FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS PAUL WEST,
Petitioner-Appellant,
No. 08-99000
v.
CHARLES L. RYAN, Director of D.C. No.
CV-98-00218-DCB
Arizona Department of
OPINION
Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
February 4, 2010—Pasadena, California
Filed June 10, 2010
Before: Andrew J. Kleinfeld, Kim McLane Wardlaw and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
8509
8512 WEST v. RYAN
COUNSEL
The Federal Public Defender of Arizona, Assistant Federal
Public Defenders Timothy M. Gabrielsen of Tucson, Arizona,
and Paula Kay Harms of Phoenix, Arizona, for the petitioner.
Office of the Arizona Attorney General, Deputy State Attor-
ney General, Jonathan Bass of Tucson, Arizona, for the
respondent.
WEST v. RYAN 8513
OPINION
CALLAHAN, Circuit Judge:
Thomas Paul West (“West”) appeals the district court’s
denial, without an evidentiary hearing, of his claim of ineffec-
tive assistance of sentencing counsel. We conclude that the
district court did not abuse its discretion in denying his claim
without a hearing and therefore affirm the judgment of the
district court.
I. Background
A. Murder and Trial
West moved to Arizona from Illinois in June 1987. While
living in Tucson with a family friend, he met Donald Bortle
(“Bortle”). Bortle had various items for sale in his home,
including assorted electronic equipment and videotapes of
popular movies. West’s friend wanted to buy some things
from Bortle, and West accompanied her to his house. About
two weeks later in mid-July 1987, West broke into Bortle’s
home, beat him severely about the head, and bound his limbs.
He left Bortle to die, stealing his car and various other items,
including several pieces of electronic equipment.
West transported the stolen goods to the desert where he
hid them, and then drove to Glendale where some of his
friends lived. After retrieving the goods from Tucson with an
acquaintance, West returned to Glendale and spent a couple
of days with his friends.1 He made several allusions to beating
up and robbing “some guy,” but expressed no remorse about
1
The record shows that West was buying and taking large amounts of
drugs around the time of the murder and immediately thereafter. Defense
counsel successfully excluded this evidence from trial but introduced it
during sentencing to establish the extent and effects of West’s substance
abuse.
8514 WEST v. RYAN
it. West then absconded to Illinois with much of the stolen
property. Soon thereafter, one of West’s acquaintances con-
tacted the Pima County Sheriff’s Office, and an investigation
led officers to Bortle’s home where they discovered his dead
and decaying body. His hands and feet were bound with a
vacuum cleaner cord and lamp wire, and he had extensive
fractures on the right side of his face. The fractures were so
severe that his hard pallet had detached from his skull. The
coroner estimated that he had bled to death within forty-five
minutes to an hour after the beating.
West was arrested in Illinois when the car in which he was
riding was stopped for speeding, and the officer discovered he
was wanted for murder in Arizona. A search of the car
revealed several pieces of electronic equipment and other
items stolen from Bortle’s home.
West was charged in Arizona state court with first degree
murder, second degree burglary, and theft. On July 27, 1987,
the court appointed two public defenders, Frank Dawley
(“Dawley”) and Maddalena Fiorillo (“Fiorillo”), to represent
him. Soon after their appointment, they arranged for two
neuropsychologists, Dr. Overbeck and Dr. Allender, to evalu-
ate West for possible brain damage from substance abuse and
purported head injuries. Dr. Overbeck’s report, if one was
ever made, does not appear in the record. As discussed in
more detail below, Dr. Allender evaluated West over a two-
day period and concluded that the test results were “more con-
sistent with an individual of low educational status who may
have some evidence of a learning disability” than with a cog-
nitive impairment.
It appears that no question was raised about West’s compe-
tency to stand trial, and following a week-long jury trial at
which West did not testify, the jury returned guilty verdicts on
all three counts.
WEST v. RYAN 8515
B. Sentencing
The prosecution sought the death penalty, citing the follow-
ing aggravating factors: (1) the murder was committed for
pecuniary gain; (2) the murder was committed in an espe-
cially cruel and heinous manner; and (3) West had a prior
conviction for a crime of violence (a 1981 manslaughter convic-
tion).2
At the initial sentencing hearing on May 4, 1988, West’s
counsel argued that a conviction for felony murder precluded
imposition of the death penalty. Dawley indicated that, as “a
matter of strategy,” he and Fiorillo chose to rely solely on this
“legal argument” and not to present mitigation witnesses.
Dawley said that they had looked for mitigating factors,
explaining that West had been “examined” from “a mental
health standpoint,” but that he and Fiorillo had determined
that the evidence “was not worth bringing” to the court.
The judge disagreed with the defense’s legal theory that the
death penalty could not be imposed for a felony murder con-
viction and asked West if there was anything he wished to say
prior to sentencing. West indicated that there were a lot of
people who would testify that he was not a “wicked mad
man,” but that he did not feel like “dragging them in” because
he felt the court had already made up its mind. The court
responded that it would consider any such evidence and
would delay sentencing so that West could present it. West
agreed, and the court rescheduled the hearing for June 6.
On May 11, Dawley sought and obtained another continu-
ance, delaying the sentencing hearing until August 1. During
the interim, defense counsel sent two investigators to Illinois
and Oklahoma to interview thirteen witnesses about West’s
childhood, drug addiction, and the circumstances surrounding
2
The record contains conflicting information as to whether the convic-
tion was for voluntary or involuntary manslaughter.
8516 WEST v. RYAN
the earlier 1981 homicide. Counsel also retained a substance
abuse expert, Terry Hickey (“Hickey”), who interviewed
West, West’s mother, his brother, and LuAnn St. Aubin
(West’s girlfriend at the time of the 1981 homicide). Hickey
reviewed the transcripts of the interviews with West’s family
and friends, as well as West’s Illinois prison records, his med-
ical records, and Dr. Allender’s neuropsychological evalua-
tion.
Meanwhile, the probation office submitted an amended pre-
sentence report (“PSR”), which described positive letters from
West’s father, grandmother, maternal aunt, and a family
friend. The letter from West’s father stated that West was
well-liked and that drugs and alcohol were “the bottom line
to all of [his] problems.” Other letters opined that West
needed drug treatment and that he was a good person when
he was not using drugs. The PSR took note of the numerous
interviews conducted by the defense investigators and advised
the court to consider that West’s actions may have been the
result of chronic and acute drug abuse, which may have
reduced his ability to appreciate the wrongfulness of his
actions. It also opined that West’s actions may have resulted
from an unstable and abusive home environment.
In its pre-hearing sentencing brief, the defense argued that
West (1) had an emotionally deprived childhood, (2) suffered
from substance abuse, which diminished his capacity to con-
form his conduct to social and legal norms, (3) could be reha-
bilitated, (4) did not intend to kill Bortle, (5) could not legally
be put to death for felony murder, and (6) had acted in self-
defense and defense of another in connection with his 1981
homicide conviction.
At the August 1 sentencing hearing, Hickey and five lay
witnesses testified on West’s behalf. The defense also submit-
ted newspaper articles about the 1981 homicide, hospital
records from West’s drug-related hospitalizations in 1983 and
1986, a rap sheet from the Department of Justice, and tran-
WEST v. RYAN 8517
scripts of interviews with thirteen witnesses who discussed
the extent of West’s substance abuse, his emotionally
deprived childhood, and/or the circumstances surrounding the
1981 homicide.3
Hickey testified that West came from a chemically depen-
dent family, that West’s chemical dependency began at age
ten, and that it significantly impaired his judgment. He testi-
fied that addicts cannot reason normally and that they make
increasingly bad decisions as their addiction progresses. He
testified that extreme addictions cause “cognitive impair-
ment[s]” similar to brain damage.
With regard to West’s family, Hickey testified that West’s
father was an alcoholic and that West witnessed physical vio-
lence in the family from an early age. Hickey noted that
West’s father withdrew affection and refused to call the chil-
dren by their names, calling them “pothead number one” and
“pothead number two.” On cross-examination, Hickey admit-
ted that West’s prognosis was poor, noting that West had
dropped out of treatment programs in 1983 and 1986, but
explaining that it is not uncommon for addicts to fail such
programs on their first attempts.
At the close of evidence, West made a lengthy statement in
which he denied any responsibility for the crime. The sentenc-
ing court found three aggravating circumstances: (1) that
West previously committed a felony involving the use of vio-
lence upon another, (2) that West committed the present
3
LuAnn St. Aubin and Mike Richmond, both of whom witnessed the
1981 homicide, testified that the victim was a violent drug dealer who had
been terrorizing people at a party and was participating in an attack on St.
Aubin when West shot him. Although St. Aubin testified at the sentencing
hearing that the victim had pulled a gun on West, she did not offer such
testimony during the manslaughter trial, and Richmond provided a con-
trary account. According to Richmond, when West pointed a gun at the
victim, the victim taunted him by saying he “didn’t have the balls” to pull
the trigger. West then shot him.
8518 WEST v. RYAN
offense in expectation of pecuniary gain, and (3) that West
committed the present
offense in an especially cruel and heinous manner, in
that, A, the [victim] was hogtied, bound and beaten
repeatedly; B, death was not immediate, the
deceased was left dying and in a position unable to
seek assistance; and C, that the defendant knew or
had reason to know that the deceased was dying or
had suffered serious physical injuries.
The court found West’s emotionally deprived childhood and
substance abuse problem to be mitigating, but not sufficiently
so as to outweigh the aggravating factors. It sentenced West
to death.
C. State Post-Conviction Proceedings
West appealed his conviction and sentence to the Arizona
Supreme Court, which affirmed both in a published opinion
on September 30, 1993. State v. West, 862 P.2d 192 (Ariz.
1993).
Prior to filing his petition for post-conviction relief, West
filed a request in Pima County Superior Court for the appoint-
ment of a mental health expert, a pharmacologist, and an
investigator to help prepare his petition.4 At the hearing on
this motion, West’s counsel, Carla Ryan (“Ryan”), stated that
she sought a mental health expert because West had recently
“taken a turn for the worse” and was writing “gibberish.” She
said nothing about West’s purported mental impairments or
evidence that trial counsel allegedly failed to present at sen-
tencing. The court granted the motion as to the investigator
but denied funds for a mental health expert or pharmacologist,
4
In addition to other claims, West alleged that someone else had mur-
dered Bortle, and he sought assistance in investigating this theory. West
does not advance this theory in the present appeal.
WEST v. RYAN 8519
indicating that it would reconsider if Ryan could present more
specific information about the need for such experts.
West filed his petition for post-conviction relief in Pima
County Superior Court on March 15, 1996. He raised numer-
ous claims, including ineffective assistance of counsel at sen-
tencing. On March 26, 1996, Ryan again requested funding
for experts and discovery and specifically sought funds for a
formal consultation with Dr. Thomas Thompson, a psychia-
trist with whom she had discussed West’s case, and who
allegedly told her that testing could be done to explore West’s
“possible epileptic seizures leading to blackouts.”5 It is
unclear whether or not the trial court ruled on this request
before West filed a motion for an evidentiary hearing on July
17, 1996. The bulk of this motion sought a hearing on issues
not relevant to the present appeal, but it also alleged that trial
counsel failed to have Drs. Allender and Overbeck perform
brain scans and other tests on West, and that without such
tests “there [was] no way to know exactly what potential miti-
gation could have been presented.” The superior court denied
the petition without an evidentiary hearing.
In a motion for reconsideration, Ryan—for the first time—
supported her request for funding and an evidentiary hearing
with an affidavit. Ryan’s affidavit recounted her conversation
with Dr. Thompson, who believed West might benefit from
further neurological testing. The court denied the motion and
West filed a petition for review with the Arizona Supreme
Court. Among other claims of error, he challenged the denial
of his requests for an evidentiary hearing and expert funding.
The Arizona Supreme Court summarily denied the petition.
5
West does not allege in this appeal that counsel failed to explore an
alleged “seizure-related impairment.” Other than a single notation in a
1983 hospital record indicating that West claimed to have had a seizure
from a drug overdose years earlier, there is no evidence that he suffered
from seizures.
8520 WEST v. RYAN
D. Federal Habeas Proceedings
On May 6, 1998, West filed a timely petition for a writ of
habeas corpus in district court, raising thirty-two claims. It
included a claim for ineffective assistance of sentencing coun-
sel based on the alleged failure to investigate and present
“valid mental health mitigation,” including evidence of head
injuries, “continual[ ]” psychiatric counseling, and a “possi-
ble” cognitive impairment. West also alleged that counsel per-
formed deficiently by failing to present Dr. Allender’s report
at sentencing. West asked for “an opportunity to present his
arguments in an evidentiary hearing” after allowing him time
“to investigate, hire experts, and properly prepare.”
The district court denied West’s penalty phase ineffective
assistance of counsel claim on the merits without a hearing.
It reasoned that counsel’s
strategy at sentencing was to focus on the damaging
effects of Petitioner’s dysfunctional childhood and
long-term addiction to drugs and alcohol and to
emphasize that Petitioner was basically a good per-
son who with the proper help could be rehabilitated.
This was a sound strategy, and Petitioner has offered
no support for the proposition that emphasizing evi-
dence of cognitive impairments due to head injuries
—if such evidence existed—would probably have
led to a different sentence.
In denying West’s request for an evidentiary hearing, the
district court assumed without deciding that West had been
diligent in seeking a hearing in state court, but held that a
hearing was unnecessary because the record “clearly show-
[ed] that counsel presented a strong case in mitigation based
on a thorough investigation of Petitioner’s background.” Fur-
ther, the district court reasoned that “a review of the entire
record indicate[d] that the facts now alleged by Petitioner,
WEST v. RYAN 8521
even if proved true, would not entitle him to relief on this
claim.”
The district court granted West a certificate of appealability
as to his claim of ineffective assistance of counsel at sentenc-
ing. On appeal, West argues that the district court erred in
denying this claim without first granting him an evidentiary
hearing.
II. Discussion
We review the district court’s denial of a habeas petition-
er’s request for an evidentiary hearing for abuse of discretion.
Schriro v. Landrigan, 550 U.S. 465, 468 (2007); Earp v.
Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005).
A. Diligence
[1] The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), which governs this case, prohibits an evi-
dentiary hearing where a petitioner has not been diligent in
pursuing his claims in state court. 28 U.S.C. § 2254(e)(2);
Williams v. Taylor, 529 U.S. 420, 432 (2000). “Diligence . . .
depends upon whether the prisoner made a reasonable
attempt, in light of the information available at the time, to
investigate and pursue claims in state court,” and requires “in
the usual case that the prisoner, at a minimum, seek an evi-
dentiary hearing in state court in the manner prescribed by
state law.” Id. at 435, 437. “We review de novo whether,” due
to a lack of diligence, AEDPA “removes from the district
court’s discretion the decision to grant or deny a request for
an evidentiary hearing.” Baja v. Ducharme, 187 F.3d 1075,
1077 (9th Cir. 1999).
[2] Although respondent contends that AEDPA precluded
an evidentiary hearing in district court due to West’s lack of
diligence in state court, the record reveals West’s persistent,
though imperfect, efforts to obtain a hearing. We acknowl-
8522 WEST v. RYAN
edge that many of his requests for an evidentiary hearing con-
cerned other theories of relief and otherwise failed to specify
the “mental impairment” evidence that trial counsel allegedly
failed to investigate.6 We also note that, contrary to the
requirements of Arizona Rule of Criminal Procedure 32.5,
West failed to support his requests for a hearing with sworn
affidavits.7
[3] However, despite these deficiencies, the record shows
that West sought a hearing and funding for experts on more
than one occasion in an effort to develop his claim that he suf-
fered from mitigating mental impairments. Cf. Bragg v.
Galaza, 242 F.3d 1082, 1090 (9th Cir. 2001) (concluding that
AEDPA prohibited a remand for an evidentiary hearing where
petitioner never sought a hearing in state court). Accordingly,
we, like the district court, assume that West was diligent for
purposes of AEDPA.8
B. No Abuse of Discretion in Declining to Hold a
Hearing
1. Governing Standards
[4] To obtain an evidentiary hearing in district court, a
6
Because trial counsel and sentencing counsel were the same, we use
these terms interchangeably.
7
Arizona Rule of Criminal Procedure 32.5 provides, in relevant part:
“Facts within the defendant’s personal knowledge shall be . . . under oath.
Affidavits, records, or other evidence currently available to the defendant
supporting the allegations of the petition shall be attached to it.”
8
We reject respondent’s contention that West “abandoned” his “mental
impairment claim” in district court. Although West’s request for an evi-
dentiary hearing in district court focused on other issues, he nonetheless
made specific allegations concerning ineffective assistance of sentencing
counsel, and he arguably sought to develop that issue at a hearing. Even
though he did not request funds for mental health experts in district court,
respondent cites no law holding that such a failure is tantamount to aban-
donment of claim.
WEST v. RYAN 8523
habeas petitioner must, in addition to showing diligence in
state court, allege a colorable claim for relief. See Landrigan,
550 U.S. at 474-75; Earp, 431 F.3d at 1167. To allege a color-
able claim, he must allege facts that, if true, would entitle him
to habeas relief. Landrigan, 550 U.S. at 474. Thus, “[i]n
deciding whether to grant an evidentiary hearing, a federal
court must consider whether such a hearing could enable an
applicant to prove the petition’s factual allegations,” and
whether those allegations, if true, would entitle him to relief.
Id. “[I]f the record refutes the applicant’s factual allegations
or otherwise precludes habeas relief, a district court is not
required to hold an evidentiary hearing.” Id. Furthermore,
because AEDPA’s deferential standards “control whether to
grant habeas relief, a federal court must take into account
those standards in deciding whether an evidentiary hearing is
appropriate.” Id.; see also Earp, 431 F.3d at 1166-67.
Under the familiar AEDPA standard, a federal court may
not grant “habeas relief unless a state court’s adjudication of
a claim ‘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 the relevant state-court decision ‘was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.’ ” Landri-
gan, 550 U.S. at 473 (quoting 28 U.S.C. § 2254(d)) (internal
citations omitted).
The relevant Supreme Court law governing West’s penalty
phase ineffective assistance of counsel claim is Strickland v.
Washington, 466 U.S. 668 (1984). To establish a colorable
claim of ineffective assistance of counsel, a petitioner must
satisfy Strickland’s two-pronged test by showing that (1)
“counsel’s representation fell below an objective standard of
reasonableness” and (2) there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 687-88, 694;
see also United States v. Thomas, 417 F.3d 1053, 1056 (9th
8524 WEST v. RYAN
Cir. 2005) (reciting “the familiar, two-part test of Strick-
land”).
“Judicial scrutiny of counsel’s performance must be highly
deferential,” and courts “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reason-
able professional assistance . . . .” Strickland, 466 U.S. at 689.
Thus, “counsel is strongly presumed to have . . . made all sig-
nificant decisions in the exercise of reasonable professional
judgment.” Id. at 690. Furthermore, the Supreme Court has
recently reiterated that “because the Strickland standard is a
general standard, a state court has even more latitude to rea-
sonably determine that a defendant has not satisfied that stan-
dard.” Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009).
2. No Colorable Claim under the First Prong of
Strickland
Applying the deferential AEDPA and Strickland standards
to the present case, we conclude that the district court did not
abuse its discretion in denying West’s claim without an evi-
dentiary hearing. Although the state court did not explain its
reasons for denying West’s claim of ineffective assistance of
sentencing counsel, our independent review of the record
compels us to conclude that its decision on this issue was rea-
sonable. See Richter v. Hickman, 578 F.3d 944, 951 (9th Cir.
2009) (en banc), cert. granted sub nom. Harrington v. Rich-
ter, 130 S. Ct. 1506 (Feb. 22, 2010). Moreover, the district
court did not abuse its discretion in denying West’s claim
without an evidentiary hearing because West failed to raise
factual disputes that, if decided in his favor, would present a
colorable claim under the first prong of Strickland.
[5] First, we reject West’s contention that counsel’s initial
reliance on an erroneous legal theory, and the allegedly resul-
tant delay in investigating mitigating evidence, constituted
deficient performance. Although West argues that counsel’s
initial reliance on the “felony murder” argument delayed the
WEST v. RYAN 8525
investigation until after trial, the record shows that counsel
acted promptly to investigate possible mitigation defenses.
Counsel were appointed in late July 1987, and by September
they had arranged for an evaluation by Dr. Overbeck. Soon
thereafter, counsel retained Dr. Allender to evaluate West for
possible cognitive impairments resulting from purported head
injuries and alcohol abuse. At the initial sentencing hearing,
Dawley indicated that the evaluations had been conducted for
purposes of mitigation, but that he and his co-counsel ulti-
mately found them unsupportive. Accordingly, it is clear that
counsel promptly made appropriate mitigation inquiries and
did not wait until after trial to begin their investigation.9
[6] Furthermore, any delay between counsel’s initial miti-
gation investigation and their subsequent post-trial investiga-
tion was immaterial. Despite counsel’s initial reliance on an
unavailing legal argument regarding the applicability of the
death penalty to West, the record shows that, after the trial,
court rejected that argument, counsel capably used multiple
extensions of time to marshal a substantial amount of mitigat-
ing evidence concerning West’s substance abuse, his family
background, and the extenuating circumstances surrounding
his prior homicide conviction. During the nearly three months
between the initial sentencing hearing and the August 1 hear-
ing, counsel sent investigators out of state to interview thir-
teen different witnesses; they gathered records from West’s
multiple Illinois incarcerations and information about his
1981 conviction; they solicited letters from West’s family and
friends; and, they retained a substance abuse expert who con-
9
West argues that counsel did not comply with the 1989 ABA Guide-
lines for the Appointment and Performance of Counsel In Death Penalty
Cases, which exhort counsel to launch a full-scale mitigation investigation
immediately after appointment. However, the Supreme Court has held that
the ABA guidelines are “only guides,” and may only be relevant to the
extent they reflect prevailing norms at the time of counsel’s performance.
Bobby v. Van Hook, 130 S. Ct. 13, 17 & n.1 (2009) (per curiam). Under
Van Hook, the 1989 guidelines are inapplicable to the present case since
they did not come into effect until after West’s trial. Id.
8526 WEST v. RYAN
ducted a thorough review of West’s background. Counsel
presented all of this evidence to the sentencing judge, and
counsel then effectively used Hickey’s testimony to establish
the severity of West’s substance abuse and to suggest that it
resulted in problems similar to those caused by a cognitive
impairment.
[7] Given counsel’s considerable and productive efforts
during this time period, we cannot say that any delay caused
by their initial approach amounted to constitutionally defi-
cient performance. Moreover, West fails to explain how an
evidentiary hearing would allow him to establish ineffective
assistance of counsel regarding this aspect of their representa-
tion.
[8] We likewise reject West’s contention that counsel per-
formed deficiently by failing to provide Dr. Allender with a
more complete picture of his family, prison, and social back-
ground prior to the evaluation and by failing to follow up on
purported “red flags” in the subsequent report. West relies on
the pre-AEDPA case of Caro v. Woodford, 280 F.3d 1247
(9th Cir. 2002), to argue that counsel should have given Dr.
Allender more extensive information about his background
prior to the evaluation. However, unlike counsel in Caro, who
were aware of the petitioner’s “extraordinary history of expo-
sure to pesticides and toxic chemicals” yet failed to inform the
experts who examined him of these facts, see id. at 1254,
here, there is no indication that, at the time of Dr. Allender’s
examination, counsel knew about West’s dismal family back-
ground or that such information would have been relevant to
an examination exploring a suspected “organic impairment.”
Indeed, during his evaluation, West downplayed the emo-
tional abuse he suffered as a child, and there is no indication
that he had been more forthcoming with counsel. Moreover,
the record indicates that West did, in fact, provide Dr.
Allender with information relevant to his psychiatric and
social history. For example, he told Dr. Allender that he did
not complete seventh grade, had received counseling in Illi-
WEST v. RYAN 8527
nois state prison, and had begun using drugs at an early age
and continued to use them. Thus, there is no evidence that
counsel’s actions somehow impeded Dr. Allender’s ability to
perform a thorough neuropsychological evaluation.10
Furthermore, contrary to West’s assertions, there were no
“red flags” that counsel overlooked in Dr. Allender’s report.
Although the report mentioned that West had been given psy-
choactive medication upon his initial incarceration, it also
noted that West was no longer taking the medication, that his
thinking had cleared, and that he was currently relying only
on Tryptophan for sleep. West has never submitted affidavits
or other evidence indicating that this brief period of medica-
tion was for treatment of something other than detoxification
or aid in sleeping. Further, although West told Dr. Allender
that he was currently depressed and had suicidal thoughts, he
said nothing to suggest a history of mental illness that might
be relevant to mitigation. Cf. Rompilla v. Beard, 545 U.S.
374, 391-93 (2005) (finding deficient performance where
counsel failed to examine files related to petitioner’s prior
convictions, which indicated he suffered from schizophrenia
and other disorders); Lambright v. Stewart, 241 F.3d 1201,
1207 (9th Cir. 2001) (remanding for an evidentiary hearing
where counsel failed to obtain a psychiatric evaluation despite
his awareness of evidence indicating petitioner’s hospitaliza-
tion in a mental facility and two prior suicide attempts); Earp,
10
West attempts to prove otherwise by submitting for the first time in
this appeal a letter written by Dr. Allender in 2008—more than twenty
years after his initial evaluation of West in 1987. Even were we to over-
look the tardiness of this evidence, it does not establish deficient perfor-
mance with respect to Dr. Allender’s evaluation. In the letter, Dr. Allender
indicates only that, had he known the extent of West’s abusive childhood,
he would have done “additional questioning” and “may have” diagnosed
West with post-traumatic stress syndrome, which he opined “may have
helped the judge to understand the source of Mr. West’s drinking and drug
problems” and difficulty staying in treatment. These equivocal statements
fail to undermine the state court’s conclusion that sentencing counsel pro-
vided constitutionally sufficient performance.
8528 WEST v. RYAN
431 F.3d at 1177-78 (remanding for an evidentiary hearing
where counsel failed to do follow-up investigation of records
indicating that petitioner had a history of troubled mental
health).
[9] Indeed, the record shows that West’s “history” of psy-
chiatric treatment was situational and unremarkable. Records
from one period of imprisonment in Illinois indicate that he
had a few visits with a psychologist, but that the psycholo-
gist’s primary diagnosis was “substance abuse.” The same
records mention possible “secondary” and “third” diagnoses
of borderline personality disorder and “learning disability,”
respectively, but also note that West’s intellect was not
impaired, his insight and judgment were good, and that previ-
ous blackouts and amnesic attacks were from excessive drug
use. Another record from a different period of incarceration
shows that West talked to a psychologist when he was
depressed about relationship problems with his girlfriend.
These records, far from casting doubt on the reasonableness
of counsel’s performance, support their decision to focus on
West’s substance abuse as a primary mitigation factor.
Similarly, Dr. Allender’s report, rather than revealing
alleged deficits in “intellectual memory, language and percep-
tual functioning” as West contends, indicates that West had
normal performance in those areas. Further, contrary to
West’s contention that counsel ignored the report’s mention
of his purported head injuries, the record shows that it was
counsel who retained Dr. Allender in the first instance to eval-
uate whether the alleged injuries affected his neuropsy-
chological functioning. Not incidentally, the record does not
support West’s claims of having suffered numerous head inju-
ries, and West has never submitted any evidence to create a
material factual dispute on this issue.11 Dr. Allender, however,
11
West told Dr. Allender that he tripped while running, fell on his head,
and ruptured his spleen, but his 1983 hospital records indicate that his
splenectomy was the result of a car accident. Further, West’s claim about
WEST v. RYAN 8529
accepted West’s contentions as true, but nonetheless con-
cluded that the “results . . . [of the evaluation were] more con-
sistent with an individual of low educational status who may
have some evidence of a learning disability” than with any
cognitive impairment resulting from head injuries or sub-
stance abuse.
The only arguably abnormal finding by Dr. Allender was
that West’s right hand was “somewhat” slow and “did not
demonstrate the expected right hand advantage.” Based on
this finding, Dr. Allender commented that a cognitive impair-
ment could not be “ruled out” absent further testing. How-
ever, such an equivocal finding, in light of his ultimate
conclusion that the test results were more consistent with
someone of a “low educational status” than with a cognitive
impairment, is not the kind of “powerful mitigating evidence”
sufficient to overcome Strickland’s presumption that counsel
acted reasonably in declining to investigate further the possi-
bility that West might suffer from a cognitive impairment. See
Van Hook, 130 S. Ct. at 19 (citing Rompilla, 545 U.S. at 389-
93).
[10] In the same vein, it was not objectively unreasonable
for counsel not to introduce Dr. Allender’s underwhelming
report at sentencing. At the initial sentencing hearing, counsel
indicated that they did not believe the report was “worth”
bringing to the court’s attention. This was a reasonable strate-
gic decision as Dr. Allender concluded that West did not have
any impairments. Counsel also acted reasonably by declining
to present the report at the second hearing because doing so
would have risked undermining Hickey’s testimony that
being thrown on his head while in Illinois state prison is inconsistent with
the related medical records. Contrary to West’s assertion that he could not
move one side of his body after this incident and that the prison hospital
wanted to admit him, the medical records indicate that West could move
all of his extremities, had normal x-rays, and left the emergency room in
fair condition with follow-up to be provided “as needed.”
8530 WEST v. RYAN
severe addiction can result in cognitive impairments and
actual brain damage. Indeed, Hickey, a “substance abuse
expert,” was able to offer such an opinion without the risk of
impeachment that Dr. Allender would have faced. In other
words, if Dr. Allender had testified that West’s cognition was
impaired, the prosecution surely would have impeached such
testimony with his contrary written report. Furthermore, even
if defense counsel had just introduced the report, the prosecu-
tion could have used it to impeach Hickey’s testimony that
severe addiction could result in cognitive impairments.
For these same reasons we reject West’s contention that
counsel performed deficiently by retaining Hickey rather than
a true “mental health” expert. The record shows that Hickey
presented persuasive testimony about the links between
West’s childhood, his substance abuse, and its effects on his
judgment. West fails to explain how a “mental health expert”
could have offered more compelling evidence, especially
when there was no evidence that he actually suffered from a
cognitive impairment.
[11] As the Supreme Court recently emphasized in Van
Hook, “the Federal Constitution imposes one general require-
ment: that counsel make objectively reasonable choices.” 130
S. Ct. at 17 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 479
(2000)). Here, the record shows that, in light of Dr. Allender’s
underwhelming evaluation, counsel reasonably chose not to
investigate further the possibility that West suffered from a
cognitive impairment and to focus instead on West’s long-
standing substance abuse and his dysfunctional family back-
ground. Counsel made efficient use of a nearly three-month
extension of time to marshal numerous witnesses and an
expert to testify in support of these factors. They also ably
presented evidence of the extenuating circumstances sur-
rounding his prior manslaughter conviction. Cf. Williams, 529
U.S. at 395 (finding deficient performance where counsel
began mitigation investigation one week prior to trial and
failed to uncover extensive records graphically describing
WEST v. RYAN 8531
petitioner’s nightmarish childhood); Allen v. Woodford, 395
F.3d 979, 1002 (9th Cir. 2005) (finding deficient performance
where counsel had only one week in which to prepare the wit-
nesses and evidence, contacted only a few of more than
twenty-six potential witnesses, and failed to request a continu-
ance).
[12] West has failed to cite any potentially powerful miti-
gating evidence that counsel overlooked, nor has he raised
any factual disputes regarding counsel’s performance that
require resolution in an evidentiary hearing, and that, if
decided in his favor, would entitle him to relief.12 Accord-
ingly, we conclude that West has failed to raise a colorable
claim of deficient performance under the first prong of Strick-
land, and therefore, we do not reach the second, “prejudice”
prong of the Strickland analysis.13 Thus, based on our inde-
pendent but deferential review of the record, we conclude that
it was not unreasonable for the state court to deny West’s pen-
alty phase claim of ineffective assistance of counsel and that
the district court did not abuse its discretion in denying that
claim without an evidentiary hearing.
12
For the first time on appeal, West submits a 2008 letter from Dr. Rich-
ard M. Kolbell, Ph.D., who opines that West has “episodic dyscontrol” (an
impulse control disorder characterized by periods of rage and violent
behavior) and Attention-Deficit/Hyperactivity Disorder. Dr. Kolbell
opines that both conditions have a “prominent organic basis,” and that it
would have been “reasonable” to explore these at the time of West’s trial
and sentencing. Even overlooking the tardiness of this new evidence, it
nonetheless fails to establish West’s entitlement to an evidentiary hearing,
as it is speculative in nature and does not establish deficient performance.
These diagnoses were not obvious from the record at the time of sentenc-
ing, and the episodic dyscontrol diagnosis would have been inconsistent
with presenting West as non-violent and the murder as accidental.
13
To the extent that West seeks a hearing in order to develop “new” mit-
igating evidence in the first instance, AEDPA prohibits such proceedings.
See Williams, 529 U.S. at 437 (explaining that “[f]ederal courts sitting in
habeas are not an alternative forum for trying facts and issues” that were
not developed in state proceedings).
8532 WEST v. RYAN
III. Conclusion
The present record, when viewed through the deferential
lenses of AEDPA and Strickland, does not support West’s
claim that counsel failed to provide effective assistance at
sentencing. West has pointed to no potentially powerful miti-
gating evidence that counsel overlooked or failed to develop,
nor has he alleged facts that, if decided in his favor, would
establish a colorable claim under the first prong of Strickland.
Accordingly, there is nothing to be determined in an evidenti-
ary hearing, and the district court did not abuse its discretion
by denying his claim without one.
AFFIRMED.