge, Presiding

            Argued and Submitted [Redacted]
                      [Redacted]

                 Filed March 31, 2015

      Before: Harry Pregerson, Stephen Reinhardt,
      and Kim McLane Wardlaw, Circuit Judges.

              Opinion by Judge Reinhardt
2                          DOE V. AYERS

                           SUMMARY*


                Habeas Corpus/Death Penalty

    The panel affirmed in part and reversed in part the district
court’s judgment on California state prisoner John Doe’s
habeas corpus petition challenging his murder conviction and
capital sentence, and remanded with instructions to grant the
writ with respect to the penalty phase and return the case to
the state court to reduce Doe’s sentence to life without parole,
unless the state elects to pursue a new capital sentencing
proceeding within a reasonable amount of time as determined
by the district court.

    The panel wrote that because Doe filed his petition prior
to the passage of the Antiterrorism and Effective Death
Penalty Act of 1996, the parties agree that his petition is
governed by pre-AEDPA standards of review.

    The panel agreed with the district court that Doe is not
entitled to reversal of his conviction on the basis of the claims
presented in the petition: ineffective assistance of counsel
during the guilt phase, use of peremptory strikes in a racially
discriminatory matter in violation of Batson v. Kentucky,
improper withholding of impeachment evidence in violation
of Brady v. Maryland, extraneous evidence of prior crimes,
and cumulative prejudice.

    The panel agreed with the district court that counsel was
ineffective in failing to investigate and present mitigating

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

evidence at the penalty phase. The panel wrote that the
evidence that counsel’s performance at the penalty phase fell
well below the constitutional minimum is overwhelming.

    The panel held that there is a substantial probability that
there would have been a different result at the penalty phase
had counsel’s performance not been ineffective, and that the
district court therefore erred in concluding that counsel’s
deficient performance did not prejudice Doe. The panel
wrote that the aggravating evidence the jury considered was,
for a capital case, fairly minimal, and that counsel’s penalty-
phase evidentiary presentation was brief, haphazard, and
thoroughly underwhelming. The panel wrote that the
powerful evidence introduced in the habeas proceedings at
the district court represented the fruits of an appropriate
mitigation investigation, and concluded that the evidence of
Doe’s repeated rape in prison as a youngster and its
detrimental effects on his mental health is sufficient to
establish prejudice. The panel wrote that additional
mitigating evidence of Doe’s abusive childhood and
substance abuse, which counsel likewise failed to present,
only strengthens that conclusion. The panel wrote that its
finding of prejudice is supported by a comparison with other
capital cases, and rejected the state’s arguments, regarding
causal nexus and rebuttal evidence, against the conclusion
that counsel’s deficient penalty-phase performance prejudiced
Doe.


                         COUNSEL

John R. Grele (argued), Tiburon, California; and David W.
Fermino, Sideman & Bancroft, San Francisco, California, for
Petitioner-Appellant.
4                            DOE V. AYERS

Barry J. Carlton (argued), Supervising Deputy Attorney
General, San Diego, California, for Respondent-Appellee.


                               OPINION

REINHARDT, Circuit Judge:

                           I. Introduction

   In 1984, a house in California was burglarized and a
number of items were stolen. K.H. and M.H. resided there
with M.H.’s young children, a live-in babysitter, L.R., and her
daughter. Petitioner John Doe,1 who was living at the time in
a vacant house adjacent to the property, was arrested in
connection with the burglary, but then released.

    Soon after, while K.H. and M.H. were not at home, their
house was burglarized again. L.R. was murdered, having been
beaten, stabbed, and strangled. Her body was found supine on
the bed in the master bedroom, with her hands bound behind
her back. She was naked from the waist down, with her legs
open, and a vibrator near her body. A number of items were
stolen.


    1
    In this case, we discuss disturbing evidence of sexual abuse suffered
by the Petitioner. Because of the possibility that publication of this
information might place him at risk in a prison environment, much of the
record in this habeas proceeding was filed under seal. However, this case
turns on the weight of the evidence that trial counsel failed to discover and
present; it is powerful in large part because of the painful details. After
considering the views of the parties, we have ordered the record unsealed
for the limited purpose of discussing the evidence in this opinion, but have
replaced Petitioner’s name with Doe and the names of others with initials.
We have also omitted citations to the procedural history of this case.
                              DOE V. AYERS                                     5

    After an investigation, Doe was arrested. He was charged
with one count of murder and two counts of burglarizing the
home. Special circumstances of felony-murder-burglary and
felony-murder-rape were alleged; also alleged was a prior
felony conviction for an armed robbery committed in the
Southern state where Doe grew up. J.B., who had never
before worked on a case in which the death penalty was at
issue, was appointed to represent Doe.2 He hired an
investigator, D.S., who interviewed potential witnesses in
California and in Doe’s home state.3

    Doe pleaded not guilty to the charges and denied the
allegations. The jury returned verdicts finding Doe guilty of
murder and both counts of burglary. The jury also rendered
a finding of true on the felony-murder-burglary special-
circumstance allegation, and a finding of not true on the
felony-murder-rape special-circumstance allegation. At the
penalty phase, the jury returned a sentence of death.4


 2
   J.B. also stated that he had “never observed the penalty phase of a trial
or mock trial.”
  3
    For the sake of clarity, we include a brief timeline of Doe’s life and
criminal history. He grew up in the South. In 1976, at the age of 17, he
was convicted of robbery and incarcerated in a state prison. He was
released in 1982. By 1983, Doe had moved to California; he was
convicted of murder there in 1984.
 4
   In California, a capital trial consists of two phases. In the first, the guilt
phase, the jury decides whether the defendant committed murder and also
whether one of a number of special circumstances applies. If the jury
determines that the defendant is guilty and that one of the special
circumstances applies in the case, a separate penalty phase commences.
In that phase, the jury weighs aggravating and mitigating evidence to
determine whether the death penalty is appropriate. Tuilaepa v. California,
512 U.S. 967, 969 (1994) (citing Cal. Penal Code § 190.3). The Supreme
6                            DOE V. AYERS

    The California Supreme Court denied Doe’s direct appeal,
and the Supreme Court denied his petition for certiorari. The
California Supreme Court also denied Doe’s habeas petition,
twice.

    Doe filed a federal habeas petition, which was also
denied. The district court affirmed the conviction, rejecting a
number of guilt-phase challenges. As for Doe’s claim that he
had received ineffective assistance of counsel at the penalty
phase of his trial, the court found that counsel for Doe had
performed deficiently in failing to investigate and present
various categories of mitigating evidence. However, the
district court concluded that Doe could not establish that he
had been prejudiced as a result, as required under Strickland
v. Washington, 466 U.S. 668, 695 (1984).

    We agree with the district court that Doe is not entitled to
reversal of his conviction on the basis of the claims presented
in the petition before us. With respect to the penalty-phase
claim, we agree that defense counsel was ineffective but
disagree with the conclusion that Doe was not prejudiced.
Accordingly, we affirm Doe’s conviction but reverse as to his
sentence, and instruct the district court to grant the writ.




Court has long recognized that such bifurcated trials serve an important
role in ensuring that “the determination of punishment [in capital cases]
. . . reflect[s] ‘the evolving standards of decency that mark the progress of
a maturing society[,]’” because “[m]uch of the information that is relevant
to the sentencing decision may have no relevance to the question of guilt,
or may even be extremely prejudicial to a fair determination of that
question.” Gregg v. Georgia, 428 U.S. 153, 190 (1976) (citations omitted).
                        DOE V. AYERS                          7

                  II. Standard of Review

     This case is unusual in that Doe filed his federal habeas
petition in 1995, prior to the passage of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
Accordingly, the parties agree that his petition is governed by
pre-AEDPA standards of review. See Comer v. Schriro,
480 F.3d 960, 980 (9th Cir. 2007). “Under these standards
state court judgments of conviction and sentence carry a
presumption of finality and legality and may be set aside only
when a state prisoner carries his burden of proving that his
detention violates the fundamental liberties of the person,
safeguarded against state action by the Federal Constitution.”
Id. (citations and internal quotation marks omitted). “A state
court’s conclusion that a constitutional error was harmless is
reviewed de novo.” Daniels v. Woodford, 428 F.3d 1181,
1196 (9th Cir. 2005). In this analysis, the additional deference
required by AEDPA does not apply.

    This court reviews de novo the district court’s denial of
habeas relief. See Alcala v. Woodford, 334 F.3d 862, 868 (9th
Cir. 2003). Underlying factual determinations made by the
district court are reviewed for clear error. See Hovey v. Ayers,
458 F.3d 892, 900 (9th Cir. 2006). Determinations by the
district court of legal questions or mixed questions of law and
fact are reviewed de novo. Frierson v. Woodford, 463 F.3d
982, 988 (9th Cir. 2006).

                  III. Guilt-Phase Claims

    In the petition before us, Doe raises a number of
challenges to his conviction, all of which were rejected by the
district court. We discuss these claims only briefly, as we
agree with the result reached by the district court.
8                       DOE V. AYERS

                        A. Rule 60(b)

    First, Doe asserts that the district court abused its
discretion in denying his motion to vacate the judgment in
which it denied his habeas petition under Fed. R. Civ. P.
60(b). Doe requested relief under Rule 60(b) based on newly
discovered physical evidence that was in the possession of the
state. He alleges that the state withheld from his prior habeas
counsel DNA and fingerprint evidence from the crime scene
and from a related murder that it tested post-trial and was not
a match to Doe. He also alleges that his prior habeas counsel
was negligent in failing to pursue claims based on this
evidence once she learned of it.

    Doe’s Rule 60(b) claims have a complicated procedural
history:

    In March 2005, while the present petition was still
pending before the district court, Doe sent a letter to the court
stating that he no longer wanted his appointed attorneys to
continue to represent him, in part because they refused to
investigate his claims of actual innocence. Two weeks after
he reiterated that request in June, the district court denied
Doe’s request, and simultaneously denied his habeas petition.
Doe appealed the denial of his motion for substitution of
counsel, and we appointed new (present) habeas counsel, who
filed his Rule 60(b) motion; the district court denied it. After
consolidating Doe’s appeals, we held that the district court
had abused its discretion in denying Doe’s request for
substitution of counsel. We vacated the district court’s denial
of this request, together with its denial of Doe’s petition for
writ of habeas corpus, and remanded for further proceedings
in which Doe’s newly-appointed counsel would have the
                            DOE V. AYERS                                9

opportunity to make additional submissions to the district
court.

    The Supreme Court granted certiorari and reversed.5 It
concluded that we had erred in holding that the district court
abused its discretion in rejecting Doe’s request for new
counsel. In so doing, it noted that the evidence at issue “might
have established a Brady claim, a claim of ineffective
assistance of counsel for failure to adequately investigate the
murder, or a claim of innocence, especially given that no
physical evidence tied Doe to the crime and that he was
convicted based in part on recanted testimony. The Court
went on to say, however, that all of those claims would have
been new, and that as the district court subsequently found in
ruling on the Rule 60(b) motion, the physical evidence was
not related to the claims previously presented in Doe’s habeas
petition. Because these claims were new claims for relief on
the merits, and did not attack a defect in the integrity of the
proceedings, Doe was required to raise them not in a Rule
60(b) motion, but in a successive habeas petition. Gonzalez
v. Crosby, 545 U.S. 524, 529–32 (2005).6 We therefore do not
consider them here, but may do so in the future if Doe is



 5
     Citation omitted.
   6
     We note that Doe may still timely bring such a petition, because he
filed – and we accepted as a protective petition under Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005) – an application to file an
amended successor petition. Proceedings on that petition were stayed
pending resolution of this one; once the mandate issues in the case we now
consider, we will determine whether Doe’s successive petition makes a
prima facie showing under the actual innocence prong of 28 U.S.C.
§ 2244(b)(2)(B). See Thompson v. Calderon, 151 F.3d 918, 923–25 (9th
Cir. 1998) (en banc).
10                         DOE V. AYERS

subsequently granted the right to file a second or successive
petition.

            B. Ineffective Assistance of Counsel

     Second, Doe alleges that his trial counsel, J.B., provided
ineffective assistance of counsel during the guilt phase of his
trial. J.B.’s performance at the guilt phase of Doe’s trial was
certainly subpar. He failed to interview two young children
who were the only eyewitnesses to the murder and who, in
initial police reports, identified the killer as white (Doe is
black). Although the failure to even interview the only
eyewitnesses to the crime was unquestionably deficient
performance, J.B. did offer a couple of reasonable
justifications for his decision not to put them on as witnesses:
the children appeared unreliable, and the prosecutor agreed
not to tell the jury that children were present at the time of the
murder if J.B. did not call them to testify.7

    J.B. also failed to follow up on a potential alibi witness,
C.L., with whom Doe claimed that he had gone drinking the
night of the murder. During an interview with D.S., C.L. said
that it was more likely than not that Doe was with him at a
local bar on the night of the murder, given that the murder
occurred on a Thursday and C.L. and Doe always went out
drinking on Thursday nights. Because C.L. had no specific
recollection of that particular evening, he told D.S. that he
would attempt to find more definite support for the alibi. D.S.
provided J.B. with a copy of a report summarizing his
interview with C.L.; however, J.B. never attempted to contact


  7
    It also appears the J.B. may have wanted to avoid traumatizing the
children, which would not have been a legitimate reason for deciding not
to call them.
                              DOE V. AYERS                         11

C.L. again until, just before trial, when he tried to subpoena
him as a trial witness.8 Then, when service was initially
unsuccessful, J.B. made no further attempt to track him down.
J.B. also acted in an objectively unreasonable way when he
failed to call a blood spatter expert who stated in his report
that had Doe committed the murder, he would have been
spattered with blood. J.B. never asserted a strategic reason for
not calling the blood spatter expert, and the arguments raised
by the state to undermine the probative value of this evidence
(suggesting that Doe would have had time to wash the blood
off, and that the witness who spent time with him later that
evening did not see him in bright light) provide no reason not
to present this testimony.

    Additionally, Doe argues that J.B. failed to investigate
and challenge the reliability of one of the state’s witnesses,
P.F., a girlfriend-turned-informant who testified that she
bumped into Doe the night of the murder, that he left her
alone during the time the crime was committed, and that he
returned with a bit of blood on his hand and carrying
distinctive items stolen from the home in which L.R. was
killed. P.F. testified that he told her that he had “just finished
beating up a woman.” Later, she taped a conversation with
Doe, during which he made inculpatory statements.

    There was good reason to doubt the reliability of P.F.’s
testimony. Two women who knew her told D.S. that she had
a reputation for lying. However, neither D.S. nor J.B.
interviewed B.P., one of the two people P.F. said she had
been walking with when she encountered Doe that evening.
When contacted later by habeas counsel, B.P. contradicted
P.F.’s story, stating convincingly that she knew she had not

 8
     J.B. never asserted a strategic reason for not calling C.L.
12                     DOE V. AYERS

been out with P.F. that night. P.F. had been in a bicycling
accident shortly prior to the date of the crime, and a number
of people stated in declarations that she had suffered from
significant memory loss for months. P.F. essentially admitted
in a declaration that, because she was still recovering from
the accident, she could not have been with Doe on the night
of the murder. It also appears that she was suffering cognitive
deficits resulting from the combination of a medication and
alcohol. Doe argues that in addition to impeaching P.F. based
on her reputation for dishonesty and cognitive deficits, J.B.
should have asked her about the extent to which the police
appear to have helped her fill holes in her memory.

     However, J.B. did impeach P.F. to a significant degree.
He elicited testimony about the seriousness of her head injury
and the fact that she was taking medication and drinking
alcohol on the night of the murder. He also elicited testimony
that she had previously made false statements. He
demonstrated that the moon was not full, as she had stated,
the night of the murder, and that items she claimed to have
seen that night in the vacant house had been removed
previously. Finally, he prompted her to admit that she had not
initially remembered the date of her interaction with Doe, and
that the police had supplied her with it. We agree with the
district court that while J.B. could have done a much better
job of impeaching P.F., his efforts in this respect were not
constitutionally inadequate. The additional impeachment
evidence would have been largely cumulative, albeit stronger,
but the failures regarding impeachment of P.F. are of
comparatively little consequence, as the most important
portion of her testimony was the introduction of her recorded
conversation with Doe that served to corroborate the
circumstantial evidence of his guilt.
                             DOE V. AYERS                                13

    Lastly, Doe asserts that J.B. should have introduced
evidence that K.H. was dealing drugs out of his home, that he
had argued with L.R. shortly before her death and had
previously assaulted someone, that neighbors reported
domestic problems, and that L.R. had expressed to M.H. her
fear that her wild life would end before her next birthday. The
state is correct that evidence suggesting K.H.’s culpability
would have been excluded under People v. Hall, 41 Cal. 3d
826, 833 (1986), because for third party evidence to come in,
it must demonstrate more than “mere motive or opportunity.”
As for the evidence going more generally to the dangerous
circumstances in which the victim lived, we do not believe it
would have created significant doubt in the minds of the
jurors.

    J.B. certainly did not provide high-quality representation
to Doe at the guilt phase of his trial. However, he had a
strategic justification for not calling the child witnesses.
While he offered no such justification for his failure to follow
up with the alibi witness, call the blood spatter expert, or
demonstrate the dangerous environment in which the victim
lived, it appears that none of this evidence would have been
particularly persuasive. Failing to impeach P.F., the
prosecution’s most important witness, would have been a
very serious error, but J.B. did offer substantial impeachment
evidence. Hence, we conclude that Doe has not shown
prejudice.

    Decisively, the prosecution’s strongest evidence – which
is not addressed by any of the claims Doe raises here9 – was


 9
   Doe also claims that J.B. was ineffective for his failure to help the jury
correctly interpret his statements on this recording. However, J.B. did in
fact suggest to the jury that Doe might have made such statements in an
14                          DOE V. AYERS

the taped conversation between him and his girlfriend, P.F.,
during which, as the state argues, Doe made inculpatory
statements. While Doe at one point denied involvement and
never explicitly confessed, he made a number of very
damning statements in regard to the murder. He warned:
“They can’t prove a motherfuckin’ thing, not unless you open
your motherfuckin’ mouth.” He added: “Baby what you fail
to realize, how the motherfuckers they gonna prove I was
there? . . . There ain’t no motherfuckin’ fingerprints, ain’t no
fuckin’ where in there, and ain’t no fuckin’ body seen me go
in there and leave out of there.” In response to a request to
tell her “what the fuck happened over there,” he said: “Why
should I, so you can go back and tell [the police?]” When she
stated that she had seen blood on him that night, he replied,
“Ain’t on me no more.” Because of the strength of this
evidence, we conclude that even if J.B. had performed
adequately, there is not a reasonable probability that the jury
would have acquitted Doe of murder.

                              C. Batson

    Third, Doe claims that the prosecutor at his trial used
peremptory strikes in a racially discriminatory manner, and
that J.B. was ineffective for his failure to raise an objection.
Four black veniremembers remained after excuses for
hardship and death qualification; two were struck by the
prosecutor, a third was removed for cause, and the remaining
one was empaneled. Doe contends that J.B. was ineffective
for failing to challenge these strikes under Batson v.
Kentucky, 476 U.S. 79 (1986). In fact, J.B. did raise such a


effort to end the conversation. While the other “interpretive lens[es]” Doe
proposes could possibly have been helpful at trial, J.B.’s performance in
this respect was not unreasonable.
                            DOE V. AYERS                              15

challenge, demanding reasons before the black jurors were
struck, but the trial court ruled – correctly – that it was
premature. For reasons passing understanding, J.B. never
renewed his request after the black jurors were removed from
the venire. This failure made it necessary for Doe to raise the
issue of discriminatory jury selection through an ineffective
assistance of counsel claim.

    Doe is correct that this failure constituted deficient
performance. Additionally, though, Doe has the burden to
demonstrate prejudice by showing that there is a reasonable
probability that the claim J.B. failed to raise at trial would
have prevailed, either at trial or on appeal. Strickland,
466 U.S. at 694. He cannot do so.

    In order to prevail on a Batson claim, Doe would have
needed to make a prima facie showing that the prosecutor
exercised his peremptory strikes on the basis of race. To show
that he could have done so, he relies on the statistically
disparate use of strikes, and on the fact that the prosecutor
asked black – but not white – veniremembers whether their
race might influence their judgment. While the prosecutor’s
disparate use of strikes and selective questioning is troubling,
in a recent and similar case, Carrera v. Ayers, 699 F.3d 1104,
1110–11 (9th Cir. 2012) (en banc), cert. denied, 133 S. Ct.
2039 (2013), we concluded that under the standard that would
have applied at Doe’s trial and on direct appeal,10 such a

 10
    Id. at 1110. (“We must evaluate Carrera’s ineffective assistance claim
under the law the California Supreme Court would have applied on direct
appeal in 1990. When Carrera’s appeal was decided, the United States
Supreme Court’s decision in Johnson [v. California, 545 U.S. 162 (2005)
(holding that the People v. Wheeler, 583 P.2d 748 (Cal. 1978) and Batson
standards are different, and that the less demanding Batson standard
controls)] was still fifteen years in the future. We therefore apply
16                          DOE V. AYERS

statistical disparity combined with questions about racial bias
posed only to veniremembers of a particular racial or ethnic
group was insufficient to show a “strong likelihood” that the
strikes were made “because of [the veniremembers’] group
association,” and therefore insufficient to demonstrate
prejudice.11 We are bound by that precedent, so we deny
relief with respect to the claim that J.B. was ineffective for
failing to properly make a Batson challenge.

                               D. Brady

    Fourth, Doe argues that the prosecutor improperly
withheld impeachment evidence – namely, that the police
working on his case had interceded on behalf of M.H. in a
welfare fraud and perjury case. The extent of the intercession,
if any, remains unclear; there is no evidence in the record of
any deal, except for a notation in M.H.’s file by an
unidentified person that she was “very important to [a] case.”
Whether or not this constituted a violation of Brady v.
Maryland, 373 U.S. 83 (1963),12 however, Doe cannot


Wheeler’s ‘strong likelihood’ standard, rather than Batson’s ‘raise an
inference’ standard, in determining whether Carrera would have been able
to establish a prima facie case . . . .”).
 11
      We stated in Carrera, 699 F.3d at 1111:

          It is true that the prosecutor asked Hispanic-surnamed
          venirepersons whether the fact that the defendant was
          “of Spanish descent” would affect their deliberations,
          and that he did not ask potential white jurors similar
          ethnicity-based questions. However, asking questions
          about potential bias is the purpose of voir dire.
 12
    Certainly, failure to disclose an agreement to put in a good word for
M.H. might have violated Brady. Hovey, 458 F.3d at 916–17.
                         DOE V. AYERS                           17

establish prejudice. See Strickler v. Greene, 527 U.S. 263,
281–82 (1999). M.H.’s testimony simply described items
taken from the house during the murder-burglary, which the
prosecution compared to the (nearly identical) list of items
P.F. reported seeing in Doe’s possession. Especially given
that the jury already knew that M.H. had been charged with
perjury, it is unlikely to have further discounted her testimony
upon learning that she received some indefinite benefit for
her cooperation. What’s more, Doe’s recorded statements,
discussed previously, were strong enough evidence to support
a conviction even if the jury had some doubt about M.H.’s
credibility.

                E. Evidence of Prior Crimes

    Fifth, Doe asserts that the jury received extraneous
evidence of prior crimes he committed, and that this
prejudiced him. Specifically, he complains that during an
hour-long mid-trial examination of exhibits, but not during its
eventual deliberations, the jury had access to unredacted
transcripts of Doe’s recorded conversation with P.F.
containing references to a prior burglary and a prior assault.
However, these references were extremely brief and buried in
a transcript containing much more compelling evidence of
Doe’s guilt. Furthermore, the jurors were questioned about
their review of the transcripts after the conclusion of the
penalty phase, and none remembered reading anything about
assaults or burglaries in the transcript. We agree with the
district court that this evidence, even if the jury did see it, was
harmless.

    Doe also challenges the trial judge’s decision to allow the
prosecutor to impeach a character witness, D.P., Doe’s
girlfriend in California, by asking her whether she had heard
18                      DOE V. AYERS

that he had been accused of rape in his home state and
whether this affected her opinion of him. (It did not.)
Impeachment of character witnesses with questions about
prior bad acts of the defendant, even if unproven, is common
practice. See Fed. R. Evid. 405(a). Thus, this claim fails.

                 F. Cumulative Prejudice

    Sixth, and finally, Doe claims that these guilt-phase errors
were cumulatively prejudicial. Because Doe’s guilt-phase
claims do not call into question the veracity or admissibility
of the most damning evidence of his guilt – his own recorded,
inculpatory statements – we hold that, on the record before
us, he cannot demonstrate prejudice with respect to his
conviction.

  IV. Penalty-Phase Ineffective Assistance of Counsel

     More important, for purposes of this opinion, Doe
contends that his counsel was constitutionally ineffective for
failing to investigate, and present at the penalty phase of his
trial, certain mitigating evidence. That evidence relates to
sexual abuse he suffered while previously incarcerated in a
notorious prison in the South, as well as to mental illness,
neglect and abuse he suffered during his childhood, and
substance abuse. To prevail on this claim, Doe must show
both that counsel was deficient and that he was prejudiced as
a result. Strickland, 466 U.S. at 687–88.

    Deficient performance requires a showing that “counsel’s
representation fell below an objective standard of
reasonableness.” Id. at 688. Defense counsel is “strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable
                        DOE V. AYERS                         19

professional judgment.” Id. at 690. To rebut this presumption,
Doe must show that J.B. did not act “reasonabl[y] considering
all the circumstances.” Id. at 688.

      “No particular set of detailed rules for counsel’s conduct
can satisfactorily take account of the variety of circumstances
faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant.” Id. at
688–89. However, “[r]estatements of professional standards
. . . can be useful as ‘guides’ to what reasonableness entails
. . . to the extent they describe the professional norms
prevailing when the representation took place.” Bobby v. Van
Hook, 558 U.S. 4, 7 (2009). At the time of Doe’s trial in
1987, the prevailing professional norms, as outlined by the
ABA Standards, required that a lawyer “conduct a prompt
investigation of the circumstances of the case and [] explore
all avenues leading to facts relevant to the merits of the case
and the penalty in the event of conviction,” and “called for
[trial] counsel to cover several broad categories of mitigating
evidence.” Id. at 7, 11 (citation omitted). The commentary to
the standards made clear that “information concerning the
defendant’s background, education, employment record,
mental and emotional stability, family relationships, and the
like, will be relevant . . . .” Id. at 7–8.

    “[D]eath is different[.]” Ring v. Arizona, 536 U.S. 584,
587 (2002). So too are the lengths to which defense counsel
must go in investigating a capital case. “The imperative to
cast a wide net for all relevant mitigating evidence is
heightened at a capital sentencing hearing because the
Constitution prohibits imposition of the death penalty without
adequate consideration of factors which might evoke mercy.”
Frierson, 463 F.3d at 989 (citation and internal quotation
marks omitted). “Although counsel’s duty to seek out
20                      DOE V. AYERS

evidence of mitigation is not limitless, the Supreme Court has
recognized that the failure to pursue avenues of readily
available information – such as school records, juvenile court
and probation reports, and hospital records – may constitute
deficient performance.” Id. (citing Rompilla v. Beard,
545 U.S. 374, 381–83 (2005)).

    Although defense counsel may choose to ignore
manifestly unfruitful lines of inquiry, a lawyer has not
fulfilled his duties to his client if he ceases investigating
because his client has not been forthcoming about his
background or because counsel has acquired some relevant
information. Rather, if what counsel knows or should know
suggests that further investigation might yield more
mitigating evidence, counsel must conduct that investigation.
See Douglas v. Woodford, 316 F.3d 1079, 1088–89 (9th Cir.
2003). “The presence of certain elements in a capital
defendant’s background, such as a family history of
alcoholism, abuse, and emotional problems, triggers a duty to
conduct further inquiry before choosing to cease
investigating.” Earp v. Ornoski, 431 F.3d 1158, 1175–76 (9th
Cir. 2005).

                 A. Deficient Performance

    We agree with the district court that counsel was
ineffective in failing to investigate and present mitigating
evidence.

                1. Review of Investigation

    As a preliminary matter, J.B. was deficient in his
acknowledged failure to consider even the evidence D.S.’s
limited investigation had turned up: he did not “listen[] to any
                            DOE V. AYERS                              21

tapes of [D.S.]’s interviews, nor did [he] read transcripts of
any taped interviews.” J.B. did read a few summary
investigation reports produced by D.S., but these included
virtually no material from the interviews conducted in Doe’s
home state. Even if D.S. had conducted an adequate
investigation – which he did not – J.B. would not have
learned what D.S. had discovered.

    Because J.B. failed to review and follow up on the
information presented to him by his investigator, he missed
clear indications, for example, that his client was repeatedly
raped in prison. An ex-girlfriend, I.R., told D.S. that Doe was
“fresh meat” upon his arrival in prison at the age of 17, and
that people in the community were well aware that fellow
prisoners “got some” from him.13 J.B. also knew that Doe’s
mother, C.G., had sought psychiatric help for her son after his
release from prison. J.B.’s file contained a copy of a lengthy
article from the inmate newspaper at the notorious Southern
prison where Doe was incarcerated, which described in
graphic detail the frequency and effects of prolonged sexual
abuse.

                         2. Prison Records

    J.B. had a bit of Doe’s prison file – nine pages of criminal
record, discharge papers, a rap sheet, and fingerprints. D.S.

  13
       The state suggests an inconsistency between the claim that many
people knew about Doe’s victimization, and the fact that most of those
interviewed by D.S. did not talk about it. (One other interview subject
assumed that he was sexually abused and mentioned rumors to that effect.)
It is not very difficult to imagine, however, that members of a poor black
community in the South might not volunteer, unless asked directly,
embarrassing information about a family member and friend to an
interloper from California.
22                          DOE V. AYERS

told J.B. that to get the complete file, which would shed
additional light on Doe’s time in prison, J.B., as counsel,
would need to request it. J.B., however, did not follow up on
this most straightforward of leads, handed to him by his
investigator: he did not request the records, and “do[es] not
remember making any efforts to learn about [Doe]’s
experience [in prison].”

    In addition, neither J.B. nor D.S. asked Doe whether he
suffered abuse while incarcerated. Although Doe told them
about being in prison, J.B. was “unaware of any allegation
that [Doe] had been [redacted in original] abused [in
prison],”14 and “did not specifically inquire” about any
abuse.“I believe I should have known it,” J.B. said.

    J.B.’s failure to send off for Doe’s prison records – easy
to obtain and very valuable – constituted deficient
performance. See Correll v. Ryan, 539 F.3d 938, 945 (9th Cir.
2008) (finding deficient performance based in part on defense
counsel’s failure to obtain correctional records he knew
existed).

                      3. Interviews with Doe

    J.B. had only one interview with Doe himself, during
which he barely asked any questions about his upbringing.
J.B. admitted that his interview with Doe was perfunctory: “I


  14
    D.S., on the other hand, admits that he “learned that [Doe] had been
subjected to some sort of physical and sexual abuse while he was
incarcerated . . . .” Somehow, this vital piece of information was never
passed along to J.B. nor pursued further by D.S.; “no further investigation
was made into issues relating to [Doe]’s incarceration . . . , including any
issue relating to sexual victimization.”
                         DOE V. AYERS                          23

do not recall whether I discussed with [Doe] the abuse from
his Uncle [J.C.], but if I did, it was on a superficial level.” He
also acknowledged that this failure affected his penalty-phase
presentation, because “the testimony elicited at trial reflected
the extent of the abuse of which I was aware.”

    D.S. also spent a few sessions interviewing Doe. While
Doe did speak positively about some aspects of his childhood,
and said that “he would call everyone [in his family] basically
sane,” Doe did mention – without disclosing its full extent –
the physical abuse he suffered at the hands of his uncle. D.S.
himself expressed the suspicion that Doe “avoid[ed]” or
“ignor[ed]” his problems. He expressly informed J.B. that his
interview of Doe was merely a preliminary inquiry into Doe’s
personal and family history, noting that this “information was
provided by [Doe] himself and is [in] no way meant to be a
complete list of information available . . . .”

    As a psychologist later retained by habeas counsel
explained, based on professional experience, there are often
reasons why a person who has been chronically abused and
neglected might well decline to disclose the details of
difficult and embarrassing personal history. That Doe did not
volunteer more about the trauma he experienced during his
childhood and in prison did not absolve J.B. of the need to
conduct an adequate mitigation investigation, especially since
Doe did identify (and D.S. recognized), if not in elaborate
detail, a number of avenues for further investigation that
would have proved fruitful.

    The district court was correct in concluding that the
deficiencies it found in J.B.’s penalty-phase performance
were not excused by the alleged failure of Doe (and his
family) to be completely forthcoming. “[Doe] never put any
24                          DOE V. AYERS

limits on [the] penalty phase investigation,” J.B.
acknowledged. Nor did he make false statements to J.B. or
D.S. or obstruct their investigation. Doe simply did what most
capital defendants – and most people – do, and did not
volunteer deeply painful, shameful information when not
pressed for details. Trial counsel has an affirmative duty not
to simply accept the facts as they might be presented at first
blush, but rather to “unearth[] for consideration” at the
sentencing phase “all relevant mitigation information.”
Wallace v. Stewart, 184 F.3d 1112, 1117 (9th Cir. 1999)
(quoting Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir.
1999)); see also Daniels, 428 F.3d at 1209 (holding that
counsel’s failure to investigate was not excused even by his
client’s refusal to communicate).

    Anderson v. Calderon, 232 F.3d 1053, 1094 (9th Cir.
2000), cited by the state, is not to the contrary. There, the
defendant “did not disclose information relating to” the issues
that later became central to habeas counsel’s mitigation
presentation: evidence of the physical and emotional abuse
the defendant suffered during childhood. Id. Thus, counsel
had no clue as to the existence of these occurrences. In
contrast, Doe and his family members and friends did
disclose some evidence relating to childhood abuse and
neglect, mental health problems, substance abuse, and even
victimization in prison – all of the issues later drawn out by
habeas counsel. Although no one delivered to J.B. a fully
developed mitigation presentation, that does not excuse his
failure to pursue the leads he did receive.15 Nor does Babbitt


  15
     Additionally, the Anderson court merged the deficient performance
and prejudice analyses, denying the failure to investigate claim largely on
the basis that presentation of the undiscovered mitigating evidence would
have undercut a very intentional (and to the court, persuasive) defense
                            DOE V. AYERS                                25

v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998), help the
state. There, we noted that “[o]ther courts have held that
‘counsel is not deficient for failing to find mitigating
evidence if, after a reasonable investigation, nothing has put
the counsel on notice of the existence of that evidence.’” Id.
(quoting Matthews v. Evatt, 105 F.3d 907, 920 (4th Cir.
1997)).

    By contrast, J.B. failed to conduct a reasonable
investigation despite being on notice.

         [A]lthough counsel is not required “to
         investigate every conceivable line of
         mitigating evidence no matter how unlikely
         the effort would be to assist the defendant at
         sentencing[,]” they are in no position to
         decide, as a tactical matter, not to present
         mitigating evidence or not to investigate
         further just because they have some
         information about their client’s background.
         Moreover, . . . the presence of certain
         elements in a capital defendant’s background,
         such as a family history of alcoholism, abuse,
         and emotional problems, triggers a duty to
         conduct further inquiry before choosing to
         cease investigating.




strategy, which included the argument that his “venerable mother [was]
wronged and imprisoned because of a crooked judge . . . [and that] this
terribly unjust episode explains and mitigated [his] crooked youthful turn
in the road.” Id. It is far from clear that even Anderson’s apparent failure
to reveal any useful information to his defense team would, on its own,
have supported the court’s conclusion.
26                           DOE V. AYERS

Earp, 431 F.3d at 1175 (citing Wiggins v. Smith, 539 U.S.
510, 525, 527, 533 (2003)).

                    4. Interviews with Others

   The interviews conducted by D.S. (and the few
conversations J.B. himself had) with relatives and friends of
Doe’s were unquestionably deficient.

   J.B. spoke at any length with only two people: Doe’s
mother and his aunt, L.P. Had J.B. asked them more than
admittedly cursory questions, he would have learned what the
experts retained by habeas counsel did.16 Had he gone further


     16
         By and large, the evidence later discovered through more
comprehensive interviews was consistent with – and far more detailed
than – the history provided initially. The one discrepancy relates to the
years during which Doe was under the care of his mother, versus that of
his grandmother and uncle. Doe’s mother suggested that he was in her
custody for more of his early childhood than was actually the case, though
D.S. was also told that Doe had been removed from his mother’s care and
raised by his grandmother and uncle. This disparity should have prompted
further inquiry, but D.S. never asked Doe’s mother for clarification. “[If
he had done so,] counsel would have become skeptical of the impression
given by [some of Doe’s] family members and would unquestionably have
gone further to build a mitigation case. Further effort would presumably
have unearthed much of the material postconviction counsel found [with
respect to childhood abuse and neglect].” Rompilla, 545 U.S. at 391.
When she was asked the question directly, during post-conviction
proceedings, Doe’s mother testified that her children lived primarily with
their grandmother. Doe’s grandmother and aunt confirmed that his mother
abandoned Doe at a young age.

     It is not surprising that experts with mitigation training, charged with
conducting a mitigation investigation, were better able to elicit useful
information about deeply personal, shameful trauma and dysfunction than
were a lawyer and investigator who did not follow up on obvious, critical
                          DOE V. AYERS                              27

than speaking “with them generally about the penalty phase,”
he would have discovered powerful mitigating evidence.
Instead, J.B. abandoned further investigation after “having
acquired only rudimentary knowledge of [Doe’s] history from
a narrow set of sources[,]” and despite what he “actually
discovered” in the course of his limited investigation.
Wiggins v. Smith, 539 U.S. 510, 524–25 (2003); see also
Boyde v. Brown, 404 F.3d 1159, 1177 (9th Cir. 2005);
Douglas, 316 F.3d at 1082, 1088.

    J.B. did travel to Doe’s home state, but when asked if he
visited Doe’s house, J.B. said: “I remember going to the
neighborhood and going to the bar but not – I drove by the
[family-owned] bar. . . . But I wasn’t comfortable being me
just getting out and walking in there by myself so I decided
not to go in.” He spoke on the phone with Doe’s mother (and
possibly others) while he was there, but did not conduct any
in-person interviews. At no point during his representation of
Doe, J.B. reported, did he speak with anyone other than those
he called to testify at the penalty phase.

    When D.S. went to Doe’s home state, he, at least, got out
of his car. However, he repeatedly failed to ask obvious
questions, including follow-up questions when interviewees
revealed potentially significant information. He did not ask
relatives and friends who had known Doe during his
childhood about his upbringing or behavioral signs of mental
illness. When the mother of one of Doe’s girlfriends (both
mother and daughter were named V.M.) said she felt he was
“like a second son,” and that he called to speak with her after


leads, and a psychological expert asked only to investigate guilt-phase
mental-state defenses who was deprived of the background material she
required (and requested) to do even that job adequately.
28                      DOE V. AYERS

he was released from prison about putting his sentence behind
him, D.S. did not follow up to ask whether Doe had ever
mentioned that he suffered abuse while incarcerated. When
another interviewee, M.W., who had known Doe as he was
growing up, described him as a “loner,” D.S. did not ask any
follow-up questions about his mental health. Although Doe’s
stepfather, B.G., had also served time in the same prison, D.S.
did not ask him about abuse Doe might have suffered in
prison. When a friend, J.A., reported that Doe told him over
the phone that the prison was a “bad place,” D.S. did not ask
whether Doe had said anything further. Other interviewees
also mentioned that Doe was different after his release, or that
they had spoken to him while he was incarcerated, but D.S.
never asked them if they knew about any trauma Doe might
have suffered in prison. As J.B. acknowledged, the important
questions about Doe’s life were simply never asked.

    D.S. appears to have met only once with each
interviewee, and many of the meetings were arranged by
Doe’s mother at her home. Obviously, interviewees are less
likely to be forthcoming about sensitive topics in the presence
of family members and friends. See Correll v. Ryan, 539 F.3d
938, 945 (9th Cir. 2008) (noting that “counsel testified that he
met only once with Correll’s father, sister, and brother,
‘around the kitchen table at the same time,’” in concluding
that the interviews he conducted were “worthless”).

    In the taped interviews, D.S. did not ask whether
interviewees knew of any others who might have more or
better information about Doe’s family history. Although D.S.
said that he would normally conduct interviews in a way that
would lead to identification of potential witnesses, he testified
only that it was “possible” this was done in this case. Other
witnesses, such as those whom habeas counsel was able to
                              DOE V. AYERS                                   29

find, were “easily within [counsel’s] reach,” and would have
been discovered by trial counsel, “[h]ad [he] only looked.”
Wallace, 184 F.3d at 1116. Some of these witnesses were
able to speak to Doe’s experiences in prison and their
psychological effects on him.

                      5. Psychological Experts

     J.B. did retain a psychologist, Dr. M.R., to interview Doe.
She had the professional expertise necessary to discover and
present the compelling mitigating testimony regarding Doe’s
mental health that went unheard at trial, but she was limited
by the terms of her engagement. J.B. hired her, she reported,
only to determine whether any mental state defenses based on
“obvious signs of mental impairment” could be mounted at
the guilt phase of the trial. Dr. M.R. reported that she “was
not asked to do more,” and that she “was not asked to provide
expert assistance in preparing or presenting a mitigation case
at the penalty trial.”17

     In addition to having a limited scope, the investigation
that Dr. M.R. conducted was abbreviated. She was paid only
for twelve and a half hours of her time and met with Doe only
once, for an hour-long session largely devoted to filling out
a questionnaire and discussing his criminal record. In her


  17
     The state contends that Dr. M.R. was in fact retained for the purpose
of developing a mitigation case at the penalty phase. When asked whether
he actually told her to conduct a penalty-phase investigation, J.B. testified:
“I don’t recall exactly what I told her. But I did tell her that it was a capital
case and that I was looking into all issues with regard to [Doe].” J.B. may
have told Dr. M.R. that he was looking into “all issues,” but he did not tell
her to look into “all issues.” No one else was looking into Doe’s mental
health, either; J.B. did not recall having investigated, or having asked D.S.
to investigate, whether Doe had ever received psychological treatment.
30                            DOE V. AYERS

report to J.B., Dr. M.R. described her work as a “relatively
brief evaluation,” and described her conclusions as “initial
clinical impressions.” It appears that J.B. never spoke with
Dr. M.R. after he initially hired her. The only background
materials he provided her were police reports.18 When she left
a message saying that she had “no documents on
background,” he did not bother to return her call.19

  18
     Dr. M.R. noted this deficiency in her report, stating: “If . . . there is
further information that the defense counsel wishes to bring to my
attention in order to evaluate [Doe] further, I shall be happy to do so.”
Contrary to the state’s contention, Dr. M.R. made clear that the life history
she considered was “provided” by Doe himself during their interview, not
by D.S.
     19
        Providing psychological experts with the background material
necessary for them to competently and correctly evaluate defendants is
critical, and when such information is requested by an expert, as here, the
failure to provide it constitutes deficient performance. When no
background information is made available, experts may conclude that
further investigation will not be fruitful, just as Dr. M.R. did here. See
Rompilla, 545 U.S. at 392 (“The jury never heard any of this and neither
did the mental health experts who examined [the defendant] before trial.
While they found ‘nothing helpful to [his] case,’ their postconviction
counterparts, alerted by information from school, medical, and prison
records that trial counsel never saw, found plenty of ‘red flags’ pointing
up a need to test further.” (citations omitted)); Silva v. Woodford, 279 F.3d
825, 842–43 (9th Cir. 2002) (“In Bloom v. Calderon, 132 F.3d 1267 (9th
Cir. 1997), a case with several important parallels to this one, we also
found that a trial attorney’s failure to obtain and prepare a psychiatric
witness was constitutionally deficient. . . . [H]is trial counsel . . . failed to
provide him with necessary and available data which would have assisted
the expert in his subsequent evaluation and trial testimony-including an
outline of the theory of defense. As a result, the psychiatrist, who
constituted the sole defense expert witness, produced a severely damaging
psychiatric report which the prosecution used effectively in cross-
examination and in closing argument. We found that such performance
was constitutionally deficient, in that counsel had failed to furnish the
expert with easily available information such as a social history, a prior
                            DOE V. AYERS                              31

    This left J.B. effectively without the assistance of any
expert at all at the penalty phase. J.B.’s failure to retain a
psychological expert for the penalty phase was objectively
unreasonable, given that he had sufficient notice of Doe’s
mental health problems. He knew – or would have known, if
he had reviewed the interviews that D.S. conducted – that
Doe’s mother brought him to a hospital for psychiatric help.
D.S. stated in his assessment of Doe, which J.B. does appear
to have read, that “he will not acknowledge that he has a
psychiatric problem.” Doe’s mental illness was recognized by
J.B.’s investigator, who was not a mental health expert.
However, even this recognition was not enough to motivate
J.B. to order a mitigation-related psychiatric examination of
his client.

    The state’s assertion that Dr. M.R. addressed the issue of
mitigating evidence in her report is incorrect. To the extent
she commented on evidence relevant to the penalty-phase
presentation, it was entirely in passing. “If in the course of
performing [her limited-scope guilt-phase] evaluation [she
had seen] issues that [she] thought would be useful for a
penalty phase presentation, [she] would have flagged the
issues for [J.B.].” Dr. M.R. was definitely not, however,
“providing expert assistance in analyzing and developing a
full-blown mitigation case.” Indeed, how could she have
been? She “received no life history information regarding
[Doe] from the defense.” Instead, she simply explained that


psychiatric report, and jail medical records. Although we acknowledged
that under Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995), ‘counsel
does not have a duty to acquire sufficient background material on which
an expert can base reliable psychiatric conclusions independent of any
request for information from an expert,’ we concluded that the record did
not support the district court’s finding that the expert had not requested
such information.” (citations and internal quotation marks omitted)).
32                        DOE V. AYERS

“[she] had not seen any evidence that [she] believed to be
mitigating during the course of evaluating whether [Doe] had
a guilt phase mental defense.”20

    Hiring an expert to evaluate possible guilt-phase mental-
state defenses does not discharge defense counsel’s duty to
prepare for the penalty phase. Hendricks v. Calderon, 70 F.3d
1032 (9th Cir. 1995), is directly on point. In Frierson, we
explained:

          Because the evidence presented at each phase
          of a trial serves a markedly different purpose,
          we analyze the reasonableness of counsel’s
          efforts to prepare for trial and sentencing
          differently. As we explained in Wallace v.
          Stewart: “Hendricks alludes to why the
          lawyer’s burden might differ at the guilt phase
          from that at the penalty phase: Mental state is
          relevant at the guilt phase for issues such as
          competence to stand trial and legal insanity –
          technical questions where a defendant must
          show a specific and very substantial level of
          mental impairment. Most defendants don’t
          have problems this severe, and counsel can’t
          be expected to know that further investigation
          is necessary to develop these issues. By
          contrast, all potentially mitigating evidence is
          relevant at the sentencing phase of a death
          case, so a troubled childhood and mental
          problems may help even if they don’t rise to
          a specific, technically-defined level.”


 20
      Emphasis added.
                      DOE V. AYERS                       33

       Thus in Hendricks, we held that it was
       reasonable for counsel to rely on his experts’
       findings that no diminished capacity defense
       was available at the guilt phase, and to
       terminate his perfunctory investigation of his
       client’s known mental impairments.

       Our determination in Hendricks that counsel’s
       investigatory work was reasonable, however,
       did not extend into the penalty phase. Because
       a sentencing jury is given “broad latitude to
       consider amorphous human factors, in effect,
       to weigh the worth of one’s life against his
       culpability,” we have recognized that the
       presentation of relevant mitigation evidence is
       of vital importance to the jury’s penalty
       determination. Accordingly, we concluded
       that “counsel’s failure to investigate his
       client’s mental condition as a mitigating
       factor in a penalty phase hearing, without a
       supporting strategic reason, constitute[d]
       deficient performance.” We therefore held
       that because evidence of Hendrick’s
       “nightmarish upbringing” and “mental
       problems” could have altered the jury’s
       decision to impose a death verdict, counsel
       was constitutionally ineffective.

463 F.3d at 993 (citations omitted). Compare Summerlin v.
Schriro, 427 F.3d 623, 631 (9th Cir. 2005) (counsel’s
performance was deficient for relying exclusively on
information developed at the defendant’s pre-trial
competency examination), with Stokley v. Ryan, 659 F.3d
802, 812–15 (9th Cir. 2011) (counsel’s performance was not
34                       DOE V. AYERS

deficient, in choosing a neurological exam over a
neuropsychological exam, when either was recommended,
because counsel did pursue mental health evaluations
pertinent to sentencing, as recommended by mental health
experts, provided the documents the experts suggested, and
presented their testimony).

    Based on this evidence, the district court concluded that
defense counsel “did not fulfill his responsibility to [Doe] on
the issue of investigating and presenting mental health
testimony simply by retaining Dr. [M.R.], given the brief time
she spent with him.” Especially given that J.B. failed both to
instruct Dr. M.R. specifically to investigate penalty-phase
mitigation and to provide her with any of the documents
necessary to complete that task (which she requested), we
firmly agree.

                     6. Substance Abuse

    D.S.’s investigation did not reveal the extent of Doe’s
substance abuse, but it did reveal enough to warrant expert
follow-up. Doe acknowledged that he drank alcohol
excessively, that he became aggressive when he was drunk,
and that he had used both marijuana and cocaine. Other
interviewees noted that he had problems with alcohol and that
the robbery he committed was alcohol-related.

    Most important, D.S. concluded that although “[Doe]
feels that he has no drinking problem, . . . [i]t appears to this
investigator that alcohol is a direct cause for [Doe]’s violence
as he described his past life to me.” He went on to say that
“[Doe] does not necessarily like to admit that he may have
certain problems in particular areas . . . [such as] his inability
to control his drinking and drug abuse . . . .” Despite his
                              DOE V. AYERS                              35

investigator’s clearly expressed disbelief in Doe’s
representations about substance abuse – in a report he does
appear to have read – J.B. did not follow up, and thus did not
discover the fact that Doe consumed substances in a failed
attempt to lessen the pain of the trauma he had suffered.

                     7. Penalty-Phase Witnesses

    In addition, Doe claims, J.B. did nothing to prepare his
penalty-phase witnesses. J.B. does not dispute this: “I did not
prepare any of the penalty phase witnesses for their
testimony. I did not tell them what specific questions I was
going to ask them nor did we discuss the responses I expected
from them.”21 Although this failure, on its own, might have
been insufficient to establish deficient performance, it serves
here to reinforce other evidence of J.B.’s woefully
incompetent mitigation investigation and presentation.22

    The witnesses who did end up testifying were family and
friends attending the trial. Some of them were not told that
they would be testifying until they arrived.23


 21
      When asked how he chose which witnesses to call, he could not recall.
 22
    Notably, these witnesses could have spoken to much of the mitigating
evidence later presented during Doe’s habeas hearing, except for the
details of his prison experience (but including the psychological
ramifications of it).
  23
     J.B. never informed two witnesses that he would be calling them as
witnesses. He spoke to Doe’s aunt before she testified, but did not tell her
what he planned to ask her, and merely instructed her to “plead for
[Doe]’s life.” J.B. spoke with Doe’s ex-girlfriend, D.P., prior to her
testimony, but just briefly, “to get to know her,” and not about what he
would ask or what she would say.
36                         DOE V. AYERS

    J.B. did little better with the two penalty-phase witnesses
he “spent a lot of time with[,]”24 Doe’s mother and aunt. He
acknowledged in his declaration that his failure to prepare
them to testify was related to his failure to discover the
powerful mitigating evidence about which they could have
spoken. He said: “[M]y relationship with them was quite
superficial, and I got very little useful or accurate information
from them about [Doe]’s life before his arrest for this
offense.” J.B. also acknowledged that he “spoke with them
only generally about the penalty phase [and] did not go over
with them the particular questions they would be asked.” He
explained that Doe’s “mother and aunt seemed like such nice,
sweet ladies that I never got beyond consoling them about
[Doe]’s plight so as to get to really understand his life.”

    The state’s argument that J.B.’s failure to prepare penalty-
phase witnesses was an acceptable trial strategy is erroneous.
Even if it were an intentional decision on his part – which is
both doubtful and disturbing – spur-of-the-moment mitigation
presentations form no part of constitutionally adequate
representation. Witness preparation is a critical function of
counsel. See Hamilton v. Ayers, 583 F.3d 1100, 1121 (9th Cir.
2009) (“[T]he failure to prepare a witness adequately can
render a penalty phase presentation deficient. This is
especially true when the insufficiently prepared witness[es]
[are] the only penalty phase witness[es] called to testif[y].”
(emphasis and citations omitted)); Douglas, 316 F.3d at
1088–89 (failure to prepare defense mitigation witnesses led
both to inadequate development of evidence and also to less-
than-compelling testimony). A lawyer needs to know the


 24
    Actually, he met in person with Doe’s mother only two or three times,
each time for less than an hour. It is not clear how much time they spent
on the phone.
                            DOE V. AYERS                               37

nature of the testimony he will elicit, and a witness needs to
understand the proceeding in which he is participating. Our
case law, and an elementary understanding of the function of
a trial lawyer in our adversary system, make plain that
although there is no requirement of rehearsal,25 not preparing
penalty-phase witnesses at all is not a legitimate defense
method in a capital trial.

                            8. Conclusion

    The investigation here was facially inadequate. J.B. fell
far short of his “sacrosanct duty to conduct a full and
complete mitigation investigation.” Earp, 431 F.3d at 1175.
This conclusion is only strengthened by the fact that the
limited investigation J.B. and D.S. did conduct put them on
notice that further investigation was warranted. Unfortunately
for Doe, they failed to perform it. We have repeatedly held,
as has the Supreme Court, that this constitutes deficient
performance. See Lambright v. Schriro, 490 F.3d 1103, 1117
(9th Cir. 2007) (reaffirming the principle that “when
‘tantalizing indications in the record’ suggest that certain
mitigating evidence may be available, those leads must be
pursued” (emphasis added) (quoting Stankewitz v. Woodford,
365 F.3d 706, 719–20 (9th Cir. 2004))); see also Wiggins,
539 U.S. at 525 (“The scope of their investigation was also
unreasonable in light of what counsel actually discovered in
the [files he did obtain]. . . . [A]ny reasonably competent

  25
    J.B. stated that he has a practice of not rehearsing witnesses. That is
all well and good. However, there is a big difference between training
witnesses to regurgitate a prepared statement and discussing with
witnesses the process and purpose of the hearing and the scope and
substance of their prospective testimony. The former might indeed
undermine their credibility on the stand, whereas the latter is
constitutionally required.
38                      DOE V. AYERS

attorney would have realized that pursuing these leads was
necessary to making an informed choice among possible
defenses . . . . Had counsel investigated further, they might
well have discovered the sexual abuse later revealed during
state postconviction proceedings.”); Stankewitz v. Wong,
698 F.3d 1163, 1171 (9th Cir. 2012) (“The state’s argument
that [defense counsel’s] mere possession of [files containing
leads to mitigating evidence] demonstrates that [he]
conducted a reasonable investigation defies logic – if
anything, that [he] had this evidence at his fingertips but did
not investigate or present it is further proof of his
deficiency.”).

    J.B. said: “I did not adequately prepare for a penalty
phase in this case because of a combination of inexperience
and overconfidence. . . . I did not ask the right questions of
[Doe], his family, myself, or my investigator to obtain an
adequate understanding of my client and his case.” We cannot
help but agree.

                   B. Strategic Judgment

     There is a “wide range of reasonable professional
assistance[,]” Strickland, 466 U.S. at 689, but J.B.’s
performance was not within its outer bounds. Unlike most
trial lawyers called to testify before a habeas court, J.B. never
attempted to justify his actions as based in strategy; he
admitted that he would have presented the extensive
mitigating evidence habeas counsel discovered, had he found
it himself. J.B. acknowledged that he did not make a strategic
decision not to put on the sort of mitigating evidence later
adduced; he simply didn’t know about it. “Looking back on
                            DOE V. AYERS                              39

the penalty phase of [Doe]’s trial, it’s hard for me to say what
my strategy was,” he said.26

    Strickland tells us that “strategic choices made after less
than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation. In other words, counsel has a
duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.” 466 U.S. at 690–91. In conducting this
analysis, we “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.”27 Id. at 689.

   Here, J.B.’s “failure to investigate thoroughly resulted
from inattention, not reasoned strategic judgment.” Wiggins,
539 U.S. at 526. “[D]efense counsel failed to make a

  26
    J.B. stated that by putting on a few witnesses who knew, loved, and
found value in Doe, thereby humanizing him, he “did not intend to
exclude or foreclose the presentation of other types of mitigating
evidence.” Surely a penalty-phase presentation is not insulated from
review merely because it is not entirely devoid of value, due to a few
questions to a few witnesses that foreseeably elicited snippets of
mitigation testimony. Notably, the evidence Doe argues that J.B. should
have discovered and introduced was in no way inconsistent with the paltry
evidence already presented.
   27
      Cullen v. Pinholster, 131 S. Ct 1388 (2011), altered rather than
clarified the analysis we apply in evaluating deficient performance of
counsel going forward. This is because AEDPA requires, and Pinholster
applies, not only Strickland’s presumption of attorney competence but also
an additional layer of deference. As Chief Judge Kozinski put it,
“Strickland’s presumption of competence and AEDPA deference each
require us to presume that the lawyers did the smart thing, not the dumb
one.” Pinholster v. Ayers, 590 F.3d 651, 702 (9th Cir. 2009) (en banc)
(Kozinski, C.J., dissenting) (emphasis added).
40                         DOE V. AYERS

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
uninformed strategy is not a reasoned strategy. It is, in fact,
no strategy at all.” Correll, 539 F.3d at 949.

    The presumption that defense counsel’s conduct falls
within the wide range of reasonable professional assistance is
inapposite, or at least firmly rebutted, when, as here, we know
for sure that defense counsel had no strategy, because he has
unequivocally said as much. Representing a capital defendant
without a strategy is per se unreasonable, and necessarily
constitutes deficient performance.

      Generally, we credit the statements of defense counsel as
to whether their decisions at trial were – or were not – based
on strategic judgments.28 In Heishman v. Ayers, 621 F.3d
1030, 1040 (9th Cir. 2010), we made clear that the trial
strategy presumption does not apply when it “would
contradict [defense counsel’s] testimony rather than filling a
gap in memory, contravening the Supreme Court’s
admonition against adopting ‘a post hoc rationalization of
counsel’s conduct’ instead of relying on an ‘accurate
description of their deliberations’ [when one exists].” Id.
(quoting Wiggins, 539 U.S. at 526–27). See also Williams v.
Taylor, 529 U.S. 362, 373 (2000) (crediting “trial counsel’s
testimony before the state habeas court [that] counsel did not
fail to seek [the defendant’s] juvenile and social services
records because he thought they would be counterproductive
. . . [and his] acknowledg[ment] in the course of the hearings


  28
    We do not foreclose the possibility that a court could find defense
counsel not credible. However, there is no reason to conclude that J.B.
was not telling the truth when he acknowledged his deficient performance.
                             DOE V. AYERS                                 41

that information about [the defendant’s] childhood would
have been important in mitigation”).29

    In any event, it is self-evident that J.B.’s failure to
conduct further mitigation investigation was objectively
unreasonable. “This is [] a case in which the defendant’s
attorneys failed to act while potentially powerful30 mitigating
evidence stared them in the face, or would have been
apparent from documents any reasonable attorney would have
obtained.” Bobby, 558 U.S. 11 (citing Wiggins, 539 U.S. at
525; Rompilla, 545 U.S. at 389–93). D.S. suggested that J.B.
obtain Doe’s prison file, which contained readily apparent


   29
       Justice Scalia, dissenting in Wiggins, made clear that explicit
statements by defense counsel should be credited. See 539 U.S. at 557
(Scalia, J., dissenting) (decrying the fact that the majority “disbelieves the
sworn testimony of a member of the bar”); see also id. at 538
(emphasizing that although “trial counsel testified under oath” that he
conducted an investigation adequate to consider and reject the presentation
of the mitigating evidence at issue, the majority concluded otherwise). He
instructed that in the course of a prejudice analysis, we should credit trial
counsel’s statements about whether undiscovered evidence would have
been introduced at trial. See id. at 553–54 (“It is irrelevant whether a
hypothetical ‘reasonable attorney’ might have introduced evidence of
alleged sexual abuse; [defense counsel] would not have done so, and
therefore [the defendant] was not prejudiced by their allegedly inadequate
investigation.”). If we should trust the sworn statements of lawyers who
claim to have performed adequately, we should certainly trust the sworn
statements of lawyers who say they did not, against the interests of both
their egos and their bar licenses.
   30
      Our conclusion is strengthened by the fact that the unpresented
mitigating evidence was so strong. Stankewitz, 698 F.3d at 1172–73 (“It
is simply untenable that [his] decision to forego powerful mitigating
evidence and instead put on his paltry penalty phase presentation was
made in the exercise of reasonable professional judgment.” (citation and
internal quotation marks omitted)).
42                     DOE V. AYERS

and powerful mitigating evidence. He failed to do so. D.S.
noted that Doe was beaten as a child, and reported to J.B. his
belief that Doe suffered more from mental health problems
and substance abuse than he was willing to admit. Yet, no
follow-up investigation to explore these issues was ever done.
J.B. did not retain an expert to conduct a penalty-phase
investigation, and when the psychologist he hired to consider
mental state defenses at the guilt phase, Dr. M.R., called him
to ask for records that would have allowed her to uncover the
available mitigating evidence, he didn’t even bother to return
her call. This slipshod work cannot be “immunized from
Sixth Amendment challenges simply by attaching to it the
label of ‘trial strategy.’” Silva v. Woodford, 279 F.3d 825,
846 (9th Cir. 2002).

   In short, the evidence that J.B.’s performance at the
penalty phase fell well below the constitutional minimum is
overwhelming.

                       V. Prejudice

    Although the district court found that J.B. had performed
incompetently, it concluded that his deficient performance
had not prejudiced Doe. That conclusion is erroneous.

    To establish prejudice, Doe must show “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. “A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. “That requires a ‘substantial,’ not just a
‘conceivable,’ likelihood of a different result.” Pinholster,
131 S. Ct. at 1403 (quoting Harrington v. Richter, 131 S. Ct.
770, 792 (2011)). “[T]he question is whether there is a
                          DOE V. AYERS                             43

reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Strickland,
466 U.S. at 695. We therefore “reweigh the evidence in
aggravation against the totality of available mitigating
evidence.” Wiggins, 539 U.S. at 534.31 Because death
sentences in California must be imposed by a unanimous jury,
we must find prejudice if there is a “reasonable probability
that at least one juror would have” voted for life. Id. at 537;
Cal. Penal Code § 190.4(b). We hold that there is a
substantial probability that there would have been a different
result at the penalty phase had counsel’s performance during
that phase of the trial not been ineffective.

             A. Aggravating Evidence at Trial

    The aggravating evidence the jury considered was, for a
capital case, fairly minimal. Instead of any additional
evidence about the murder for which Doe had just been
convicted, beyond what was presented during the guilt phase
of the trial, a stipulation was read to the jury that said in its
entirety that a doctor, if called to testify, would state that “the
victim in this case [L.R.] at the time of her death had a mild
hemiparesis of the brain as a result of congenital cerebral
palsy which entailed a varying but never totally disabling of
her impairment in motor coordination and muscular
development on her left side only.”

   31
      As above, we conduct this analysis without affording the extra
deference to state court decisions required by Pinholster. There, the
Supreme Court explained that pre-AEDPA case law offered no guidance
as to post-AEDPA assessments of prejudice, because AEDPA requires
doubly deferential review. For the same reason, post-AEDPA cases offer
us little guidance here. We apply only the deference required by
Strickland, and no second layer of deference.
44                          DOE V. AYERS

    The remainder of the aggravating evidence consisted
solely of testimony about two incidents:

    First, the prosecution called one of two women who were
walking together in a park in Doe’s home state when Doe
robbed them at gunpoint. The jury learned that Doe, then a
juvenile, had grabbed the woman’s arm, pointed a gun at her,
and demanded both of their purses. He fled immediately after
acquiring them, leaving the women uninjured. A certified
copy of Doe’s conviction, showing that he had served five
years in prison for this crime, was also introduced.

     Second, the jury heard testimony about another incident,
in which Doe was arrested on suspicion of residential
burglary. (No conviction resulted.) Doe – who was homeless
at the time – broke into an apartment after its residents left for
work and got into bed. When he was found there, by a police
officer, he was under the covers, wearing a sweatshirt and
sweatpants but no socks or shoes. He initially gave a false last
name and said that he had spent the previous night with his
girlfriend, who, he said, lived in the apartment. After he was
arrested, Doe was allowed to retrieve some of his clothing,
which he had hung in the closet. At the police station, Doe
admitted that he had entered through the window, but said
that he had touched nothing and only wanted to sleep. In fact,
it appeared that he had riffled through the kitchen, and moved
the TV and VCR away from the wall (a screwdriver was
found nearby). A long knife was found on the floor of the
bathroom;32 he had neglected to flush the toilet.



 32
    The two police officers called to testify also mentioned that when they
arrived at the apartment, they encountered a man – not Doe – holding a
crowbar and guarding the door. Apparently (and confusingly), they seem
                           DOE V. AYERS                               45

    This penalty-phase aggravating evidence is a far cry from
that which the Supreme Court deemed “extensive” in
Pinholster, 131 S. Ct. at 1408. There, the state presented
evidence that the defendant had “threatened to kill the State’s
lead witness, assaulted a man with a straight razor, and
kidnapped another person with a knife.” Id. There was also
evidence that he “had a history of violent outbursts, including
striking and threatening a bailiff after a court proceeding at
age 17, breaking his wife’s jaw, resisting arrest by faking
seizures, and assaulting and spitting on police officers.” Id.
Moreover, the jury in Pinholster heard about the defendant’s

         involvement in juvenile gangs and his
         substantial disciplinary record in both county
         and state jails, where he had threatened,
         assaulted, and thrown urine at guards, []
         fought with other inmates . . . [and] had been
         segregated for a time due to his propensity for
         violence and placed on a ‘special disciplinary
         diet’ reserved only for the most disruptive
         inmates.

Id. Doe’s criminal record – the only aggravating evidence
presented by the state at the penalty phase – was light
compared to those of many capital defendants; his only
previous conviction was for an armed robbery, in which no
one was injured, committed when he was a juvenile.

    When compared with the offenses of other death-eligible
defendants, all of which necessarily involve egregious crimes



to have left to retrieve the key from management without confronting him;
when they returned, this man had disappeared.
46                           DOE V. AYERS

of violence,33 the facts of the crime Doe committed were also
not particularly aggravating;34 notably, although the jury
rendered a finding of true on the felony-murder-burglary
special-circumstance allegation, it rendered a finding of not
true on the felony-murder-rape special-circumstance
allegation. We have found prejudice from failure to present
mitigating evidence in cases involving crimes substantially
more heinous than Doe’s. Correll,35 539 F.3d at 951–55
(holding that the defendant was prejudiced by counsel’s
failure to present mitigating evidence despite the fact that he
kidnaped three people, bound their hands and feet with duct
tape, drove them into the desert, shot one of them in the head
execution-style, and watched as a friend of his killed the other
two); Ainsworth v. Woodford, 268 F.3d 868, 870–71, 878 (9th
Cir. 2001) (holding that the defendant was prejudiced by
counsel’s failure to present mitigating evidence despite the

  33
      Of course, all murders are, by their very nature, horrific – capital
murders even more so. We must view the facts of Doe’s offense, however,
in relation to those of other capital murders. It is only in that light that we
conclude that his crime was not especially egregious.
 34
    Additionally, our case law is “clear that the presentation of mitigating
evidence is vital even where . . . the aggravating evidence is powerful.”
Stankewitz, 365 F.3d at 714 (citing Wiggins, 539 U.S. 510; Williams,
529 U.S. 362). We may find prejudice despite the horrific nature of an
underlying crime. See Douglas, 316 F.3d at 1091 (“The gruesome nature
of the killing did not necessarily mean the death penalty was
unavoidable.”); Smith v. Stewart, 189 F.3d 1004, 1013 (9th Cir. 1999)
(“The horrific nature of the crimes involved here does not cause us to find
an absence of prejudice.”); Hendricks, 70 F.3d at 1044 (“[D]espite . . .
substantial evidence of aggravation, . . . the failure . . . to present
mitigating evidence rendered the sentencing hearing neither fair nor
reliable.”).
 35
    The facts of the offense are drawn from Correll v. Stewart, 137 F.3d
1404, 1408–09 (9th Cir. 1998).
                         DOE V. AYERS                          47

fact that he shot a woman in the hip, raped her as she bled
from the gunshot wound, and confined her in her car, at times
in the trunk, for twenty-four hours until she bled to death);
Hendricks,36 70 F.3d at 1044–45 (holding that the defendant
was prejudiced by counsel’s failure to present mitigating
evidence despite the fact that he was convicted of murdering
two men who had paid him for sex by shooting them to death
at point-blank range, and was not charged with murdering
three others).

              B. Mitigating Evidence at Trial

     J.B.’s penalty-phase evidentiary presentation was brief
(the testimony of the five witnesses spanned only 35 pages of
trial transcript), haphazard, and thoroughly underwhelming.
Only two of the five witnesses had even known Doe since
before he had moved to California, a few years prior, and the
only one who testified about his life before that point was his
mother.

    Doe’s mother testified that Doe’s uncle “did most of the
discipline” and would “whip him and as he got older he’d use
more physical violence with him,” but “not before [the age
of] five” – “[at] about the age of maybe 11, 12.” She said that
Doe’s uncle was “very stern,” and that as “[Doe] grew older
he handled him more roughly than he did when he was
younger.” She stated that she moved out of the house during
Doe’s childhood, but moved back in with her mother a few
years later. She said that while she was doing domestic work,
her mother would care for Doe. She explained that when she
married her husband, Doe, then a teenager, had “become

  36
     The facts of the offense are drawn from Hendricks v. Vasquez,
974 F.2d 1099, 1102 (9th Cir. 1992).
48                          DOE V. AYERS

withdrawn,” and “would stay in his room, you know, sit in
the dark”; she reported that she had taken him to see a social
worker or psychologist weekly for some months. She stated
that a few days before Doe committed the armed robbery,
when she was eight months pregnant, Doe and his uncle got
into a fight; his uncle “tried to hit him with a car but [hit her]
instead[,]” sending her to the hospital. She testified that Doe
had never been in trouble before and behaved and performed
well in school, that she visited him often in prison, and that
her husband had also been incarcerated in the same prison.
She said that after Doe’s release, “[h]e was very nervous.”
She stated that for years, Doe had no contact with his father
or paternal grandmother. She concluded her testimony by
telling the jury that she loved Doe, and asking it to spare his
life.37

   The second witness, D.P., had been a live-in girlfriend of
Doe’s in California. When they lived together in an apartment
complex she owned, he helped out as a handyman, and was
“very loving and very affectionate” in taking care of her
young children. Although she broke up with Doe, they had
remained in touch. She described him as “compassionate,
warm and considerate of other people. Sometimes angry,
sometimes just crushed.” She said that he “showed me
nothing but love and affection” and that “he was the first and


    37
       Although there were glimmers of mitigation in Doe’s mother’s
testimony at the penalty phase, J.B. introduced this evidence “in a cursory
manner that was not particularly useful or compelling.” Stankewitz,
365 F.3d at 724 (quoting Douglas, 316 F.3d at 1090; citing Bean v.
Calderon, 163 F.3d 1073, 1081 (9th Cir. 1998) (considering that
“potentially mitigating factors . . . were reported to the jury only in the
vaguest of terms” in concluding that confidence in the outcome was
undermined as a result of counsel’s failure to present mitigating
evidence)).
                        DOE V. AYERS                          49

only man that I have been involved with that I let my children
have any direct immediate contact with,” and that “they love
him and talk to him all the time.” She said that if he were
released from prison (and even if not), she would marry him,
and asked the jury to “[l]et him live.”

    The third witness, E.B., met Doe while he was in jail in
California, awaiting trial for murder. She studied the Bible
with him regularly and spoke with him on a daily basis. She
testified that Doe had participated in religious classes, taken
tests, and obtained certificates, and that he had begun to
organize Bible study classes.

    The fourth witness, Doe’s father, J.A., had only met Doe
a few years earlier. He testified that he had reconnected with
his son because when his mother fell ill, she asked to see Doe
before she died. Doe lived with him briefly, but then went to
live with J.A.’s niece. J.A. also explained that his new wife
had expressed concern that Doe’s presence in their home
might lead him to get in contact with Doe’s mother. Doe’s
father did not know that Doe had been in prison in his home
state.

    The fifth witness, Doe’s aunt, had known him for
decades, but was asked – and testified – only about events
that occurred after his arrival in California. She stated that he
had lived with her, and that she had helped him find
temporary work. She testified further that her husband “blew
up” at him over a disagreement and kicked him out of the
house, but that Doe had remained calm while her husband
threatened violence. She acknowledged that she had “pretty
strong feelings, love towards [Doe],” and said that she would
“stand behind him” if he was allowed to live.
50                            DOE V. AYERS

    The mitigating evidence that was introduced at Doe’s trial
was quite bland, and apparently proved insufficient to
overcome even the relatively minimal presentation of
aggravating evidence offered by the state. It is not altogether
surprising that not a single member of the jury voted for life
without parole instead of death on the basis of J.B.’s inept
penalty-phase presentation.

    Because the aggravating evidence presented in the penalty
phase was, for a capital case, relatively minimal, and any
meaningful mitigating evidence virtually nonexistent, Doe
will have successfully shown prejudice if he has adduced
strong mitigating evidence in his habeas proceedings.

       C. Mitigating Evidence Not Introduced at Trial

    The powerful evidence introduced in the habeas
proceedings at the district court, by contrast, represented the
fruits of an appropriate mitigation investigation. Doe’s habeas
counsel reviewed Doe’s complete prison record and other
records, and conducted in-depth, targeted interviews with
family members and friends, as well as with fellow prisoners
who had known Doe during his incarceration. Habeas counsel
also retained two psychological experts38 to conduct a


  38
     The first, Dr. J.C., has a Ph.D. in social psychology. Dr. J.C. was
given instructions to undertake the sort of mitigation investigation Dr.
M.R. was never hired to conduct; she was asked to “evaluate his social
history and background, paying particular attention to his familial,
cultural, medical, and psychiatric history[,] . . . [and to] discuss the effects
of that social background on [Doe’s] psychological development, as well
as on his level of functioning . . . as a teenager while incarcerated . . . .”
The second, E.P., a clinical psychologist, had previously been qualified as
an expert witness on male sexual victimization in prisons. Both reviewed
documents provided by Doe’s habeas counsel and conducted interviews.
                             DOE V. AYERS                                51

penalty-phase mitigation investigation, and equipped them
with relevant records and witness declarations. Finally, he
obtained declarations from experts on corrections in Doe’s
home state.

    It is plain that although “[t]his evidence might not have
made [him] any more likable to the jury, . . . it might well
have helped the jury understand [him], and his horrendous
acts . . . .” Sears v. Upton, 561 U.S. 945, 951 (2010)
(emphasis added). “Rather than creating the risk of an
unguided emotional response, full consideration of evidence
that mitigates against the death penalty is essential if the jury
is to give a “reasoned moral response to the defendant’s
background, character, and crime.” Penry v. Lynaugh,
492 U.S. 302, 328 (1989) (citations and internal quotation
marks omitted), abrogated on other grounds by Atkins v.
Virginia, 536 U.S. 304 (2002). The Supreme Court has long
made clear that “fundamental respect for humanity . . .


     The state incorrectly suggests that the expert testimony of Dr. J.C. and
E.P. would not have been admissible at trial. Under California’s Evidence
Code, an expert witness may offer opinions based on “matter (including
his special knowledge, skill, experience, training, and education) . . . made
known to him at or before the hearing, whether or not admissible, that is
of a type that reasonably may be relied upon by an expert in forming an
opinion upon the subject to which his testimony relates . . . .” Cal. Evid.
Code § 801(b). The sorts of material on which Dr. J.C. and E.P. relied –
prison records, interviews with Doe, his family members and friends, and
prisoner affidavits – are those on which any adequate mitigation
investigator not only may but must rely. See Heishman, 621 F.3d at 1041
n.3 (“[T]rial counsel could have presented expert psychological testimony
regarding [defendant]’s diagnosis for post-traumatic stress disorder. If so,
the expert would have been able to base her opinions on inadmissible
hearsay – [his] out-of-court statements regarding sexual abuse – and to
discuss both those opinions and the underlying hearsay in court, just as
[defendant]’s experts have done in these habeas proceedings.”).
52                           DOE V. AYERS

requires consideration of the character and record of the
individual offender,” because therein may lie “compassionate
or mitigating factors stemming from the diverse frailties of
humankind.” Woodson v. N. Carolina, 428 U.S. 280, 304
(1976). Doe should have been presented to and considered by
the jury as a “uniquely individual human being[],” who
endured the trauma we now recount. Id.

                          1. Rape in Prison

    The most compelling mitigating evidence that J.B. failed
to discover was also the easiest to obtain. There was reliable
evidence, in documents that J.B.’s investigator specifically
instructed him to request and in testimony from a prison
guard and multiple prisoners,39 that Doe – then a 17-year-old



 39
    The state argues that the evidence from which defense counsel could
have established that Doe was repeatedly raped in prison would not have
been credible. This is not the case. The fact that Doe was repeatedly and
violently assaulted by other prisoners is very well corroborated, through
the combination of his prison records, his own statements as reported by
two psychological experts, the declarations of some family members and
friends, the declarations of a number of fellow prisoners, and the
confirmatory declarations of two prison experts with knowledge of the
prison. The evidence is detailed and consistent. At the hearing in the
district court, counsel for the state was apparently so unconcerned with
refuting the testimony of those prisoners that he accepted the submission
of their declarations and waived the right to cross-examine them.

     P.P., a warden at the prison just before Doe’s term of incarceration,
concluded based on his review Doe’s prison record that it was “extremely
likely that petitioner [Doe] was repeatedly subjected to forced sexual
contact by other inmates during his incarceration . . . .”

    Another expert, D.B.F., an associate professor of criminal justice, had
served as an expert on jails and prisons in state and federal courts in Doe’s
                            DOE V. AYERS                              53

boy who had never been involved with the criminal justice
system before his conviction for stealing two purses – was
brutally and repeatedly raped while he was incarcerated. Doe
himself, when asked directly about his experience by trained
mental health professionals equipped with his records and
charged with the task of discovering information relevant to
the penalty phase, disclosed his abuse in vividly painful
detail. However, evidence concerning Doe’s chilling, brutal
experience in prison was completely absent from the penalty
phase of the trial. Had J.B. conducted an adequate
investigation, he would have discovered this information and
could have presented it, along with psychological expert
testimony explaining its impact, to the jury.

    Dr. J.C. reported, based on her review of Doe’s prison
record and the interviews she conducted with Doe and others,
that he experienced “a series of violent physical and sexual



home state. D.B.F. described the notorious prison in which Doe was
incarcerated:

         The strong ruled, and the weak either served or
         perished. Sexual abuse and homosexual slavery were
         widespread, with inmates auctioned, sold and traded
         like cattle by other inmates. . . . Many young inmates –
         black and white – who came to [the prison] in the 1970s
         to serve short terms for less serious felonies ended up
         with much longer sentences, including natural life
         terms, for trying to escape or fighting back, sometimes
         to the death, against rape and exploitation.

The rampant sexual violence in this prison was also acknowledged by
another former warden in his memoir. (Citation omitted.)

     Even if jurors were inclined to doubt the truthfulness of prisoners’
testimony, they would presumably credit that of a warden and a professor.
54                          DOE V. AYERS

assaults directed at him by other prisoners.”40 He was only 17
years old when his incarceration – and brutalization –
began.41 She noted that his records from the penitentiary
hospital include entries showing that he suffered lacerations,
bruises, and fractures consistent with these assaults. E.P.
found, during his review of Doe’s prison records, “a report by
a guard stating that he saw [Doe] lying on the seat of a
garbage truck face down with his jump suit pulled down
below his knees and inmate [R.S.] lying on [Doe] with his
penis in [Doe]’s rectum.”42



  40
     It is unclear how many times Doe was raped. E.P. noted that Doe told
him he had been raped three times, but that other sources reported many
more. “It is common for male victims of prison rape to under-report the
number of times they have been raped,” he explained, “because of the
shame and trauma associated with prison rape.” E.P. believed that Doe
had been raped more than three times.

     Additionally, Dr. J.C. received a report from a close friend of Doe’s
that he was raped in the jail where he was held prior to being transferred
to prison. Doe also revealed that he suffered violence at the hands of
guards, including gassing and starvation, which he described as a
“nightmare.” His aunt also reported hearing from a cousin of Doe’s, N.M.,
that guards had beaten and kicked Doe until his clothes came off and he
urinated and defecated on himself. However, because these incidents are
not corroborated elsewhere in the record, we have not weighed them in
mitigation.
  41
     Youth is one of the primary risk factors for sexual victimization in
prison. Prison Rape Elimination Act of 2003, Pub. L. No. 108-79, § 2, 117
Stat. 972, 972; see also National Prison Rape Elimination Commission
Report 7 (June 2009) (“Youth, small stature, and lack of experience in
correctional facilities appear to increase the risk of sexual abuse by other
prisoners.”).
 42
    At least one guard observed Doe’s sexual abuse firsthand. G.M. spoke
positively of Doe: “[Doe] was an inmate who listened. . . . I saw [Doe]
                             DOE V. AYERS                                55

    These assaults were not only physically painful but
terrifying.43


share his food with other inmates. I liked him and I never had any trouble
with him. He was just a young kid when he was [in prison].” He reported:

         During the 17 years I worked at [the prison] full-time,
         I wrote up inmates for infractions of the rules a total of
         twelve times. One of those twelve times . . . I was
         tipped off by a third inmate . . . that something was
         going on in a garbage truck. When I went to
         investigate, I found [an inmate, R.S.] having anal sex
         with [Doe] who was bent over the front seat of the
         truck. . . . [R.S.] was a much bigger man than [Doe].

     The fact that guards did not observe – or at least did not report – the
other occasions when Doe was raped is hardly surprising, given that the
dorms in this prison were not staffed at night. One prisoner, D.S.,
explained that “the dorms were wild and out of control at night. Young
inmates were regularly raped, inmates were routinely killed. No one was
safe. . . . The guards just didn’t care what went on out of their sight.”
Another prisoner, A.S., said that “the mentality of the guards was to let it
all happen and ignore the inmates getting hurt as a means of keeping
control.”

    In the same year this case began, another circuit denounced “the
inability or unwillingness of some prison administrators to take the
necessary steps to protect their prisoners from sexual and physical assaults
by other inmates” as “a national disgrace.” Martin v. White, 742 F.2d 469,
470 (8th Cir. 1984).
   43
      See Coker v. Georgia, 433 U.S. 584, 611–12 (1977) (Burger, C.J.,
dissenting) (“[Rape] not only violates a victim’s privacy and personal
integrity, but inevitably causes serious psychological as well as physical
harm in the process. The long range effect upon the victim’s life and
health is likely to be irreparable; it is impossible to measure the harm
which results. Volumes have been written by victims, physicians, and
psychiatric specialists on the lasting injury suffered by rape victims. Rape
is not a mere physical attack it is destructive of the human personality.
The remainder of the victim’s life may be gravely affected . . . . [S]hort of
56                           DOE V. AYERS

         [Doe] was told by another inmate . . . that [P.],
         one of the stronger and most powerful inmates
         in his Camp, had stated [Doe] was going to be
         his “punk” and if [Doe] didn’t submit, [P.]
         was going to take his life. Another inmate
         [J.E.] physically assaulted [Doe] and told him
         he would be his “gal boy” or he would die.

Doe reported that he “remembers lying on the floor after one
of these physical assaults wondering[,] ‘[H]ow am I gonna
survive? Can I make it out of here alive?’”

     Doe told Dr. J.C. that

         One particular sexual assault was immensely
         painful for [him]. In this incident, [Doe] was
         beaten and anally raped by [J.J.], a man with
         whom he had become close friends during the
         time he had already spent [in prison]. . . .
         Thus, when [J.J.] turned and sexually
         assaulted [Doe] in the shower, leaving him
         lying on the bathroom floor, [Doe]’s
         pervasive sense of powerlessness, shame, and
         rage was further complicated by his
         experience of betrayal by a man he had grown




homicide, [rape] is the ultimate violation of self. . . . Victims may recover
from the physical damage of knife or bullet wounds, or a beating with fists
or a club, but recovery from such a gross assault on the human personality
is not healed by medicine or surgery.” (citations and internal quotation
marks omitted)).
                             DOE V. AYERS                                57

         to trust.44 As [Doe] describes it, “I wasn’t the
         same after that; I wonder why I didn’t kill
         myself then.”45




  44
     It also appears that other rapes were arranged by people who knew
Doe, including his own stepfather, B.G., who had served time in the same
prison, and a man from Doe’s neighborhood, R.R., the uncle of a friend,
who was incarcerated at the same time. Dr. J.C. stated:

         [Doe]’s traumatic experiences [in prison] may have
         been even more painful to him due to the knowledge
         that at least some of the assaults may have been
         arranged by his mother’s husband. Family members
         report that [B.G.], [Doe]’s mother’s husband at the time
         [Doe] entered [prison], had it in for [Doe] and set it up
         so that [Doe] would be raped.

Doe’s aunt heard from her nephew, N.M., that this was true. Two
prisoners independently stated as much. One said:

         [R.R.] saw to it that [Doe] was taken to the gym and set
         up. At the gym, [Doe] was forced to go into a room
         with various guys who forced him to have sex with
         them. . . . After that [Doe] tried to keep on running. The
         problem was that [R.R.] had too many friends in the
         main prison. Even though [Doe] kept moving from
         camp to camp, he was never safe.
  45
    In fact, Doe did hurt himself. Dr. J.C. discovered, upon review of
Doe’s prison records, that they “document [Doe]’s attempts to harm
himself by mutilating his right forearm and wrists.” She noted that in her
expert opinion, “[t]his suicidal gesture is not surprising given that [Doe]’s
long-standing depression had been complicated by feelings of betrayal,
shame, and rage, along with ongoing anxiety regarding continued future
assaults.”
58                           DOE V. AYERS

    On another occasion, Doe told E.P., he was “raped in a
full dormitory, in front of all the other inmates there at the
time.”46 A different time, Doe

         was walking on the grounds when he was
         grabbed and pulled to the ground with a knife
         to the throat [and raped]. [Doe] says about this
         experience, “I had come too far to die up in
         this place here,” which of course was his
         primary concern. . . . When he was released
         [Doe] was “just glad to get out of there
         walking.”

    Powerful prisoners apparently controlled Doe no matter
where he moved in prison. E.B., a prisoner who knew Doe,
said:

         The older inmates got [Doe] when he first
         came to [prison]. . . . An older inmate put a
         claim on [Doe]as his own. [Doe] was moved
         to . . . a camp here, . . . for protection. . . .
         [Doe] could have tried to get away from [B.]
         and from being forced to have sex with other
         inmates by moving from one camp to another,
         but [Doe] never would have been able to
         really get away. Once [Doe] was owned by


  46
      Doe told E.P. that he had “blocked . . . out” the memory of this
particular rape until he was released. E.P. explained that this “dissociative
event,” a “symptom of Post-Traumatic Stress Disorder,” “indicates the
relative severity of this particular rape, which was much more public and
therefore more shameful than the prior rape. The public nature of it would
also represent greater danger since that kind of branding in the prison
culture can lead to many more rape attempts.”
                           DOE V. AYERS                               59

         [B.], it would have been impossible for [Doe]
         to be safe anywhere inside [the prison].

A.R., who knew Doe when he was growing up and when he
was incarcerated, explained based on his knowledge of the
prison:

         Once an inmate is forced to become some
         guy’s lover, that’s it. And that inmate
         wouldn’t just be forced to have sex with the
         one inmate, he would be forced into
         prostitution for the benefit of the inmate who
         owned him – often for just a carton of
         cigarettes. . . . The inmate who owned him
         would send word to the new cell or dorm that
         [Doe] belonged to him. Someone in the new
         setting would be charged with taking care of
         [Doe] for the first inmate, and it would all
         start again. [Doe] would have had no way to
         escape the life he was forced into. He would
         have been utterly trapped.47

    Dr. J.C. observed that Doe, in his efforts to escape harm,
changed his custody or work assignment 73 times in less than
five years. Many of his requests to be transferred to
administrative lockdown were made in the early hours of the
morning; as other prisoners corroborated, assaults often
occurred at night. (Again, this striking evidence, like the
evidence of Doe’s self-harming, was available in the prison


  47
     Cf. LaMarca v. Turner, 662 F. Supp. 647, 686 (S.D. Fla. 1987)
(“[O]nce an inmate is raped, he is marked as a victim for repeated sexual
assaults for the remainder of his imprisonment.”), aff’d in part and
vacated in part on other grounds, 995 F.2d 1526 (11th Cir. 1993).
60                           DOE V. AYERS

record J.B. neglected to request.) During their interview, Doe
told E.P. that he arranged to be “sent to solitary confinement
by getting himself written up for failing to obey a directive or
by deliberately being disrespectful to guards.”48

    As Dr. J.C. put it, “After the assault by [J.J.] and by the
other strong prisoners, [Doe] had earned the label of ‘galboy’
and from that point on, lived a ‘cat and mouse game,’
repeatedly requesting transfers, protective custody, and
administrative lockdown.” E.P. opined that the fact that Doe
“elected to experience the psychological trauma of solitary
confinement to reduce the risk of continued sexual assaults
underscores how terrifying and repulsive he found the idea of
being sexually approached and violated by fellow inmates.”
D.B.F., the professor of criminal justice, concluded that
Doe’s “constant[] moving reflect[s] that he must have been in
a constant state of fear. . . . I expect [Doe] was one of those
who left [the prison] very messed up.”

    Not only did Doe suffer the trauma of sexual
victimization and subordination; upon his release, he had to
face friends and family members who knew of his




  48
     Another prisoner, P.M., suggested that Doe had deliberately injured
himself in order to effectuate a transfer. D.B.F. noted that assignment to
isolation would have rendered Doe “ineligible for work, recreation, free
time on the yard, membership in inmate organizations, or other aspects of
normal social interaction.” However, P.R., an inmate counselor who
reviewed Doe’s files, doubted whether even isolation would have ensured
his safety, given that sexual assaults often occurred in that unit as well. He
suggested that “[i]n order to have any measure of safety during the
particular years [Doe] was here, he would have had to become partners
with another inmate for protection.”
                             DOE V. AYERS                                61

humiliation.49 He had trouble upon his return home as a
result. As one fellow prisoner, A.S., whose sister had told him
that Doe had “a lot of trouble on the street because guys had
heard what happened to him,” put it: “The stigma of all that
followed [Doe] back home . . . .” In a letter to a girlfriend,
I.R. – one who told D.S. in a taped interview that Doe had
been “fresh meat” from whom other prisoners “got some” –
Doe wrote: “You told me once I was a whore in there. And
that really hurt me . . . . And when you told me that, I just felt
like you didn’t have any more respect for me as being a
man.”

    This evidence is powerful. As another prisoner, A.R.,
stated in his declaration, “Prison rape is the most devastating
thing you can experience.”50 Undoubtedly, this evidence


   49
      The (widely corroborated) fact that many of Doe’s friends and
relatives knew about the rape makes even more obvious how utterly
inadequate J.B.’s mitigation investigation was. According to A.S., a
neighbor, Doe’s own mother knew. She might well have revealed this
information to J.B. or D.S., if they had only asked.
   50
      For decades, the federal courts have recognized how powerfully
damaging the experience of “confinement in a prison where violence and
terror reign” would be to a prisoner, in clearly recognizing “a right,
secured by the eighth and fourteenth amendments, to be reasonably
protected from constant threat of violence and sexual assault by [] fellow
inmates . . . .” Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973);
see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (“Being violently
assaulted in prison is simply not ‘part of the penalty that criminal
offenders pay for their offenses against society.’” (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981))); id. at 853 & n.* (Blackmun, J.,
concurring) (“The horrors experienced by many young inmates,
particularly those who . . . are convicted of nonviolent offenses, border on
the unimaginable. Prison rape not only threatens the lives of those who fall
prey to their aggressors, but is potentially devastating to the human spirit.
Shame, depression, and a shattering loss of self-esteem, accompany the
62                           DOE V. AYERS

would have moved at least some of the jurors who decided
Doe’s punishment.51 The Constitution requires that the
sentencing jury’s decision “reflect a reasoned moral response


perpetual terror the victim thereafter must endure.”); cf. United States v.
Rodriguez, 213 F. Supp. 2d 1298, supplemented, 214 F. Supp. 2d 1239
(M.D. Ala. 2002) (concluding that a defendant’s rape in prison warranted
a downward departure in the sentence).
 51
     The district court inappropriately dismissed the impact of Doe’s rape
in prison, finding that “[w]hile prison abuse is inexcusable, the reserve of
empathy for prisoners is shallow.” Profoundly traumatic experiences in
prison have served as highly effective mitigation in other capital cases.
See, e.g., Douglas, 316 F.3d at 1089–90 (concluding that trial counsel’s
penalty-phase performance was prejudicially ineffective in part because
he failed to introduce evidence that the defendant “was arrested and put
in a Florida jail where he was beaten and gang-raped by other inmates” in
his late teens, despite the fact that the defendant was convicted of sexually
assaulting and murdering two teenage girls).

     While not everyone is sympathetic to the plight of prisoners who are
sexually assaulted, most are – and this sympathy is not new. A 1994 poll
found that 78% of respondents did not accept rape as “part of the price
criminals pay for wrongdoing”; 59% thought being raped “constituted a
violation of an inmate’s constitutional protection against cruel and unusual
punishment under the Eighth Amendment” even before the Supreme Court
decided the question in Farmer v. Brennan, 511 U.S. 825 (1994). Charles
M. Sennott, Poll Finds Wide Concern About Prison Rape; Most Favor
Condoms for Inmates, Boston Globe, May 17, 1994. Nor is the horror of
prison rape recognized only by a political subset of the American
population. The Prison Rape Elimination Act was a model of bipartisan
cooperation, and it passed both houses unanimously. See Pat Nolan &
Marguerite Telford, Indifferent No More: People of Faith Mobilize to End
Prison Rape, 32 J. Legis. 129, 139 (2006) (noting that the coalition to pass
the Prison Rape Elimination Act was an “unlikely amalgam of groups”
and observing that it “recruited legislators from across the political
spectrum”). While some jurors might dismiss all acts of violence against
those serving criminal sentences out of hand, many would feel sympathy
for or even perhaps identify with Doe’s experience of sexual brutalization.
                         DOE V. AYERS                            63

to the defendant’s background, character, and crime.”
California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J.,
concurring) (emphasis in original). We are convinced that if
the jury had heard about what had happened to Doe in “that
man-made hell,” this evidence alone would have stirred
sufficient compassion or understanding in the jury to result in
a life sentence.

                       2. Mental Illness

    The psychological impacts of Doe’s experience in prison
were obvious to those who knew him. His ex-girlfriend, I.R.,
said: “I think he was a crazy man. But he wasn’t like that in
the beginning [before prison].” A cousin, N.M., said his time
in prison had “caused [Doe] to go crazy.” Doe was “slipping
in the head.” A neighbor and friend, A.S., said:

        [Doe] seemed like a troubled young man to
        me. He was not really all there. . . . It didn’t
        take a psychiatrist to see there was something
        eating at [Doe]. . . . [Doe] told me he had
        problems . . . . I believe in my heart that what
        happened to [Doe] [in prison] wrecked his
        mind. The system didn’t help him, it just
        broke him. Those experiences of being raped
        are stuck in [Doe]’s head. He would never
        talk about it and let any of those feelings out.

Another friend, J.A., put it thus: “He was like people who
come back from Vietnam and could never talk about their
time there.”52

   52
      Doe’s mother and aunt also said that he did not talk about his
experiences in prison.
64                             DOE V. AYERS

     Behaviorally, Doe was off. “A lot of things he said didn’t
make sense” to J.A. He was “extremely jumpy,” “nervous,”
and “jittery.” He “couldn’t keep still,” “wasn’t sleeping,”
“would walk around the house all night long,” and was
“easily upset and agitated.” Sometimes he “would just sit and
not speak,” even when spoken to. I.R., who had known him
all his life and with whom he was romantically involved after
his release, believed that he “needed some psychiatric
counseling after being confined for five whole years” and that
perhaps he became “angry over flashbacks.” She said, as Dr.
J.C. noted, that “he could go out of control when he was
under the influence of alcohol or drugs and it seemed . . . that
[Doe] has a split personality – that he seemed to be
schizophrenic. [Doe] could be warm and loving one minute,
then the next minute ‘tripped out.’”53

    The impacts of Doe’s trauma did not recede with time. A
year and a half after his release, his mother arranged for him
to see a mental health specialist; the intake sheet noted that
she “[r]eport[ed] [Doe] was in [] prison for 6 years and [his
mother] feels it has done something to him – he’s nervous,
not violent . . . .” During intake, he said he was suffering from
“nerves,” “inappropriate laughter,” “depression/blues,”


 53
      A friend, A.S., reported that after his release,

           [Doe] was very tense and would quickly become
           agitated and upset over minor irritations. To me it
           seemed that [Doe] had great difficulty dealing with any
           pressure or stress. I saw [Doe] fly into a serious rage
           two or three times. . . . [Doe] never seemed able to
           control his anger or emotions, much as he wanted to
           and tried. . . . I would describe [Doe] as schizo, just two
           completely different people in the same body. Anger
           would just spew out of [Doe] at times.
                        DOE V. AYERS                          65

“inability to stay still,” “problems with temper/anger,”
“feelings that people are out to get me,” and “feelings of
hopelessness/helplessness.” His mood was described as
“depressed” in a mental health evaluation that day. Doe told
Dr. J.C. that he remembered not caring about anything and
wanting only to be isolated. It was recommended that he
attend weekly psychotherapy sessions and Alcoholics
Anonymous; it seems that he did not.

    After Doe was taken into custody for his current offense,
he wrote in a letter to I.R. that the abuse he suffered in prison
“play[ed] a part in the destruction of my life. But I thought I
was handl[ing] it good, until I got out of that hell hole, I was
so immature, with man’s body, but a young and very
confused mind.” He went on to explain that he

        need[ed] someone so bad after all that shit I
        went through in that man-made hell, but there
        wasn’t anyone to turn to. I couldn’t turn to
        you not by you fully respecting me as
        something happen[ed] to me that you [or] no
        one would understand. . . . [M]y life was
        destroy[ed] after doing five years, seven
        months, and sixteen days in that hell hole . . . .

   Dr. J.C. was able, as an expert, to place Doe’s trauma in
psychological context. She explained:

        A man who is raped experiences powerful
        feelings of shame, guilt, and rage; yet, a man
        who must remain in an environment of
        continued sexual assault is forced to
        internalize these feelings in order to play the
        role that is intended for him and survive the
66                          DOE V. AYERS

         experience. Research suggests that the
         combination of physical and sexual assault
         with little recourse to justice, humiliation by
         both attacker and by others in the prison, and
         the requirement for continued submission to
         sexual demands constitutes formidable
         pressure resulting in severe psychological
         reactions. These feelings and reactions would
         have been compounded for [Doe] by his
         history of being physically dominated by his
         stronger, more powerful Uncle [J.C.]
         throughout his childhood and adolescence and
         by the severe neglect he experienced as an
         infant at the hands of his mother.

    Dr. J.C. explained that prison left him ravaged by
significant mental illness: “Upon discharge, he was a broken
man. He suffered from symptoms consistent with Post-
traumatic Stress Disorder [PTSD],54 Major Depression,55 and,



  54
     The district court mischaracterized Doe’s serious mental illness as
“extremely mild mental problems.” PTSD is a “grave affliction.” United
States v. Cantu, 12 F.3d 1506, 1512, 1513 (9th Cir. 1993); see also United
States v. Menyweather, 447 F.3d 625, 628, 632 (9th Cir. 2006)
(recognizing that chronic PTSD symptoms are linked to compulsive
behavior and an inability to make reasoned decisions).

     Dr. J.C. explained the distressing symptoms of PTSD, including
flashbacks, sleep disturbed by nightmares, difficulty concentrating,
anxiety or fear, panic, anger, feeling the need to defend oneself, and
difficulty controlling emotions. She stated:

         Increased arousal is a common response to trauma.
         Their bodies are on constant alert, always ready to
         respond immediately to any attack. This includes
                             DOE V. AYERS                             67




          feeling jumpy, jittery, shaky, being easily startled, and
          having trouble concentrating.

She added:

          Aggressive behavior towards oneself or others can
          result from frustration over the inability to control
          PTSD symptoms. . . . The victimization [Doe] suffered
          [in prison], coupled with his traumatic childhood and
          adolescence, and lack of guidance or modeling in
          healthy relationships, led to his inability to manage
          intense negative emotions and his tendency to act out
          physically in the way he had been taught to act
          throughout his childhood.

She also noted that Doe’s substance abuse would “exacerbate [his]
inability to suppress or control violent behavior.” E.P. gave a similar
explanation.
 55
      She explained that depression was often a result of trauma:

          Ways of avoiding thoughts, feelings, and sensations
          associated with trauma can include avoiding
          conversations, shutting down emotionally or feeling
          emotionally numb, trouble having loving feelings or
          feeling any strong emotions, feeling strange or
          disconnected from the world, feeling weird physical
          sensations and losing interest in the things one used to
          enjoy.

She elaborated:

          People who have experienced trauma often have
          problems in relationships with others because they have
          a hard time feeling close to people or trusting them.
          This is especially likely to happen when the trauma was
          caused or worsened by people known to the victim (as
          opposed to an accident or natural disaster).
68                           DOE V. AYERS

in a continued attempt to self-medicate against the pain and
escape from the daily horror of his memories, quickly
redeveloped a Poly-substance Dependence.”56 She noted that
he “experienced all but one (combat exposure) of the
traumatic events most often associated with PTSD in men”:
childhood neglect, childhood physical abuse, and rape.57 In
diagnosing Doe with Major Depression, Dr. J.C. observed
that his depression began in his childhood but was
exacerbated by his experience in prison.58


This did occur for Doe, as evidenced by the fact that he refused to speak
about what happened to him in prison with his aunt, with whom he was
very close.
  56
      The habeas court also considered the report of a California prison
psychiatrist who found “evidence of organic brain dysfunction.” The
district court dismissed this evidence, stating, without support, that “[a]
dysfunction is less than a disorder, disease, or defect.” However, because
Doe does not rely on this solitary piece of evidence in his briefing before
us, and because it is superfluous to our conclusion, we do not consider it
further.
      57
       This diagnosis is hardly surprising. See National Prison Rape
Elimination Commission Report 14 (June 2009) (“The psychological
aftereffects of sexual abuse are well documented. They include
posttraumatic stress disorder, anxiety disorders, fear of loud noises or
sudden movements, panic attacks, and intense flashbacks to the traumatic
event. Each of these consequences alone has the ability to re-traumatize
victims for years.”); id. at 45 (“The closed nature of correctional facilities
can lead to especially devastating effects for sexual abuse victims. . . . The
constant threat of subsequent abuse and physical proximity to danger are
likely to increase the risk of developing PTSD and other aftereffects. The
consequences of sexual abuse may be worse for those who are young,
have a past history of sexual abuse, or have a preexisting mental illness.”).
 58
   It seems that Doe had a history of depression prior to his incarceration.
E.P. reported that when Doe’s mother was married to B.G., he became
“withdrawn, isolated and very depressed, and lost 85 pounds.” Dr. J.C.
                           DOE V. AYERS                              69

    Doe establishes prejudice based on the foregoing
evidence alone. There is more than a “reasonable probability
that, [considering this evidence], the sentencer [i.e., at least
one member of the jury] . . . would have concluded that the
balance of aggravating and mitigating circumstances did not
warrant death.” Strickland, 466 U.S. at 695. His experience
of brutalization as a youngster in prison and resulting mental
illness are even more powerfully mitigating, however, when
viewed alongside evidence of his abusive childhood and
substance abuse. Hence, we turn now to those subjects.

               3. Childhood Abuse and Neglect

    As for Doe’s childhood, J.B. did elicit penalty-phase
testimony that his father did not support his mother, that his
grandmother cared for him while his mother was working,
that his uncle abused him physically,59 and that he had
emotional problems when his mother remarried. This picture
of Doe’s childhood, however, seriously understated the
violence he suffered at the hands of his mother and his uncle,
and afforded little in the way of mitigation that might be
persuasive to a jury.




concluded that Doe had suffered another major depressive episode upon
his release from prison, which only worsened after he moved to
California.
   59
       J.B. did not, however, elicit the painful details. Penalty-phase
testimony about Doe’s childhood came only from his mother; she
mentioned, only briefly, that his uncle would “whip” Doe, and that he
started to beat Doe when he was eleven or twelve. The violence inflicted
on Doe as a child was characterized by J.B., in questioning Doe’s mother,
as “discipline.”
70                      DOE V. AYERS

    Dr. J.C., who conducted interviews designed to elicit
evidence of childhood abuse and neglect, learned much more.
She reported that Doe’s mother, herself a victim of physical
and sexual abuse and an abuser of alcohol and drugs, was
“virtually absent” from his life until he was six years old.
When he was an infant, she abandoned him, sometimes
overnight, to go out drinking. On such occasions, she would
leave him wrapped in a fur coat, without food or clean clothes
or diapers. Sometimes, his diapers were not changed for days,
and became so filthy they were black. Neighbors saw him
crawling down the hallway of his apartment, begging for
something to eat. Not only was Doe’s mother neglectful; she
beat him with a belt or extension cord.

     In Dr. J.C.’s words, Doe’s “early childhood was in many
ways a continuation of his experience in infancy,” and his
“transition from childhood to adolescence was filled with
continued neglect by his mother and the other adults in his
life.” The testimony the jury heard did not make known that
Doe was, in fact, raised largely by his violent uncle and
grandmother (who once aimed a gun at him) after the age of
one, because his mother was unable to take care of him.

    Doe’s uncle singled him out, repeatedly beating him
throughout his childhood years, unpredictably and for no
reason, with his fists and with sticks, sometimes on the head.
He punched Doe in the head if he came home slightly late or
did something perceived to be disrespectful. He once knocked
Doe off a ladder, and kicked him in the head as he lay on the
ground until he lost consciousness. On another occasion, he
pounded Doe’s head into a telephone pole. Another time, he
tried to run Doe over with a car. Even after Doe was released
from prison, his uncle still beat him, once with a large shovel.
                          DOE V. AYERS                             71

Doe wrote in a letter that he was “lucky the man didn’t kill
me . . . .”

    This evidence, too, would have been powerful. “It is well
established that early childhood trauma, even if it is not
consciously remembered, may have catastrophic and
permanent effects on those who . . . survive it.’” Stankewitz,
698 F.3d at 1169 (citation omitted).

                      4. Substance Abuse

    J.B. also did not present evidence of Doe’s serious
substance abuse at the penalty phase of his trial. While this
failure alone would not have prejudiced Doe, the evidence
would have helped to sway the jury towards life when
considered cumulatively, alongside the other mitigating
evidence.60 Here, as Dr. J.C. explained, mitigation based on
Doe’s substance abuse would not simply have been additive.
Rather, the evidence of his escalating dependence would have
amplified the mitigating force of Doe’s repeated trauma in
prison, which drove him to “continued attempt[s] to self-
medicate against the pain and escape from the daily horror of
his memories.” Cf. Ainsworth, 268 F.3d at 876 (concluding
that failure to present evidence of substance abuse at the
penalty phase was prejudicial, and noting expert testimony
that the petitioner “used drugs as a form of self-medication
because he lacked any other means of overcoming or even
coping with his unbearable inner experience”).




  60
    There is also evidence that substance abuse was pervasive in Doe’s
immediate and extended family, and that he was exposed to alcohol and
drugs at a young age.
72                           DOE V. AYERS

    A.S., who lived for many years in the same neighborhood
as Doe’s family and met him after his release from prison,
reported that “most nights I saw [Doe] drink between seven
and nine half-pints of hard liquor [and, when he was able to
pour his own drinks,] even more.” He added that “he just kept
drinking more and more . . . which usually made him more
irrational and easily upset. By the time [Doe] left for
California, his drinking problem was enormous and he
seemed extremely unstable.”61

    Doe told E.P. that “after his release from prison he felt
profoundly depressed and anxious, which he tried to
overcome by drinking alcohol to keep numb.” E.P. explained,
as an expert witness could have at trial, that “[t]he resort to


 61
    Exactly which drugs he used and when is less clear. Doe told D.S. that
he smoked marijuana occasionally – which contributed to his leaving
school – and did two grams of cocaine per weekend after his release from
prison. D.S. noted that while Doe was twice supposed to attend substance
abuse treatment programs, he never did so. E.P. reviewed a statement by
a classmate of Doe’s, who said that Doe regularly used alcohol, marijuana,
and prescription pills, and that he saw Doe snort suede cleaner. Dr. J.C.
was informed that Doe consumed a variety of other, harder drugs. Though
the list Dr. J.C. reported is longer, Dr. M.R. learned from Doe, before his
trial, that he had used marijuana, barbituates, tranquilizers, and cocaine.

     The state argues that the statements of some witnesses as to Doe’s
substance abuse are unreliable and perhaps exaggerated. However, the
evidence of Doe’s substance abuse would have been useful to the jury not
to explain an intoxicated state that precipitated the crime, as in Mayfield
v. Woodford, 270 F.3d 915 (9th Cir. 2001), the case the district court and
state both cite, but rather to help the jurors understand that Doe had
unsuccessfully attempted to self-medicate. Cf. id. at 931 n.17 (“[J]uries are
unlikely to favor defenses based on abuse of dangerous drugs in
evaluating a defendant’s culpability for violent behavior.” (emphasis
added)). Hence, the precise details of his substance abuse are not critical
to the prejudice inquiry.
                            DOE V. AYERS                                73

drugs and alcohol as a means of coping with pain is common
among people who are depressed and among people who
have experienced significant trauma.” He observed that Doe
“retreated into a continual drug and alcohol haze that helped
him to turn off the recurring traumatic thoughts. Trauma is
often most effectively treated through a combination of
psychological counseling and psychotropic medications, none
of which were available to [Doe].”

    Evidence about Doe’s childhood would have
demonstrated to the jury that the trauma he suffered in prison
was not isolated, but rather the most disturbing of multiple
episodes in a horrific series that stretched back to his birth.
Evidence about his substance abuse would have highlighted
his inability to cope with his violation in prison. We have
concluded that the evidence of Doe’s repeated rape in prison
and its detrimental effects on his mental health is sufficient to
establish prejudice; this additional mitigating evidence, which
J.B. likewise failed to present, only strengthens that
conclusion.62




   62
      Like materiality in the Brady context, prejudice resulting from
ineffective assistance of counsel must be “considered collectively, not
item by item.” Kyles v. Whitley, 514 U.S. 419, 436 (1995); see also Silva,
279 F.3d at 834 (“[C]umulative prejudice from trial counsel’s deficiencies
may amount to sufficient grounds for a finding of ineffectiveness of
counsel.”). This is particularly true when, as here, the different pieces of
mitigating evidence fit together into an internally coherent and compelling
narrative whole. As E.P. put it, after assessing Doe, “The trauma inflicted
on [Doe] [in prison] built upon the trauma from his childhood – the
parental neglect, the beatings by [Doe’s] Uncle [J.C.], the depression, the
substance abuse. [Doe] entered [prison] a depressed, traumatized,
addictive young man and left as a severely more compromised
individual.”
74                           DOE V. AYERS

                 D. Comparison to Other Cases

    The determination whether a petitioner was prejudiced by
his lawyer’s failure to discover and present mitigating
evidence is an inherently fact-intensive inquiry, and requires
close consideration of individual records, rather than
oversimplified, ordinal comparisons between summaries of
the suffering experienced by capital defendants. Such
judgments are “uniquely moral decision[s] in which bright
line rules have a limited place.” Hendricks, 70 F.3d at 1044.

    That said, our finding of prejudice to Doe is indeed
supported by just such a comparison; we have found
prejudice in other similar cases. See Douglas, 316 F.3d at
1088–90 (mitigation not presented at trial included evidence
that the defendant was raised by an alcoholic foster father
who locked him in a closet, had to scavenge for food, was
beaten and gang-raped by other prisoners when he was a
teenager, was decorated in the Marines, suffered a head
injury, and consumed a lot of alcohol); see also Karis v.
Calderon, 283 F.3d 1117, 1137–41 (9th Cir. 2002)
(mitigation not presented at trial included evidence that the


     Had J.B. conducted an adequate mitigation investigation, he would,
by his own admission, have presented a very different story: one of
significant childhood abuse and neglect, compounded by the trauma of
repeated sexual victimization and subjugation beginning at the age of 17,
and leading to significant mental health problems and efforts to self-
medicate. It is well recognized that the mitigating factors present in Doe’s
case are characteristically interrelated. See National Prison Rape
Elimination Commission Report 47 (June 2009) (“Individuals dealing with
the consequences of sexual abuse may find it difficult to reintegrate into
society, relate to their families, and rebuild their lives. Some self-medicate
with alcohol and drugs to escape emotional or physical suffering. Some
turn back to crime, become homeless, or reenter the criminal justice
system.”).
                           DOE V. AYERS                              75

defendant’s father was violently abusive towards his mother
during his early childhood, that the defendant occasionally
returned from visits to his father with suspicious injuries, and
that his mother’s second husband also beat and controlled her,
and mistreated the defendant); Silva, 279 F.3d at 847 n.17
(mitigation not presented at trial included evidence that the
defendant had been “severely abused and neglected as a child
by alcoholic and impoverished parents; . . . [and] that he
likely suffers from Post-Traumatic Stress Disorder” as well
as a brain disorder stemming from alcohol and drug abuse);
Jackson, 211 F.3d 1148, 1163 (9th Cir. 2000) (mitigation not
presented at trial included evidence that the defendant
“suffered repeated beatings in childhood, and that his mother
choked him when angry with him,” that his “childhood and
adolescence were characterized by neglect and instability,”
and that he “exhibited signs of mental illness” as a child);63
Hendricks, 70 F.3d at 1037, 1044 (mitigation not presented at
trial included evidence of the defendant’s “alleged history as
a victim of sexual abuse and possible genetic predisposition
to various psychiatric disorders,” “hard childhood, [and] drug
problems”); cf. Miles v. Ryan, 713 F.3d 477, 492–93 (9th Cir.
2012) (declining to find prejudice in a case where the
defendant may have observed violence in connection with his
mother’s work as a prostitute during his childhood, but there
was no evidence that he himself was abused or neglected).

    In a leading case, the Supreme Court found that the
petitioner, Wiggins, was prejudiced by his defense counsel’s
failure to present evidence that he “experienced severe


 63
    Jackson’s lawyer also failed to present medical evidence going to his
ability to think clearly at the time he committed the crime. We held,
however, that this evidence “was prejudicial as well.” Id. (emphasis
added).
76                          DOE V. AYERS

privation and abuse in the first six years of his life while in
the custody of his alcoholic, absentee mother.” Wiggins,
539 U.S. at 534–35. It added that he “suffered physical
torment, sexual molestation, and repeated rape,” and had been
homeless. Id. at 535. In another case, the Supreme Court
found that the petitioner, Rompilla, was prejudiced by his
defense counsel’s failure to discover that he was raised by
parents with serious drinking problems who fought violently,
that his father “beat him when he was young with his hands,
fists, leather straps, belts and sticks,” that he received verbal
abuse rather than expressions of affection, and that he lived
in squalor.64 Rompilla, 545 U.S. at 391–93. Although Doe’s
life was, of course, different than Wiggins’s and Rompilla’s,
he, too, clearly “has the kind of troubled history we have
declared relevant to assessing a defendant’s moral
culpability.” Wiggins, 539 U.S. at 535.

         VI. Causal Nexus and Rebuttal Evidence

    The state offers two additional arguments against our
conclusion that J.B.’s deficient penalty-phase performance
prejudiced Doe.

    First, it argues that J.B.’s failure to introduce evidence of
the abuse Doe suffered – both as a child and in prison –
cannot have prejudiced him because this evidence could not

 64
     Rompilla also had organic brain damage. Rompilla, 545 U.S. at 392.
However, there is no indication that this was a determinative factor in the
Supreme Court’s analysis, or even – buried as it is in a list of other
unintroduced mitigating evidence – that it was more significant than any
of the rest of it. To assume otherwise would be to assume, contrary to the
Supreme Court’s express statements, that penalty-phase mitigating
evidence will carry weight only when it offers a causative explanation for
the offense.
                         DOE V. AYERS                          77

have explained why he committed the offense. This argument
fails both as a matter of fact and as a matter of law. The
declarations of the two psychological experts retained by
habeas counsel would have offered jurors a way to
understand (though of course not to justify) Doe’s aggression
as the product of repeated brutalization that left him suffering
from PTSD. Additionally, both we and the Supreme Court
have recognized that while demonstrating such a causative
“nexus” between painful life experiences and the commission
of the offense is one way in which mitigating evidence can be
expected to alter a sentencing outcome, it is certainly not the
only one. Tennard v. Dretke, 542 U.S. 274, 286–87 (2004);
see also Smith v. Texas, 543 U.S. 37, 45 (2004) (stating that
the nexus test is a test that the Supreme Court “never
countenanced and now ha[s] unequivocally rejected,” and that
this holding was “plain under [its] precedents”); Styers v.
Schriro, 547 F.3d 1026, 1035 (9th Cir. 2008) (“In applying
this type of nexus test to conclude that [the defendant’s] post
traumatic stress disorder did not qualify as mitigating
evidence, the Arizona Supreme [C]ourt appears to have
imposed a test directly contrary to the constitutional
requirement that all relevant mitigating evidence be
considered by the sentencing body.”).

    Unlike at the guilt phase, where the primary focus is on
evidence offering a causative explanation, which might
reduce formal culpability, mitigating evidence at the penalty
phase also serves to increase jurors’ sympathy for or
comprehension of the lives, and crimes, of defendants who
have themselves suffered terribly. Sears, 561 U.S. at 951. It
is well established that “[w]hile the question of innocence or
guilt of the offense is essentially a question of fact, the choice
between life imprisonment and capital punishment is both a
question of underlying fact and a matter of reasoned moral
78                          DOE V. AYERS

judgment.” Sawyer v. Whitley, 505 U.S. 333, 370 (1992).
“Evidence regarding social background and mental health,”
such as the evidence that J.B. failed to present, is necessary
to allow jurors to exercise reasoned moral judgment.
Douglas, 316 F.3d at 1090. “Only then can we be sure that
the sentencer has treated the defendant as a ‘uniquely
individual human bein[g]’ and has made a reliable
determination that death is the appropriate sentence.” Penry,
492 U.S. at 319 (quoting Woodson, 428 U.S. at 304).

    Second, the state argues that the strength of the mitigating
evidence that went unheard at trial should be discounted to
the extent that it would have opened the door to potentially
damaging rebuttal evidence.65 There are three specific pieces
of evidence at issue, suggesting but offering no proof that
Doe had himself committed sexual assaults. All three would
likely have been inadmissible, and none would have been
inconsistent with the mitigation evidence discussed above.

    The first is a warrant issued for Doe’s arrest in his home
state in connection with a rape; he was never arrested,
charged or convicted. The bare fact that Doe was suspected
of rape did in fact come in during the penalty phase of the


 65
    The state actually makes two arguments about this rebuttal evidence.
The first is that it would serve to counterbalance the unintroduced
mitigating evidence, thereby limiting prejudice. The second goes instead
to the first prong of the ineffective assistance analysis: the deficiency of
J.B.’s performance. The state suggests that had he known about both the
mitigating evidence and the rebuttal evidence it might draw, he would
have chosen to put on only the same limited mitigation presentation he
offered at trial. When asked about this during the habeas hearing, J.B. said
that this rebuttal evidence would not have made it more difficult for him
to present evidence of Doe’s victimization to the jury. We see no reason
to second-guess his assessment.
                       DOE V. AYERS                        79

trial, in order to rebut a character witness. The trial judge
excluded all details of the alleged offense, which the state
sought to introduce in order to rebut evidence of his good
character – a purpose for which it would, at least, have been
relevant.

    We doubt whether this evidence, ruled inadmissible for
the purpose of demonstrating Doe’s bad character, would
have been admissible to rebut the mitigating evidence related
to his rape in prison, because evidence that Doe might have
been the perpetrator of a rape outside of prison would have
done nothing to undermine a showing that he himself had
been the victim of rape in prison. See People v. Mitcham, 824
P.2d 1277, 1308 (Cal. 1992) (in bank) (“[W]e caution[] . . .
that the scope of rebuttal must be specific, and evidence
presented or argued as rebuttal must relate directly to a
particular incident or character trait defendant offers in his
own behalf . . . .” (internal quotation marks omitted)). The
already-materialized risk that the jury would hear that Doe
was accused of rape would not have dissuaded counsel from
presenting additional mitigation, nor would it have
substantially undermined that presentation. See Correll,
539 F.3d at 955 (rejecting the argument that because the
prosecution could have presented “very damaging evidence
in rebuttal,” defense counsel’s failure to present mitigating
evidence was not prejudicial, because “a significant portion
of that damaging rebuttal evidence was already available
through the pre-sentence report”).

    The second piece of rebuttal evidence is a two-page
document from Doe’s prison file, reflecting that he received
a disciplinary infraction for being a member (though not a
leader) of a group of prisoners allegedly involved in forcing
others in a particular unit to engage in sexual acts. The form
80                       DOE V. AYERS

attributes these assaults to the group as a whole, and includes
no statements about particular incidents nor about any
specific acts of Doe’s. This is the only allegation of such
behavior in his voluminous prison file, and is substantiated by
no other evidence. The state’s brief refers to it, tellingly, as an
“indication.” The third piece of evidence is the mention in a
probation report that during Doe’s detention in a California
jail prior to his murder trial, another prisoner asked to be
moved, alleging that Doe propositioned him for sex and
threatened to initiate sex without consent. There is no
suggestion that anything further occurred, and his “[i]nmate
records reflect no disciplinary action was taken on this
instance.”

    Though these latter two pieces of evidence are perhaps
more likely to have been admissible on relevance grounds, as
they concern sexual abuse Doe allegedly perpetrated while
confined, their unreliability might well have barred their
introduction. See People v. Martinez, 74 P.3d 748, 762 (Cal.
2003). Even if this evidence was properly admissible, the jury
would likely have given it little weight, given that neither of
the reports was detailed or supported by any additional
evidence, Doe’s role in the first incident was very unclear,
and the second report did not even allege an actual assault.

    Furthermore, it is well known that sexual abuse can beget
sexual abuse. Suggestions that Doe became sexually
aggressive after being raped would actually have supported,
not contradicted, the testimony of Dr. J.C. and E.P. about the
effect of the trauma Doe suffered on his behavior, and the
evidence in multiple declarations about the power structure in
prison that he was forced to learn, in order to survive. Both
experts reported that people who are raped in prison often act
out sexually; the fact that such prisoners often attempt to
                              DOE V. AYERS                                   81

reassert control and protect themselves in this way is widely
recognized by scholars,66 by human rights organizations,67
and by Congress.68

    We are confident that this evidence, even if it were
admissible, would not have substantially weakened the
mitigation presentation that J.B. could have – and should
have – put on. The added value of a meaningful mitigation
presentation would, in Doe’s case, have far outweighed the



  66
      Robert W. Dumond, Confronting America’s Most Ignored Crime
Problem: The Prison Rape Elimination Act of 2003, 31 J. Am. Acad.
Psychiatry & L. 354, 355 (2003) (“It has been shown that targets of sexual
aggression may act out violently themselves, making the transition from
victim to aggressor in an effort to avoid further victimization . . . .”
(citations omitted)).
 67
    Human Rights Watch, No Escape: Male Rape in U.S. Prisons 89 (Apr.
2001) (“The best and sometimes the only way to avoid the repetition of
sexual abuse, many prisoners assert, is to strike back violently. Simply
put, to prove that one is not a victim, one must take on the characteristics
of a perpetrator.”)
  68
       Prison Rape Elimination Act of 2003, Pub. L. No. 108-79, § 2, 117
Stat. 972, 973–74 (“Prison rape endangers the public safety by making
brutalized inmates more likely to commit crimes when they are released
. . . . The high incidence of prison rape . . . increases substantially . . . the
risk of recidivism, civil strife, and violent crime by individuals who have
been brutalized by prison rape.”); 149 Cong. Rec. E758 (daily ed. Apr. 11,
2003) (statement of Rep. Frank R. Wolf) (“Prison rape causes
psychological trauma, which may lead its victims to act out in an
aggressive manner upon leaving prison, possibly committing further
crimes which will result in their reincarceration . . . . Prison rape
perpetuates a vicious cycle of violence and trauma which starts with a
prisoner being raped and that prisoner often committing acts of aggression
and sexual harassment either within prison or in the community upon his
release.”).
82                           DOE V. AYERS

risk of rebuttal.69 We conclude that there is at least a
reasonable probability that after considering this mitigating
and rebuttal evidence, the jury would have decided that Doe
should not be executed.

                           VII. Conclusion

    Doe received profoundly deficient assistance of counsel
during the penalty phase of his trial: while very strong
mitigating evidence existed, it was never uncovered by J.B.,
and the resulting presentation was so anemic as to be virtually
without value. These failures were due, defense counsel
readily admits, not to any sort of strategic judgment but rather
to incompetence.

    In some cases, we have found that although defense
counsel’s investigation was inadequate, the evidence he
would have discovered would have been, though extensive,
largely duplicative. See, e.g., Miles, 713 F.3d at 492–93
(“Petitioner’s additional social history is, as the district court


  69
     Cf. Wong v. Belmontes, 558 U.S. 15, 17, 19–26 (2009) (holding that
a capital defendant could not show prejudice because his lawyer decided
not to present mitigating evidence that was largely duplicative of the
substantial quantity of penalty-phase evidence already presented, after
being warned explicitly by the trial judge that doing so would open the
door to the introduction of extensive and compelling evidence that his
client had committed – and boasted about – another, execution-style,
murder); Allen v. Woodford, 395 F.3d 979, 984–85 (9th Cir. 2005)
(holding that unintroduced mitigating evidence of questionable value and
offered by easily impeached witnesses was insufficient to outweigh “the
extraordinarily damaging aggravating evidence . . . that [the defendant]
had just been convicted by his death-qualified jury of orchestrating – from
jail – a conspiracy to murder seven people, and succeeding in the actual
killing of three, all to retaliate for their prior testimony against him and to
prevent future damaging testimony . . . .”).
                           DOE V. AYERS                              83

noted, largely cumulative of what was already before the
sentencing judge in the [pre-sentence report], meaning that its
mitigating value would be marginal.”). However, the jury that
sentenced Doe was utterly unaware of his brutalization in
prison and resulting mental illness, as well as the abuse and
neglect he suffered during childhood. This unintroduced
evidence, far from being duplicative, would have radically
altered the mitigation presentation at trial.

    In Doe’s case, the evidence procured and introduced by
habeas counsel “adds up to a mitigation case that bears no
relation to the few naked pleas for mercy actually put before
the jury.”70 Rompilla, 545 U.S. at 393. “[A]lthough we
suppose it is [hypothetically] possible that a jury could have
heard it all and still have decided on the death penalty, that is
not the test.” Id. The jury at Doe’s trial was presented with
relatively weak evidence in aggravation, and little evidence
in mitigation, and chose death. Had J.B. conducted an
adequate investigation, the jury would have heard, instead, an
extremely compelling mitigation presentation (and little if
any additional evidence in aggravation). “[T]he discrepancy

  70
     This is indeed how the prosecutor characterized J.B.’s mitigation
presentation at closing argument:

         I don’t think you are going to hear any strong argument
         from the defense that you have heard evidence that
         mitigates the murder of [L.R.]. I don’t think you are
         going to be able to find that you have heard anything,
         any factors in mitigation that can outweigh the factors
         in aggravation. I think what you are going to hear is a
         plea for mercy.

     J.B. did not dispute it: “Ladies and gentlemen, [the prosecutor] is
right. I am going to plead for to you [sic] choose life. I am going plead
[sic]. I do plead for you to choose life.”
84                       DOE V. AYERS

between what counsel did investigate and present and what
counsel could have investigated and presented” was massive.
Stankewitz, 365 F.3d at 716. It is far more likely than not that
the jury would have been swayed, resulting in a failure to
impose a sentence of death. Especially given that AEDPA
does not apply to this case, it is not a close one. Doe was
prejudiced by J.B.’s failure to investigate and present
mitigating evidence.

    Upon learning of the evidence he failed to discover in
representing Doe – his first capital client – J.B., to his credit,
acknowledged as much:

        [M]y investigation and my representation of
        [Doe] at the penalty phase of his trial were
        inadequate. I believe that a compelling
        argument could and should have been made to
        a jury on his behalf that his life should not be
        taken by the State of California. It appears
        that his family’s multi-generational history of
        abuse and neglect had continued, and it was
        inflicted upon [Doe] virtually from the time of
        his conception and continued through
        childhood and into adolescence. When he was
        sent . . . [to prison] he was [a] teenager, but he
        was placed with the worst of the worst of that
        state and suffered literally unspeakable abuse.
        If his jury had heard that evidence they might
        well have chosen to spare his life.

“[T]he mitigating evidence was there,” he concluded – and it
was “compelling” – “but the jury never got to hear it.”

                            * * *
                        DOE V. AYERS                         85

    The judgment of the district court is affirmed in part and
reversed in part. We remand with instructions to grant the
writ with respect to the penalty phase and return the case to
the state court to reduce Doe’s sentence to life without parole,
unless the State of California elects to pursue a new capital
sentencing proceeding within a reasonable amount of time as
determined by the district court.

  AFFIRMED in part, REVERSED in part, and
REMANDED.

   Each party shall bear its own costs on appeal.
