                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ERIC OWEN MANN,                           No. 09-99017
         Petitioner-Appellant,
                                          D.C. No.
               v.                    4:03-CV-00213-CKJ

CHARLES L. RYAN,
         Respondent-Appellee.              OPINION


      Appeal from the United States District Court
               for the District of Arizona
      Cindy K. Jorgenson, District Judge, Presiding

    Argued and Submitted En Banc January 11, 2016
                 Pasadena, California

                    Filed July 15, 2016

 Before: Sidney R. Thomas, Chief Judge, and Susan P.
Graber, M. Margaret McKeown, Kim McLane Wardlaw,
  Marsha S. Berzon, Richard R. Clifton, Consuelo M.
  Callahan, N. Randy Smith, Morgan Christen, Paul J.
     Watford, and John B. Owens, Circuit Judges.

                Opinion by Judge Clifton;
 Partial Concurrence and Partial Dissent by Chief Judge
                        Thomas;
Partial Concurrence and Partial Dissent by Judge Christen
2                         MANN V. RYAN

                           SUMMARY*


               Habeas Corpus / Death Penalty

    The en banc court affirmed the district court’s judgment
denying Arizona state prisoner Eric Owen Mann’s 28 U.S.C.
§ 2254 habeas corpus petition challenging his conviction and
capital sentence for two counts of first-degree murder.

    The en banc court held that Mann is not entitled to relief
on his claims of guilt-phase ineffective assistance of counsel.

    Regarding his claim of ineffective assistance of counsel
at sentencing, Mann argued that the state post-conviction
court applied an improper “more-likely-than-not” prejudice
standard. The en banc court concluded that the state post-
conviction court’s invocation of the Strickland prejudice
standard might have been ambiguous but was not clearly
incorrect. As a result, Mann’s petition presented this court
with the question: When, in the absence of clarity, can this
court conclude that a state court has applied the wrong
standard to review a Strickland claim raised in a petition for
post-conviction relief? The en banc court held that it must
approach this question with the deference AEDPA requires
and grant habeas relief only if no fairminded jurist could
conclude that the adjudication was consistent with clearly
established Supreme Court precedent. The en banc court held
that fairminded jurists could conclude that the state court’s
review of Mann’s claim of ineffective assistance of counsel
comported with Strickland.

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

    Regarding Mann’s argument, in reliance on Eddings v.
Oklahama, that the state court improperly excluded
mitigating evidence presented during post-conviction
proceedings on the ground that Mann had not demonstrated
a causal link between the evidence and the crime, the en banc
court explained that Eddings cannot provide a back door to de
novo review where there is no indication that the state post-
conviction court excluded evidence that would have led to a
reasonable probability of a different sentence in violation of
clearly established federal law.

    The en banc court held that it was not contrary to, and did
not involve an unreasonable application of, federal law for the
state court to conclude that Mann failed to show that the
mitigating circumstances he presented before the sentencing
and post-conviction courts outweighed the aggravating
circumstances of his crimes.

    Applying AEDPA deference to the state court’s
conclusion that Mann was not prejudiced by his counsel’s
alleged failure to present certain mitigation evidence at
sentencing, the en banc court could not conclude that it was
unreasonable for the state post-conviction court to find that
the new evidence as to Mann’s capacity for remorse and the
effect of a 1985 car accident on Mann’s behavior did not
undermine confidence in the outcome of sentencing.

    Concurring in part and dissenting in part, Chief Judge
Thomas agreed with the majority that Mann is not entitled to
relief on his guilt-phase claims of ineffective assistance of
counsel, and disagreed that he is not entitled to relief on his
claim of ineffective assistance of counsel at sentencing.
4                     MANN V. RYAN

    Concurring in part and dissenting in part, Judge Christen,
joined by Judge Berzon, agreed with the majority and the
Chief Judge that petitioner did not meet his burden of
establishing a meritorious guilt-phase claim, joined the Chief
Judge’s analysis and conclusion that Mann is entitled to de
novo review on his sentencing-phase ineffective assistance of
counsel claim, joined the Chief Judge’s discussion of
Strickland’s deficient performance prong, but concluded that
Mann is not entitled to relief because she was not persuaded
that he met his burden of establishing prejudice.


                        COUNSEL

Cary S. Sandman (argued), Federal Public Defender’s Office,
Tucson, Arizona; Amy Krauss, Law Office of Amy B.
Krauss, Tucson, Arizona; for Petitioner-Appellant.

John Pressley Todd (argued), Assistant Attorney General;
Kent Cattani, Chief Counsel; Mark Brnovich, Attorney
General of Arizona; Capital Litigation Section, Office of the
Attorney General, Phoenix, Arizona; for Respondent-
Appellee.
                       MANN V. RYAN                          5

                         OPINION

CLIFTON, Circuit Judge:

    Petitioner Eric Owen Mann lured Richard Alberts and
Ramon Bazurto to his house in 1989 with a promise to sell
them cocaine for about $20,000. Instead, he took the money
and shot both men to death. Mann was eventually arrested
and tried in Arizona state court in 1994. A jury found him
guilty on two counts of first-degree murder, and the trial
judge sentenced him to death, noting his long criminal history
and his apparent lack of remorse for the killings. Following
the affirmance of his convictions and sentence by the Arizona
Supreme Court, Mann filed a petition for post-conviction
relief in state court in 2000 asserting, among other claims,
that he had received ineffective assistance of counsel at trial
and sentencing. That petition was assigned to the same judge
who had presided over Mann’s trial and imposed the capital
sentence upon him a few years before. The judge denied in
full Mann’s petition for post-conviction relief, and the
Arizona Supreme Court thereafter denied Mann’s petition for
review. Mann then filed a petition for habeas corpus under
28 U.S.C. § 2254 in federal district court. That petition was
denied, and Mann appeals.

    Of primary importance here is Mann’s argument that the
state post-conviction court applied the wrong standard to his
claim of ineffective assistance of counsel at sentencing, in
violation of Supreme Court precedent in Strickland v.
Washington, 466 U.S. 668 (1984). Because of this error,
Mann argues, our review of that claim should not be
constrained by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), which requires federal courts to defer
to state court decisions on the merits of habeas corpus claims
6                      MANN V. RYAN

unless they are contrary to clearly established federal law. 28
U.S.C. § 2254(d). After careful review of the underlying
state court decision, we conclude that its invocation of the
Strickland prejudice standard might have been ambiguous but
was not clearly incorrect. As a result, Mann’s petition
presents us with the question: When, in the absence of clarity,
can we conclude that a state court has applied the wrong
standard to review a Strickland claim raised in a petition for
post-conviction relief? The answer is that we must approach
this question with the deference AEDPA requires and grant
habeas relief only if no fairminded jurist could conclude that
the adjudication was consistent with clearly established
Supreme Court precedent. See Harrington v. Richter, 562
U.S. 86, 101 (2011).

    Here, fairminded jurists could conclude that the state
court’s review of Mann’s claim of ineffective assistance of
counsel comported with Strickland. Applying AEDPA
deference to Mann’s claims, we conclude that the state post-
conviction court’s denial of post-conviction relief was not
contrary to, or an unreasonable application of, federal law.
We therefore affirm the district court and deny Mann’s
petition for habeas relief.

I. Background

    A. The murders

    In the fall of 1989, a few weeks before Thanksgiving,
Mann arranged to sell Richard Alberts a kilogram of cocaine
in exchange for about $20,000. Mann never intended to
provide Alberts with the drugs. Instead, he planned to hand
Alberts a shoebox full of newspaper and take his money in
                      MANN V. RYAN                          7

exchange. He knew he would have to kill Alberts after this
transaction took place.

     On the evening of Thanksgiving Day, Alberts arrived at
Mann’s house to complete the sale, accompanied by another
man, Ramon Bazurto. Mann’s girlfriend, Karen Miller, was
also at the house to provide Mann with backup. Miller
testified that when Mann saw Alberts had brought along
someone else, he became upset, but after a brief hesitation
decided he would nevertheless go through with his plan to rip
Alberts off. The three men and Miller went to Mann’s
bedroom, where Alberts handed Mann the money and Mann
gave Alberts the newspaper-filled shoebox. When Alberts
lifted the top of the box, Mann shot him and then Bazurto.

    Alberts died almost instantly from a shot through the
heart. Bazurto took longer to die. He fell onto his back and
lay on the ground, attempting to move his hand towards the
pistol he was carrying in his waistband. According to
Miller’s testimony, Mann stood over Bazurto’s prone body
and described what was happening as Bazurto lost motor
control and died. Miller testified that Bazurto continued to
move for three to five minutes after being shot.

    Mann then called a friend, Carlos Alejandro, to help him
dispose of the two bodies. They dumped the bodies on the
side of a gravel road. The next day, Mann and Miller cleaned
the apartment and patched the walls where the bullets that had
killed Alberts and Bazurto had entered. Mann gave Alberts’s
car to a friend and disposed of his guns and the recovered
bullets. When police later questioned Mann as to the
whereabouts of Alberts and Bazurto, Mann responded that the
two men had come to his house on the evening of the murders
8                      MANN V. RYAN

to conduct a drug deal, but had left after Mann and Alberts
failed to agree on a price for the drugs.

    The case remained unsolved for four years. Then, in late
1993, Miller ended her relationship with Mann because of
increasing domestic violence. She told the police about the
murders in January of 1994. Mann was arrested after the
police corroborated Miller’s story with Alejandro and the
man to whom Mann had sold Alberts’s car.

    B. Trial

    Mann’s jury trial took place over five days in the Superior
Court of Pima County, Arizona. Judge John F. Kelly
presided. David Sherman, a criminal defense attorney in
private practice, was appointed as Mann’s counsel. Sherman
pursued the theory that Mann had acted in self-defense.

    The day before trial commenced, Sherman told the judge
that he would not be calling any witnesses “except for Mr.
Mann.” Sherman successfully persuaded the trial court that,
should Mann testify, his previous conviction for burglary
would be excluded from evidence and any mention of his
previous conviction for felony possession of a firearm would
be limited to the fact that he had been convicted of a felony.

    At trial, the state presented testimony from six witnesses,
including Miller and Alejandro, both of whom had been
granted immunity from prosecution for their roles in the
crime. Miller and Alejandro testified that the murders had
been premeditated. Mann ultimately did not testify, and
Sherman did not call any witnesses of his own, instead
attempting to discredit the state’s witnesses through cross-
                      MANN V. RYAN                         9

examination. The jury found Mann guilty of two counts of
first-degree murder on November 1, 1994.

    Two weeks later, the court granted Sherman’s request that
Mann undergo psychological evaluation prior to sentencing.
Sherman recommended that the court appoint Dr. Todd
Flynn, a psychologist with the court psychological clinic.
With the consent of the attorney for the state, the judge
agreed to appoint Dr. Flynn to perform an evaluation.

    Dr. Flynn diagnosed Mann with alcohol abuse or
dependence, polysubstance abuse or dependence, and
antisocial personality disorder. He also noted that Mann had
scored highly for “acting out” on the Minnesota Multiphasic
Personality Inventory-2 scale, and made the following
observation:

       As a group, people with acting out as a
       primary psychological defense tend to be
       emotionally shallow, deficient in their
       capacity for empathy, poor at frustration
       tolerance, unwilling or unable to delay
       gratification, and poor at anticipating the
       consequences of future actions.         When
       combined with a history of victimization of
       others, this group becomes the worst of
       offenders because there is little sense of
       conscience or inhibition to stop the criminal
       lifestyle. Those who act out intensively and
       in a criminal manner may also qualify for the
       designation of Psychopath . . . .

The report concluded, “It is more probable than not that Mr.
Mann fits this designation.”
10                      MANN V. RYAN

    The state’s presentence report concluded that three
aggravating factors were present in the crime: it was
committed for pecuniary gain, there were two victims, and
Bazurto’s murder was committed “in an especially heinous,
cruel or depraved manner.” Sherman argued for ten
mitigating factors: Mann’s positive relationship with his
daughters, his positive influence on his mother, his unstable
and abusive family background, his poor educational
experience, his history of substance abuse, his remorse, his
cooperation with authorities, his non-violent history, his good
behavior while incarcerated, and the disparity between his
sentence and Miller and Alejandro’s sentences.

    At the sentencing hearing, which took place on January
31, 1995, four witnesses testified in support of Mann: a
former boss, a former co-worker, his older daughter, and his
mother. Mann also submitted a handwritten autobiography.

    Judge Kelly found that the state had demonstrated all
three of the aggravating circumstances they had identified:
(1) the crime was committed for pecuniary gain, (2) there
were two victims, and (3) Bazurto’s murder was committed
“in an especially heinous, cruel or depraved manner.”

    As for mitigating factors, he found that Mann had a
positive relationship with his daughters and his mother, an
abusive and unstable family background, a poor educational
experience, a history of substance abuse, good conduct while
incarcerated, and recent stable employment. The judge
declined to find that Mann had cooperated with the
authorities, that he had a non-violent history, or that a capital
sentence would be disproportionate to sentences imposed on
Miller and Alejandro.
                            MANN V. RYAN                                 11

    The judge concluded that Mann, “by his actions for a
period of four years . . . showed no indication of any remorse,
particularly his actions as introduced at trial after the
murders.” The court noted that in his autobiography Mann
described getting into a car accident in which two people
died, but observed that “he indicates no remorse in that
situation.” Ultimately, the judge concluded: “[T]he defendant
is not capable of remorse. The psychological evaluation is
that he has an anti-social personality disorder and that he is a
psychopath. Basically, that he has no conscience. The Court
believes that his expression[s] of remorse are not genuine.”
The judge sentenced Mann to death on both counts of
murder.1

    Mann appealed to the Arizona Supreme Court, which
affirmed. State v. Mann, 934 P.2d 784 (Ariz. 1997) (en
banc). The United States Supreme Court denied Mann’s
petition for a writ of certiorari. Mann v. Arizona, 522 U.S.
895 (1997) (mem.).

       C. Post-conviction relief proceedings

    Mann filed for post-conviction relief under Rule 32 of the
Arizona Code of Criminal Procedure. He alleged, among
other claims, that he had been denied effective representation
of counsel at trial and sentencing and that newly discovered

   1
      Until 2002, Arizona’s sentencing scheme in capital prosecutions
allowed the trial judge to determine “the presence or absence of the
aggravating factors required by Arizona law for imposition of the death
penalty.” Ring v. Arizona, 536 U.S. 584, 588 (2002). In that year, the
Supreme Court held that this system violated the Sixth Amendment right
to a jury trial. Id. at 609. Two years later, in Schriro v. Summerlin, 542
U.S. 348, 358 (2004), the Court clarified that the new rule set forth in Ring
did not apply retroactively to cases already final on direct review.
12                    MANN V. RYAN

evidence probably would have changed the verdict at the trial
or sentencing. Among the arguments in his post-conviction
brief, Mann claimed that Sherman “did little mitigation
investigation or preparation for the mitigation hearing.” The
brief described Mann’s 1985 automobile accident in great
detail, including his remorse at the deaths of his two
passengers, the injuries to his leg and head, and the changes
in his personality and circumstances that resulted.

    Mann also filed two additional expert reports: one from
Dr. Richard Hinton, a clinical psychologist, and one from Dr.
James Comer, a clinical neuropsychologist. Dr. Hinton’s
report concluded:

       Despite Mr. Mann’s extremely difficult
       childhood and his relatively long pedigree as
       a violator of the law, it does appear that his
       functioning changed dramatically following
       the automobile accident. At that time he
       experienced a severe injury to his leg which
       caused him to be unable to work and which
       resulted in mounting debt. It also appears
       likely that he was tormented by a sense of
       guilt that he was somewhat responsible for the
       death of the two passengers in his car. From
       that time forward he began to behave much
       more aggressively and to use cocaine much
       more regularly.

Dr. Comer’s report concluded that “Mann appears to have
experienced a T[ramuatic ]B[rain ]I[njury] leading to subtle
though lasting cognitive deficits and other symptoms of post-
concussional syndrome.”
                         MANN V. RYAN                              13

    The post-conviction proceedings were assigned to Judge
Kelly, the same judge who had presided over Mann’s trial
and sentencing. Judge Kelly held several evidentiary
hearings, in which he heard testimony from Miller,2 Mann,
Sherman, and Dr. Comer. The bulk of the post-conviction
factfinding concerned the 1985 car crash. Miller testified that
“[t]hings took a drastic turn” after the accident, that the
doctors who examined Mann after the accident were “very
concerned that he had had some head injuries,” and that he
became “very depressed.” In particular, she said, the
information that Mann’s 14-year-old passenger had been
decapitated in the accident “really tore him up” and “many
times he said he wished he had died in the accident too.”
Mann testified that he had “suffered some type of
concussion” as a result of the accident and that the accident
“was a huge burden emotionally, physically, the way it
affected friends, family.” Sherman testified that he had not
learned of the severity of the accident until after Mann’s
conviction and that he was “not focused on mitigation”
during his representation.

    Dr. Comer testified that some of Mann’s test results
suggested “that he may have experienced a head injury, from
which he recovered rather well in most respects, but which
had left [him] with some residual, subtle cognitive deficits.”
Dr. Comer noted that it was the “typical course of events” for
the effects of a brain injury to be more severe closer in time
to the accident, and that behavioral changes stemming from
a brain injury generally “take the form of increased


  2
     By the time of the post-conviction proceedings, Karen Miller had
married and changed her name. For purposes of clarity and consistency,
this opinion will continue to refer to her by her name at the time of
Mann’s trial.
14                     MANN V. RYAN

aggression, sexual indiscretions, poor ability to monitor one’s
behavior, difficulty in appreciating the effect of one’s
behavior on other individuals, increased irritability, agitation
at times, [and increased] egocentricity.” He also noted that
the records that he reviewed “certainly indicated that there
was a significant behavioral and emotional change, perhaps
some change in personality as well” that occurred after the
1985 accident. He clarified that any one of the test results
“could easily have been produced by other factors as well,”
but that the significant majority of the test results “fell into
that cluster of tests that are known to be sensitive to subtle,
longlasting effects” from brain damage.

    Judge Kelly responded to Dr. Comer’s testimony by
commenting that it was “not clear how such a brain injury
could have a role” in Mann’s crimes, as they had been
planned out in advance without “any indication . . . that the
murders were committed out of anger or irritability.” Dr.
Comer replied that he was not stating a finding that Mann’s
head injury caused him to commit the crimes but rather that
“some of the behavior we see postconcussion could produce
the disinhibitory aggression” that followed Mann’s accident.

    Judge Kelly denied Mann’s Rule 32 petition in full in an
order that will be discussed in more detail below.
Subsequently, the Arizona Supreme Court summarily denied
Mann’s petition for review on all issues except for the jury
determination of aggravating factors, which is not at issue in
this appeal. Mann then filed a federal habeas petition in the
District of Arizona. The district court denied the petition but
issued a Certificate of Appealability for three claims: that the
Arizona Supreme Court violated Mann’s Eighth Amendment
rights in reviewing his death sentence, that he received
ineffective assistance of counsel at trial, and that he received
                       MANN V. RYAN                          15

ineffective assistance of counsel at sentencing. Mann has
limited his appeal to the two claims of ineffective assistance
of counsel.

    A three-judge panel of this court unanimously affirmed
the denial of habeas relief for ineffective assistance of
counsel at trial, but, over a dissent, reversed the denial of
habeas relief for ineffective assistance of counsel at
sentencing. Mann v. Ryan, 774 F.3d 1203 (9th Cir. 2014). A
majority of the nonrecused active judges on our court
subsequently voted to rehear the case en banc. Mann v. Ryan,
797 F.3d 654 (9th Cir. 2015) (mem.). We affirm the district
court’s denial of habeas relief on the ineffective assistance of
counsel claims at both trial and sentencing.

II. Legal Standards

   A. Antiterrorism and Effective Death Penalty Act

    Because Mann filed this petition for habeas corpus after
April 24, 1996, AEDPA applies to his claims. See Lindh v.
Murphy, 521 U.S. 320, 326 (1997). Under that statute we
may not grant an application for habeas corpus for any claim
adjudicated on the merits in state court unless the state court
adjudication:

       (1) resulted in a decision that was contrary to,
       or involved an unreasonable application of,
       clearly established Federal law, as determined
       by the Supreme Court of the United States; or

       (2) resulted in a decision that was based on an
       unreasonable determination of the facts in
16                     MANN V. RYAN

       light of the evidence presented in the State
       court proceeding.

28 U.S.C. § 2254(d). We review the last reasoned state court
decision according to this deferential standard. Towery v.
Ryan, 673 F.3d 933, 944 (9th Cir. 2012) (per curiam). The
district court’s application of AEDPA to the last reasoned
state court decision is a mixed question of law and fact which
we review de novo. Lambert v. Blodgett, 393 F.3d 943, 965
(9th Cir. 2004).

    An adjudication is “contrary to” clearly established
Supreme Court precedent “if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court
on a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529
U.S. 362, 412–13 (2000). It is an “unreasonable application”
of clearly established Supreme Court precedent “if the state
court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. at 413.
“[A]n unreasonable application of federal law is different
from an incorrect application of federal law.” Id. at 410. The
federal habeas court “may not issue the writ simply because
that court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 411.

    A state court’s adjudication is unreasonable only if the
federal habeas court concludes that no fairminded jurist could
conclude that the adjudication was consistent with established
Supreme Court precedent. See Richter, 562 U.S. at 102. In
that event, AEDPA does not require deference to the state
                      MANN V. RYAN                         17

court’s decision, and the petitioner’s claims are reviewed de
novo. See Williams, 529 U.S. at 406.

   B. Ineffective assistance of counsel

    Mann’s claims are based on the alleged violation of his
Sixth and Fourteenth Amendment rights to effective
assistance of counsel during both the trial and penalty phases
of his state court proceedings. Ineffective assistance of
counsel claims are evaluated according to the familiar
standard set forth in Strickland. To receive relief under this
standard, “[f]irst, the defendant must show that counsel’s
performance was deficient.” 466 U.S. at 687. “Second, the
defendant must show that the deficient performance
prejudiced the defense.” Id. “Unless a defendant makes both
showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process
that renders the result unreliable.” Id.

     The proper standard for attorney performance under the
first prong of the Strickland test is “that of reasonably
effective assistance.” Id. “When a convicted defendant
complains of the ineffectiveness of counsel’s assistance, the
defendant must show that counsel’s representation fell below
an objective standard of reasonableness.” Id. at 687–88.
“Judicial scrutiny of counsel’s performance must be highly
deferential,” and “a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689.

    The second prong of the Strickland test requires that the
defendant show “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A
18                      MANN V. RYAN

reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “It is not enough for the
defendant to show that the errors had some conceivable effect
on the outcome of the proceeding.” Id. at 693.

III.      Ineffective Assistance of Counsel at Trial

    Mann first argues that he received ineffective assistance
of counsel during the trial phase of his proceedings. This
argument is based on the alleged negligence of Mann’s
counsel, Sherman, in (1) failing to recommend that Mann
testify at trial, and (2) breaking an “implicit” promise to the
jury that Mann would testify in his own defense. Because the
Arizona Supreme Court summarily denied the petition for
review of this claim, we look through that decision to the
decision of the state post-conviction court. See Towery, 673
F.3d at 944.

       A. Sherman’s recommendation that Mann not testify at
          trial

    Mann and Sherman presented conflicting accounts of
their relationship to the state post-conviction court. Sherman
testified that Mann told him “early on in th[e] case” that the
murders had been premeditated. Despite this knowledge,
Sherman advised Mann that a self-defense theory “would be
the best way to go.” Sherman said he gave Mann the option
to testify at trial that he had acted in self-defense, but told
Mann he “would have to withdraw as his attorney” if Mann
did so because Sherman knew this testimony would be false.
In a letter to Mann approximately one month before trial,
Sherman laid out conflicting considerations for Mann to
weigh. On the one hand, Mann was the only witness who
would be able to testify to his story, which was that Bazurto
                      MANN V. RYAN                         19

had reached for his gun and Mann reacted without thinking.
On the other hand, Mann could be cross-examined about his
previous criminal activity, as well as allegations of abuse
from his former girlfriends. The letter concluded: “I’d hate
to have you on death row in Florence having a big regret
because you did not testify. When the stakes are this high, I
have to leave the final decision up to you.”

    Mann, in contrast, testified that he told Sherman from the
beginning that he had killed Alberts and Bazurto in self-
defense. Mann said that he and Sherman “briefly” discussed
the possibility that Mann would testify at trial, but that
Sherman told Mann that “it would be bad” for him to testify
because it would open the door to questions about his prior
conviction for felony possession of a weapon. Mann said that
he took his attorney’s advice and did not testify.

    The state post-conviction court concluded that Sherman
was more credible than Mann and accepted Sherman’s
version of the facts as the truth.

     Our review of the state habeas court’s credibility
determinations is highly deferential. Marshall v. Lonberger,
459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal
habeas courts no license to redetermine credibility of
witnesses whose demeanor has been observed by the state
trial court. . . .”).

    Mann points to some possible inconsistencies in
Sherman’s story: Sherman did not mention in his letter that
he would withdraw from representation if Mann testified, and
he continued to prepare for the possibility that Mann might
testify up until the day before trial. Sherman had plausible
explanations, however. Sherman said he never told Mann he
20                      MANN V. RYAN

couldn’t testify, but rather that “if he cho[s]e to do it against
my recommendation, I would have to withdraw as his
attorney and he could get another attorney to do that, but I
wasn’t going to put him on the stand.” As for the letter,
Sherman testified that he was “finessing the situation” and
did not want to put the potential perjury in writing. Given
these considerations, and Mann’s obvious motivation to lie,
it is impossible to conclude that the state court’s findings as
to Mann and Sherman’s relative credibility “lacked even
‘fair[ ] support’ in the record.” Id. at 432.

     Once the state court had found that Sherman was a more
credible witness than Mann, it was effectively bound by
Supreme Court precedent to conclude that Sherman’s
decision to discourage Mann from testifying did not
constitute ineffective assistance of counsel. Counsel’s duty
to advocate for his client is “[p]lainly . . . limited to
legitimate, lawful conduct compatible with the very nature of
a trial as a search for truth.” Nix v. Whiteside, 475 U.S. 157,
166 (1986). “Although counsel must take all reasonable
lawful means to attain the objectives of the client, counsel is
precluded from taking steps or in any way assisting the client
in presenting false evidence or otherwise violating the law.”
Id. Sherman would have been suborning perjury if, knowing
that the murders had been premeditated, he had allowed
Mann to testify in support of the theory of self-defense.
Under such circumstances, there can be “no failure to adhere
to reasonable professional standards that would in any sense
make out a deprivation of the Sixth Amendment right to
counsel.” Id. at 171.
                       MANN V. RYAN                          21

   B. Testimony promised in opening statement

    Mann’s claim that Sherman broke an implicit promise to
the jury that Mann would testify in his own defense is
similarly unavailing. Had Sherman made such a promise, and
then broken it, Mann’s claim might have merit. Several
circuits have held that it may violate Strickland for counsel to
promise evidence in an opening statement and then fail to
present that evidence at trial. See, e.g., United States ex rel.
Hampton v. Leibach, 347 F.3d 219, 258 (7th Cir. 2003)
(finding that it was “objectively unreasonable” for counsel to
promise the defendant’s testimony and then break that
promise); Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002)
(describing counsel’s decision to discourage the defendant
from taking the stand as “indefensible” when he had already
represented to the jury that the defendant’s testimony would
be the centerpiece of her defense); McAleese v. Mazurkiewicz,
1 F.3d 159, 166 (3d Cir. 1993) (noting generally that an
attorney’s failure to produce evidence promised during an
opening statement is “sufficient of itself to support a claim of
ineffectiveness of counsel”).

     But Sherman did not promise the jury that Mann would
testify. His opening statement detailed the alternative version
of events that formed the basis for his defense strategy: he
told the jury that Mann had cocaine he intended to sell to
Alberts, and that as Mann was handing over the drugs to
Alberts, Bazurto “did something that made [Mann] think he
was about to be the victim of a drug rip-off.” In reaction,
Mann “fired at both people and killed them both because he
felt like he was forced to do so.” Sherman then said, “Now,
look at what the facts are. After that we’ll see [Mann] didn’t
plan this.” He told the jury to anticipate the testimony of
Miller and Alejandro, which he described as “the only
22                     MANN V. RYAN

evidence that the[ state will] have of premeditation,” and
argued that “[w]hen you compare that to the whole story, it
doesn’t make any sense that if it was planned it would be
done this way.”

     At trial, Sherman successfully elicited testimony from
Miller and Alejandro that was inconsistent with the
prosecution’s theory that the murders were premeditated. For
instance, he noted that Miller had testified to standing directly
behind Bazurto when he was killed, which she admitted was
“awfully close to what the line of fire was going to be” for
someone who allegedly knew Bazurto was about to be shot.
Miller also testified that there had been no plan to dispose of
the bodies. Alejandro testified that the first time he heard
anything about Mann’s plan was when Mann showed up at
his house the night of the crime asking for help. He described
Mann as having been “[i]n desperate need,” and said that the
first thing Mann said to him that night was, “I did it. I had no
choice. I had to do it.” In other words, Sherman’s opening
argument “merely summarized evidence that was later
produced from which a jury could be left with a reasonable
doubt” about whether the crimes were premeditated.
McAleese, 1 F.3d at 167. This may not have been a
successful trial strategy, but it was not improper.

IV.     Ineffective Assistance of Counsel at Sentencing

    Mann also argues that the state court erred in declining to
grant habeas relief based on his claim that he had received
ineffective assistance of counsel at the sentencing stage of his
proceedings. His argument before the state post-conviction
court focused on two alleged failings: (1) failure to present
reasonably available mitigation evidence at sentencing, and
(2) failure to seek adequate assistance in evaluating Mann’s
                      MANN V. RYAN                         23

mental health. The last reasoned state court decision on this
issue came from the post-conviction court, so that is the
decision we review. See Towery, 673 F.3d at 944.

    Under Strickland, Mann is eligible for post-conviction
relief if he can show both (1) deficient performance, and (2)
prejudice stemming from the deficient performance. 466
U.S. at 687. When addressing Sherman’s alleged failure to
present reasonably available mitigation evidence at
sentencing, the post-conviction court did not consider
whether Sherman’s performance was deficient. Rather, it
elected to move directly to the second prong, as it was
entitled to do, and found only that there had been no
prejudice. Because the prejudice issue has been “adjudicated
on the merits,” AEDPA requires us to allow the state court’s
determination to stand unless it is contrary to or an
unreasonable application of federal law or is based on an
unreasonable determination of the facts. Richter, 562 U.S. at
98.

     On appeal, Mann argues that the state post-conviction
court’s analysis of prejudice was contrary to clearly
established federal law. He also argues that, on the merits,
Sherman’s performance caused Mann prejudice. We address
these arguments in order because our evaluation of the first
determines the standard of review to be applied to the second.
First, we assess whether the state court’s decision was
contrary to clearly established federal law as determined by
the Supreme Court. Second, we assess whether Sherman’s
performance caused Mann prejudice. If we conclude at the
first step that the state court misapplied clearly established
federal law, then our review at the second step is de novo.
See Williams, 529 U.S. at 406. If, however, the court’s
interpretation of the law was permissible, then AEDPA
24                     MANN V. RYAN

governs our review at the second step as well, and we are
required to defer to the state court’s conclusion that Mann
suffered no prejudice from his counsel’s alleged failings
unless that finding was unreasonable.

     A. Applicability of AEDPA

    Mann argues that we should review his Strickland claim
de novo because the state post-conviction court made three
different legal decisions that were contrary to or an
unreasonable application of clearly established federal law.
One, he argues that the state post-conviction court applied the
wrong standard in assessing prejudice under Strickland. Two,
he argues that the state court improperly excluded the
mitigating evidence presented during post-conviction
proceedings because Mann had not demonstrated a causal
link between the evidence and the crime. Three, he argues
that the court failed to re-weigh the evidence in aggravation
against the totality of the mitigation evidence, including
evidence introduced during the sentencing and during post-
conviction proceedings. None of these three allegations gives
us a basis to conclude that AEDPA does not apply to Mann’s
claims.

        i. Strickland’s prejudice standard

    The common standard for a motion for a new trial based
on newly discovered evidence requires a defendant to “show
that counsel’s deficient conduct more likely than not altered
the outcome in the case.” Strickland, 466 U.S. at 693–94.
The Supreme Court considered adopting this standard for the
Strickland prejudice inquiry but determined that it was “not
quite appropriate.” Id. at 694. Instead, the Court held that a
defendant alleging ineffective assistance of counsel “must
                            MANN V. RYAN                                25

show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. This sets the bar a bit lower
but not a lot lower. “[T]he difference between Strickland’s
prejudice standard and a more-probable-than-not standard is
slight and matters ‘only in the rarest case.’” Richter, 562
U.S. at 112 (quoting Strickland, 466 U.S. at 697).

    The claims presented by Mann in the state post-conviction
proceedings at issue here included an argument that new
mitigation evidence related to the 1985 accident merited a
new sentencing. Those claims were identified as “Issues
Three and Four.”3 Mann’s claim that Sherman’s failure to
raise the evidence at the original sentencing constituted
ineffective assistance of counsel was described as “Issue
Seven.” Judge Kelly denied relief on both claims.

     As to Issues Three and Four, he found:

         The record shows that Defendant provided
         this Court with evidence of the accident and
         its effects in the form of an autobiography he
         presented to show mitigation. Nonetheless,
         additional evidence, particularly that set forth
         in psychological reports, was submitted as
         part of this Petition. The Court finds,
         however, that nothing presented would have
         changed the verdict or the sentence imposed.
         The Court finds that Defendant has not proven


 3
    Mann did not receive a Certificate of Appealability as to these claims
and does not raise them on appeal. We discuss them here only because
they are relevant to determining the standard that the state post-conviction
relief court applied to the ineffective assistance of counsel claim.
26                     MANN V. RYAN

        the existence of a causal connection between
        the accident and its effects and the murders.
        The record shows, for example, that
        Defendant dealt drugs and used guns against
        others before and after the accident; that he
        did not misperceive a threat and overreact,
        but, rather, carefully planned to kill Alberts,
        then “made a choice, after a period of thought
        and said, ‘Well, I’ve got to do it,’ apparently
        meaning that to go through with the plan he
        would also have to murder Bazurto.”
        Defendant committed these murders for
        pecuniary gain, not for reasons traceable to his
        1985 accident. Accordingly, the claims are
        denied.

(emphasis added) (citation omitted).

     Meanwhile, as to Issue Seven, Judge Kelly found:

        To succeed on this claim and on the others
        that follow below, Defendant must show that:
        (1) counsel’s performance was deficient, as
        defined by prevailing professional norms; and
        (2) the deficient performance resulted in
        prejudice to the defense. State v. Nash, 143
        Ariz. 392, 694 P.2d 222 (1985). Here,
        Defendant has failed to show prejudice. Some
        of the evidence he accuses Sherman of not
        presenting, e.g., testimony from family
        members, was in fact presented to this Court
        at sentencing. Additional evidence that
        pertains to the 1985 accident and its effects is
        discussed under “Issues Three and Four”
                       MANN V. RYAN                         27

       above, where this Court found that it would
       not have changed the sentence imposed. For
       that reason, Defendant was not prejudiced by
       counsel’s performance and the claim is
       denied.

    Mann argues that the state post-conviction court’s
conclusion that the new evidence “would not have changed
the sentence imposed,” combined with the court’s reference
to the analysis for “Issues Three and Four,” suggests that it
applied the wrong standard in analyzing Mann’s ineffective
assistance of counsel claim. Rather than finding that there
was no reasonable probability that the new evidence would
have changed the sentence imposed, Mann argues, the post-
conviction court imported the standard from its analysis of
the motion for a new trial into its analysis of the ineffective
assistance of counsel claim and concluded only that the new
evidence more likely than not would not have changed the
sentence imposed.

    Had the state post-conviction court applied the more-
likely-than-not standard to analyze Mann’s ineffective
assistance of counsel claims, its opinion would have been
contrary to clearly established federal law under AEDPA.
The Supreme Court considered and explicitly rejected the
more-likely-than-not standard in Strickland. 466 U.S. at
693–94. But the standard the court applied is not clear on the
surface of its decision. Judge Kelly simply said that the
additional information about Mann’s accident “would not
have changed the sentence imposed.” This leaves us to draw
inferences as to the precise standard the court used in
reaching the decision to deny each of Mann’s claims.
28                     MANN V. RYAN

    Reading the opinion as a whole, the more logical
inference here is that the standard used by the state post-
conviction court was the correct reasonable probability
standard. While the court did not clearly state the standard it
applied, either for the newly discovered evidence claim or for
the ineffective assistance of counsel claim, it indicated that
the ineffective assistance of counsel claim was controlled by
State v. Nash, 694 P.2d 222 (Ariz. 1985), in which the
Arizona Supreme Court adopted the reasonable probability
standard.

     Judge Kelly also made various factual findings that
suggested he was deeply skeptical that evidence about the
accident had any significant impact on Mann’s mitigation
profile. Most importantly, he noted that Mann dealt drugs
and used guns prior to the accident, premeditated both
murders, and committed them for pecuniary gain. Taken in
context, the judge’s discussion of Issues Three, Four, and
Seven suggests that he knew the proper standard for both the
new evidence claim and the ineffective assistance of counsel
claim, but concluded that the new evidence made at most a
minimal difference, such that the standard applied would
have no effect on the outcome of either claim. This inference
is particularly strong because Judge Kelly was the same judge
who had handed down Mann’s initial sentence, giving him
particular insight into how the additional evidence would, or
would not, have changed Mann’s mitigation profile. See
Schriro v. Landrigan, 550 U.S. 465, 476 (2007) (noting that
the judge presiding over the post-conviction review was
“ideally situated” to interpret an interaction that had taken
place in the trial court because she had also presided over the
trial). Because of that fact, it is not surprising that Judge
Kelly would have spoken in direct terms—“nothing presented
would have changed the verdict or the sentence imposed”—
                      MANN V. RYAN                         29

rather than in words designed to express degrees of
probability.

    At worst, the state court opinion is ambiguous. But, as we
have noted in the past, “[u]nder AEDPA, we must do more
than find the statement ambiguous.” Lopez v. Schriro, 491
F.3d 1029, 1037–38 (9th Cir. 2007). Our analysis starts with
a “presumption that state courts know and follow the law.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Next, we
“determine what arguments or theories supported or . . . could
have supported[] the state court’s decision.” Richter, 562
U.S. at 102. Finally, we ask “whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision
of th[e Supreme] Court.” Id. Here, it is possible to read the
state court’s decision in a way that comports with clearly
established federal law. The judge, who had imposed the
sentence originally and who was already familiar with
Mann’s mitigation profile, concluded that the additional
information provided at the post-conviction hearing would
have made little difference. Accordingly, he denied Mann’s
petition for post-conviction relief. Under AEDPA, because
we can read the decision to comport with clearly established
federal law, we must do so. We cannot conclude that the
state post-conviction court’s application of Strickland
misunderstood or misapplied clearly established federal law.

       ii. Causal nexus

    Mann also argues that the state post-conviction court
violated clearly established federal law when it improperly
refused to consider evidence about Mann’s car accident
because he had “not proven the existence of a causal
connection between the [1985 car] accident and its effects
30                    MANN V. RYAN

and the murders.” This argument relies on Eddings v.
Oklahoma, in which the Supreme Court held that the “Eighth
and Fourteenth Amendments require that the sentencer . . .
not be precluded from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.” 455 U.S. 104, 110
(1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978)).
“The sentencer, and the Court of Criminal Appeals on review,
may determine the weight to be given relevant mitigating
evidence. But they may not give it no weight by excluding
such evidence from their consideration.” Id. at 114–15.

    Our court has concluded that the law in Arizona at the
time of Mann’s post-conviction proceedings, in spite of this
clear command, required that defendants demonstrate “actual
causation” linking their alleged mitigating circumstances with
the crime for which they were being sentenced. McKinney v.
Ryan, 813 F.3d 798, 815 (9th Cir. 2015) (en banc). The
causal nexus test provided that, “[i]f the defendant fails to
prove causation, the circumstance will not be considered
mitigating. However, if the defendant proves the causal link,
the court then will determine what, if any, weight to accord
the circumstance in mitigation.” State v. Hoskins, 14 P.3d
997, 1022 (Ariz. 2000) (en banc). In Tennard v. Dretke, the
Supreme Court held that a comparable causal nexus test
violated defendants’ Eighth Amendment right requiring the
finder of fact to “‘be able to consider and give effect to’ a
capital defendant’s mitigating evidence.” 542 U.S. 274, 285
(2004) (quoting Boyde v. California, 494 U.S. 370, 377–78
(1990)).

   Mann does not and cannot argue here that the state post-
conviction court violated clearly established federal law by
                      MANN V. RYAN                         31

applying Arizona’s unconstitutional causal nexus test. Mann
did not present a post-conviction Eddings claim before the
Arizona Supreme Court, so we have no jurisdiction to grant
relief on that issue. See Rose v. Lundy, 455 U.S. 509, 515
(1982). Mann contends that what effectively amounts to an
Eddings claim nevertheless comes in on the back of his
Strickland claim, since Judge Kelly applied the causal nexus
test to bar evidence about the effects of the accident and
therefore did not properly consider whether Sherman’s failure
to present that evidence at sentencing led to a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

     This argument fails to acknowledge that Judge Kelly’s
comment about the lack of a causal connection between the
accident and the murders was directly responsive to the
evidence Mann presented before the state post-conviction
court. Dr. Hinton’s neuropsychological report concluded that
“it does appear that [Mann’s] functioning changed
dramatically following the automobile accident,” noting that
“[f]rom that time forward he began to behave much more
aggressively and to use cocaine much more regularly.” Dr.
Comer’s evaluation concluded that “Mann’s functioning had
changed dramatically after the [accident], as exemplified by
increased aggression.” Meanwhile, Miller testified that, after
the accident, Mann “began to intimidate people,” “liked to
use power to scare people,” and “was ‘pointing guns to
people’s heads and telling them . . . don’t fuck with me [or]
I’ll blow your head off.” Miller stated that she believed that
“the change in [Mann] was a result of the accident, the
trauma, and the cocaine use.” In his petition for post-
conviction relief, Mann argued:
32                     MANN V. RYAN

       There is no question that this evidence, if
       presented to the Court in mitigation, could
       have resulted in a sentence other than death.
       As described by Karen Miller, the killing of
       Bazurto and Alberts was of a piece with the
       change that occurred in Petitioner as a result
       of the accident. It was a crime of power and
       money, and the clear result of the fundamental
       personality and character changes that
       occurred in Eric Mann as a result of the
       accident.

    The dissent notes, at 44, that Mann argued at the post-
conviction hearing that the new evidence as to the effects of
the accident would have suggested a mitigating reason for
some of his behavior and “would have provided some free-
standing mitigation of itself.” As we have noted in the past,
however, courts generally find explanatory mitigation
evidence more convincing than humanizing mitigation
evidence. See Allen v. Woodford, 395 F.3d 979, 1006 (9th
Cir. 2005). Perhaps recognizing this, Mann focused his
attention on arguing that the circumstances and the
neuropsychological effects of the accident explained his
decision to commit murder. Thus, while the dissent may be
correct that the post-conviction court did not discuss how
Mann’s brain damage could have reduced his moral
culpability or altered his sentencing profile apart from having
contributed to the crime, that was not the core of the
argument to which the post-conviction court responded.
Mann’s substantive arguments at the post-conviction hearing
were focused on the link between the accident and the
murders. He argued that after the accident, “the nature of his
problems and degree of his problems and degree of his
behavior changed radically,” that Dr. Comer “concluded
                       MANN V. RYAN                         33

either because of the accident or the aftermath of the accident
or his heavy drug use, it’s not unreasonable to conclude that
Mr. Mann might have perceived a threat and that he
overreacted,” and that Dr. Comer had “ma[d]e a connection”
between the murders and “what people with the kind of injury
. . . Mann was determined to have . . . ordinarily do.” The
court could not have properly addressed these arguments
without considering the causal relationship between the new
evidence and the crimes.

    In addition, it is clear elsewhere in the record that Judge
Kelly did not exclude evidence from his mitigation
assessment based solely on the lack of a causal nexus with the
crime when that evidence was not presented as causal. For
instance, he found during sentencing that Mann had
demonstrated several mitigating factors unrelated to the
murders, including that Mann had an “unstable and abusive
family background,” a poor educational background, and a
history of substance abuse.

    As Eddings itself makes clear, it is well within the
sentencer’s power to “determine the weight to be given
relevant mitigating evidence.” 455 U.S. at 114–15. Here,
Judge Kelly considered Mann’s argument that the accident
led to a fundamental change in his personality that set him on
a path towards murder and found it unconvincing. This
conclusion was entirely within the court’s power. As such,
there is no indication that Judge Kelly excluded evidence that
would have led to a reasonable probability of a different
sentence in violation of clearly established federal law, and
Eddings cannot provide a back door to de novo review.
34                      MANN V. RYAN

        iii. Re-weighing old and new evidence

     Finally, Mann argues that the state court erred in failing
to reweigh the old and new mitigation evidence against the
existing aggravation evidence during post-conviction
proceedings. Courts considering additional evidence in post-
conviction proceedings must “evaluate the totality of the
available mitigation evidence—both that adduced at trial, and
the evidence adduced in the habeas proceeding in reweighing
it against the evidence in aggravation.” Williams, 529 U.S. at
397–98.

    There is no indication that the state court did not fulfill
this duty here. The court did not explicitly state that it had
reweighed the evidence, but that is not the standard. Instead,
“[i]t is sufficient that a sentencing court state that it found no
mitigating circumstances that outweigh the aggravating
circumstances.” Ortiz v. Stewart, 149 F.3d 923, 943 (9th Cir.
1998) (quoting Poland v. Stewart, 117 F.3d 1094, 1101 (9th
Cir. 1997)). In this case, it was enough that the court found
that the additional mitigation evidence Mann provided at the
post-conviction proceedings was cumulative, not credible, or
would otherwise have had no effect on the sentencing
decision.

    The dissent’s attempt to fold Mann’s claim of Eddings
error into his claim that the state post-conviction court failed
to properly re-weigh the evidence does not change this
conclusion. As discussed above, the state court reasonably
concluded that the additional evidence about Mann’s 1985 car
accident did not cause a fundamental change in his
personality or set him on the path that led to Alberts’ and
Bazurto’s murders, and therefore gave the new evidence little
to no weight in mitigation. Therefore, it was not contrary to,
                        MANN V. RYAN                           35

and did not involve an unreasonable application of, federal
law for the court to conclude that Mann had failed to show
that the mitigating circumstances he had presented before the
sentencing and post-conviction courts outweighed the
aggravating circumstances of his crimes.

    B. Reasonableness of state court’s prejudice finding

    Even though Mann has not demonstrated that the state
post-conviction court’s opinion should be subject to de novo
review, he could still secure habeas relief under AEDPA if he
could demonstrate that it was “unreasonable” for the state
court to conclude that Mann was not prejudiced by his
counsel’s alleged failings. See Richter, 562 U.S. at 101. A
court ruling is unreasonable if it is “so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Id. at 103.

    Under Strickland’s prejudice prong, the petitioner seeking
habeas relief must show that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. It is conceivable that the
evidence that emerged in the state post-conviction
proceedings might have changed Mann’s profile somewhat
had Mann’s attorney presented it at sentencing. For example,
Mann notes that while the state sentencing court concluded
that he was “incapable of remorse,” evidence was presented
to the state post-conviction court that supported the
contention that he had in fact been deeply affected by the
1985 car accident in which two people died. Mann also notes
that Dr. Flynn’s damning suggestion that he might be a
36                     MANN V. RYAN

psychopath failed to account for the possibility of a traumatic
brain injury, and that further testing would have revealed that
the injury significantly changed his personality, effectively
turning a significant aggravating factor into a significant
mitigating factor.

    But, as noted above, even if the accident had an effect on
Mann’s personality, it hardly changed an altar boy into a
callous criminal. The presentence report submitted by the
probation department attached a long criminal history record
that included 14 offenses predating Mann’s 1985 car
accident. While Mann’s earliest crimes were minor, they
escalated over time. In 1980, Mann was sentenced to
probation for third-degree burglary. In 1982, he was arrested
after pointing a gun at the victim of an attempted car theft, at
which point his probation for the burglary offense was
revoked and he was sentenced to two years in prison. The
presentence report also noted that Mann stole to support his
family starting around age 15. Mann himself acknowledges
that his pre-accident record was “troubling” and that the
sentencing court had already been presented with “credible
and potent mitigation” that it found outweighed by the
heinous nature of Mann’s crime.

    Given this history, it was not unreasonable for the state
post-conviction court to conclude that the accident had no
significant effect on Mann’s behavior. He had set on a path
of violent crime long before the accident occurred. Nor was
it unreasonable for the court to conclude that additional
evidence of Mann’s good character was not enough to
outweigh the various aggravating factors that the sentencing
court had found: (1) the crime was committed for pecuniary
gain, (2) there were two victims, and (3) Bazurto’s murder
was committed “in an especially heinous, cruel or depraved
                           MANN V. RYAN                               37

manner.”     Indeed, the aggravating factors remained
unaffected by the new mitigating evidence.4 And, while the
new evidence did suggest that Mann had been remorseful
about the car accident, it did not undermine the sentencing
court’s conclusion that Mann had shown no remorse for the
cold-blooded murders of which he had been convicted. We
cannot conclude that it was unreasonable for the state post-
conviction court to find that the new evidence as to Mann’s
capacity for remorse and the 1985 car accident did not
“undermine confidence in the outcome” of the sentencing.
See Strickland, 466 U.S. at 694.

V. Conclusion

    The judgment of the district court denying habeas relief
as to both Mann’s convictions and his sentence is affirmed.

     AFFIRMED.



 4
    Mann argues that Miller “admitted during the PCR proceedings[] that
neither victim suffered and that they died or became unconscious almost
simultaneous with the shootings.” Had she said this, it could have
undermined the sentencing court’s conclusion that Bazurto’s murder was
especially cruel, heinous, or depraved. However, Miller actually said at
the post-conviction hearing that she didn’t know whether Bazurto’s
movements after he was shot were voluntary or involuntary, that it was
“possible” that Mann had not accurately described the last moments of
Bazurto’s life to her, and that it was “possible” that he had been
unconscious even though she believed him to have been awake and
struggling. To the extent that her testimony before the post-conviction
court was different from her testimony at trial, the post-conviction court
“discount[ed] it and continue[d] to believe the evidence she provided at
trial.” As noted above, we defer to the reasonable credibility
determinations made by the state post-conviction court. Lonberger, 459
U.S. at 434.
38                      MANN V. RYAN

THOMAS, Chief Judge, concurring in part and dissenting in
part:

    I agree with the majority that Mann is not entitled to relief
on his claims of guilt-phase ineffective assistance of counsel.
I respectfully disagree that he is not entitled to relief on his
claim of ineffective assistance of counsel at sentencing.
Therefore, I concur in part and dissent in part.

                                I

   Before venturing into the dense thicket of AEDPA
nuances, we must recognize at the onset that, although the
law may not provide a remedy, Mann was sentenced to death
under an unconstitutional sentencing scheme.

    First, his death sentence was imposed by a judge, not a
jury, under a system that the Supreme Court later declared
unconstitutional as a violation of the Sixth Amendment right
to trial by jury. Ring v. Arizona, 536 U.S. 584, 609 (2002).
Mann, of course, has no remedy for that constitutional
infirmity because Ring does not apply retroactively. Schriro
v. Summerlin, 542 U.S. 348, 358 (2004).

    Second, he was sentenced during a period in which
Arizona unconstitutionally precluded the consideration of
mitigating evidence that lacked a “causal nexus” to the
crime, in irreconcilable conflict with controlling Supreme
Court Eighth Amendment jurisprudence as decided in
Eddings v. Oklahoma, 455 U.S. 104 (1982). McKinney v.
Ryan, 813 F.3d 798, 802 (9th Cir. 2015) (en banc). However,
because neither Mann’s trial nor Mann’s post-conviction
counsel raised this Eighth Amendment claim before the state
                          MANN V. RYAN                               39

court, we are precluded from granting Mann direct relief on
a meritorious constitutional claim.

    Yet one more constitutional error infected Mann’s
sentencing: ineffective assistance of counsel. Mann’s
attorney did not investigate or present available and
significant mitigating evidence to the sentencing judge. The
majority does not seriously contest this constitutional error,
but concludes that AEDPA deference prevents us from
reaching the merits of that claim ourselves. I respectfully
disagree that AEDPA precludes meaningful habeas review.
I would reach the merits and grant relief.

                                   II

    The state post-conviction court was required to assess
Mann’s ineffective assistance of counsel claim under
Strickland v. Washington, which held that a criminal
defendant’s Sixth Amendment right to counsel is violated if
the defendant’s trial attorney performs deficiently and thereby
prejudices the defendant. 466 U.S. 668, 687 (1984).
However, the post-conviction court committed constitutional
error in its consideration of the ineffective assistance of
counsel claim in two respects: (1) it unconstitutionally
applied a “causal nexus” test for consideration of mitigating
evidence in violation of Eddings, and (2) it applied a “more
likely than not” standard rather than the constitutionally
required “reasonable probability” test in its assessment of
prejudice in violation of Strickland.1 The post-conviction


 1
  Mann exhausted his Strickland claim by presenting it to the state post-
conviction court and Arizona Supreme Court. The Arizona Supreme
Court effectively adopted the post-conviction court’s flawed Strickland
analysis by summarily denying Mann’s petition for review. Ylst v.
40                         MANN V. RYAN

court’s analysis of the Strickland claim in its decision was
thus contrary to clearly established federal law as determined
by the Supreme Court. Therefore, its decision is not entitled
to AEDPA deference, and we should analyze the ineffective
assistance claim de novo on the merits.

                                    A

    Strickland requires a state post-conviction court to
“evaluate the totality of the available mitigation
evidence—both that adduced at trial, and the evidence
adduced in the habeas proceeding”—and reweigh it against
the aggravating evidence to determine whether counsel’s
deficiency prejudiced the defendant. Williams v. Taylor, 529
U.S. 362, 397–99 (2000) (emphasis added).

   Sentencers and reviewing courts may determine what
weight to accord mitigating evidence, but “may not give
[mitigating evidence] no weight by excluding such evidence


Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one
reasoned state judgment rejecting a federal claim, later unexplained orders
upholding that judgment or rejecting the same claim rest upon the same
ground.”). Mann was not required to exhaust his arguments regarding the
standard of review this Court should apply to that Strickland claim.
Indeed, Mann lacked “the right under the law of [Arizona] to raise” the
question of the appropriate federal standard of review under AEDPA, as
such an inquiry is only relevant in a federal habeas proceeding. See 28
U.S.C. § 2254(c) (requiring exhaustion of claims that can be adjudicated
in the state court). Thus, because Mann properly exhausted his Strickland
claim, we must assess whether the state court’s Strickland analysis was
contrary to federal law and thereby determine whether to apply AEDPA
deference to our review of Mann’s Strickland claim. See Williams v.
Taylor, 529 U.S. 362, 397 (2000) (concluding that state court analysis was
“unreasonable application of” Strickland based on embedded legal error
that was neither raised nor briefed in the state court).
                       MANN V. RYAN                         41

from their consideration.” Eddings, 455 U.S. at 114–15.
Rather, it is “[h]ighly relevant—if not essential—[to the]
selection of an appropriate sentence” that the sentencer
consider “the fullest information possible concerning the
defendant’s life and characteristics.” Lockett v. Ohio, 438
U.S. 586, 602–03 (1978) (alterations in original) (quoting
Williams v. New York, 337 U.S. 241, 247 (1949)).
Accordingly, courts cannot require a capital defendant to
“establish a nexus between [mitigating evidence] and [the]
crime.” Tennard v. Dretke, 542 U.S. 274, 287 (2004).

     Yet, we know that throughout Mann’s trial, sentencing,
direct appeal, and post-conviction proceeding, Arizona courts
“articulated and applied a ‘causal nexus’ test,” contrary to
Eddings, “that forbade as a matter of law giving weight to
mitigating evidence, such as . . . mental condition, unless the
. . . mental condition was causally connected to the crime.”
McKinney, 813 F.3d at 802–03 (concluding that Arizona
courts applied a “causal nexus” test contrary to clearly
established federal law from 1989 until approximately 2005).
It was not until the Supreme Court held in Tennard that a
similar Fifth Circuit test had “no basis in [Supreme Court]
precedents and . . . [was] inconsistent with the standard [the
Court] adopted for relevance in the capital sentencing
context” that Arizona’s practice changed. 542 U.S. at 287.

    Shortly after Tennard, the Arizona Supreme Court
recognized and applied a new rule eliminating the causal
nexus requirement in State v. Anderson, 111 P.3d 369, 391
(Ariz. 2005). But during the period relevant to this case,
Arizona post-conviction courts were applying the
unconstitutional causal nexus test, and were thus unable to
properly “reweigh” the totality of available mitigating and
aggravating evidence as required by Strickland.
42                     MANN V. RYAN

     In this case, the post-conviction court applied a causal
nexus test in violation of Eddings. First, we know that the
post-conviction court was required to do so by state law, as
the Arizona Supreme Court consistently articulated and
applied a causal nexus test both before and after Mann’s post-
conviction proceeding. McKinney, 813 F.3d at 803. Just as
federal courts must presume that state courts “know and
follow” federal law, Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam), perhaps even more so, federal courts
cannot “presume . . . lightly that a state court failed to apply
its own law,” here, an unconstitutional causal nexus test, Bell
v. Cone, 543 U.S. 447, 455 (2005) (per curiam) (emphasis
added). I cannot presume, nor do I believe, that the post-
conviction judge would act contrary to controlling Arizona
precedent.

    Second, the record shows that the post-conviction court
actually applied the causal nexus test to Mann’s mitigating
evidence. Indeed, the Court said so, stating “[t]he Court finds
that Defendant has not proven the existence of a causal
connection between the accident and its effects and the
murders.” Moreover, the post-conviction court and the State
emphasized the causal nexus test throughout Mann’s post-
conviction proceeding. When clinical neuropsychologist Dr.
James F. Comer testified about the results of Mann’s
neuropsychological evaluation, the judge asked Dr. Comer to
clarify whether Mann’s head injury could have affected the
crime. Dr. Comer responded by stating that he was “making
no direct, causal connection” between Mann’s organic brain
damage and the murders because that was “something . . . the
court need[ed] to determine”—a response that suggests he
understood the court’s question to be legal, not factual. The
State emphasized that colloquy in its oral argument at the
close of evidence, noting that the “court specifically asked
                       MANN V. RYAN                         43

Dr. Comer the critical legal issue, whether there’s any nexus
between any possible injury to the brain from that accident
and to the crime.” Indeed, when discussing Dr. Comer’s
findings, the State’s post-conviction hearing memo cited
State v. Hoskins, 14 P.3d 997 (Ariz. 2000), a case—as
recognized by the majority—in which the Arizona Supreme
Court “articulated and insisted on its unconstitutional causal
nexus test.” McKinney, 813 F.3d at 814–15.

     The post-conviction court’s written decision then directly
responded to its own questioning of Dr. Comer and the
State’s invocation of the causal nexus test. The decision first
addressed Mann’s state law claim for resentencing, which
could only be granted if “[n]ewly discovered material facts
. . . probably would have changed the verdict or sentence.”
Ariz. R. Crim. Pro. 32.1(e). Then, as previously noted, the
post-conviction court concluded that Mann had “not proven
the existence of a causal connection between the accident and
its effects and the murders.” Rather, Mann had “committed
the[] murders for pecuniary gain, not for reasons traceable to
his 1985 accident.” The post-conviction court thus concluded
that Mann could not establish that any new evidence probably
would have changed his sentence, as required for relief
pursuant to Arizona Rule of Criminal Procedure 32.1(e). The
post-conviction court’s cursory ineffective assistance of
counsel analysis then imported the reasoning from that state
law resentencing analysis. The court concluded that Mann
was not prejudiced by his counsel’s failure to introduce
evidence of the accident and Mann’s attendant organic brain
damage because “[a]dditional evidence that pertain[ed] to the
1985 accident and its effects [was] discussed . . . above,
where th[e] Court found that it would not have changed the
sentence imposed.” That “discuss[ion] . . . above” turned
44                          MANN V. RYAN

almost exclusively on the lack of “a causal connection
between the accident and its effects and the murders.”

    The post-conviction court did not use the phrase “causal
connection” to respond to “the core” of Mann’s claims, as the
majority suggests. Mann did not argue that evidence relating
to the 1985 accident was relevant solely as a potential
contributing factor to the crime. Rather, Mann explicitly
argued at the post-conviction hearing that such evidence
“would have provided some free-standing mitigation of
itself.” Once the post-conviction court concluded that there
was no causal connection, however, it did not consider and
respond to this additional mitigation argument. The court
failed to address how Mann’s organic brain damage and
attendant personality change—apart from a causal nexus to
the crime—could have otherwise reduced his moral
culpability or altered his sentencing profile.

   Further, I cannot presume that the post-conviction court’s
invocation of the phrase “causal connection” was divorced
from the legal meaning given to that phrase by the Arizona
Supreme Court.2 At the time of Mann’s post-conviction

     2
      The majority suggests that the post-conviction judge, who also
presided over Mann’s trial, did not apply the causal nexus test during
Mann’s trial and thus likely did not do so during Mann’s post-conviction
proceeding. However, the appropriate standard of review under AEDPA
turns on the legal analysis of the court that adjudicated the claim at issue,
not analyses in prior and distinct proceedings. Moreover, during the
sentencing phase of Mann’s trial, the prosecution repeatedly invoked the
causal nexus test, arguing that unless a mitigating factor “ha[d] a direct
causal tie” to the crime, the court did not “have to consider it.” Although
brief, the trial court’s sentencing memorandum suggests that it agreed with
the prosecution and, in accord with binding Arizona precedent, applied the
causal nexus test to Mann’s non-statutory mitigating evidence. Thus,
consideration of the trial court record suggests that the post-conviction
                          MANN V. RYAN                               45

proceeding, the term “causal connection” was a legal term of
art, inextricably intertwined with the Arizona Supreme
Court’s unconstitutional causal nexus test. See e.g., State v.
Martinez, 999 P.2d 795, 808 (Ariz. 2000) (“[T]here was
simply no causal connection between [the defendant’s]
personality disorder and his actions on [the day of the
murder].” (emphasis added)); State v. Sharp, 973 P.2d 1171,
1182 (Ariz. 1999) (“Appellant failed to show a causal
connection between [the mitigating evidence] and his actions
on the night of the murder. We have previously explained
that we require a causal connection to justify considering
evidence of a defendant’s background as a mitigating
circumstance.” (emphasis added)); State v. Rienhardt, 951
P.2d 454, 467 (Ariz. 1997) (“Since [the defendant] declined
to present any evidence of a causal connection at his
aggravation-mitigation hearing, we reject this mitigating
factor.” (emphasis added)). The post-conviction court
referenced the lack of “causal connection” because it was
required to do so by state law, not to respond to “the core” of
Mann’s claim. To suggest otherwise is to say that the court
did not mean what it said.

    In sum, the post-conviction court excluded from its
prejudice analysis as a matter of law mitigating evidence that,
irrespective of its relationship to the crime, could have shed
light on Mann’s moral culpability, contrary to clearly
established federal law. See Eddings, 455 U.S. at 113.
Therefore, its decision is not entitled to deference under
AEDPA.




judge was aware of, and had previously applied in Mann’s case, Arizona’s
unconstitutional causal nexus test.
46                     MANN V. RYAN

                              B

     The post-conviction court’s prejudice analysis was also
“contrary to” clearly established federal law because it
applied the “more-likely-than-not” standard that Strickland
rejected. 466 U.S. at 693–94. No one disagrees that it is
constitutional error to apply a “more-likely-than-not”
standard in analyzing prejudice because Strickland rejected
that approach and instead established a “reasonable
probability” standard. Specifically, Strickland held that to
establish prejudice at the penalty phase of a capital
proceeding, the petitioner must show that “there is a
reasonable probability that, absent [counsel’s] errors, the
sentencer . . . would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death.” Id. at 695. The Court explicitly held that a
“reasonable probability” is “a probability sufficient to
undermine confidence in the outcome,” not a probability that
it is “more likely than not” the result would be different. Id.
at 693–94.

    Here, the post-conviction court denied Mann’s ineffective
assistance of counsel claim for the reasons “discussed” in its
state law resentencing analysis, “where [the] [c]ourt found
that [the new mitigating evidence] would not have changed
the sentence imposed.” At the time of the post-conviction
court’s decision, Arizona law limited resentencing to cases
where “[n]ewly discovered material facts probably exist and
such facts probably would have changed the verdict or
sentence.” Ariz. R. Crim. P. 32.1(e) (2000). “Probably”
effectively meant “more likely than not.” See State v.
Orantez, 902 P.2d 824, 829 (Ariz. 1995) (concluding that new
evidence “would have likely resulted in a different verdict”
and thus “probably change[d] the verdict”). The post-
                       MANN V. RYAN                          47

conviction court’s ineffective assistance of counsel analysis
did not invoke a different test for assessing prejudice. The
most fair reading of the decision is therefore that the court
denied constitutional relief for the same reason—and under
the same procedural rules—that it denied state law relief: it
probably would not “have changed the verdict or sentence
imposed.” Although the majority may be correct that the
difference between the “more-likely-than-not” and
“reasonable probability” standards is outcome determinative
“in the rarest case,” it is a difference that permits us to make
that assessment de novo, rather than through AEDPA’s
deferential lens.

    The fact that the post-conviction judge cited State v.
Nash, 694 P.2d 222 (Ariz. 1985), an Arizona case that
adopted Strickland’s “reasonable probability” standard, does
not alter this conclusion. The post-conviction court’s
decision cites Nash only for the general idea that Strickland
sets out the performance and prejudice test for Sixth
Amendment claims, not to provide a specific prejudice
standard distinct from the more-likely-than-not standard
otherwise applicable under Arizona law and previously
applied in the decision.

    And even if the citation to Nash meant that the post-
conviction court implicitly adopted the correct prejudice
standard, it is not enough to cite Strickland—a court’s
analysis must reflect it too. The Supreme Court has held that
even if a state court identifies the proper Strickland standard,
by “failing to apply Strickland to assess the ineffective-
assistance-of-counsel claim . . . raised, the state court’s
adjudication [is] contrary to clearly established federal law.”
Lafler v. Cooper, 132 S. Ct. 1376, 1390 (2012). Here, it is
apparent that the post-conviction court did not actually “apply
48                    MANN V. RYAN

Strickland to assess” Mann’s claim and reweigh the
aggravating and mitigating evidence.

    The only potential prejudice analysis is contained in the
post-conviction court’s state law resentencing discussion,
which primarily notes Mann’s pecuniary motive for the crime
and the lack of a causal connection. However, both of those
observations are irrelevant to a proper reweighing of
aggravating and mitigating factors under Strickland—the
post-conviction court merely restated an established
aggravating factor and otherwise failed to respond to Mann’s
contentions that the new evidence undermined the trial
court’s rejection of the non-statutory mitigating factor of
remorse. See id. (concluding that Strickland analysis was
“contrary to” clearly established law in part because the
court’s analysis consisted of “irrelevant observation[s]”).
The only potential prejudice analysis in the post-conviction
court’s opinion therefore suggests that the court did not
actually place the powerful new mitigating evidence in the
context of evidence established at trial and reweigh the
totality of available mitigating evidence against the evidence
in aggravation. Williams, 529 U.S. at 397–98.

    As a final note, the post-conviction court was not excused
from its obligation to apply Strickland because the same
judge presided over both Mann’s trial and post-conviction
proceeding, and that judge concluded that the newly
introduced evidence would not have changed his mind.
Strickland’s prejudice analysis turns on a reasonable
decisionmaker, not on the “idiosyncracies of [a] particular
decisionmaker.” 466 U.S. at 695. Indeed, it would be odd to
give weight to a single decisionmaker in this context, given
that judge sentencing in capital cases is unconstitutional.
Ring, 536 U.S. at 609.
                       MANN V. RYAN                         49

    Additionally and significantly, in states like Arizona,
where the state supreme court “conducts an independent
review of the aggravating and mitigating factors, reweighing
them afresh,” Correll v. Ryan, 539 F.3d 938, 951 (9th Cir.
2008), the post-conviction court must assess whether there is
a reasonable probability that “the sentencer—including an
appellate court, to the extent it independently reweighs the
evidence—would have concluded that the balance of
aggravating and mitigating factors did not warrant death.”
Strickland, 466 U.S. at 695 (emphasis added). The fact that
the post-conviction court spoke in terms of absolutes rather
than degrees of probability thus provides additional evidence
that the court failed to “apply Strickland to assess” prejudice
by reweighing the evidence from the perspective of a neutral
and reasonable sentencer.

                              C

   In sum, the record demonstrates that the post-conviction
court’s prejudice analysis was contrary to clearly established
federal law in two respects. Because the state court’s
decision is not entitled to AEDPA deference, I would review
Mann’s Strickland claim de novo.

                              III

    Reviewing the Strickland claim de novo, one can only
conclude that Mann was denied his Sixth Amendment right
to effective assistance of counsel and is entitled to habeas
relief. As we know, to prevail on a claim for ineffective
assistance of counsel, a defendant must first establish that
“counsel’s performance was deficient” and, second, that the
“deficient performance prejudiced the defense.” Strickland,
466 U.S. at 687. Mann satisfies both of Strickland’s prongs.
50                         MANN V. RYAN

                                    A

    Because the post-conviction court only reached
Strickland’s prejudice prong, we must review Strickland’s
deficiency prong de novo. Porter v. McCollum, 558 U.S. 30,
39 (2009) (per curiam).3 Reviewing that prong de novo, one
can only conclude that counsel’s performance at sentencing
was constitutionally deficient.

    Counsel’s performance is measured by “an objective
standard of reasonableness,” as determined by “prevailing
professional norms.” Strickland, 466 U.S. at 687–88.
Although there are no “specific guidelines” for measuring
counsel’s performance, Cullen v. Pinholster, 563 U.S. 170,
195 (2011) (quoting Strickland, 466 U.S. at 688), “general
principles have emerged . . . that inform our view as to the
‘objective standard of reasonableness’ by which we assess
attorney performance, particularly with respect to the duty to



 3
   The Supreme Court’s recent statement that “§ 2254(d) applies when a
‘claim,’ not a component of one, has been adjudicated” does not require
a different analysis. Harrington v. Richter, 562 U.S. 86, 98 (2011). Here,
unlike the summary denial in Richter, the court knows which component
of Mann’s ineffective assistance of counsel claim—namely,
prejudice—was addressed by the state court. This distinction between
AEDPA review of summary denials and partial adjudications is apparent
in post-Richter Supreme Court caselaw, which applies de novo review to
unanalyzed portions of multi-prong tests. See, e.g., Brumfield v. Cain, 135
S. Ct. 2269, 2282–83 (2015) (applying de novo review to unanalyzed
portion of Atkins claim). Indeed, in Brumfield, the Court analogized the
partial adjudication at issue to Wiggins v. Smith, 539 U.S. 510 (2003),
where the state court’s reasoned decision was “premised solely” on one
of Strickland’s prongs, and distinguished the case from Richter, where
there was no “opinion explaining the reason relief [was] denied.” 135 S.
Ct. at 2282–83.
                      MANN V. RYAN                         51

investigate,” Summerlin v. Schriro, 427 F.3d 623, 629 (9th
Cir. 2005) (en banc).

    Generally, for the penalty phase of capital proceedings,
prevailing professional norms require counsel “to conduct a
thorough investigation of the defendant’s background.”
Williams, 529 U.S. at 396. As recognized in Strickland, the
American Bar Association attorney standards serve as
“guides” to determining what constitutes the requisite
“thorough investigation.” 466 U.S. at 688–90. At the time of
Mann’s sentencing, those standards provided that counsel’s
penalty phase investigation should “comprise efforts to
discover all reasonably available mitigating evidence.” ABA
Guidelines for the Appointment and Performance of Counsel
in Death Penalty Cases 11.4.1(C) (1989).

    Specifically, because evidence of mental impairment may
place a defendant’s character in context, thereby reducing a
defendant’s moral culpability, capital defense attorneys have
a “duty to investigate and present mitigating evidence of
mental impairment.” Bean v. Calderon, 163 F.3d 1073, 1080
(9th Cir. 1998). This standard practice was likewise reflected
in the ABA guidelines at the time of Mann’s trial, which
provided that capital defense attorneys should investigate the
defendant’s “medical history.” ABA Guidelines for the
Appointment and Performance of Counsel in Death Penalty
Cases 11.4.1(D)(2)(C) (1989). Therefore, the “[f]ailure to
investigate a defendant’s organic brain damage or other
mental impairments may constitute ineffective assistance of
counsel.” Caro v. Calderon (Caro I), 165 F.3d 1223, 1226
(9th Cir. 1998).

   As measured against these prevailing professional norms,
counsel’s penalty phase investigation fell below an objective
52                    MANN V. RYAN

standard of reasonableness. The majority does not suggest
otherwise.

    Mann’s counsel never investigated the circumstances or
consequences of the 1985 accident, and made no effort to
investigate whether Mann sustained organic brain damage.
The failure to do so is unsurprising given that Mann’s counsel
admitted that he “was not focused on mitigation.” Indeed,
counsel never even requested that a background investigation
or any long term research be performed with regard to Mann.
Counsel declined to pursue such avenues of mitigation relief
despite the Capital Representation Project’s death penalty
expert’s recommendation to investigate whether Mann had
“organic brain damage” and had been “self-medicating with
drugs.”

    Mann’s counsel also never attempted to obtain Mann’s
medical records, whether relating to the 1985 accident or
otherwise. Yet, obtaining “readily available documentary
evidence such as . . . medical records” is “fundamental to
preparing for virtually every capital sentencing proceeding.”
Robinson v. Schriro, 595 F.3d 1086, 1108–09 (9th Cir. 2010).
Mann’s counsel recognized as much, and requested a
continuance to obtain “all the records” counsel could “from
prior schooling, hospitalizations, [Mann’s] prior criminal
record, and prior presentence reports.”

   Finally, Mann’s counsel did not to speak with Karen
Miller, again, contrary to the recommendation of the Capital
Representation Project. Counsel was aware, however, that
Miller lived with Mann for ten years, including both before
and after the 1985 accident; that she was someone who
“care[d] about” Mann; and that she observed a change in
Mann’s behavior during their relationship.          Counsel
                       MANN V. RYAN                         53

recognized the importance of their relationship and invoked
it during his sentencing argument, noting that Mann “has tried
to maintain some kind of a relationship with [Miller]” and
that she “even went to the jail a couple times to visit” Mann.
Counsel was thus aware that Miller “could have provided
important background information” about Mann, “providing
leads for further investigation,” likely regarding the 1985
accident and its impact on Mann’s character. Robinson, 595
F.3d at 1110. Like other instances where counsel fails to
“even take the first step of interviewing witnesses or
requesting records,” counsel’s decision not to investigate the
circumstances or consequences of the 1985 accident “did not
reflect reasonable professional judgment” subject to this
Court’s deference. Porter, 558 U.S. at 39–40.

    If there could be any doubt that counsel’s actions fell
below an objective standard of reasonableness, it is obviated
by counsel’s concession at trial that such an investigation was
the prevailing professional norm in the state of Arizona. See
Wiggins v. Smith, 539 U.S. 510, 524 (2003) (concluding that
counsel performed deficiently where counsel acknowledged
the relevant professional norm); see also Pinholster, 563 U.S.
at 196 (distinguishing Wiggins as a case in which “the
defendant’s trial counsel specifically acknowledged a
standard practice for capital cases . . . that was inconsistent
with what he had done”). When counsel requested a
continuance, he told the court that a continuance was
necessary so that counsel could fulfill his constitutional and
state-law obligations to conduct a “comprehensive
psychological profile and background investigation,” and
obtain “all the records” available, including those from
54                           MANN V. RYAN

hospitalizations.4 Indeed, counsel conceded that the failure
to conduct such an investigation would constitute “reversible
error.” Yet, whether due to time constraints or “inattention,”
counsel never conducted the very investigation he described
to the court as required by law. See Wiggins, 539 U.S. at 526
(concluding that counsel’s “failure to investigate thoroughly
resulted from inattention, not reasoned strategic judgment”).

    In the post-conviction proceeding, counsel did not attempt
to insulate his failure to investigate Mann’s medical history
as a strategic decision. But, even if he had done so, cloaking
a decision as “strategic” does eliminate counsel’s “duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.”
Strickland, 466 U.S. at 691. It is often only after a
preliminary investigation that “reasonably diligent counsel
may draw a line [because] they have good reason to think
further investigation would be a waste.” Rompilla v. Beard,
545 U.S. 374, 382–83 (2005). After all, an “uninformed
strategy is not a reasoned strategy. It is, in fact, no strategy
at all.” Correll, 539 F.3d at 949.



  4
    Counsel requested a continuance because it was not until Mann was
convicted that counsel “kind of realized . . . that it normally takes quite a
few months to prepare a case for a sentencing.” This concession provides
further evidence of counsel’s deficiency. “The failure to start the
mitigation investigation until after the guilt phase flies directly in the face
of the 1989 Guidelines, which directs an attorney to start preparing for
sentencing as soon as he starts working on the case.” Jones v. Ryan, 583
F.3d 626, 644 (9th Cir. 2009), vacated for reconsideration in light of
Pinholster, 563 U.S. 170, by 563 U.S. 932 (2011); see ABA Guidelines
for the Appointment and Performance of Counsel in Death Penalty Cases
11.4.1(A) (1989) (stating that the penalty phase investigation should
“begin immediately upon counsel’s entry into the case”).
                       MANN V. RYAN                           55

    Here, counsel did conduct a narrow mitigation
investigation. He spoke with members of Mann’s family to
develop evidence of Mann’s “unstable and abusive family
background” and “positive relationships with his daughters
and mother.”        Counsel also requested a “neutral”
psychological evaluation, provided by a person who was
neither “defense [n]or State oriented.” However, “counsel’s
duty to investigate all potentially mitigating evidence related
to a defendant’s mental health [and] family background . . .
is not discharged merely by conducting a limited
investigation of [those] issues.” Lambright v. Shcriro, 490
F.3d 1103, 1120 (9th Cir. 2007) (en banc). Particularly
where, like here, counsel “uncovered no evidence in [his]
investigation to suggest that a mitigation case, in its own
right, would have been counterproductive, or that further
investigation would have been fruitless.” Wiggins, 539 U.S.
at 525.

     Indeed, the failure to investigate Mann’s medical history
could not be considered “strategic” in light of the mitigating
evidence available to counsel. Mann’s biographical reference
to the 1985 car accident and attendant concussion put counsel
on notice of potential powerful mitigating evidence of organic
brain damage, especially when coupled with the Capital
Representation Project’s specific recommendation to
investigate whether Mann suffered from brain damage. “In
assessing the reasonableness of an attorney’s investigation . . .
a court must consider not only the quantum of evidence
already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate
further.” Id. at 527. Any reasonable attorney would further
investigate whether a car accident that left two out of three
passengers dead resulted in any permanent physical or
psychological damage to Mann, the sole survivor.
56                     MANN V. RYAN

    Counsel’s failure to investigate the 1985 accident and
whether Mann suffered any organic brain damage was neither
reasoned nor strategic; it was objectively unreasonable.
Therefore, Mann’s counsel provided constitutionally deficient
representation during the penalty phase of Mann’s trial.

                               B

    Counsel’s failure to investigate and present mitigating
evidence relating to the 1985 accident prejudiced Mann. If
Mann’s counsel had conducted a reasonable investigation, the
sentencing judge would have learned about Mann’s organic
brain damage and ability to feel remorse, mitigators that
could have affected the sentencer’s view of Mann’s moral
culpability. Indeed, “[m]ore than any other singular factor,
mental defects have been respected as a reason for leniency
in our criminal justice system.” Caro v. Woodford (Caro II),
280 F.3d 1247, 1258 (9th Cir. 2002) (citing 4 William
Blackstone, Commentaries, *24–25). Given the impact that
classic mitigating evidence would have had on Mann’s
sentencing profile, the newly introduced evidence is more
than “sufficient to undermine confidence” in Mann’s death
sentence. Strickland, 466 U.S. at 694.

      To establish prejudice from counsel’s errors during the
sentencing phase of a capital trial, the petitioner must show
“a reasonable probability that, absent the errors, the sentencer
. . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Id. at 695.
This requires the court to “couple the omitted evidence with
the mitigating evidence presented at trial,” and assess whether
the omitted evidence might have influenced the sentencer’s
assessment of the defendant’s moral culpability. Caro II, 280
F.3d at 1256–57. Evidence of brain injury is a classic form
                       MANN V. RYAN                         57

of mitigating evidence and thus often alters the balance of
aggravating and mitigating circumstances. Correll, 539 F.3d
at 954.

   Here, there was substantial evidence of organic brain
damage that was not presented to the sentencing judge.
According to post-conviction testimony, Mann lost
consciousness for a few hours after the accident. Once in the
hospital, Mann’s doctors, which may have included up to five
neurologists, expressed concern about Mann’s head injuries.
After the accident, Mann experienced symptoms associated
with organic brain damage, including astro-projection and
severe lingering headaches.

    Mann’s post-conviction neurological expert, Dr. Comer,
also concluded that Mann had “cognitive deficits consistent
with head injury.” Dr. Comer effectively ruled out substance
abuse as the cause of Mann’s cognitive deficits because the
“cluster of weak test performances that [Mann] demonstrated
tended to occur almost entirely on tests that had been well-
documented to be sensitive to the subtle effects of head
injury.” To further support that conclusion, both Mann and
Miller presented evidence that it was only after the 1985
accident that Mann began using and selling cocaine, a
conclusion consistent with Mann’s presentence report. This
compelling evidence suggests that Mann suffered organic
brain damage in the accident, from which, according to Dr.
Comer, he did not “successful[ly] recover[] emotionally and
behaviorally.” The newly adduced mitigating evidence thus
would have permitted the sentencer to more accurately assess
Mann’s “character and record”—an “indispensable part of the
process of inflicting the penalty of death.” Woodson v. North
Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).
Indeed, it “is precisely the type [of mitigating evidence] most
58                    MANN V. RYAN

likely to affect a [sentencer’s] evaluation of the punishment”
Mann should have received. Caro I, 165 F.3d at 1227.

    The mitigating evidence relating to the 1985 accident
would have been of particular import in Mann’s case because
Arizona courts “place significant weight on brain injuries as
mitigating evidence.” Correll, 539 F.3d at 950 n.3. Further,
“a major personality change can amount to a mitigating factor
in Arizona.” Smith v. Stewart, 140 F.3d 1263, 1271 (9th Cir.
1998); see also State v. Rockwell, 775 P. 2d 1069, 1079 (Ariz.
1989) (vacating death sentence in case where defendant’s
“violent and unpredictable behavior began after [a] tragic
[motorcycle] accident”). Thus, although counsel’s deficiency
would be prejudicial in any case, it was particularly so here,
where Mann’s capital sentence was automatically reviewed
by the Arizona Supreme Court.

    Not only did evidence relating to the 1985 accident
potentially reduce Mann’s moral culpability, but that
evidence also undermined factual and legal findings made by
the state trial court. The record developed in the post-
conviction proceeding eradicated the two factual pillars upon
which the sentencing court based its legal conclusion that
Mann did not establish the non-statutory mitigating factor of
remorse, thus per se altering the balance of aggravating and
mitigating factors established at Mann’s trial.

    At sentencing, the trial court concluded that Mann failed
to establish the non-statutory mitigating factor of remorse.
The court specifically noted Mann’s description of the 1985
accident contained in his biographical letter, and stated that
in the letter Mann “indicate[d] no remorse” for the death of
his two passengers. The court then concluded that Mann was
                      MANN V. RYAN                         59

“incapable of remorse.” That conclusion collapses in light of
the post-conviction record.

    The post-conviction record demonstrates that Mann was
capable of remorse and, indeed, expressed significant remorse
following the 1985 accident. The medical records following
the accident describe Mann as experiencing a “grief
reaction.” Mann described himself as “devastated” by the
death of his passengers, especially the younger girl, whom he
considered “like a sister.” Miller said that Mann entered a
depression after the accident, and that the death of his
passengers “destroyed him.”          This evidence directly
contradicts the sentencing court’s factual finding that Mann
did not experience remorse for the death of his passengers
following the 1985 accident.

    The court’s reliance on psychological testimony was
similarly flawed because the psychologist was not provided
evidence indicating that Mann may have received a head
injury and therefore lacked “the information necessary to
make an accurate evaluation” of Mann’s neuropsychological
health. Caro I, 165 F.3d at 1226–27. The psychologist’s
diagnosis of anti-social personality disorder required ruling
out organic brain damage, which he was unable to do because
he lacked the critical information. The psychologist’s
opinion that Mann was an anti-social “psychopath” with “no
conscience” was founded on a mistaken assumption of
Mann’s neuropsychological health. Thus, the post-conviction
record entirely undermines the basis of the sentencing court’s
conclusion that Mann was “incapable of remorse,” and its
rejection of remorse as a non-statutory mitigating factor.
Therefore, there is no question that Mann was directly
prejudiced by counsel’s failure to investigate and present
60                     MANN V. RYAN

evidence of organic brain injury and Mann’s actual remorse
about the accident.

    In sum, the post-conviction evidence materially altered
the sentencing profile that was presented to the sentencing
judge and to the Arizona Supreme Court on direct review.
The mitigating evidence introduced in the post-conviction
proceeding was not “largely duplicat[ive]” of the mitigating
evidence introduced at trial, or otherwise of “questionable
mitigating value.” Pinholster, 563 U.S. at 200–01. Rather,
it was pure, undiluted mitigation, different in kind from the
“lay background and character evidence” introduced at trial.
Caro II, 280 F.3d at 1257. Thus, particularly in light of
Arizona law at the time of Mann’s conviction, there is a
reasonable probability that evidence relating to the 1985
accident would have altered the balance of aggravating and
mitigating factors and resulted in Mann receiving a sentence
other than death. Counsel’s deficiency prejudiced Mann.

                              IV

    For these reasons, I respectfully disagree that Mann is not
entitled to relief on his claim of ineffective assistance of
counsel at sentencing. Accordingly, I concur in part and
dissent in part.
                       MANN V. RYAN                         61

CHRISTEN, Circuit Judge, joined by BERZON, Circuit
Judge, concurring in part and dissenting in part:

    I agree with the majority and the dissent that petitioner
did not meet his burden of establishing a meritorious guilt-
phase claim. As for petitioner’s sentencing-phase claim, I
fully join the dissent’s Part IIA analysis and conclude that
Mann is entitled to de novo review on his claim of ineffective
assistance of counsel. The dissent meticulously traces the
post-conviction court’s treatment of Mann’s mitigating
evidence and conclusively establishes that the court did
indeed apply the rule from State v. Hoskins, 14 P.3d 997
(Ariz. 2000) (en banc), a decision published by the Arizona
Supreme Court less than a year before the court decided
Mann’s post-conviction petition. Though this was exactly the
course urged by the prosecution, it doomed the post-
conviction court’s Strickland analysis because it
unequivocally incorporated Eddings error. As the dissent
makes plain, no speculation is required to conclude that the
state court improperly weighed Mann’s mitigating evidence;
the court said so. The dissent’s Part IIIA discussion of
Strickland’s deficient performance prong is also compelling
and I join it. But I ultimately conclude, as the majority does,
that petitioner is not entitled to relief. In the end, I am not
persuaded that petitioner met his burden of establishing that
the errors he complains of prejudiced the outcome of his
sentencing.
