                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


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


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

           Argued and Submitted January 21, 2015
                    Pasadena, California

                     Filed December 29, 2017

        Before: Harry Pregerson, * Stephen Reinhardt,
         and Jacqueline H. Nguyen, Circuit Judges.

               Opinion by Judge Reinhardt;
 Partial Concurrence and Partial Dissent by Judge Nguyen

    *
      Prior to his death, Judge Pregerson fully participated in this case
and formally concurred in this opinion after deliberations were complete.
2                   HERNANDEZ V. CHAPPELL

                          SUMMARY **


                         Habeas Corpus

    The panel reversed the district court’s denial of a writ of
habeas corpus as to Francis Hernandez’s guilt phase claims
relating to first degree murder, vacated his convictions on
those counts, and remanded.

    The panel held that had counsel performed effectively
and investigated and presented a diminished mental capacity
defense based on mental impairment, there is a reasonable
probability that at least one juror would have had a
reasonable doubt as to whether Hernandez could have
formed the requisite mental state for first degree murder.

    Concurring in part and dissenting in part, Judge Nguyen
wrote that even if the jury had considered the mental
evidence of Hernandez’s mental condition, there is no
reasonable possibility of a different outcome, and would
deny the habeas petition.


                            COUNSEL

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


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

Gary Lieberman (argued) and Xiomara Costello, Deputy
Attorneys General; Keith H. Borjon, Supervising Deputy
Attorney General; Lance E. Winters, Senior Assistant
Attorney General; Dane R. Gillette, Chief Assistant
Attorney General; Office of the Attorney General, Los
Angeles, California; for Respondent-Appellee.


                          OPINION

REINHARDT, Circuit Judge:

                     INTRODUCTION

    As in many capital cases, the facts involved in this case
are deeply disturbing and the crimes brutal. In April 1983, a
jury convicted Francis Hernandez of two counts of first
degree murder, two counts of rape, and two counts of
forcible sodomy. After finding that each murder occurred
during the commission of rape and sodomy—special
circumstances permitting capital punishment—the jury
returned a verdict of death. The gruesome nature of the facts
makes applying an objectively simple legal standard
inherently difficult for any jurist, for as some astute observer
will undoubtedly note someday, “bad facts make bad law.”

    The ultimate question in this case is whether there is a
reasonable probability—that is, even less than a fifty-fifty
chance—that at least one juror would have declined to
convict Hernandez of first degree murder if his counsel had
presented a diminished capacity defense based on mental
impairment. Counsel failed to present this defense because
he was ignorant of the law. As a result of his incompetence,
the jury did not hear that Hernandez had suffered from a
variety of mental impairments since childhood which
stemmed from a genetic inheritance that all but guaranteed
4                    HERNANDEZ V. CHAPPELL

that he would suffer severe mental illness, coupled with
numerous in utero traumas, physical and sexual abuse at the
hands of a psychotic adoptive mother, and head injuries from
nearly a dozen motorcycle accidents. Most important, the
jury was not told that such evidence, if believed, provided a
legal defense to first degree murder. With respect to
sentencing, the district court concluded that had the jury
heard similar evidence during the penalty phase, there was a
reasonable probability that at least one juror would have
voted against the death penalty, and as a result it vacated
Hernandez’s death sentence. Hernandez v. Martel, 824 F.
Supp. 2d 1025, 1120 (C.D. Cal. 2011). 1 A similar analysis
leads us to conclude that had the jury been told of the
evidence of Hernandez’s mental impairments and that such
evidence could as a matter of law provide a defense to first
degree murder, at least one juror would have had reasonable
doubt as to whether Hernandez could have formed the
requisite mental state for that offense. 2 Put differently, our
confidence in the outcome of Hernandez’s trial is
undermined: we believe it likely that at least one juror would
have concluded that Hernandez suffered from the mental




    1
      The state has not appealed the district court’s decision to set aside
the death penalty.

    2
      The rape and sodomy convictions for which Hernandez has been
sentenced to eight years to be served consecutively for a total of thirty-
two years were affirmed by the state courts and are not challenged in the
present habeas proceedings. Unlike first degree murder, the two felonies
do not require specific intent and thus are not subject to a diminished
capacity defense.
                    HERNANDEZ V. CHAPPELL                              5

impairment required for a successful defense of diminished
mental capacity. 3

                         BACKGROUND

                     I. Factual Background

A. Francis Hernandez

    Francis Hernandez was born to a fourteen-year-old
mother with a history of mental illness who abused drugs
and was herself physically abused throughout her pregnancy.
He inherited an “extremely strong predisposition” to “severe
mental illness” with “psychiatric illness of psychotic
proportions” going back three generations, including both
his biological parents.         These illnesses include
schizophrenia, bipolar disorder, seizure disorder, and
depression, in addition to an “extraordinary degree of
chemical dependency.”

    Hernandez was adopted as a baby by Frank and Naomi
Hernandez, who were no better situated to care for a child
with special needs than were his biological parents. Naomi,
diagnosed with schizophrenia, was episodically psychotic
throughout Hernandez’s childhood and was hospitalized at
least ten times. After each hospitalization, she was too
heavily medicated to care for her adopted son. She left the
family when Hernandez was in middle school.

   The experts who testified at his habeas hearing described
Hernandez’s childhood as “a daily hell,” and rightly so. For

    3
      Because Hernandez filed his federal habeas petition before the
enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), pre-AEDPA standards of review apply. Carrera v. Ayers,
699 F.3d 1104, 1106 (9th Cir. 2012) cert. denied, 133 S. Ct. 2039 (2013).
6                HERNANDEZ V. CHAPPELL

discipline, Naomi would sit on Hernandez until he stopped
struggling, slap him, tie him to chairs, chase him around the
house with a baseball bat, and forcibly administer enemas to
Hernandez twice a week. Frank suspected that Naomi
sexually abused Hernandez. Frank also abused his adopted
son, beating him with belts and leaving scars on his buttocks
consistent with cigarette burns. Naomi was not spared from
Frank’s violence.

     After Naomi left, Frank was largely absent. Drug dealers
set up shop in the home, terrorizing Hernandez and
supplying him with drugs and alcohol, which he began using
in sixth grade. By fourteen or fifteen, he was declared a ward
of the state. He was sentenced to the California Youth
Authority in 1979, and upon his release, he discovered that
Frank had sold the family home and left his adopted son an
old van in which to live. One of those experts who testified
at the evidentiary hearing reported that in the months leading
up to the crimes Hernandez “was an eighteen-year-old,
unemployed parolee who was homeless, isolated from his
family, drug addicted, and living in a van.”

B. The Crimes

    The nude bodies of Edna Bristol and Kathy Ryan were
found five days apart near schools in Long Beach, California
in the winter of 1981. Their injuries and causes of death
were similar: both died of asphyxiation due to strangulation
or suffocation and suffered unusual pre-mortem bruising and
tearing in the anal and vaginal areas, suggesting a large
object—consistent with a baseball bat—had been inserted.
They both had bite marks on their breasts, and their pubic
hair was singed. Ryan’s abdomen had been cut in a tic-tac-
toe pattern post-mortem.
                 HERNANDEZ V. CHAPPELL                      7

    Hernandez was arrested on February 4, 1981. After five
hours and seventeen minutes of unrecorded interviews, he
confessed to the crimes in a taped statement. Hernandez
later claimed that he was willing to tell the police anything
during the interview because they promised him psychiatric
help.

    In the taped confession, Hernandez said that on the night
of Bristol’s murder, he was drunk and “didn’t have any
control of myself. . . . I was in a crazy mood.” He picked
up Bristol hitchhiking but when he got lost, he got mad and
stopped the van. When Bristol would not leave, he hit her
and dragged her out of the vehicle. According to Hernandez,
Bristol said “she’d do anything” so the two had consensual
sex in the back of the van. He explained, “I didn’t really
have her—you know—forcibly. I guess maybe she thought
I did, but I don’t know.” At some point, Bristol began
kicking and screaming. In response, Hernandez “went
bezerk [sic].” He taped her wrists, legs, and mouth, and
“proceeded to fuck her in the ass.” While doing so, he
pushed Bristol against the hot engine cowling to burn her
chest. Hernandez put his hand over her face to quiet her and
“just might have left it there too long” until she stopped
moving. He thought Bristol was still alive when he left her
at the school, which he chose “so someone hopefully
[would] find her.” Before he left, he lit a cigarette and
flicked matches onto Bristol’s pubic hairs to hurt her for
kicking him and damaging his van.

    On the night of Ryan’s murder, a group of young people,
including Ryan and Hernandez, met in a local park before
going to a pizza parlor to play pool. Four witnesses testified
that Hernandez was drinking but did not appear very drunk.
Hernandez told one of the witnesses that he wanted to make
a “sandwich” out of Ryan and “fuck her in the butt until she
8                 HERNANDEZ V. CHAPPELL

screams.” He told the witness, “You watch. I’ll get some
tonight or tomorrow night.”

    In his taped confession, Hernandez not only talked about
Bristol’s death but about Ryan’s. He said that after the group
gathering in the park and at the pizza parlor, Ryan told him
to stop by her house to “go kick back for a little while” after
the group disbanded. When he arrived at her house, Ryan
came outside and got in the van. Hernandez suggested they
make out, but Ryan was hesitant because Hernandez had a
girlfriend. Eventually, the two started kissing. Hernandez
thought the encounter was consensual: although “she was
sort of hesitant at first,” “she said oh, okay, cuz I pushed her
arms back” and then “she took off her clothes.” The two had
sex, but stopped when Ryan was “starting to bleed or starting
her period or something.” When Ryan turned over,
Hernandez thought she wanted to have anal sex, which they
did until Hernandez stopped because Ryan said it hurt. Like
Bristol, Ryan started screaming and kicking, and Hernandez
put a hand over her mouth to “keep her quiet.” He thought
he “must have used too much pressure” because she
“stopped struggling,” but he did not realize she was dead
until he took her body out of the van. He then singed Ryan’s
pubic hair and cut her stomach with glass. At the
interviewer’s prompting, Hernandez acknowledged that he
“might” have bitten Ryan’s nipple. He added that, when he
left Ryan’s body, “it started dawning on [him] what had
happened before with the other girl.” He said, “there was
thoughts going through my head like, how the hell can I do
these things, and—you know—I was thinking maybe I was
doing it on purpose, I didn’t know, you know, cause I hadn’t
been planning anything.”

    In addition to the taped confession, a variety of physical
evidence linked Hernandez to the crimes.
                  HERNANDEZ V. CHAPPELL                       9

             II. Trial and Subsequent History

    Hernandez’s trial counsel tried to establish that
Hernandez lacked the specific intent necessary for a
conviction of first degree murder. He based a diminished
capacity defense solely on voluntary intoxication. Counsel
presented some evidence that Hernandez had been drinking
on the nights of both murders as well as expert testimony
that an alcoholic would not be able to form the specific intent
to rape or kill. Counsel also argued that in his intoxicated
state, Hernandez had believed the encounters were
consensual and had intended only to quiet the victims.

     The jury found Hernandez guilty on two counts of first
degree murder, two counts of rape, and two counts of
forcible sodomy. People v. Hernandez, 47 Cal. 3d 315, 351
(1988). It found true six special circumstances. The jury
then imposed a sentence of death as to each murder. For the
rape and sodomy convictions, Hernandez received sentences
of eight years to be served consecutively for a total of thirty-
two years. On direct appeal, the California Supreme Court
in a reasoned opinion vacated one multiple-murder special
circumstance charge but otherwise affirmed. In the direct
appeal, appellate counsel raised some arguments regarding
trial counsel’s ineffective assistance, but failed to raise a
claim that counsel did not investigate or present a diminished
capacity defense based on mental impairment. Id. at 369.

                 III. Habeas Proceedings

    In 1989, Hernandez filed a state habeas petition in the
California Supreme Court, in which he raised the ineffective
assistance of counsel claims at issue here. The California
Supreme Court summarily denied that petition. Hernandez
filed a timely federal habeas petition, and then returned to
state court to exhaust his claims. The California Supreme
10                HERNANDEZ V. CHAPPELL

Court summarily denied the second state habeas petition as
untimely and on the merits, and Hernandez filed a timely
amended federal petition. After granting in part the state’s
motion for summary judgment, the district court ordered a
bifurcated evidentiary hearing on three juror misconduct
claims and two ineffective assistance of counsel claims.
This evidentiary hearing, all on written materials, lasted six
years.

    In 2011, the district court granted in part Hernandez’s
petition for writ of habeas corpus. It vacated the death
penalty for several reasons, including counsel’s failure to
present mitigating mental health and social history evidence
at the penalty phase. It denied, however, guilt phase relief.
On appeal, the state has not challenged the grant of penalty
phase relief. Hernandez, however, appeals his convictions
on the first degree murder counts.

                      JURISDICTION

    The district court granted a certificate of appealability
(“COA”) on Hernandez’s claim that his counsel was
ineffective at the guilt phase for failing to call a key witness.
It did not certify Hernandez’s remaining ineffective
assistance claims, including his claim that counsel was
ineffective for failing to investigate or present a defense of
diminished capacity based on mental impairment. We treat
Hernandez’s appeal from the district court’s ruling on the
uncertified issues as an application for a COA, Fed. R. App.
P. 22(b)(2), and hereby grant the application pursuant to
28 U.S.C. § 2253(c)(2).

                STANDARD OF REVIEW

   Hernandez filed his federal habeas petition before the
enactment of the Antiterrorism and Effective Death Penalty
                    HERNANDEZ V. CHAPPELL                           11

Act of 1996 (“AEDPA”). Accordingly, pre-AEDPA
standards of review apply. Carrera v. Ayers, 699 F.3d 1104,
1106 (9th Cir. 2012) cert. denied, 133 S. Ct. 2039 (2013).
“Ineffective assistance of counsel claims present mixed
questions of law and fact.” Id. We review the district court’s
partial denial of Hernandez’s habeas petition, and its
resolution of mixed questions of law and fact de novo; we
review its findings of fact for clear error. Id.

                          DISCUSSION

    Hernandez contends that his counsel provided
constitutionally ineffective assistance of counsel during the
guilt phase of his trial by failing to investigate and present
evidence in support of a diminished capacity defense based
on mental impairment. 4 His petition specified counsel’s
errors in great detail. The district court concluded that
Hernandez’s counsel’s performance was ineffective because
he failed to know or to find out that a diminished capacity
defense based on mental impairment was available under
California law. As a result, he failed to develop “various
materials gathered since trial but that were reasonably
available to counsel before trial,” including “records and
background information regarding petitioner’s birth family
as well as social history information from petitioner’s
adopted family, preschool teacher and others.” The district
court concluded, however, that despite counsel’s ineffective
performance, Hernandez failed to show prejudice.

   On this appeal, Hernandez must show both that his
counsel was ineffective and that the district court erred in

    4
      We review only this claim because in light of its disposition, we
need review no other. We strongly doubt, however, that any other claim
properly before us is meritorious.
12                   HERNANDEZ V. CHAPPELL

finding that counsel’s ineffective performance was not
prejudicial. Strickland v. Washington, 466 U.S. 668, 687–
88 (1984).

                    I. Deficient Performance

    We agree with the district court that counsel was
ineffective in not knowing or finding out that a diminished
capacity defense based on mental impairment was available
to Hernandez under California law and, based on that lack of
knowledge, in failing to investigate and present such a
defense. 5

    Deficient performance requires a showing that counsel’s
guilt phase performance “fell below an objective standard of
reasonableness” at the time of the trial. Strickland, 466 U.S.
at 688. Defense counsel is “strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of professional judgment.” Id. at
690. However, deference to counsel is owed only to
strategic decisions made after “thorough investigation of law
and facts relevant to plausible options.” Id.

A. We Consider Only Counsel’s Stated Reason for His
   Challenged Conduct

   As an initial matter, the parties dispute whether we
consider counsel’s stated reasons for the challenged course

     5
        Hernandez contends that the district court’s conclusion finding
deficient performance “is not in dispute” because the government did not
file a cross-appeal. However, the government did dispute, in its brief on
the uncertified issues, the district court’s conclusion regarding deficient
performance. Accordingly, we consider whether counsel performed
reasonably at the guilt phase—and agree with the district court that he
did not.
                 HERNANDEZ V. CHAPPELL                     13

of conduct or any hypothetical strategic reasons that could
have supported the challenged course of conduct. Unlike
many lawyers called to testify before a habeas court,
Hernandez’s counsel did not attempt to justify his failure to
perform effectively by invoking a strategic decision on his
part; rather, he admitted that he would have investigated and
advanced the diminished capacity defense based on mental
impairment had he realized that he could have done so.
Citing Harrington v. Richter, 562 U.S. 86, 109 (2011), the
state counters that counsel’s “subjective state of mind is
irrelevant” to our analysis, and asserts that “a reasonable
defense attorney could have decided to present a guilt-phase
defense based on intoxication alone” because the experts
who examined Hernandez before trial were either
inconclusive or found that Hernandez could have formed the
requisite intent, and there was “potentially damaging
psychiatric evidence that Hernandez was a sociopath.”
Hernandez argues in response that the state’s proffered
explanations for counsel’s conduct are “mere post-hoc
rationalization with no place in the analysis.”

    Hernandez is correct. Where counsel has provided the
reason for his conduct, and we have no reason to doubt the
validity of that explanation, the relevant inquiry is whether
the stated reason was objectively unreasonable. The
Supreme Court has repeatedly declared that courts are not to
“indulge ‘post hoc rationalization’ for counsel’s
decisionmaking that contradicts the available evidence of
counsel’s actions.” Richter, 562 U.S. at 109 (quoting
Wiggins v. Smith, 539 U.S. 510, 526–27 (2003)). As a result,
“we credit the statements of defense counsel as to whether
their decisions at trial were—or were not—based on
strategic judgments.” Doe v. Ayers, 782 F.3d 425, 445 (9th
Cir. 2015). In Doe, trial counsel “unequivocally said” that
he did not have a strategy in failing to investigate extensive
14                HERNANDEZ V. CHAPPELL

mitigating evidence. Id. at 444. We concluded that to apply
the presumption that counsel acted reasonably in such a case
would “contradict [trial counsel’s] testimony rather than
fill[] a gap in memory, contravening the Supreme Court’s
admonition” against post hoc rationalizations in Harrington
and Wiggins. Id. at 445 (quoting Heishman v. Ayers,
621 F.3d 1030, 1040 (9th Cir. 2010)) (alterations in
original); see also Duncan v. Ornoski, 528 F.3d 1222, 1237
n.7 (9th Cir. 2008) (explaining that “[i]n light of the Supreme
Court’s admonitions that reviewing courts may not
substitute their own strategic reasoning for that of trial
counsel in order to find that counsel’s performance was
justified, we [would] not consider [the district court and
state’s] additional speculative justifications to be [counsel’s]
actual reasons for declining to test [petitioner’s] blood”
(citing Wiggins, 539 U.S. at 526–27)).

    Only where counsel’s conduct is not explained in the
record, or the explanation contradicts the record, do we
“entertain the range of possible reasons [] counsel may have
had for proceeding as he did.” Leavitt v. Arave, 646 F.3d
605, 609 (9th Cir. 2011); Richter, 562 U.S. at 109 (finding,
under AEDPA, that court of appeals erred in dismissing
range of strategic considerations where counsel provided no
reason for course of conduct); Cullen v. Pinholster, 563 U.S.
170, 196 (2011) (directing court of appeals “to affirmatively
entertain the range of possible ‘reasons’” where counsel
could not recall and the record was ambiguous as to the
extent of penalty-phase investigation).

    Were the record ambiguous or silent as to why
Hernandez’s counsel did not present the diminished capacity
defense, we might consider the state’s hypothetical strategic
reasons. But it is not, and we don’t. In the habeas
proceedings before the district court, counsel said exactly
                 HERNANDEZ V. CHAPPELL                     15

why he failed to pursue the defense: he did not know that he
could and did no research to uncover his mistake of law. The
state, moreover, suggested no credible basis for doubting the
truth of Hernandez’s counsel’s statements. Finally, the
district judge found the statements credible and that finding
was not clear error.

B. Mistakes of Law Constitute Deficient Performance

    “An attorney’s ignorance of a point of law that is
fundamental to his case combined with his failure to perform
basic research on that point is a quintessential example of
unreasonable performance under Strickland.” Hinton v.
Alabama, 134 S. Ct. 1081, 1089 (2014); see also Morris v.
California, 966 F.2d 448, 454–55 (9th Cir. 1992) (finding
that counsel provided “clearly deficient performance”
because he was not “familiar with the law” and had not
“done his homework” to become familiar with the relevant
law). In United States v. Span, 75 F.3d 1383 (9th Cir. 1996),
we held that a mistake about the availability of a defense
constitutes a mistake of law that gives rise to deficient
performance. In that case, trial counsel failed to request a
jury instruction that would cover an excessive force defense
because he mistakenly believed the unlawful arrest jury
instruction would include excessive force. Id. at 1390. This
was deficient performance because his “errors with the jury
instructions were not a strategic decision to forego one
defense in favor of another,” but rather “the result of a
misunderstanding of the law.” Id. No “strategy, save an
ineffective one, would lead a lawyer to deliberately omit” his
client’s best defense. Id.

    So, too, here.      Hernandez’s counsel’s failure to
investigate and present a diminished capacity defense based
on mental impairment—what the district court recognized as
Hernandez’s “best possible defense”—was “quintessential”
16                HERNANDEZ V. CHAPPELL

deficient performance. His counsel was simply wrong that
evidence of mental impairment would not support a
diminished capacity defense.          Doing even minimal
homework, he would have learned that at the time of the
crimes, California recognized a diminished capacity defense
where “someone [] is unable, because of intoxication or
mental illness, to comprehend his duty to govern his actions
in accord with the duty imposed by law.” People v. Saille,
54 Cal. 3d 1103, 1110–11 (1991) (emphasis added) (citing
People v. Conley, 64 Cal. 2d 310, 322 (1966)); see also
People v. McDowell, 69 Cal. 2d 737, 746–47 (1968)
(describing the diminished capacity defense based on
“mental abnormality” as “settled” and “commonplace”). In
McDowell, for instance, the California Supreme Court held
that trial counsel was constitutionally deficient for failing to
present a diminished capacity defense based on “mental
abnormality” because he erroneously believed the defense
was limited to a defendant’s “sexual propensities.” 69 Cal.
2d at 747. Because of Hernandez’s counsel’s failure to
determine the applicable law, counsel did not present the
“substantial credible evidence” of the defendant’s mental
health that could have negated his intent at the time of the
crimes. Id. at 749.

                        II. Prejudice

    Although the district court found that Hernandez’s
counsel performed incompetently, it concluded that his
deficient performance did not prejudice Hernandez. That
conclusion is in error.

    To establish prejudice, Hernandez must show a
“reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. The
Strickland Court specifically rejected a preponderance of the
                   HERNANDEZ V. CHAPPELL                         17

evidence standard. Id. at 693. Instead, a reasonable
probability is “a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.

    “When a defendant challenges a conviction, the question
is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt.” Id. at 694–95. “[B]ecause the jury was
required to reach a unanimous verdict on each count, the
outcome could have differed if even ‘one juror would have
struck a different balance.’” Weeden, 854 F.3d at 1071
(quoting Wiggins, 539 U.S. at 537). For guilt-phase claims,
we contrast “the evidence that actually was presented to the
jury with that which could have been presented had counsel
acted appropriately.” Daniels v. Woodford, 428 F.3d 1181,
1201 (9th Cir. 2005) (citing Bonin v. Calderon, 59 F.3d 815,
834 (9th Cir. 1995)). We then ask whether that omitted
evidence might have created reasonable doubt in the mind of
at least one reasonable juror. Rios v. Rocha, 299 F.3d 796,
813 (9th Cir. 2002).

     Hernandez’s jury was presented with two paths to first
degree murder: willful, deliberate, and premeditated murder,
or felony murder with rape as the predicate felony. 6 Under
the first theory, the jury was required to find that the killing
was intentional, willful, deliberate, and premeditated with
malice aforethought. Conley, 64 Cal. 2d at 318–19. Under
the second, the jury was required to find that Hernandez had
the specific intent to commit the predicate felony of rape.
Hernandez, 47 Cal. 3d at 346. At the time of Hernandez’s
trial, evidence of diminished capacity could negate the
existence of a specific mental state essential to an offense,

    6
      At the time, sodomy constituted a predicate offense for second
degree, rather than first degree, murder.
18                  HERNANDEZ V. CHAPPELL

including malice aforethought and specific intent. People v.
Poddar, 10 Cal. 3d 750, 757 (1974), superseded by statute;
see also Saille, 54 Cal. 3d at 1110. A successful diminished
capacity defense would therefore have reduced the first
degree murder convictions to a lesser offense under either
theory by establishing that Hernandez lacked the capacity to
form the requisite mental state of either malice aforethought
or specific intent to rape. 7 Poddar, 10 Cal. 3d at 758 n.11. 8

    Accordingly, we must determine whether there is a
reasonable probability that at least one juror, upon hearing
the evidence of diminished capacity based on mental
impairment, would have concluded that the prosecution had
failed to carry its burden of proof regarding Hernandez’s
mental state and, as a result, declined to vote to convict
Hernandez of first degree murder.

A. The Evidence Presented at Trial

    Counsel presented three reasons why Hernandez lacked
the requisite mental state necessary for first degree murder:
(1) he had intended to quiet, not kill the victims; (2) he
believed in his intoxicated state that the sex was consensual;
and (3) he was unable to form specific intent based on a
diminished capacity defense due to intoxication. These were
    7
      We refer hereafter, for convenience, to both malice aforethought
and specific intent by the term “specific intent.” For purposes of this
opinion, both have the identical legal effect and consequence.

     8
      At the time of Hernandez’s trial, diminished capacity was a defense
only to crimes of specific intent. People v. Wetmore, 583 P.2d 1308,
1314 n.9 (Cal. 1978), superseded by statute. Therefore, a successful
diminished capacity defense would not undo the convictions for rape or
sodomy because the offenses themselves are general, not specific, intent
crimes. The defense could, however, if successful, preclude the two
felonies from serving as a predicate to a felony murder charge.
                 HERNANDEZ V. CHAPPELL                      19

undeniably all weak defenses. There was little evidence to
support Hernandez’s claim that he attempted to quiet the
victims beyond his own confession, and the physical
evidence of forcible rape and sodomy was compelling.

    The California Supreme Court emphasized that the
diminished capacity defense based on intoxication was
equally weak.        Hernandez, 47 Cal. 3d at 350–51.
Hernandez’s counsel presented only uncorroborated
testimony that Hernandez was intoxicated the night of
Bristol’s killing, and four witnesses testified that he did not
appear very drunk on the night of Ryan’s killing. After
testifying that Hernandez was an alcoholic who would not
be capable of forming the requisite intent for first degree
murder, Hernandez’s expert, Dr. Amer Rayyes, conceded on
cross-examination that it would be possible for an alcoholic
to form the specific intent to kill, rape, or sodomize while
drinking.

    We have emphasized that we are particularly likely to
find prejudice from a failure to present a mental defense
“where the defense that was presented at trial was weak or
meritless.” Daniels, 428 F.3d at 1207; see also Jennings,
290 F.3d at 1019 (same). Here, it unquestionably was both.

B. The Evidence that Could Have Been Presented at
   Trial

    The picture the jury received of Hernandez was of a man
who, as the prosecution said in closing, “is out to hurt
people,” and who was maybe a little drunk the night of the
crimes. That picture was woefully incomplete. Counsel
failed to pursue and present what the district court
recognized as “the best possible defense at guilt: that due to
mental deficiency, neurological deficits and inadequate
20               HERNANDEZ V. CHAPPELL

parenting, petitioner lacked the capacity to form the specific
intent to rape and kill his victims.”

    At the time of Hernandez’s trial, a diminished capacity
defense based on mental health included, among other
factors, consideration of a defendant’s biological
background, familial history of mental illness, social history,
living situation prior to the crime, and potential neurological
impairments. See McDowell, 69 Cal. 2d at 741–43.
Evidence supporting all of these considerations was readily
available to Hernandez’s counsel had he only looked.

    During the district court’s evidentiary hearing, several
witnesses testified to what counsel could have found and
presented had he understood that a mental defense based on
diminished capacity was available. Psychologist Dr.
Clausen, psychiatrist Dr. Lewis, and criminologist Sheila
Balkan provided detailed social histories of Hernandez,
relying on interviews with Hernandez, family, friends, and
teachers as well as on various records including adoption and
medical records, and psychological assessments from 1967,
1979, and 1982. Neuropsychologist Dr. Gur, who reviewed
similar materials and administered a series of neurological
tests, also testified on behalf of Hernandez. The state
presented only the testimony of clinical psychologist Dr.
Martell, who also interviewed Hernandez.

    Dr. Lewis explained, “[i]t is impossible to understand
Francis Hernandez’s psychiatric condition . . . without a
clear understanding among his genetic vulnerabilities to
severe mental illness which he inherited from his biological
mother and father, the effects of in utero exposure to alcohol
and drugs, repeated head injuries beginning in early
childhood, and an upbringing in a psychotic, physically and
sexually abusive, and severely neglectful adoptive family.”
Hernandez’s social history reveals a biological “prescription
                 HERNANDEZ V. CHAPPELL                     21

for disaster.” The in utero injuries—stemming from his
mother’s drinking and abuse throughout the pregnancy—
combined with the use of forceps during Hernandez’s
delivery contributed to his “neurological and psychological
vulnerabilities.”

    The experts identified significant parallels between the
crimes and the extreme abuse Hernandez suffered. In
addition to suspected sexual abuse, his adoptive mother
would sit on Hernandez, tie him to chairs, chase him around
the house with a baseball bat, and forcibly administer
enemas to Hernandez twice a week—a practice Dr. Lewis
described as “a form of sodomy.” Dr. Lewis explained,
“Children who have had objects shoved into their rectums
repeatedly against their will are at high risk of perpetrating
similar acts on others.” In addition, it is significant with
respect to the victims’ pubic hair that Hernandez burned that
he himself has scars on his buttocks consistent with cigarette
burns.

   Experts Clausen, Lewis, Balkan, and Gur diagnosed
Hernandez with dissociative disorder, bipolar disorder,
organic brain damage, and impaired reality testing.

    The experts concluded that Hernandez had begun
dissociating in childhood to cope with trauma. Dr. Gur
explained that dissociation can lead to “a state in which a
person can engage in a complex set of behaviors without
intent or premeditation.”       Evidence of Hernandez’s
dissociation include his inability to remember traumatic
“watershed events” from childhood, and friends’
descriptions of “spells” in which Hernandez would become
“non-responsive” and unaware of his surroundings.
Hernandez himself described elementary school fights in
which he “would find himself thirty feet from where he last
remembered being.”          The experts concluded that
22               HERNANDEZ V. CHAPPELL

dissociation accounted for why Hernandez appeared to know
what happened during the crimes, but did not remember
portions of his actions.

    Dr. Lewis also diagnosed Hernandez with bipolar
disorder. She believed that at the time of the crimes,
Hernandez was in a “manic or hypomanic state” while
simultaneously experiencing dissociative symptoms.

    In addition, Dr. Gur concluded that Hernandez had
organic     brain    damage,     probably      reflecting     a
neurodevelopment disorder exacerbated by Hernandez’s
perinatal stressors as well as postnatal head injuries. In
addition to the in utero abuse and use of forceps during his
birth, Hernandez suffered “sequential head injuries” that
“exacerbate existing psychiatric illness” and make one
“especially susceptible to the effects of alcohol.” His
adoptive father purchased Hernandez an adult motorbike
when he was five and Hernandez was involved in a dozen
motorcycle accidents that sent him to the hospital, including
one at age 17 in which he lost consciousness and went into
convulsions. After administering psychological tests, Dr.
Gur testified that Hernandez’s results were “highly
abnormal” and that he hadn’t “seen profiles like that in a long
time.” When he had, “they’ve always been associated with
severe brain damage.”

    Drs. Clausen, Lewis, and Gur all emphasized that from
an early age, Hernandez exhibited impaired reality testing,
or difficulty interpreting and responding to others’ emotions.
His preschool teacher noted that Hernandez was incapable
of interpreting social cues and that he misinterpreted any
action as a threat. The psychologist who evaluated
Hernandez in relation to his adoptive family’s unsuccessful
attempt to adopt a second child in 1967 found that
Hernandez “phantasized [sic] so profusely that he is unable
                   HERNANDEZ V. CHAPPELL                        23

to readily accept reality.” Dr. Clausen found the origins of
Hernandez’s misperception of emotion in his genetic
predispositions as well as his exposure to his adoptive
parents’ psychological problems. Dr. Gur concluded that
Hernandez’s brain damage most likely caused Hernandez to
misperceive the victims as consenting to sex.

   All experts but Dr. Martell, whom the district judge
thought not credible, concluded that due to these mental
impairments, Hernandez lacked the capacity to form the
specific intent necessary to support a first degree murder
conviction. Further, Dr. Gur testified that a comprehensive
neuropsychological evaluation at the time of the trial would
have disclosed the mental impairments identified by himself
and the others.

C. Ninth Circuit Precedent Demonstrates that the
   Ineffective Performance in this Case Was Prejudicial

      We have repeatedly held that defense counsel in a first-
degree murder trial was prejudicially ineffective where there
was some evidence of the defendant’s mental impairments
in the record, but counsel failed to investigate and present a
mental impairment defense to the charge. See, e.g., Daniels,
428 F.3d at 1208 (holding that counsel’s failure to
investigate and present evidence of petitioner’s “severe
mental illness and possible brain damage” at the guilt phase
was prejudicial because “[u]nder the diminished capacity
standard, a jury could well have found that he did not have
the capacity to truly premeditate and understand the gravity”
of the offense); Jennings, 290 F.3d at 1010, 1014–16
(holding that where “trial counsel failed adequately to
investigate and present considerable evidence regarding
petitioner’s psychological and family history that might have
. . . defeated the jury’s finding of the requisite intent for first
degree murder in the guilt phase,” defendant was denied
24               HERNANDEZ V. CHAPPELL

effective assistance of counsel); Seidel v. Merkle, 146 F.3d
750, 755–56 (9th Cir. 1998) (holding that petitioner was
prejudiced where “trial counsel failed to conduct any
investigation at all into his client’s psychiatric history and
therefore neglected to pursue a potentially successful
defense” at the guilt phase).

    None of the evidence described in section II(B), supra,
was put before the jury and considered during its
deliberations. The testimony from these qualified experts
would have added an entirely new dimension to the jury’s
assessment of the critical issue of Hernandez’s mental state.
The jury did not have the benefit of testimony regarding
Hernandez’s numerous head injuries or his genetic
predisposition to mental illness, his traumatic childhood
raised in a violent and psychotic adoptive family, his organic
brain damage, and his history of dissociation and impaired
reality testing. Instead, the jury was simply asked to find,
based on weak or uncorroborated evidence, that because
Hernandez might have been intoxicated, he could not form
the specific intent to rape or kill the two victims. It is
“especially egregious” to forgo investigation when “the
entire defense strategy rest[s] on contesting the intent
element of the crime, a defense which could have benefited
enormously from readily available psychiatric evidence.”
Turner v. Duncan, 158 F.3d 449, 456–57 (9th Cir. 1998).

   We conclude that there is a reasonable probability that,
upon hearing Hernandez’s “best defense” of mental
impairment, at least one juror, and probably more, would
have harbored substantial doubt about Hernandez’s capacity
to form the specific intent to rape or kill. Thus, our
confidence in the verdict is, without question, undermined.
                     HERNANDEZ V. CHAPPELL                             25

D. The Arguments to the Contrary Do Not Change Our
   Conclusion that Hernandez Was Prejudiced

    None of the arguments that the district court or the state
offer to the contrary causes us to alter our conclusion.

    The district court provided three primary reasons for its
conclusion that Hernandez was not prejudiced: (1) the level
of detail in Hernandez’s confession could have caused the
jury to reasonably reject a defense that he lacked the capacity
to form the requisite intent due to mental defect; (2) the
victims suffered very similar injuries just days apart,
suggesting some amount of premeditation or deliberation;
and (3) the fact that California voters elected to abolish the
diminished capacity defense eighteen months before
Hernandez’s trial could make a jury less likely to accept the
defense. 9

    Without a doubt, Hernandez’s taped confession is
detailed and disturbing. However, the experts at the habeas
hearing agreed that Hernandez’s “ostensible recollection of
details on the tape” does not rule out a diminished capacity
defense. Instead, as they testified, his taped confession

    9
         The district court’s third reason was entirely inappropriate: in
assessing prejudice, the judge should not have considered the abolition
of the diminished capacity defense in Proposition 8, adopted over one
year before the trial. In Strickland, the Court emphasized that “[i]n
making the determination whether the specified errors resulted in the
required prejudice, a court should presume . . . that the judge or jury
acted according to law.” 466 U.S. at 695. At the time of Hernandez’s
trial, it was indisputably the law that the diminished capacity defense was
available where the crimes predated the initiative, as they did in
Hernandez’s case. As such, the political context surrounding the
diminished capacity defense should have absolutely no bearing on
whether the jury would follow the law or whether Hernandez was
prejudiced.
26               HERNANDEZ V. CHAPPELL

confirms their view that Hernandez experienced mental
impairments during the crimes because his statements
demonstrate “that his thought processes were psychotic
during the crimes.” At one point, Hernandez explained, “it
was some way I wasn’t even feeling that I did it,” which
suggested that he did not understand what he was doing or
thinking during the crimes. When the police asked what
thinking about these events made Hernandez feel, he
responded, “I think I need psychiatric help. Definitely.
Cause I don’t know what would make me do this.” Within
the greater context of Hernandez’s biological background
and horrific upbringing, and expert testimony pointing out
the evidence of psychosis buried in the confession, we do not
find the district court’s first point persuasive.

    Second, the district court pointed to the fact that the
victims suffered very similar injuries days apart to suggest
that any diminished capacity defense would have been
undermined by this evidence of premeditation and
deliberation. Dr. Gur, however, explained that mental
impairments such as Hernandez’s could cause a person to
“engage in a complex set of behaviors without intent or
premeditation.” The result may be “highly organized if
somewhat ritualistic behavior.”       In effect, the sheer
bizarreness of the nearly identical crimes just days apart
would have supported, rather than undermined, a diminished
capacity defense based on mental impairment. So, too,
would the seemingly irrational post-mortem injuries to the
victims’ bodies.      Most important, with Hernandez’s
harrowing childhood placed in context, a juror could have
reasonably concluded, like the experts who testified at the
habeas hearing, that the nearly identical injuries of both
victims reflected not premeditation, but rather Hernandez’s
own, similar history of abuse at the hands of his adoptive
parents, from the forcible sodomy to the genital burns, such
                 HERNANDEZ V. CHAPPELL                     27

that the similarity of his actions were a product of his abuse
and mental impairments.

    This Court has recognized the power of a diminished
capacity defense to overcome even “[s]ubstantial evidence
supporting a finding of premeditation and deliberation.”
Daniels, 428 F.3d at 1207–08 (alterations in original)
(quoting People v. Cruz, 605 P.2d 830, 835 (Cal. 1980)); see
also Bloom v. Calderon, 132 F.3d 1267, 1269, 1273, 1276
(9th Cir. 1997) (finding prejudice where counsel failed to
present evidence of brain damage, schizotypal personality
disorder, and transient psychotic episodes, notwithstanding
evidence that petitioner planned the murder of his family in
advance). Thus, however similar the crimes or detailed the
taped statement, there is a reasonable probability that,
hearing all of the expert evidence in support of a diminished
mental capacity defense, a juror would have harbored
reasonable doubt on the element of specific intent and, thus,
on the counts of first degree murder.

    The state offers two additional arguments that also do not
affect our conclusion: one, that any psychiatric testimony
would have been rebutted by a prosecution expert such as
Dr. Martell and, two, that any additional evidence of
impairment would have been cumulative.

    First, while this Court takes into account the possibility
of any rebuttal evidence that could have been admitted when
evaluating prejudice, Richter, 562 U.S. at 109, the district
court found that Dr. Martell—the state’s rebuttal expert—
was neither credible nor qualified. The state cites Jones v.
Ryan, 583 F.3d 626 (9th Cir. 2009), vacated on other
grounds and remanded, 563 U.S. 932 (2011), for the
proposition that it was “improper [for the district court] to
weigh the testimony of the experts against each other in
order to determine who was the most credible.” That
28               HERNANDEZ V. CHAPPELL

quotation, however, is taken out of context and has no
relevance here, because Jones reaffirmed the well-
established principle that in order to determine whether the
failure to offer evidence was prejudicial, the judge must
determine the probable effect of such evidence upon the jury,
including how he believes the jury would assess the
credibility of the witnesses. See 583 F.3d at 641. That is
what the district judge did here by finding Dr. Martell not
credible as part of his prejudice analysis. While we do not
agree with the district judge’s ultimate conclusion regarding
prejudice, we do agree that, for the reasons he stated, a jury
probably would have found Dr. Martell’s testimony
unpersuasive.

    Second, contrary to the state’s assertion, and for the
reasons discussed throughout this opinion, the evidence of
mental impairment clearly would not have been cumulative
of the weak evidence of intoxication that Hernandez’s
counsel presented.

                      CONCLUSION

    The jury in Hernandez’s trial heard the gruesome facts
of the crimes and was asked to find that Hernandez acted in
a diminished capacity because of weak evidence that he
might have been intoxicated. What it did not hear, solely
because his counsel was ignorant of the law, was that
Hernandez had suffered from neurological impairments
since childhood, dissociating to cope with the trauma of
being raised and abused by a psychotic mother and
struggling to comprehend others’ emotions; that he suffered
persistent and pervasive abuse that bore a striking
resemblance to that which he inflicted upon the victims; that
he sustained head injuries from nearly a dozen motorcycle
accidents, some of which occurred upon a motorcycle given
to him when he was five years old; and that he inherited a
                 HERNANDEZ V. CHAPPELL                     29

genetic “prescription for disaster,” all but guaranteeing that
he would have some neurological impairments as a result of
a staggering legacy of mental illness and addiction in his
biological family. We conclude that had counsel performed
effectively and investigated and presented a diminished
mental capacity defense based on mental impairment, there
is a reasonable probability that at least one juror would have
had a reasonable doubt as to whether Hernandez could have
formed the requisite mental state for first degree murder.

    We reverse the district court’s denial of a writ of habeas
corpus as to Hernandez’s guilt phase claims relating to first
degree murder, vacate Hernandez’s convictions on those
counts, and remand with instructions to grant the petition for
a writ of habeas corpus unless the state conducts a new trial
on those charges within a reasonable period of time.



NGUYEN, Circuit Judge, concurring in part and dissenting
in part:

    In January 1981, Francis Hernandez brutally raped,
sodomized, strangled to death, and mutilated Edna Bristol,
throwing her naked body out of his van near a middle school
in Long Beach, California. Five days later, and in a
strikingly similar manner, Hernandez raped and killed Kathy
Ryan, throwing her naked body on the lawn of a high school
in the same city. After his arrest, Hernandez gave a
comprehensive, graphic, and disturbing confession, walking
the police through the details of his gruesome crimes and,
importantly, his thoughts, anger, and awareness of his
actions as he committed them. His admissions, along with
substantial physical evidence connecting him to the crimes,
amply supported the jury’s guilty verdicts.
30               HERNANDEZ V. CHAPPELL

     Yet despite the strength of the evidence, the majority
now vacates Hernandez’s first degree murder convictions on
the ground that Hernandez suffered prejudice due to trial
counsel’s deficient performance. I strongly disagree. Even
if the jury had considered the omitted evidence of
Hernandez’s mental condition, there is no reasonable
possibility of a different outcome. It’s not even a close call.
The evidence that Hernandez had specific intent to rape and
kill, either of which could have independently supported the
verdicts, was so overwhelming that no rational juror would
have believed otherwise. I dissent.

                              I.

    In order to prevail, Hernandez must show a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland v.
Washington, 466 U.S. 668, 694 (1984) (emphasis added).
To determine if there is a reasonable probability of a
different outcome, we compare “the evidence that actually
was presented to the jury with the evidence that might have
been presented had counsel acted differently.” Clark v.
Arnold, 769 F.3d 711, 728 (9th Cir. 2014) (quoting
Murtishaw v. Woodford, 255 F.3d 926, 940 (9th Cir. 2001)).

     While a reasonable probability is “less than the
preponderance more-likely-than-not standard,” Summerlin
v. Schriro, 427 F.3d 623, 640 (9th Cir. 2005) (en banc)
(citing Strickland, 466 U.S. at 693–94), “[i]t is not enough
‘to show that the errors had some conceivable effect on the
outcome of the proceeding[,]’” Harrington v. Richter,
562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at
693). Hernandez faces a higher burden of showing prejudice
at the guilt phase than at his death penalty sentencing, where
                 HERNANDEZ V. CHAPPELL                      31

prejudice has been established without appeal by the
government. See Raley v. Ylst, 470 F.3d 792, 802 (9th Cir.
2006) (“The bar for establishing prejudice is set lower in
death-penalty sentencing cases than in guilt-phase
challenges and noncapital cases.”).

    Hernandez also must show a reasonable probability of a
different outcome as to both first degree murder theories that
were available to the jury: 1) willful, deliberate, and
premeditated murder, and 2) felony murder with rape as the
predicate felony.       That is because, as the majority
acknowledges, the jury was presented with two independent
paths to first degree murder. While the jury was required to
find that the killing was willful, deliberate, premeditated and
with malice aforethought under the first theory, it needed
only to find that Hernandez had the specific intent to rape
under the second theory of felony murder. See People v.
Hernandez, 47 Cal. 3d 315, 346–47, 348–51 (1988).

                              II.

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

    Ample evidence of Hernandez’s specific intent to rape
and kill both Bristol and Ryan supported the jury’s verdict.
First, the two crimes were committed within days of each
other and were strikingly similar, strongly suggesting
premeditation. Bristol and Ryan were around the same
age—21 and 16, respectively—and both had shoulder-length
blonde hair and similar body types. Hernandez, 47 Cal. 3d
at 328, 341. Both women were enticed into Hernandez’s
van, raped, and sodomized. Hernandez taped Bristol’s
wrists, ankles, and mouth with duct tape; tape was also found
near Ryan’s body. Id. at 328. According to pathologist
32                 HERNANDEZ V. CHAPPELL

testimony, each victim was subjected to “extremely similar
and extremely rare” wounds to the vagina and anus, likely
caused by forcible insertion of a large object, possibly a
baseball bat. After each woman struggled and screamed,
Hernandez strangled each of them. Both women were found
in the early morning hours, their bodies abandoned near
schools on grassy parkways. Their bodies bore other similar
injuries—wounds inflicted by punches to the mouth,
significant bruising around their necks, bite marks on their
breasts, “puncture-wound type injuries to the nipples,” and
“singed or burned pubic hair.” The injuries “carried
significant sexual overtones,” and “specifically sexual
violence [was] repeated in almost every detail with both
victims.” Id. at 350. Both women were found naked and
lying on their backs, and Hernandez threw both of their
clothes out of his van after driving away from their bodies.
The substantial similarities between the crimes showed that
Hernandez intended and premeditated both rapes and
murders. Cf. id. at 341 (characterizing the offenses as
“‘signature’ crimes—because of the unique nature of each
killing it was reasonable to believe the same person
committed them both”).

   Second, Hernandez’s own words during his confession
showed his intent. He explained the beginning of his attack
on Bristol as follows:

         [Bristol] started telling me about all her
         problems, and I was mad, and I told her not
         to tell me about her problems, and then she
         started bitching, and I just stopped my van. 1

     1
       The majority summarizes this portion of Hernandez’s confession
as follows: “He picked up Bristol hitchhiking but when he got lost, he
got mad and stopped the van.”           Opinion at 7.     This is a
                    HERNANDEZ V. CHAPPELL                            33

         I got out, walked around and told her to get
         out, and she wouldn’t get out, so I hit her, and
         I dragged her out of my van, and then she told
         me that she’d do anything, and I thought
         about that for a minute, and – I don’t know it
         was just that I was drunk and I was in a weird
         mood, and I just took her and I threw her in
         the back . . . and then I told her to get out and
         get in the front . . . and I proceeded to drive
         . . . on the Long Beach Freeway[.]

(Emphasis added.) Hernandez then parked at a separate
location and told Bristol to “get in the back” and “to take off
her clothes.” There was no exit from the back of the van, as
a passenger would have to climb through the driver’s side
door to get out of the vehicle. Hernandez, 47 Cal. 3d at 345
n.18. Hernandez described what happened next:

         [S]he did, she was willing, and sat there, [we]
         had sexual intercourse once, then I was
         getting up and getting ready to let her go, and
         I didn’t really have her—you know—forcibly.
         I guess maybe she thought I did but I don’t
         know—you know. I proceeded to get up and
         get my clothes on, and I was going to let her
         out.

(Emphasis added.) While Hernandez tried to minimize his
conduct by claiming that they had consensual intercourse,
his statement reveals, in several respects, his awareness of
Bristol’s lack of consent and his specific intent to rape her—

mischaracterization of Hernandez’s statement. While he mentions
getting lost, Hernandez clearly connects his anger to Bristol’s continued
discussion of her problems.
34               HERNANDEZ V. CHAPPELL

pondering her plea that she would “do anything;” driving to
a different location; ordering her to get into the back of the
van and take off her clothes; and, after raping her, admitting
that he was preparing to “let her go” or “let her out.”

    Tragically, Hernandez’s violence only increased as the
evening progressed. Bristol struggled against Hernandez,
kicking him and kicking a hole in the door of his van. This
made Hernandez go “bezerk,” and, in his own words:

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

Hernandez also admitted to “forc[ing] [Bristol] up against
the hot engine cowling of the van in order to burn her
breasts” during the forcible sodomy. Hernandez, 47 Cal. 3d
at 332. His motivation was clear by his own admission: he
suffocated Bristol as punishment for not “being cool” after
he violently raped and sodomized her. And the acts
Hernandez took to render Bristol “totally defenseless”—
attacking her in the back of the van, from which she could
not escape, and taping her arms, legs, and mouth—also
suggested premeditation and intent to kill. See Crittenden v.
Ayers, 624 F.3d 943, 963 (9th Cir. 2010) (viewing
                     HERNANDEZ V. CHAPPELL                            35

petitioner’s gagging and tying of his victims as evidence of
premeditation supporting a first degree murder conviction).
In fact, Bristol’s wrists and ankles “had been bound so
tightly that there were ligature marks on the skin and
hemorrhage in the underlying tissues.” Hernandez, 47 Cal.
3d at 344–45.

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

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

Hernandez, 47 Cal. 3d at 329–30. 2 Hernandez’s aggressive
unwanted sexual touching of Ryan at the bar, and his stated

    2
       Ryan’s stepmother also testified to suspicious circumstances
surrounding her daughter’s room. The morning after Ryan’s death, her
stepmother found “the lights still on and the drapes and the sliding glass
door open. . . . [H]er bedroom window was open and missing in its
screen.” Hernandez, 47 Cal. 3d at 328–29. Ryan had told her stepmother
she was going out to play pool, but her pool cue and jacket were on the
living room floor. Id. at 329. “[Her] purse was outside on the ground
36                 HERNANDEZ V. CHAPPELL

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

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

        I grabbed her, [held] onto her, and—uh—
        then she gargled—she like sputtered up—you
        know—I guess I was choking her too hard,
        and then I let go, and then she was—I told her
        to mellow out and to start putting her clothes
        on, and I turned around to start doing it again,
        and then she started screaming again and
        everything, and I just—I don’t know—I
        grabbed her, and I just—I tried to shut her up

and items from the purse were spilled out.” Id. The jury could have
believed that Hernandez kidnapped Ryan, which would support a finding
of specific intent to rape.
                 HERNANDEZ V. CHAPPELL                      37

       and . . . [g]rabbed her around the throat . . .
       [w]ith one of my hands, and put one of my
       hands over her mouth to keep her quiet.

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

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

breast caused by pushing her up against the hot car during
forcible sodomy. He also described burning Ryan’s pubic
hair with a lighter and putting out the flame with his hand,
and cutting Ryan’s nipple with a piece of broken glass.
Significantly, Hernandez admitted all of this to the police
before seeing any pictures of Bristol or Ryan’s bodies. His
detailed recollection belies any suggestion that he was
somehow in a dissociative state when he raped and killed
Bristol and Ryan and deliberately mutilated their bodies.

    The majority dismisses the relevance of Hernandez’s
confession because a single expert, Dr. Clausen, opined that
Hernandez’s “ostensible recollection of details” was not
inconsistent with a diminished capacity defense. Opinion at
25. Dr. Clausen based her rejection of Hernandez’s detailed
recollection on the speculation, without any support in the
record, that because Hernandez spent five hours with the
police before the recording of his confession, they must have
fed him details of the crime. But the district court found that
Hernandez’s confession was voluntary, accurate, and
reliable, and Hernandez does not challenge those findings
here. Hernandez v. Martel, 824 F. Supp. 2d 1025, 1155–59
(C.D. Cal. 2011). Moreover, Dr. Clausen’s explanation
entirely fails to account for the many personal reflections
that Hernandez freely shared about his feelings during the
commission of the two crimes, like how he “thought about”
Bristol’s offer to “do anything” after he hit her. It is hard to
imagine how a police officer could have fed Hernandez such
specific information about his motivations and the source of
his anger, which Hernandez clearly articulated.

    In sum, the jury heard overwhelming evidence that
Hernandez had the specific intent to rape both Bristol and
Ryan, and that he murdered both women willfully,
deliberately, and with premeditation.
                    HERNANDEZ V. CHAPPELL                            39

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

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

    At his post-conviction hearing, Hernandez presented
testimony from five experts: psychologist June Madsen
Clausen, psychiatrist Dorothy Otnow Lewis, criminologist
Sheila Balkan, clinical psychologist Charles Sanislow, and
neuropsychologist Ruben Gur. Hernandez, 824 F. Supp. 2d
at 1043. Drs. Sanislow and Gur were used to rebut the
findings of the state’s expert, clinical psychologist Daniel
Martell. 3 Id. at 1062.

    Dr. Sanislow merely reviewed and commented on
Martell’s discredited evaluation of Hernandez. He found
that the absence of bipolar indications in Martell’s then-
recent testing of Hernandez “[was] not a sufficient basis on
which to conclude that Mr. Hernandez is not bipolar,” and
that a negative finding on the administered psychometric test
“does not rule out the presence or past presence of
psychopathology (e.g., dissociative disorders, bipolar or

    3
      Like the majority, I give no independent consideration to Martell’s
findings because the district court found significant problems with his
methodology and credibility. See Hernandez, 824 F. Supp. 2d at 1056.
40                  HERNANDEZ V. CHAPPELL

other affective disorders).” (Emphases added.) While his
conclusions were sufficient, among other reasons, to lead the
district court to discount Martell’s evaluation, they are
certainly not a conclusive diagnosis of bipolar disorder.

    Dr. Gur, the second rebuttal expert, believed Hernandez
suffers from brain dysfunction.            He found “clear
indicat[ions] that [] Hernandez has deficits in understanding
and interpreting facial expressions of affect, which would
provide” the basis “for such confusion and misperceptions
to have occurred during the commission of the crimes . . .
interfer[ing] with his ability to comprehend and formulate an
appropriate response to the victims’ expressions of
resistance and fear,” and “significantly interfer[ing] with his
ability to make the right judgment.” But a lack of good
judgment is not equivalent to the inability to form specific
intent. Moreover, Hernandez’s own statements—even made
to Dr. Gur himself during their evaluation 4—belie the notion
that Hernandez could not perceive the emotions of his
victims. On the contrary, Hernandez was able to articulate
that his victims were afraid, did not consent to sexual
activity, and resisted him. And while, in deposition, Dr. Gur
concluded that “either schizophrenia or bipolar illness is
probably applicable in his case,” he also admitted that
Hernandez could suffer from something else entirely, “such
as attention deficit, hyperactivity disorder, impulse
controls.” Hernandez, 824 F. Supp. 2d at 1063 (emphasis
added) (quoting Dr. Gur’s deposition).


     4
       Hernandez told Dr. Gur that Bristol “did not consent to anal
intercourse.” Dr. Gur does not explain how he concludes that Hernandez
could have the mental capacity to commit forcible sodomy in that instant,
but lack the capacity to form specific intent immediately before (while
raping) or after (while strangling).
                  HERNANDEZ V. CHAPPELL                      41

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

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

     Even generously construed, these opinions are grossly
inadequate to undermine the evidence that Hernandez was
capable of forming, and in fact formed, the intent to rape and
kill Bristol and Ryan. First, the experts fail to account for
the striking similarities between the two crimes. Dr. Gur
theorized that mental impairments like Hernandez’s could
cause someone to “engage in a complex set of behaviors
42                   HERNANDEZ V. CHAPPELL

without intent or premeditation,” leading to “highly
organized if somewhat ritualistic behavior.” Opinion at 26.
The majority relies on this to argue that the “sheer
bizarreness of the nearly identical crimes” would have
“supported, rather than undermined” a mental illness
diminished capacity defense, Opinion at 26, but that
inference is implausible. Hernandez’s behavior does not
suggest ritual so much as it expresses an intent to murder
Bristol and Ryan because, as Hernandez himself explained,
he was angry at their resistance. 5 And none of the other
experts even attempted to explain how Hernandez could
have committed two such similar crimes within a five-day
period without intending to do so.

    Second, the experts’ reports also fail to counter the
overwhelming evidence that Hernandez intended to rape
Bristol and Ryan. The habeas experts uncovered no
evidence to suggest Hernandez was in a dissociative state
when he “thought about” Bristol’s offer to “do anything” to
save herself from his violence; when, earlier in the evening,
he sexually harassed Ryan and bragged of plans to “get
some” later; or when he pushed Ryan’s arms down and raped
her after she said no to sexual intercourse. In fact, even Dr.
Clausen, who speculated that the police fed Hernandez the
details of his confession and that Hernandez in fact did not
remember much of the crimes due to dissociation, stated that
Hernandez had “personal memory up to and including

     5
      The majority also points to the similarities between the child abuse
suffered by Hernandez and the way he harmed his victims. Opinion at
20–21, 26–27. As Dr. Lewis noted, “[c]hildren who have had objects
shoved into their rectums repeatedly against their will are at a high risk
of perpetrating similar acts on others.” But Dr. Lewis does not claim this
heightened risk might create a lack of capacity to form specific intent or
that the abuse victim would only inflict similar violence while in a
dissociative state.
                 HERNANDEZ V. CHAPPELL                      43

having sex with Edna Bristol in the back of his van.” Dr.
Gur’s dissociation theory was similarly temporally limited,
noting that Hernandez’s “clinical profile is further indication
that he was in a dissociative state during his commission of
the crimes, or at least during some portion of that epoch,
e.g., when he killed or inflicted post-mortem injuries.”
(Emphasis added.)       Thus, even assuming Hernandez
dissociated during the murders, the experts’ conclusions
actually support the inference that Hernandez was at least
aware of, and intended, his actions during the rapes. The
intent to rape alone is enough to support the murder
convictions.

    Finally, the experts’ dissociation theory fails to account
for Hernandez’s detailed explanation of his actions,
thoughts, and motivations during the crimes. Drs. Gur and
Lewis surmised that Hernandez’s confession suggested that
he was in “an altered mental state” on the nights of the
crimes based on his statement that he “wasn’t even feeling
that [he] did it,” and his request for psychiatric help because
he “[didn’t] know what would make [him] do this.” The
majority finds this “evidence of psychosis” would have been
a convincing counterweight to his detailed confession.
Opinion at 25–26. But “a reasonable jury could have easily
chosen to disbelieve [these] self-serving” statements in light
of Hernandez’s extensive account of his innermost thoughts
and motivations on the nights of the crimes. See United
States v. Nicholson, 677 F.2d 706, 709 (9th Cir. 1982).
Moreover, while Drs. Gur and Lewis make much of the fact
that Hernandez is persistently “unable” to explain why he
committed the brutal murders, this assertion is squarely
contradicted by the record. Hernandez provided a plausible,
albeit deeply disturbing explanation of his motives—he was
angry at Bristol for talking too much, kicking him, and
kicking a hole in his van, and he was angry at Ryan for
44               HERNANDEZ V. CHAPPELL

screaming and trying to escape. His explanation of how he
expressed that anger (rape, forced sodomy, and
strangulation) suggests intentional, premeditated actions and
not dissociation or a lack of control that would negate the
mens rea required for a first degree murder conviction. As
the California Supreme Court correctly explained, “clearly
the killings occurred when the victims screamed and
struggled to get away. They occurred as a direct product of
the sexual assaults and to silence the victims.” Hernandez,
47 Cal. 3d at 348.

    Given the weakness of the omitted experts’ evaluations
when compared to the overwhelming evidence actually
presented to the jury, there is no reasonable possibility of a
different outcome in this case. See Strickland, 466 U.S. at
694.

     C. The Majority’s Remaining Arguments Are
        Unconvincing

    The majority notes that we have “repeatedly” found
prejudice where “there was some evidence of the
defendant’s mental impairments in the record” that counsel
failed to investigate, Opinion at 23, but every cited case
contains far more compelling evidence of prejudice than we
have here. All the cases relied on by the majority involve
defendants with conclusive diagnoses of significant
psychosis and mental health problems. In Daniels v.
Woodford, the petitioner had been diagnosed with
schizophrenia and a paranoid disorder that he experienced
“at significant times prior to the shootings as well as during
the shooting” of which he was convicted. 428 F.3d 1181,
1204 (9th Cir. 2005). In Jennings v. Woodford, the petitioner
was a diagnosed schizophrenic and “a long-term
methamphetamine addict who had used the drug on the
night” of his crime; had a history of suicide attempts;
                 HERNANDEZ V. CHAPPELL                     45

repeatedly “injur[ed] himself intentionally and pour[ed]
liquids in the resulting wounds,” and had been involuntarily
committed for psychiatric reasons. 290 F.3d 1006, 1015 (9th
Cir. 2002). In Bloom v. Calderon, the petitioner had
previously been referred for psychiatric treatment, had
experienced auditory and visual hallucinations, and post-
conviction experts found “striking, consistent and clear
evidence of cognitive sensori-motor [sic] deficits, brain
dysfunction and brain damage.” 132 F.3d 1267, 1274, 1276
(9th Cir. 1997). In comparison, Hernandez’s experts
reached far less definitive conclusions regarding the extent
of Hernandez’s neurological damage and mental illness and
how his conditions might have affected his ability to form
the requisite intent.

     Moreover, in Daniels, our prejudice finding was driven
by the relevance of fully-developed diminished capacity
evidence to possible imperfect self-defense. We noted that
the petitioner’s paranoia and schizophrenia could have led
him to believe the police officers he shot “were coming to
kill or seriously harm him.” 428 F.3d at 1208. Indeed, they
had actually done so before. Id. at 1209 (noting “that Daniels
had previously been shot by the police nine times”). See also
Seidel v. Merkle, 146 F.3d 750, 756–57 (9th Cir. 1998)
(finding prejudice where counsel failed to investigate his
client’s mental health for a possible imperfect self-defense
theory where petitioner had been convicted of knifing
someone during a struggle). That context is entirely absent
here.

    Finally, while diminished capacity, when available,
could serve as a defense even to crimes that involved
significant premeditation, see Daniels, 428 F.3d at 1207–08,
no reasonable juror would have discounted Hernandez’s
disturbing but plausible explanation of his state of mind as
46               HERNANDEZ V. CHAPPELL

he raped and murdered Bristol and Ryan. The mental health
and neurological evidence presented on collateral review
cannot explain away this awareness such that a rational juror
would have found Hernandez to lack the required specific
intent to rape and kill Bristol and Ryan.

                         *    *   *

   I respectfully dissent from Part II of the majority opinion
and would deny the habeas petition.
