Cox v. Ayers

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TIEQUON AUNDRAY COX,  No. 07-99010
Petitioner-Appellant,
D.C. No.
v.
ROBERT L. AYERS, Warden,  CV-92-03370-CBM
ORDER AND
California State Prison at San
AMENDED
Quentin,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted
February 5, 2009—Pasadena, California

Filed December 10, 2009
Amended July 22, 2010

Before: Harry Pregerson, Susan P. Graber, and
Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Graber;
Dissent by Judge Pregerson

10415
 COX v. AYERS 10419

COUNSEL

Jeannie R. Sternberg, Habeas Corpus Resource Center, San
Francisco, California, for the petitioner-appellant.

Jamie L. Fuster, Deputy Attorney General, State of California,
Los Angeles, California, for the respondent-appellee.

ORDER

The opinion filed December 10, 2009, slip opinion page
16243, and appearing at 588 F.3d 1038, is amended as fol-
lows:

On slip opinion page 16248, replace footnote 1 with the
following: “We dispose of three additional issues as to which
the district court did not issue a certificate of appealability,
but as to which we did issue such a certificate, in a separate
memorandum disposition filed this date.”
10420 COX v. AYERS
On slip opinion page 16250, replace the first sentence of
the first full paragraph with the following: “Ebora Alexan-
der’s son, Neal, and her 14-year-old grandson, Ivan Scott,
were in the house when Williams and Petitioner entered.”

On slip opinion page 16250, on line 4 of the first full para-
graph after “gunshot,” add the following footnote 2: “The
California Supreme Court’s statement that Neal also was a
teenager is not supported by the record, which simply does
not reveal his age.”

On slip opinion page 16254, on line 8, at the end of the car-
ryover paragraph, add the following footnote 3:

Petitioner argues before this court that he was
shackled at both the guilt and penalty phases. The
district court found, and the record supports the find-
ing, that Petitioner was shackled during the guilt
phase only. Indeed, Petitioner asserted in his appel-
late brief to the California Supreme Court that he
was not restrained during the penalty phase. Before
the district court, Petitioner once again conceded that
he was not restrained in the penalty phase. The trial
transcript demonstrates that the trial court ordered
the removal of the restraints on the last day of the
guilt phase, and there is no mention of any restraint
during the penalty phase. No juror observed any
restraints during the penalty phase.

On slip opinion page 16257, replace the sentence starting
on line 7, with the following: “The desperate efforts of the
grandmother’s son to stop the rampage while her 14-year-old
grandson hid in a closet had no effect on Petitioner.”

With these amendments, Judges Graber and Wardlaw have
voted to deny the petition for rehearing and petition for
rehearing en banc, and Judge Pregerson has voted to grant it.
 COX v. AYERS 10421
The full court was advised of the petition for rehearing en
banc. A judge of the court called for a vote on whether to
rehear the matter en banc. On such vote, a majority of the
nonrecused active judges failed to vote in favor of en banc
rehearing.

The petition for rehearing and petition for rehearing en
banc are DENIED. No further petitions for rehearing or peti-
tions for rehearing en banc will be entertained with respect to
the amended opinion. Petitions for rehearing and petitions for
rehearing en banc may be filed with respect to the memoran-
dum disposition.

OPINION

GRABER, Circuit Judge:

Petitioner Tiequon Aundray Cox was convicted in Califor-
nia state court, and sentenced to death, for the murders of four
victims. In this habeas proceeding, brought pursuant to 28
U.S.C. § 2254, he challenges his convictions and death sen-
tence on the grounds that (1) the state trial court’s decision to
shackle him during the guilt phase of the trial prejudiced the
jury during both the guilt and penalty phases and (2) that he
received ineffective assistance of counsel during the penalty
phase.1 Because Petitioner was not prejudiced by the trial
court’s decision to shackle him during the guilt phase of the
trial, and because Petitioner received constitutionally suffi-
cient assistance of counsel at the penalty phase, we affirm.
1
We dispose of three additional issues as to which the district court did
not issue a certificate of appealability, but as to which we did issue such
a certificate, in a separate memorandum disposition filed this date.
10422 COX v. AYERS
PROCEDURAL HISTORY

Petitioner was charged in a four-count indictment with the
first-degree murders of victims Ebora and Dietria Alexander,
Damon Bonner, and Damani Garner in violation of California
Penal Code section 187. As to each count, Petitioner was fur-
ther charged with the special circumstance of multiple mur-
ders under California Penal Code section 190.2(a)(3). A jury
convicted him on all counts of first-degree murder and also
found true the multiple-murder special circumstance allega-
tions. Approximately one month after finding Petitioner
guilty, the jury returned a verdict imposing the death penalty.

Petitioner pursued both a direct appeal and a petition for
habeas relief through the state courts. On direct appeal, the
California Supreme Court affirmed Petitioner’s convictions
and the judgment of death. Petitioner sought rehearing, which
was denied. The Superior Court of Los Angeles County filed
a warrant of execution. The California Supreme Court granted
Petitioner’s petition for a stay pending final disposition by the
United States Supreme Court on a petition for writ of certio-
rari, which was denied. Petitioner then filed two petitions for
writs of habeas corpus in the California Supreme Court, each
of which was denied on the merits and on procedural grounds.

Thereafter, Petitioner filed a petition for habeas relief with
the federal district court, before Congress enacted the Antiter-
rorism and Effective Death Penalty Act of 1996 (“AEDPA”).
The petition was stayed pending exhaustion of some claims at
the state level and, ultimately, was denied on all grounds. The
district court issued a certificate of appealability for two
claims: unconstitutionally shackling Petitioner during the
guilt phase, and ineffective assistance of counsel during the
penalty phase. Petitioner timely appealed.

FACTUAL HISTORY

On August 31, 1984, at about 5:30 or 6:00 a.m., Darren
Williams and Horace Burns arrived at the residence of Ida
 COX v. AYERS 10423
Moore, where Lisa Brown was also present. Williams told
Burns to pick up someone; 5 or 10 minutes later, Burns
returned with Petitioner.

Williams, Burns, Moore, Brown, and Petitioner left in
Moore’s van, with Moore driving, Brown in the passenger
seat, and the three others in the back. The group stopped for
gasoline, for which Moore paid. Williams then directed them
to 59th Street in Los Angeles and began looking for an
address that he had written on a piece of paper. Once he had
located the residence, Williams told Moore to park down the
street but to leave the engine running. After they parked, Wil-
liams told Burns to stay behind. Moore asked Burns what they
were going to do; Burns answered that Williams and Peti-
tioner were “just going to shoot it up.” Brown heard Williams
or Petitioner say that they were going “to kill everybody in
the house.” Williams and Petitioner got out of the van and
walked toward the Alexander residence.

Moore had seen “a big gun” in the back of the van when
they stopped for gas. She also observed that Williams had a
handgun in his waistband and that Petitioner was carrying
something wrapped in a jacket. Shortly after Petitioner and
Williams entered the house, Moore and Brown heard gunfire.
Two or three minutes later, Williams ran back to the van with
the handgun and told Moore to leave. Petitioner followed a
minute or two later with a rifle in his hands. As he entered the
van, Petitioner exclaimed: “I just blew the bitch’s head off. So
drive.” At that point, Moore drove away quickly.

Ebora Alexander’s son, Neal, and her 14-year-old grand-
son, Ivan Scott, were in the house when Williams and Peti-
tioner entered. Neal awoke when he heard a scream and the
sound of a gunshot.2 He saw a man standing in his sister
Dietria’s room holding a rifle. The man was facing away from
2
The California Supreme Court’s statement that Neal also was a teen-
ager is not supported by the record, which simply does not reveal his age.
10424 COX v. AYERS
Neal and toward his sister’s bed; Neal jumped on the man’s
back and started fighting with him. The fight occurred near a
red trunk in the bedroom, on which the police later found
Petitioner’s palm print. When the man hit Neal on the face,
Neal ran away through the back door.

Ivan also awoke to the sound of gunshots and ran into a
closet to hide. From that vantage, he saw his uncle Neal run
down the hallway and heard an ensuing struggle. He also
glimpsed a man carrying a rifle.

Two neighbors also witnessed relevant events. Lashawn
Driver lived one or two doors away from the Alexander resi-
dence, on the opposite side of the street. She returned home
at about 7:30 a.m., noticed two men enter the Alexander
home, and heard about five gunshots. After Williams exited
the house, she heard another series of shots. She then saw
Petitioner leave the house while carrying a rifle.

Venus Webb also lived across the street. On the morning
of the murders, she heard shooting and went to investigate.
When she looked out her front window, she saw Petitioner
leaving the Alexander house and walking rapidly toward a
van, which pulled around the corner at a fast pace and then
disappeared.

Upon returning to the van, Williams and Petitioner told
Moore to drive away. They had her stop at Vermont Avenue
and Gage Street, where Burns, Williams, and Petitioner got
out and entered a building known as the Vermont Club. One
or two hours later, Moore saw Williams at the home of James
Kennedy, where Williams gave her $50 to purchase some per-
sonal items for him and to pay her for the gasoline. At about
9:00 a.m., Williams called Brown and directed her to bring
his car to the Vermont Club. When she arrived, Brown saw
Petitioner put a rifle into the trunk of the car. Brown drove
Petitioner to an apartment building, into which he carried the
 COX v. AYERS 10425
rifle after wrapping it in a jacket. That afternoon, Petitioner
purchased a 1975 Cadillac, paying $3,000 in cash for it.

James Kennedy was a friend of Petitioner, Williams, and
Burns through their gang association. Kennedy testified that,
on the morning of August 31, Petitioner brought him a semi-
automatic .30-caliber carbine wrapped in a jacket and
instructed him to destroy it. Petitioner also asked Kennedy to
have his sister wash the jacket because it had gunpowder on
it. Kennedy took the jacket to his sister but did not destroy the
rifle, instead hiding it in some bushes near his residence. On
September 27, 1984, Kennedy was the subject of a narcotics
investigation during which he revealed the location of the
weapon to law enforcement officers.

Shortly after the shootings, the police were summoned to
a scene of horror at the Alexander house. They found the
bullet-riddled bodies of 57-year-old Ebora, her 23-year-old
daughter Dietria, and two of her grandsons, 8-year-old Damon
Bonner and 10-year-old Damani Garner. Ebora had been sit-
ting at her kitchen table drinking coffee when she was killed.
She suffered one wound that caused part of her brain tissue
to be blown away. Dietria, Damon, and Damani lay dead in
a bedroom, still in their beds. The coroner determined that all
four had died of gunshot wounds to the head or body. In the
course of their investigation, the police lifted a latent palm
print from a red trunk located in the bedroom. Two experts
concluded that only Petitioner could have made the print. The
police also retrieved empty shell casings and spent bullets
from the vicinity of each body. Ballistics testing established
that they all came from the same semiautomatic .30-caliber
carbine that Petitioner gave Kennedy to destroy.

Petitioner’s counsel waived both opening statement and
closing argument during the guilt phase of the trial and pre-
sented no evidence during that phase. On January 21, 1986,
the jury found Petitioner guilty of four counts of first-degree
murder with special circumstances.
10426 COX v. AYERS
During the penalty phase of the trial, Petitioner’s counsel
argued that the death penalty was not warranted because,
although Petitioner was involved with the murders, Williams
was the actual killer. In particular, Petitioner’s counsel argued
that Neal’s and Ivan’s descriptions of the shooter suggested
that Williams, not Petitioner, was the shooter. Petitioner’s
counsel further argued that Williams manipulated Petitioner
into participating in the murders.

The defense also presented mitigation evidence concerning
Petitioner’s upbringing, school environment, and gang activi-
ties. Petitioner had been abandoned at an early age by his
mother, who had a drinking problem and had gone to prison
for robbery. He had very little contact with his father through-
out his childhood. Petitioner, along with his younger brother
and sister, had been raised by his 65-year-old great-
grandmother, whom Petitioner regarded as strict. For that rea-
son, Petitioner ran away from her house at age 14 and went
to live with his grandmother. At about that time, Petitioner
became involved in a violent gang.

Also during the penalty phase, the defense presented vivid
testimony regarding the living conditions at San Quentin
Prison for those sentenced to life imprisonment without the
possibility of parole. The jury was told that life in prison is
very violent and lacks many amenities such as regular show-
ers and laundry.

The prosecutor presented aggravating factors in the form of
evidence about two robberies in which Petitioner had partici-
pated as a juvenile. In the spring of 1981, Petitioner and a
companion accosted three junior high school students and
demanded their money. Petitioner hit two of them with his fist
and with a piece of mop handle. Approximately one month
later, Petitioner impliedly threatened a mother with a firearm
while she waited for her young son after school. Petitioner
took her car and led police on a high-speed chase for half an
hour through city streets, stopping only when he hit a tele-
 COX v. AYERS 10427
phone pole. The police recovered a .32-caliber revolver from
the driver’s side of the car. The prosecutor also argued during
the penalty phase that Petitioner, not Williams, was the
shooter.

On February 18, 1986, after deliberating for three days, the
jury returned a verdict calling for a sentence of death.

STANDARD OF REVIEW

[1] Because Petitioner filed his original habeas petition in
the district court before the effective date of AEDPA, the pro-
visions of AEDPA do not apply. Alcala v. Woodford, 334
F.3d 862, 868 (9th Cir. 2003). We review de novo the district
court’s denial of this petition for writ of habeas corpus.
McNeil v. Middleton, 344 F.3d 988, 994 (9th Cir. 2003), rev’d
on other grounds, 541 U.S. 433 (2004) (per curiam).

DISCUSSION

A. Shackling During Trial

Two months before the trial began, Petitioner’s counsel
reported to the trial court, outside of Petitioner’s presence,
that there was “some possibility of an escape attempt.” Conse-
quently, the trial court ordered that Petitioner be handcuffed
to his chair during the first day of trial. On the first day of
trial, Petitioner’s counsel objected to the use of a single hand-
cuff and requested its removal. The trial court denied that
request and, on the second day of trial, ordered that Petitioner
be placed in additional leg restraints because of a rumor
reported by a courtroom bailiff that Petitioner intended to
escape. Although Petitioner’s counsel asked the trial court to
remove the shackles, Petitioner remained in some form of
shackles throughout the remainder of the guilt phase of the
trial. At least four jurors saw the restraints restricting Peti-
10428 COX v. AYERS
tioner during the guilt phase. But Petitioner was not shackled
during the penalty phase.3

[2] The appearance of a defendant in shackles before a jury
in either the guilt phase or the penalty phase of a trial may
constitute a violation of the defendant’s right to due process.
Deck v. Missouri, 544 U.S. 622 (2005). We have held that “a
defendant has the right to be free of shackles and handcuffs
in the presence of the jury, unless shackling is justified by an
essential state interest.” Ghent v. Woodford, 279 F.3d 1121,
1132 (9th Cir. 2002); see also Rhoden v. Rowland, 172 F.3d
633, 636 (9th Cir. 1999) (“Because visible shackling during
trial is so likely to cause a defendant prejudice, it is permitted
only when justified by an essential state interest specific to
each trial.”). To demonstrate that his shackling at trial
amounted to a constitutional violation, Petitioner must dem-
onstrate: (1) that he was “physically restrained in the presence
of the jury,” (2) that “the shackling was seen by the jury,” (3)
that the “physical restraint was not justified by state interests,”
and (4) that “he suffered prejudice as a result.” Ghent, 279
F.3d at 1132 (citing United States v. Olano, 62 F.3d 1180,
1190 (9th Cir. 1995)).

[3] Here, Petitioner meets the first three prongs of the
inquiry. First, it is undisputed that Petitioner was shackled
during the guilt phase of the trial. Second, as noted, at least
four jurors observed Petitioner in shackles. Third, the shack-
ling was not justified by state interests. A trial court may
3
Petitioner argues before this court that he was shackled at both the guilt
and penalty phases. The district court found, and the record supports the
finding, that Petitioner was shackled during the guilt phase only. Indeed,
Petitioner asserted in his appellate brief to the California Supreme Court
that he was not restrained during the penalty phase. Before the district
court, Petitioner once again conceded that he was not restrained in the
penalty phase. The trial transcript demonstrates that the trial court ordered
the removal of the restraints on the last day of the guilt phase, and there
is no mention of any restraint during the penalty phase. No juror observed
any restraints during the penalty phase.
 COX v. AYERS 10429
order that a defendant be shackled during trial only if the
court first is “persuaded by compelling circumstances that
some measure is needed to maintain security of the court-
room” and if the court pursues “less restrictive alternatives
before imposing physical restraints.” Duckett v. Godinez, 67
F.3d 734, 748 (9th Cir. 1995) (internal quotation marks omit-
ted). The California Supreme Court held, and the State does
not dispute, that the trial court erred in ordering Petitioner
shackled because the court had not attempted less restrictive
means and had not made an adequate inquiry into the need for
shackles. Accordingly, the resolution of Petitioner’s claim
turns on whether the shackling prejudiced either the guilty
verdict or the death sentence.

1. The Guilt Phase

[4] In the context of a habeas proceeding, a trial error preju-
dices a defendant if it “had substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (internal quotation
marks omitted). “[S]hackling during trial carries a high risk of
prejudice because it indicates that the court believes there is
a need to separate the defendant from the community at large,
creating an inherent danger that a jury may form the impres-
sion that the defendant is dangerous or untrustworthy.” Dyas
v. Poole, 317 F.3d 934, 937 (9th Cir. 2003) (per curiam)
(internal quotation marks omitted). Nevertheless, we have
held that the unconstitutional shackling of a defendant results
in prejudice only if the evidence of guilt is not “overwhelm-
ing.” Id. In particular, if a case is “close, an otherwise mar-
ginal bias created by the shackles may . . . play[ ] a significant
role in the jury’s decision.” Id.

[5] Here, we find no prejudice at the guilt phase. The evi-
dence presented by the State was overwhelming. Petitioner’s
palm print was found at the center of the crime scene. Two
eyewitnesses testified that, just before the they heard gun-
shots, Petitioner and Williams entered the home where the
10430 COX v. AYERS
murders occurred. Ballistics tests proved that a rifle in Peti-
tioner’s possession was used to fire four of the bullets found
at the crime scene. Immediately after the shootings, Petitioner
bragged to his compatriots that he “just blew the bitch’s head
off.” He then tried to have a friend destroy evidence—the rifle
used to kill the victims, and Petitioner’s jacket, which bore
gunpowder residue. Accordingly, we hold that the evidence
against Petitioner was so “overwhelming” that the “marginal
bias created by the shackles” had no prejudicial effect on the
guilty verdict. Dyas, 317 F.3d at 937.

2. The Penalty Phase

Because of the nature of the evidence, Petitioner also was
not prejudiced by the guilt-phase shackles during the later
penalty phase of his trial. When the jurors were considering
the proper punishment, they already had concluded that Peti-
tioner was a very dangerous person by convicting him of four
cold-blooded killings.

[6] The Supreme Court has observed that “[v]isible shack-
ling undermines the presumption of innocence and the related
fairness of the factfinding process” because it “suggests to the
jury that the justice system itself sees a ‘need to separate a
defendant from the community at large.’ ” Deck, 544 U.S. at
630 (quoting Holbrook v. Flynn, 475 U.S. 560, 569 (1986)).
Upon conviction, Petitioner lost the benefit of the presump-
tion of innocence. But even assuming that the potential preju-
dicial effects of shackling generally would carry over from
the guilt phase to the penalty phase of a trial, they did not do
so here. Notably, first, Petitioner was not shackled during the
penalty phase. Thus, even though Petitioner already had been
convicted, and could have been viewed as even more danger-
ous than before conviction, if the jury drew any conclusion
about the removal of the shackles it likely was that authorities
no longer viewed Petitioner as particularly dangerous to soci-
ety at large. Such an inference directly undercuts one of the
Supreme Court’s main rationales for finding prejudice when
 COX v. AYERS 10431
a defendant is visibly shackled during the penalty phase. See
Deck, 544 U.S. at 633.

[7] Second, with or without shackling, we are convinced
that the jury would not have spared Petitioner’s life. Petitioner
murdered four people in the space of a few minutes. He
gunned down four members of the Alexander family
execution-style. Two of the victims were only 8 and 10 years
old, shot in their beds where they lay sleeping. A third victim
was a young woman, also asleep in her bed. The fourth and
only awake victim was an elderly grandmother, drinking her
morning coffee at the breakfast table. The desperate efforts of
the grandmother’s son to stop the rampage while her 14-year-
old grandson hid in a closet had no effect on Petitioner. The
circumstances of these heinous crimes lead us to conclude
that the fact that four members of the jury saw Petitioner in
shackles during the guilt phase a few weeks earlier did not
have a “substantial and injurious” effect on the jury’s consid-
eration of the death sentence. Brecht, 507 U.S. at 623.

Other circumstances of the crimes also had demonstrated to
the jury Petitioner’s extreme disregard for human life. Plain-
tiff and his companions set out for the Alexander home with
murder in mind. After killing the four victims, Petitioner said
to his co-defendants, “I just blew the bitch’s head off. So
drive.” Petitioner gave the rifle that he used to kill the family
members to a friend to destroy.

Finally, the evidence showed that these were coldly pre-
meditated murders for hire. The killings were committed
execution-style. In addition, Petitioner bought a $3,000 Cadil-
lac with cash on the afternoon after the murders.4

Petitioner’s counsel argued to the jury that the death pen-
4
The penalty-phase evidence offered by the defense, that Petitioner’s
great-grandmother had given him the money for the car, was discredited
by a disinterested third-party bank representative.
10432 COX v. AYERS
alty was not warranted (and argues to us that there is preju-
dice) because Williams, not Petitioner, was the actual shooter.
But the jury rejected that theory on the facts. After three days
of deliberation, during which the jury asked for readbacks of
testimony regarding the identity of the shooter and for pic-
tures of both Petitioner and Williams, the jury returned a
death sentence. And, as we have explained, the evidence over-
whelmingly pointed to Petitioner, the wielder of the rifle, as
the killer.

[8] Considering these facts, we cannot find that even one
member of the jury would have voted for a sentence of life in
prison. Shackling Petitioner at the guilt phase did not have a
substantial and injurious effect or influence at the penalty
phase.

B. Ineffective Assistance of Counsel

[9] Petitioner argues that he received ineffective assistance
of counsel at the penalty phase because his counsel did not
obtain all public records regarding his family; did not inter-
view additional family members, counselors, friends, or
teachers; and decided not to present retained experts as wit-
nesses. To prevail on a habeas claim of ineffective assistance
of counsel, Petitioner must establish both (1) that counsel’s
performance was so deficient that it fell below an “objective
standard of reasonableness” and (2) that the deficient perfor-
mance rendered the results of his trial unreliable or fundamen-
tally unfair. Strickland v. Washington, 466 U.S. 668, 688
(1984).

1. Counsel’s Performance

In analyzing the performance of counsel, judicial scrutiny
is deferential. “[T]he court should recognize that counsel is
strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment.” Id. at 690. The burden is on Peti-
 COX v. AYERS 10433
tioner to “identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment.” Id.

[10] A defense lawyer must make reasonable investigations
in the course of representation. Id. at 691. Counsel’s investi-
gation must, at a minimum, permit informed decisions about
how best to represent the client. Sanders v. Ratelle, 21 F.3d
1446, 1457 (9th Cir. 1994). But “strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengable.” Strickland, 466 U.S. at
690. A disagreement with counsel’s tactical decisions does
not prove that the representation was constitutionally defi-
cient. United States v. Mayo, 646 F.2d 369, 375 (9th Cir.
1981) (per curiam).

During the penalty phase, Petitioner’s counsel decided to
focus on four distinct arguments. First and foremost, they
argued that Williams, not Petitioner, was the shooter. Petition-
er’s counsel relied on the physical descriptions provided by
Neal and Ivan, who testified during the guilt phase, to support
their argument that Petitioner was not the shooter. Petitioner’s
counsel then relied on significant mitigation evidence to sup-
port their remaining three arguments: (1) that a sentence of
life imprisonment is worse than a death sentence, (2) that
Petitioner is a valuable human being who had a traumatic
childhood, and (3) that Petitioner was unduly influenced or
manipulated by his gang.

Petitioner’s counsel called seven witnesses to testify on
Petitioner’s behalf during the penalty phase. Four of those
witnesses were Petitioner’s close relatives:

• Audrey Martin, Petitioner’s grandmother, testi-
fied that Petitioner’s mother had a drinking prob-
lem and that Petitioner’s great-grandmother
primarily raised him. She also testified that Peti-
tioner rarely saw his father, that Petitioner was
10434 COX v. AYERS
skilled at sports, and that she wanted to see Peti-
tioner live.

• Edrina Meyers, Petitioner’s sister, testified that
she and Petitioner were raised by their great-
grandmother and that they rarely saw their par-
ents. While crying on the stand, Ms. Meyers testi-
fied that she wanted to see Petitioner live.

• Demontray Cox, Petitioner’s youngest brother,
testified that their mother was abusive and alco-
holic and that Petitioner ran away from their
mother after she threw a vase at him.

• Annie Ellsworth, Petitioner’s great-grandmother,
testified that she was the primary caregiver for
Petitioner and that she put him in the Boy Scouts,
gave him an allowance and a bike, and gave him
money to buy a car.

Two witnesses knew Petitioner as an adolescent in junior high
school:

• Horace Anderson, who was an administrator at
the school, testified that Petitioner displayed
good behavior until about the eighth grade, at
which point Mr. Anderson suspected that Peti-
tioner became involved with a gang. At about
that time, he stated, Petitioner began extorting
money from younger students. He also testified
that Petitioner complained to him about being
attacked by older boys when Petitioner was in the
seventh grade.

• Donald Baker, one of Petitioner’s teachers in the
eighth and ninth grades, testified that Petitioner
was a good basketball player and that he chose
Petitioner as the captain of his home room bas-
 COX v. AYERS 10435
ketball team because of Petitioner’s athletic abili-
ties and leadership qualities. Baker also testified
about the prevalence of gangs in Petitioner’s
neighborhood and the influence of gangs on Peti-
tioner’s junior high school.

The defense’s final witness during the penalty phase was
Joey Upland, a former nurse at San Quentin State Prison. She
described the harsh conditions at San Quentin for inmates fac-
ing life imprisonment without the possibility of parole. The
apparent purpose of this testimony was to show the jury that
Petitioner would receive sufficient punishment, and would not
have a chance to hurt others, if his life were spared.

Petitioner argues that his counsel failed to provide effective
assistance by making the decision to limit the scope of the
investigation into potential mitigating evidence. Specifically,
Petitioner blames counsel for not obtaining all of Petitioner’s
social service records, not investigating the information in
those records, and not interviewing dozens of other character
witnesses. Without having conducted those investigations,
Petitioner argues, his counsel “made uninformed decisions
about their penalty phase presentation.” Petitioner also claims
that his counsel “failed to provide retained experts with rele-
vant information and ultimately called none as witnesses.”

“To establish deficient performance, a petitioner must dem-
onstrate that counsel’s representation ‘fell below an objective
standard of reasonableness.’ ” Wiggins v. Smith, 539 U.S.
510, 521 (2003) (quoting Strickland, 466 U.S. at 688). Here,
Petitioner’s counsel obtained preliminary information about
Petitioner’s upbringing from Petitioner himself and from his
uncle, Brady Armstrong. Counsel then instructed their investi-
gators “to unearth as many . . . people as possible” to deter-
mine

how long they have known [Petitioner], what their
opinion of him as an individual is, his reputation in
10436 COX v. AYERS
the community, knowledge of his family life, his
achievements as well as his failures, his personality,
potential for violence, what kind of child he was,
what kind of person he is now.

Counsel asked the investigators to locate, interview, and
obtain as much information as possible from nine family
members, as well as to locate and interview school, parks and
recreation, and California Youth Authority (“CYA”) person-
nel; church, Boy Scouts, and Cub Scouts members; and
employers who may have remembered Petitioner.

Counsel subpoenaed, obtained, and read Petitioner’s CYA
and school records. The CYA records included a report in
which Petitioner referred to his mother as a child abuser but
described the relationships with his great-grandmother, with
whom he lived most of his life, and with his grandmother, as
satisfactory. A psychiatric report stated that Petitioner dis-
played no overt signs of anxiety or depression, that there were
no signs of organic impairment or psychotic thought process,
and that he was not suicidal or homicidal. Other reports
described him as having mastered the “appropriate response”
when confronted by authority figures but also as continuing
to be dangerous to the community. Petitioner was described
as having a leadership role in his gang. Aside from some
fights, nothing in the records suggested that Petitioner was
traumatized or subject to any mistreatment while at the CYA.

Counsel personally interviewed Petitioner’s father James,
mother Sondra, grandmother Audrey, great-grandmother Ells-
worth, sister Edrina, and uncle Brady Armstrong. Other than
mentioning that Sondra had beaten and lost custody of her
children more than once, none of the witnesses mentioned that
Petitioner had suffered extensive or significant abuse or any-
thing that might cause Petitioner to grow up emotionally dis-
turbed. Petitioner and the other witnesses (except for Sondra)
identified Ellsworth as Petitioner’s main caretaker until the
age of 14. They pointed out that Ellsworth provided a safe and
 COX v. AYERS 10437
fairly good home for him, as he participated in sports and the
Boy Scouts. Sondra was described as a prostitute and drug
addict who did not take care of Petitioner. Demontray Cox, in
a separate interview with one of counsel’s investigators, con-
firmed that he and his siblings were raised mostly by Ells-
worth, that they had a fairly normal childhood, and that
Petitioner played sports and was in the Boy Scouts. CYA
records also corroborated counsel’s conclusion that Ellsworth
was Petitioner’s primary caregiver and that Petitioner had had
only sporadic contacts with his mother.

Counsel requested their investigators to contact and inter-
view 10 individuals identified in the CYA records. The inves-
tigators interviewed those individuals, who largely provided
negative or unhelpful information about Petitioner and his
gang activities.

Petitioner’s refusal to cooperate with certain potential
defenses, including abuse and gang domination, and his
wavering preference for death over life without parole, further
affected counsel’s actions. Counsel interviewed Petitioner at
least 10 times between November 1984 and November 1985.
Petitioner did not mention having suffered any physical or
mental abuse, refused to talk about abuse or other wrongdoing
by his mother, and threatened to cause a disturbance at trial
if negative information about Sondra were presented at trial.
Because counsel could retrieve no evidence of family abuse
from Petitioner, they attempted to obtain such evidence from
other family members, as described above.

Petitioner further refused to provide counsel with informa-
tion that could have supported two penalty-phase strategies
that counsel were considering: that Petitioner was not the
shooter and that he was dominated by his gang at the time of
the murders. Instead, Petitioner simply denied being at the
crime scene, denied being controlled by his gang, and threat-
ened to cause a disturbance at trial if counsel presented evi-
dence to show that he was under the influence of his gang at
10438 COX v. AYERS
the time of the murders. To encourage Petitioner to open up
about his gang activities, counsel retained the services of two
former gang members who visited Petitioner several times in
an effort to bring him “to the full understanding of the impor-
tance for him to cooperate with” counsel. That strategy failed,
and Petitioner continued to refuse to cooperate in developing
the suggested defense.

Counsel also interviewed Larry Norman, a counselor at a
local youth center, to obtain information about Petitioner’s
gang involvement. Norman mentioned rumors that Petitioner
carried a gun frequently and was a gang “shooter” and “en-
forcer.” Counsel understandably did not try to corroborate this
highly damaging information.

Counsel retained two gang experts, John Quicker and Fred
Williams, to assist in the case. Counsel gave them information
about Petitioner and obtained a court order allowing Fred
Williams to interview Petitioner in jail. Counsel wanted Wil-
liams to encourage Petitioner to open up and discuss his gang
involvement. Ultimately, neither Quicker nor Williams
obtained any specific information that Petitioner was domi-
nated or controlled by other members of his gang at the time
of the murders. Thus, if called as witnesses, they would not
have testified about any gang dominance by others.

[11] “While a lawyer is under a duty to make reasonable
investigations, a lawyer may make a reasonable decision that
particular investigations are unnecessary.” Babbitt v. Calde-
ron, 151 F.3d 1170, 1173 (9th Cir. 1998). Indeed, the
Supreme Court has stated:

It is all too tempting for a defendant to second-guess
counsel’s assistance after conviction or adverse sen-
tence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel
was unreasonable. A fair assessment of attorney per-
 COX v. AYERS 10439
formance requires that every effort be made to elimi-
nate the distorting effects of hindsight, to reconstruct
the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspec-
tive at the time.

Strickland, 466 U.S. at 689 (citations omitted). Thus, as long
as a reasonable investigation was conducted, a reviewing
court should defer to counsel’s strategic choices.

[12] The Supreme Court’s recent decision in Bobby v. Van
Hook, 130 S. Ct. 13 (2009) (per curiam)—a pre-AEDPA case
like this one—further convinces us that counsel’s investiga-
tion in this case met the standard for constitutionally suffi-
cient representation. There, the Court overturned the Sixth
Circuit’s grant of habeas relief to a murderer who had been
sentenced to death. Defense counsel in Van Hook spoke with
the defendant’s mother, father, and aunt, and with a family
friend; met with two expert witnesses; reviewed military and
medical records; and considered enlisting a mitigation spe-
cialist. Id. at 18. Counsel also presented evidence about the
defendant’s traumatic childhood experiences and about his
impairment (including consumption of drugs and alcohol) on
the day of the crime. Id. The Court found that the scope of
counsel’s investigation was reasonable even though counsel
did not interview all of the defendant’s relatives or the thera-
pists who treated his parents. Id. at 19. As in Strickland,
defense counsel’s decision not to seek more mitigating evi-
dence was a reasonable professional judgment; at some point,
additional evidence would be only cumulative, “and the
search for it distractive from more important duties.” Id.

[13] As summarized above, in the present case, counsel’s
thorough mitigation investigation was more than reasonable.
Counsel interviewed most of Petitioner’s close relatives, CYA
counselors, school teachers, and other people familiar with
Petitioner’s background. They received lengthy discovery
from the prosecution, as well as school and CYA records.
10440 COX v. AYERS
Counsel reasonably concluded that, aside from some abuse at
the hands of his mother, Petitioner did not suffer significant
abuse or impoverishment during his childhood. Petitioner’s
family members testified that Petitioner was loved and cared
for by Ellsworth, his primary caregiver, and that the only
abuse he suffered was by his mother, with whom he had
stopped living immediately after the abuse.

Counsel reasonably decided not to present, and not to look
further for, evidence concerning Petitioner’s character and
emotional state. That decision reflected counsel’s strategic
choice to emphasize their primary argument at the penalty
phase: that Petitioner was not the shooter. Petitioner’s lead
counsel reasonably believed that it would not save Petitioner’s
life to argue to the jury that “this poor abused kid murdered
four people and you should feel sorry for him,” or that Peti-
tioner “killed four people but he was beaten up by his mother
when she was drunk and wasn’t treated right as a kid, there-
fore, you should give him life.” Presenting all available evi-
dence about Sondra’s abusive conduct and Petitioner’s
experiences with gang and CYA violence would only have
raised inferences that his abusive childhood turned him into
a hardened criminal who was quite capable of murdering four
people. Indeed, portraying Petitioner in such a way would
have shown that he was insensitive to violence because of his
active participation in a violent gang, which consequently
would have made it seem more likely that he was the shooter.

[14] In short, counsel conscientiously and extensively
investigated potential defenses. Because further evidence
about Petitioner’s childhood and gang activity would have
suggested violent propensities at odds with counsel’s goal of
portraying Petitioner as less culpable, counsel reasonably
decided not to present such evidence. Counsel’s performance
fully met constitutional standards. See Bible v. Ryan, 571 F.3d
860, 872 (9th Cir. 2009) (denying a habeas claim for ineffec-
tive assistance of counsel during the penalty phase where
there were a significant amount of aggravating circumstances
 COX v. AYERS 10441
and the additional evidence would have been cumulative of
what had already been presented).5

2. Prejudice

[15] Even if we were persuaded that counsel performed
ineffectively, we would have to conclude that Petitioner failed
to show prejudice. As we have noted, in order to prevail on
a claim of prejudice, Petitioner must demonstrate that coun-
sel’s failure to call expert witnesses rendered the results of his
trial unreliable or fundamentally unfair. Strickland, 466 U.S.
at 694. The bar for establishing prejudice is set lower in
death-penalty sentencing cases than in guilt-phase challenges
and noncapital cases. See Silva v. Woodford, 279 F.3d 825,
847 (9th Cir. 2002) (stating that “we must be especially cau-
tious in protecting a defendant’s right to effective counsel at
a capital sentencing hearing” (internal quotation marks omit-
ted)). Even in the context of a challenge to his death sentence,
though, Petitioner must show that it is reasonably probable
that the outcome would have been different had counsel per-
formed adequately. Strickland, 466 U.S. at 694.

Here, trial counsel considered, investigated, and presented
four theories at the penalty phase: (1) Petitioner was not the
shooter; (2) a sentence of life imprisonment without parole
was a greater punishment than death; (3) Petitioner was a
5
In Richter v. Hickman, 578 F.3d 944, 968 (9th Cir. 2009) (en banc), we
granted the habeas corpus petition of a convicted murderer, holding that
the defendant’s trial counsel rendered ineffective assistance by failing to
investigate and present expert testimony on forensic blood evidence that
would have supported the defendant’s self-defense claim and contradicted
the prosecution’s theory of how the crime occurred. The facts of that case
are easily distinguished from the facts here. The evidence that Petitioner
claims was not discovered or not presented by his trial counsel would have
been cumulative only or would have been at odds with trial counsel’s rea-
sonable efforts to portray Petitioner as less culpable. Unlike the evidence
in Richter, the evidence here would neither have benefitted any of Peti-
tioner’s claims nor have contradicted the prosecution’s theories.
10442 COX v. AYERS
valuable human being whose family members wanted him to
live; and (4) Petitioner was dominated by his gang in general
and by Williams in particular, and gang activity was an
unavoidable part of Petitioner’s environment.

Counsel made the strategic decision that their best chance
to save Petitioner’s life was to show that Petitioner was not
the shooter or, at the very least, to raise a lingering doubt on
that score. The decision to focus on the non-shooter strategy
as a means to avoid the death penalty was entirely reasonable
when taking into account the horrendous circumstances of the
crimes and the prosecutor’s main argument that Petitioner, as
the sole shooter, was the most culpable of the perpetrators and
deserved the death penalty. Further, the defense of “residual
doubt has been recognized as an extremely effective argument
for defendants in capital cases.” Lockhart v. McCree, 476
U.S. 162, 181 (1986); see also Williams v. Woodford, 384
F.3d 567, 624 (9th Cir. 2004) (same). We have noted in the
past a comprehensive study on the opinions of jurors in capi-
tal cases that concluded that “ ‘[t]he best thing a capital defen-
dant can do to improve his chances of receiving a life
sentence has nothing to do with mitigating evidence . . . . The
best thing he can do, all else being equal, is to raise doubt
about his guilt.’ ” Williams, 384 F.3d at 624 (quoting Stephen
P. Garvey, Aggravation and Mitigation in Capital Cases:
What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1563
(1998)).

Counsel’s second penalty-phase strategy was to show that
life without the possibility of parole was a very grave punish-
ment, perhaps a fate worse than death, and would protect soci-
ety from Petitioner. In support of this strategy, counsel
presented the testimony of Joey Upland, the head nurse at San
Quentin State Prison. While on duty, Ms. Upland was in
charge of medical care for 3,000 convicts. She testified that,
generally, two inmates lived in a cell approximately 54 square
feet in size. During lock-downs, the prisoners had no regular
exercise and could go three to four weeks without a shower.
 COX v. AYERS 10443
There were no towels, books, toilet paper, or access to a laun-
dry, forcing prisoners to wash their clothes in toilets. The tem-
perature in the cell could swell to 105 degrees in the summer
and cool to nearly freezing in the winter. Ms. Upland testified
that prison gangs stirred up a lot of trouble and that stabbings
occurred two or three times a week. Due to high noise levels
in the cells, prisoners lacked sleep and became disoriented.
Sexual abuse among prisoners was also prevalent.

Counsel attempted to humanize Petitioner by presenting
testimony regarding Petitioner’s family, cultural and commu-
nity background, the abuse and neglect he suffered at the
hands of his mother, the pervasiveness of street gangs in his
community and school, and the inherent problems of being
involved in gangs. Several of his family members asked for
mercy. Petitioner now argues that counsel should have inves-
tigated his past further and presented even more evidence
regarding his childhood. But counsel made a reasonable stra-
tegic decision not to emphasize the abuse evidence because
they deemed the non-shooter theory to have a higher likeli-
hood of success. Counsel reasonably believed that it would
not save Petitioner’s life to argue to the jury that “this poor
abused kid” deserves their sympathy or that Petitioner should
be given life because his mother was an abusive alcoholic.
The pertinent inquiry here “is not what defense counsel could
have pursued, but rather whether the choices made by defense
counsel were reasonable.” Babbitt, 151 F.3d at 1173 (internal
quotation marks omitted); see also Williams, 384 F.3d at 616.
As long as a reasonable investigation was conducted, we must
defer to counsel’s strategic choices. Strickland, 466 U.S. at
690-91. As detailed above, counsel’s extensive investigation
was reasonable.

With regard to the gang-domination theory, counsel chose
not to emphasize that theory during the penalty phase because
doing so would have undermined the primary strategy of por-
traying Petitioner as the non-shooter. Counsel determined that
this “substantial domination” defense actually supported the
10444 COX v. AYERS
prosecution’s contention that Petitioner killed the victims
under Williams’ orders. Further, counsel was unable to obtain
evidence that the gang made Petitioner commit the murders
because he refused to cooperate with the strategy: He pro-
vided no useful information to counsel’s retained gang
experts, and he told counsel that he would cause a disturbance
in the courtroom if counsel presented gang-domination evi-
dence. Counsel ultimately chose not to call the gang experts
as witnesses because they were unable to provide information
helpful to Petitioner’s case and because doing so may have
opened the door to damaging rebuttal evidence about Petition-
er’s violent gang activities as an “enforcer.” In these circum-
stances, counsel’s decision not to emphasize the gang-
domination strategy was reasonable.

Prejudice requires a showing that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strick-
land, 466 U.S. at 694. “A reasonable probability is a probabil-
ity sufficient to undermine confidence in the outcome.” Id.
Petitioner cannot demonstrate that he was prejudiced by his
counsel’s strategies at the penalty phase. Petitioner’s counsel
reasonably chose to pursue the four theories discussed above;
additional information about Petitioner’s childhood and gang
activities would not have resulted in a different verdict by the
jury. Because “the probability that the result would have been
different is far from reasonable,” Laboa v. Calderon, 224 F.3d
972, 981 (9th Cir. 2000), we hold that Petitioner was not prej-
udiced by his counsel’s representation at the penalty phase.

The United States Supreme Court’s recent decision in
Wong v. Belmontes, 130 S. Ct. 383 (2009) (per curiam),
underscores our conclusion. In that case, the Supreme Court
reversed a decision of our court holding that the defendant
was prejudiced by his counsel’s performance. The defendant
had been convicted of murdering a woman in the course of a
burglary; we held that counsel’s performance was both defi-
cient and prejudicial because “counsel’s errors undermined
 COX v. AYERS 10445
confidence in the penalty phase verdict.” Id. at 384. The
Supreme Court reversed. The Court first observed that the
additional mitigation evidence cited in our decision “was
merely cumulative of the humanizing evidence [that the
defendant’s counsel] actually presented; adding to what was
already there would have made little difference.” Id. at 387.
Further, the Court held that presenting that additional evi-
dence “would have put into play aspects of [the defendant’s]
character that would have triggered admission of the powerful
. . . evidence [of a prior crime] in rebuttal. This evidence
would have made a difference, but in the wrong direction for
[the defendant].” Id. at 387-88

Similarly, here, Petitioner was not prejudiced by his coun-
sel’s decision to exclude additional mitigation evidence. Just
as in Wong, that evidence is cumulative of what was pre-
sented at the penalty phase, and “adding to what was already
there would have made little difference.” Id. at 387. The addi-
tional evidence also contradicts the theories propounded by
Petitioner’s counsel, thereby pushing his case “in the wrong
direction.” Id. at 388.

In Van Hook, too, the Supreme Court addressed the ques-
tion of prejudice. In that case, the Court emphasized that the
testimony that the defendant claimed should have been pre-
sented would have added little; the defendant failed to show
“why the minor additional details the trial court did not hear
would have made any difference.” 130 S. Ct. at 19-20. Addi-
tionally, the Court relied on the awful nature of the crime. The
defendant was the sole perpetrator, who intended from the
start to rob the victim, and then killed him and disfigured the
body. Id. at 20. The defendant had committed several previ-
ous and subsequent robberies as well. Id. By ignoring the
weight of these aggravating factors, the Sixth Circuit “over-
state[d] . . . the effect additional mitigating evidence might
have had.” Id.

[16] Again similarly, in this case the proposed additional
evidence was mostly cumulative of the information already
10446 COX v. AYERS
presented at the penalty phase trial. And, even more than in
Van Hook, the weight of the aggravating factors was stagger-
ing. Petitioner set out to kill everyone in the Alexander house,
including children sleeping in their beds, and he did so for
money.

The dissent argues that the aggravating evidence presented
during the penalty phase does not preclude a finding of preju-
dice, pointing to Hovey v. Ayers, 458 F.3d 892 (9th Cir.
2006), and Douglas v. Woodford, 316 F.3d 1079 (9th Cir.
2003), for support. Dissent at 10461-62. The dissent’s reli-
ance on those cases is misplaced. In Hovey, 458 F.3d at 927-
28, the defendant’s lawyer did not provide his key witness, a
psychiatrist who examined the defendant for the first time just
before presenting expert testimony, with records regarding the
defendant’s long history of mental illness. Had counsel done
so, it would not have seemed to the jury that “the defense had
concocted the mitigating mental illness evidence.” Id. at 927.
Similarly, in Douglas, we found prejudice where the defen-
dant’s counsel presented neither “a substantial amount of [his]
social history” nor any evidence of his “serious and outstand-
ing mental illness.” Douglas, 316 F.3d at 1091.

Here, by contrast there was not a “total absence of evi-
dence” regarding any aspect of Petitioner’s life. See id. Peti-
tioner’s counsel, despite Petitioner’s refusal to cooperate,
presented testimony regarding his family, his background, and
his abusive mother. The evidence to which the dissent points
would have been cumulative or it would have undermined
counsel’s reasonable efforts to portray Petitioner as less cul-
pable. Closely examining the record in this case makes clear
that Petitioner was not prejudiced by his counsel’s representa-
tion at the penalty phase.

Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009), does not
compel a contrary result. Hamilton’s counsel’s performance
stands in stark contrast to that here. For example:
 COX v. AYERS 10447
• There, defense counsel had never worked on a
capital case before Hamilton’s, and he failed to
associate co-counsel. Hamilton, 583 F.3d at
1114. See also Porter v. McCollum, No. 08-
10537, 2009 WL 4110975, at *5 (U.S. Nov. 30,
2009) (per curiam) (finding ineffective assistance
of counsel at the penalty phase where the lawyer
had never represented a defendant in a penalty-
phase proceeding before). Here, by contrast, at
the time of Petitioner’s trial, defense counsel had
served as a public defender for more than ten
years, had tried a capital case in the past, and had
earned a Level IV ranking in the public defend-
er’s office, meaning that defense counsel was the
top trial lawyer in that office. Moreover, the main
defense lawyer brought in an assistant to help in
both the guilt and penalty phases of the trial.

• There, the defense “investigation consisted of at
most five interviews,” which took place shortly
before jury selection began. Hamilton, 583 F.3d
at 1114; see also Porter, 2009 WL 4110975, at
*5 (holding that counsel was deficient for failing
to obtain any school, medical, or military records,
to interview any family members, or otherwise to
investigate the defendant’s mental health and
background). Here, by contrast, counsel began
the investigation well ahead of trial, seeking
information from nine family members, church
personnel, Boy Scout and Cub Scout leaders, and
employers; consulting several experts; and read-
ing voluminous records and documents regarding
Petitioner’s past. That investigation yielded rele-
vant information concerning several viable miti-
gation strategies.

• There, the defense “presented only one witness
. . . whose testimony occupies less than 5 pages
10448 COX v. AYERS
of the transcript.” Hamilton, 583 F.3d at 1119.
Counsel failed, without any legitimate explana-
tion or reason, to uncover or to present evidence
regarding the utterly horrific childhood that Ham-
ilton had endured; that information would have
been obvious with only the most cursory inquiry.
Id. at 1119-28. Here, by contrast, the defense
presented seven witnesses, who covered all the
essential points the defense argued to the jury.
For the most part, Petitioner’s home life was not
horrific. To the extent that it was, counsel pur-
sued a reasonable strategy to downplay Petition-
er’s problems in order to pursue a non-shooter
theory and create a lingering doubt about Peti-
tioner’s guilt.

• With respect to the prejudice prong, in Hamilton
the defendant murdered his wife. Id. at 1102-04;
see also Porter, 2009 WL 4110975, at *1, *6
(noting that the defendant murdered his former
girlfriend and her new boyfriend). For that rea-
son, evidence concerning the defendant’s history
of family abuse was highly relevant, both to
explain the reasons for his conduct and to demon-
strate that he would not be a danger to society at
large. Hamilton, 583 F.3d at 1132-34. Here, by
contrast, the additional evidence was mostly
cumulative, and the nature of the crime itself
overwhelmingly demonstrated Petitioner’s dan-
ger to society.

Thus, Hamilton illustrates why, in this case, neither the per-
formance nor the prejudice prong of Strickland is met.

[17] To summarize, given the fact that the jury heard sub-
stantial mitigating evidence and given the grim and gruesome
facts of the crimes themselves, there is no reasonable proba-
bility that Petitioner would have escaped the death penalty
 COX v. AYERS 10449
had counsel presented additional mitigation evidence or
expert testimony at sentencing.

AFFIRMED.

PREGERSON, Circuit Judge, dissenting:

I part ways with the majority when it comes to the issue of
ineffective assistance of counsel at the penalty phase. The
majority opinion concludes that Cox’s attorneys did not pro-
vide ineffective assistance during the penalty phase even
though they failed to investigate critical, readily available
records that would have revealed the full extent of Cox’s abu-
sive childhood. The majority reasons that this evidence would
have been cumulative and also would have been inconsistent
with trial counsel’s non-shooter theory. In the alternative, the
majority opinion concludes that any deficiency by Cox’s
attorneys during the penalty phase did not prejudice Cox
because the omitted mitigation evidence was cumulative and
the aggravating evidence was substantial. Because neither the
record nor the law supports these conclusions, I dissent.

To prevail on his ineffective assistance claim, Cox must
show: (1) “that counsel’s performance was deficient” and (2)
“that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Here,
Cox’s attorneys performed deficiently because they failed to
conduct a reasonable investigation of Cox’s abusive child-
hood. Cox’s attorneys were on notice of Cox’s juvenile
dependency records and his abusive mother’s arrest records
and court files, but failed to obtain and review them. These
records would have demonstrated that Cox suffered severe
abuse until he was eleven years old and that he routinely was
exposed to violence. Cox’s attorneys’s failure to obtain and
present this evidence prejudiced Cox. Had the jury known the
full extent of Cox’s abusive childhood, it is reasonable to con-
10450 COX v. AYERS
clude that at least one juror would have voted that Cox suffer
a life sentence rather than a sentence of death.

I. Cox’s Attorneys Provided Deficient Performance
During the Penalty Phase of Cox’s Trial

Deficient performance exists when counsel’s representation
“[falls] below an objective standard of reasonableness.” Id. at
688. Because “[i]t is imperative that all relevant mitigating
information be unearthed for consideration at the capital sen-
tencing phase,” Caro v. Calderon, 165 F.3d 1223 (9th Cir.
1999), counsel performs deficiently if it does not conduct a
reasonable investigation of the defendant’s background. This
inquiry should include investigation of the defendant’s history
of family abuse, Summerlin v. Schriro, 427 F.3d 623, 630 (9th
Cir. 2005) (en banc); a thorough examination of all readily
available records, Williams v. Taylor, 529 U.S. 362, 395-96
(2000); and the active pursuit of all relevant mitigation leads,
Lambright v. Schriro, 490 F.3d 1103, 1117 (9th Cir. 2007).

A. Cox’s Attorneys Failed to Obtain All Reasonably
Available Mitigating Evidence

I agree with the majority opinion insofar as “[t]his is not a
case in which defense counsel simply ignored their obligation
to find mitigating evidence . . . .” Rompilla v. Beard, 545 U.S.
374, 381 (2005). I disagree, however, that conducting some
mitigation investigation is tantamount to conducting a reason-
able investigation. Both this court and the Supreme Court
have found deficient performance when counsel conducted
some investigation into mitigating evidence, but failed to dis-
cover all reasonably available mitigating evidence. See, e.g.,
Rompilla, 545 U.S. at 381-83 (finding deficient performance
because defense counsel failed to examine a court file on
Rompilla’s prior conviction, even though counsel interviewed
Rompilla and several members of his family, and examined
reports by three mental health experts); Douglas v. Woodford,
316 F.3d 1079, 1087 (9th Cir. 2003) (finding deficient perfor-
 COX v. AYERS 10451
mance even though counsel’s penalty-phase investigation
included interviews of Douglas’s “wife, son, friends, and
neighbors”).

Here, Cox’s attorneys knew or should have known about
the existence of Cox’s juvenile dependency records and his
mother’s arrest records and court files, yet failed to obtain
them. These readily available records would have demon-
strated that Cox, eighteen years old at the time of the murders,
had spent a substantial part of his formative years under the
primary care of his mother, Sondra Holt, an alcoholic and a
prostitute.1 While under the care of his mother, Cox experi-
enced severe abuse and was routinely exposed to violence:

• On June 3, 1970, when Cox was only four years
old, Cox watched his mother try to kill his sister,
Edrina Meyers.

• In August 1970, Everette Myers, the boyfriend
and pimp of Cox’s mother, was shot and killed
outside the mother’s door while Cox, four years
old at the time, was inside the house.

• On December 15, 1970, when Cox was five years
old, Cox witnessed his mother attacking a police
officer with a knife.

• On January 23, 1971, when Cox was five years
old, Cox witnessed his mother being taken away
by ambulance after she was stabbed by a boy-
friend.
1
The juvenile dependency records reveal that Cox’s mother, Sondra
Holt (“Holt”), retained custody of Cox from when he was born on Decem-
ber 1, 1965, until he was declared a dependent child of the court on
December 8, 1977. Holt was Cox’s primary caretaker until 1971, although
he also lived intermittently with his great-grandmother during this time.
Moreover, Cox lived with Holt for eight or nine months in 1977.
10452 COX v. AYERS
• In 1973 or 1974, when Cox was eight or nine
years old, Cox’s mother set fire to the front door
of the house of Cox’s grandmother, where Cox
was staying.

• In July 1977, when Cox was eleven years old,
Cox’s mother was arrested in front of Cox for
assault with a deadly weapon.

• In August 1977, when Cox was eleven years old,
Cox’s mother pushed Cox up against the wall,
struck him in the face several times, and gave
him a black eye.

• In September 1977, when Cox was eleven years
old, Cox’s mother threatened him with a steak
knife.

• On numerous occasions, Cox’s mother became
intoxicated to the extent that she could not pro-
vide care or supervision for Cox.

All of this evidence of abuse could have been discovered
in Cox’s dependency court file and in his mother’s arrest
records and court files.2 The State stipulated that Cox’s attor-
neys were on notice that these documents were available and
could have been easily obtained. The State also stipulated that
Cox’s attorneys “knew or should have known that Mr. Cox
and his siblings were removed from his mother’s care as the
2
Had Cox’s attorneys interviewed additional family members, they
would have also discovered: (1) when Cox was slightly less than four
years old, his mother tried to kill Cox and his siblings; and (2) when Cox
was nine years old, he and his siblings witnessed their mother attempt sui-
cide. I see no need to reach whether Cox’s attorneys’s failure to interview
these family members constituted deficient performance because Cox’s
attorneys’s failure to obtain and present the evidence in Cox’s dependency
court file and in his mother’s arrest records and court files clearly consti-
tuted deficient performance.
 COX v. AYERS 10453
result of court intervention” and that Cox’s attorneys were
“aware that Cox’s mother had been in and out of prison dur-
ing the time she raised Cox.” Moreover, the State stipulated
that Cox’s attorneys had obtained Cox’s school records.
These records stated that Cox was placed in foster care at the
age of twelve, indicating that Cox may have spent substan-
tially more time under his abusive mother’s care than other
evidence suggested.

The majority opinion relies on the Supreme Court’s recent
decision in Bobby v. Van Hook, No. 09-144, 2009 WL
3712013 (U.S. Nov. 9, 2009) (per curiam) to conclude that
Cox’s attorneys performed a reasonable investigation because
the unexplored documents would have only produced cumula-
tive evidence.3 Maj. Op. 10439, 10440. Van Hook is inappo-
site. In Van Hook, the Supreme Court held that trial counsel
did not perform deficiently by failing to interview certain
family members because trial counsel already uncovered
extensive evidence of Van Hook’s traumatic childhood. Van
Hook, 2009 WL 3712013 at *19. The Court noted, “[t]his is
not a case in which defendant’s attorneys failed to act while
potentially powerful mitigating evidence stared them in the
face, or would have been apparent from documents any rea-
sonable attorney would have obtained.” Id. (internal citations
omitted).

Unlike trial counsel in Van Hook, Cox’s trial counsel
“failed to act while potentially powerful mitigating evidence
3
The majority also cites to Bible v. Ryan, 571 F.3d 860, 872 (9th Cir.
2009) to support its argument that Cox’s counsel did not perform defi-
ciently because any additional investigation would have been cumulative.
Bible did not even reach the deficiency prong of the ineffective assistance
of counsel analysis. See id. at 872 ("We hold that the absence of evidence
that was cumulative of what had already been presented . . . does not
undermine our confidence in the outcome of Bible’s sentencing hearing.
. . . {W}e cannot properly say that the Arizona court’s decision that Bible
suffered no prejudice was an unreasonable application of Strickland.")
(emphasis added). Accordingly, reliance on this case is unfounded.
10454 COX v. AYERS
. . . would have been apparent from documents any reasonable
attorney would have obtained.” Id. Cox’s trial counsel knew
that Cox’s mother had beaten and lost custody of her children
more than once. Maj. Op. 10436. Yet they failed to obtain and
review the documents that would be most relevant to demon-
strating the severity of this abuse. It is hard to imagine docu-
ments more relevant to demonstrating the severity of Cox’s
childhood abuse than Cox’s juvenile dependency records or
Cox’s mother’s arrest records and court files. Cox’s attorneys
knew these records existed and could have easily obtained
them. Any reasonable attorney would have obtained these
documents and Cox’s attorneys’s failure to do so constitutes
deficient performance. See Lambright v. Schriro, 490 F.3d
1103, 1117 (9th Cir. 2007) (“[W]hen . . . indications in the
record suggest that certain mitigating evidence may be avail-
able, those leads must be pursued.”) (internal quotation marks
omitted).

B. Cox’s Attorneys’s Failure to Obtain Cox’s Juvenile
Dependency Records and Other Evidence of
Childhood Abuse Was Not a Strategic Decision

The majority opinion also contends that Cox’s attorneys’
failure to investigate Cox’s traumatic childhood further was a
“strategic choice” because the evidence would have been “at
odds” with trial counsel’s primary non-shooter theory.4 Maj.
4
There is also evidence that Cox’s attorneys provided ineffective assis-
tance with respect to the non-shooter theory. Cox’s attorneys made no
attempt to interview Stanley Cheathem (“Cheathem”), who was present at
Ida Moore’s house, the location where all the co-defendants congregated
before the murders. Cox’s attorneys even made notes to interview Chea-
them, but never followed through.
Had Cox’s attorneys interviewed Cheathem, they would have discov-
ered the following:
• Williams had a “violent temperament,” was paranoid, and was
“scary to be with,” and became “increasingly paranoid and
unpredictable” when he was on crack.
 COX v. AYERS 10455
Op. 10418-19. The majority opinion speculates that present-
ing evidence of Cox’s abusive childhood “would only have
raised inferences that [Cox’s] abusive childhood turned him
into a hardened criminal who was quite capable of murdering
four people” and “made it seem more likely that he was the
shooter.” Maj. Op. at 10440. The majority opinion, however,
offers no support for such a conclusion.

To the contrary, the evidence of childhood abuse could
have easily raised inferences that evoked sympathy for the
eighteen-year-old Cox. Such evidence could have explained
why Cox ended up in a gang and how Cox ended up in a posi-
tion where he was aiding Williams in the perpetration of the
murders. Indeed, one of Cox’s attorneys acknowledged that
the omitted childhood abuse evidence “would have been help-
ful to [the] defense” and “consistent with the themes that
[they] presented in mitigation.” Where, as here, “counsel
offers no strategic reason for failing to perform what would
otherwise constitute the duty of a reasonably competent coun-
sel, we may not invent such a strategy by engaging in a ‘post
hoc rationalization of counsel’s conduct.” See Richter v. Hick-

• In the weeks leading up to the murders, Williams was con-
stantly hustling for crack, hustling for money for crack, and
smoking crack.
• Cheathem did not take Williams seriously in the days leading
up to the murders because “[Williams] was so cracked out and
pumped up.”
• The night before the murders Williams smoked crack.
The above testimony would have bolstered Cox’s theory that Williams
was the actual shooter by demonstrating that Williams was likely under
the influence of crack cocaine when the murders occurred and that Wil-
liams had a strong propensity for violence, particularly while under the
influence of crack cocaine. Because Cox’s attorneys clearly rendered inef-
fective assistance of counsel by failing to obtain and present evidence of
the severe childhood abuse suffered by Cox, I see no need to reach the
question whether Cox’s attorneys also provided ineffective assistance by
failing to interview Stanley Cheathem.
10456 COX v. AYERS
man, 578 F.3d 944, 959 (9th Cir. 2009) (holding that coun-
sel’s failure to consult blood experts was not a strategic
choice because counsel offered no reasoned explanation for
the failure).

Moreover, the Supreme Court has acknowledged that child-
hood abuse evidence is not at odds with a theory that the
defendant was not directly responsible for the crime, and that
its discovery may actually change counsel’s strategy. See
Wiggins v. Smith, 539 U.S. 510, 535 (2003). Accordingly,
Cox’s attorneys’s failure to obtain and present evidence of the
severe abuse suffered by Cox at the hands of his mother was
not a strategic decision, but a clear failure by defense counsel
to conduct a reasonable investigation.5

II. Absent the Deficient Performance of Cox’s Attorneys,
a Reasonable Probability Exists That at Least One
Juror Would Have Voted to Impose a Life Sentence
Rather than a Death Sentence

Prejudice is established where, “there is a reasonable prob-
ability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating cir-
cumstances did not warrant death.” Strickland, 466 U.S. at
695. “A reasonable probability is one ‘sufficient to undermine
confidence in the outcome,’ but is less than the preponderance
more-likely-than-not standard.’ ” Lambright, 490 F.3d at 1121
5
The majority opinion also notes that Cox refused to cooperate and
threatened to “cause a disturbance” in court if negative information about
his mother was presented. Maj. Op. 10437. Cox’s failure to cooperate with
his attorneys did not eliminate his attorneys’s duty to investigate, and thus
did not excuse his attorneys’s deficient performance. See, e.g., Douglas,
316 F.3d at 1089-90 Moreover, the record clearly indicates that Cox’s
attorneys did not even heed his instructions, and in fact presented negative
information about his mother to the court. Accordingly, Cox’s attorneys’s
deficient investigation of Cox’s severe childhood abuse cannot be excused
by Cox’s uncooperativeness or his instructions not to present negative
information about his mother. See Douglas, 316 F.3d at 1089.
 COX v. AYERS 10457
(quoting Summerlin, 427 F.3d at 640, 643). Because Califor-
nia requires that a unanimous jury impose a death sentence,
the question here is whether “there is a reasonable probability
that at least one juror would have struck a different balance
[between life and death].” Wiggins, 539 U.S. at 537.

Relying on the Supreme Court’s recent decisions in Wong
v. Belmontes, 130 S. Ct. 383 (2009) and Bobby v. Van Hook,
130 S. Ct. 13 (2009), the majority opinion concludes that Cox
was not prejudiced by his counsel’s failure to obtain and pre-
sent evidence of Cox’s severe childhood abuse because the
omitted mitigating evidence would have been cumulative and
contradictory to the defense counsel’s theories, and because
the aggravating evidence was so great. Maj. Op. 10445,
10447-48. This conclusion is legally and factually unsupport-
able.

A. The Omitted Mitigation Evidence Was Not
Cumulative of the Evidence Presented at Trial

The majority opinion erroneously concluded that the omit-
ted mitigation evidence would be cumulative of the evidence
presented at trial. In both Belmontes and Van Hook, the
Supreme Court determined that the defendant was not preju-
diced because omitted mitigating evidence would have been
cumulative of what had been presented to the trial court. In
Belmontes, the Supreme Court concluded that additional
humanizing evidence, such as the fact that his family lived in
“constant strife,” that his sister died of a brain tumor, and that
he was respectful to his grandparents, would have been cumu-
lative of the evidence actually presented at trial, which high-
lighted Belmontes’ “terrible” childhood and strong
relationships with his family. Belmontes, 130 S. Ct. at 386,
387-88. Similarly, in Van Hook, the Supreme Court con-
cluded that “the minor additional details” of Van Hook’s trau-
matic childhood, which the interviews with additional family
members would have revealed, did not prejudice Van Hook
because counsel had already presented extensive evidence of
10458 COX v. AYERS
Van Hook’s traumatic childhood at trial.6 Van Hook, 130 S.
Ct. at 19-20.

Here, the omitted mitigation evidence would not have been
cumulative of the evidence presented at trial. At trial, Cox’s
attorneys only presented cursory details of Cox’s abusive
childhood and left the incorrect impression that Cox came
from a loving and stable home and was raised primarily by his
great-grandmother.7 The omitted mitigating evidence would
have shown that Cox spent many of his formative years with
his abusive and neglectful mother, and was subject to a litany
of traumatic events while under her care.

Specifically, the omitted mitigation evidence would have
demonstrated that Cox, eighteen years old at the time of the
murders, experienced his mother’s violent behavior from the
age of four to eleven. That behavior included threatening Cox
with a steak knife, attempting to kill Cox’s sister, and setting
the residence at which Cox was staying on fire. Cox also
observed a great deal of violence, which included witnessing
his mother attack a police officer with a knife, watching his
mother be taken away in an ambulance after her boyfriend
stabbed her, and being on the scene when his mother’s boy-
friend was shot and killed. Accordingly, unlike in Belmontes
or Van Hook, the omitted mitigation evidence in this case was
not cumulative of the evidence presented at trial.
6
At trial, Van Hook’s counsel presented evidence that Van Hook started
drinking as a toddler, began “barhopping” with his father at age nine,
drank and used drugs regularly with his father from age eleven forward,
frequently observed his father hold his mother at gun- and knife-point,
watched episodes of sexual violence, and was beaten on at least one occa-
sion. Id. at 18.
7
Cox’s great-grandmother erroneously testified that she raised Cox from
infancy to age fourteen. The juvenile dependency records would have
revealed that Cox’s mother was his primary caretaker from his birth to age
six or seven.
 COX v. AYERS 10459
B. The Omitted Mitigation Evidence Would Not Have
Contradicted Counsel’s Defense Theories

Relying on Belmontes, the majority opinion also errone-
ously concludes that the omitted mitigation evidence would
have undermined counsel’s primary non-shooter theory. Maj.
Op. 10445. This case is clearly distinguishable from Bel-
montes. In Belmontes, the omitted mitigation evidence regard-
ing Belmontes’ mental state would have “opened the door”
for the prosecution to introduce the “strongest possible evi-
dence in rebuttal — the evidence that Belmontes was respon-
sible for not one but two murders.” 130 S. Ct. at 389.

Here, the introduction of evidence about Cox’s abusive
childhood would not have had any negative ramifications. As
discussed above, the majority opinion’s notion that childhood
abuse evidence would contradict counsel’s non-shooter argu-
ment is unfounded. The Supreme Court has noted that child-
hood abuse evidence is not at odds with a theory that the
defendant is not directly responsible for the crime, see Wig-
gins, 539 U.S. at 535, and in this case, such evidence could
have explained why Cox ended up in a gang and how he
ended up in a position where he was aiding Williams in the
perpetration of the murders. Accordingly, unlike in Bel-
montes, the omitted mitigation evidence would not have
undermined counsel’s trial strategies.

C. The Aggravating Evidence Presented During the
Penalty Phase Does Not Preclude a Finding of
Prejudice

Relying on Van Hook, the majority opinion also concludes
that omission of Cox’s severe childhood abuse was not preju-
dicial because of the weight of the aggravating factors. Maj.
Op. 10445. Specifically, the majority opinion points out the
violent nature of the murders and that Cox participated in the
murders for money. As a preliminary matter, the prosecution
10460 COX v. AYERS
did not present overwhelming evidence that Cox was the
shooter or that the murders were for hire.

The two surviving witnesses, who were actually inside the
house when the shootings occurred, gave a description of the
shooter that matched co-defendant C.W. Williams
(“Williams”) rather than Cox. The witnesses described the
intruder carrying the rifle as twenty-five to thirty-five years
old, 5’10” to 5’11” and well-built with a dark complexion,
short hair, and dark clothing. On the day of the murders, co-
defendant Williams was in his mid-twenties, had a dark com-
plexion, short hair and a muscular build, and wore a dark blue
shirt and dark pants. Cox, on the other hand, was only eigh-
teen years old, had a light complexion, a medium build and
braided hair, and wore tan pants on the day of the murders.

Moreover, two of the prosecution’s key witnesses, Ida
Moore (“Moore”) and Lisa Brown (“Brown”), were
impeached during trial. These witnesses testified that Cox
stated after the murders, “I just blew the bitch’s head off.”
Moore was impeached by her inconsistent testimony at co-
defendant Horace Burns’s (“Burns”) trial, during which she
attributed the “I just blew the bitch’s head off” statement to
Williams, not Cox.8 Brown was impeached by her statement
to the police that she wasn’t sure if Williams or Cox stated “I
just blew the bitch’s head off.”

The prosecution presented evidence that Cox purchased a
$3,000 Cadillac after the murders, but this evidence does not
establish that Cox participated in the murders for money.
Regardless of whether Cox was the shooter or committed the
murders for money, the aggravating evidence does not pre-
clude a finding of prejudice. There is no question that this
case involves a horrible and senseless crime. Nevertheless, we
8
At Burns’s trial, Moore testified that the person who closed the van
door stated “I just blew the bitch’s head off.” She further testified that
Williams, not Cox, was the person who closed the van door.
 COX v. AYERS 10461
have repeatedly found prejudice in capital cases that presented
aggravating evidence which were equally, if not more, trou-
bling than the facts here.

In Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006), this court
found prejudice even though Hovey was sentenced to death
for the brutal kidnaping and murder of an eight year-old girl.
Hovey bound the girl’s wrists and thighs, fractured her skull
in six places, and stabbed her fourteen times. Id. at 898. The
jury also learned during the penalty phase that Hovey had pre-
viously been convicted of kidnaping another young girl. Peo-
ple v. Hovey, 749 P.2d 776, 795-96 (Cal. 1988). Nevertheless,
this court found that Hovey’s death sentence was prejudiced
by his counsel’s deficient performance. Hovey, 458 F.3d at
930-31. We explained that, even though Hovey’s counsel cal-
led eighteen witnesses during the penalty-phase, Hovey’s
death sentence was prejudiced by his attorney’s failure to pro-
vide all of the pertinent records to an expert witness. Id. at
924-25, 930-31.

In Douglas v. Woodford, 316 F.3d 1079 (9th Cir. 2003),
this court found prejudice even though Douglas was sen-
tenced to death for murdering two teenage girls. Douglas
forced the two girls to have sex with each other at gunpoint
and then forced the girls to orally copulate him. People v.
Douglas, 788 P.2d 640, 647 (Cal. 1990), overruled on other
grounds by People v. Marshall, 790 P.2d 676 (Cal. 1990).
Douglas then choked, cut, and murdered the girls. Id. In addi-
tion to the horrific details of this crime, the jury also learned
of Douglas’s violent past. Two women testified that Douglas
forced them to pose for nude pictures and perform sexual acts
on him. Douglas, 316 F.3d at 1084. The jury also heard testi-
mony that Douglas planned to torture and kill young women
to make sex films. Id.

Despite the horrific nature of the killings and the significant
aggravating evidence presented by the prosecution, we found
that counsel’s deficient performance prejudiced Douglas dur-
10462 COX v. AYERS
ing the penalty phase because Douglas’s attorney failed to
uncover and present extensive evidence of childhood abuse.
Id. at 1089-91. Although the jury heard several of Douglas’s
family members testify, and learned that Douglas had been
orphaned as a child and grew up poor, we explained that
Douglas was prejudiced because the jury never learned the
full extent of his troubled past. Id. at 1087-88, 1090.

The aggravating evidence in Cox’s case was substantially
weaker than in Douglas or Hovey.9 Cox’s prior criminal his-
tory included two juvenile robberies, which are less serious
crimes than Douglas’s depraved sexual acts or Hovey’s prior
kidnaping of a young girl. Moreover, the murders in Cox’s
case were less gruesome than the murders in Douglas, which
involved sadistic torture, or in Hovey, which involved the kid-
naping and murder of an eight year old girl.

Had Cox’s attorneys conducted a reasonable investigation
9
The majority opinion contends that Hovey and Douglas are distin-
guishable. Maj. Op. 10445-46. The majority opinion notes that Hovey
involved defense counsel’s failure to provide medical records to the psy-
chiatrist, who was a key witness. Maj. Op. 10446. This is a correct inter-
pretation of the case, but does not address my reason for citing the case—
that prejudice was found notwithstanding substantial aggravating evi-
dence.
The majority opinion provides more relevant and precise reasoning for
its contention that Douglas is inapposite. The majority opinion notes that
in Douglas, counsel had totally failed to present any evidence of Doug-
las’s “serious and outstanding mental illness,” and that Cox cannot point
to a “total absence of evidence” regarding any particular area of his life.
Maj. Op. 10446. I do not think that Douglas stands for the proposition that
a “total absence of evidence” regarding a particular area is prejudicial
while inadequate presentation of evidence in a particular area is not. In
fact, such a reading of Douglas would be contrary to the well-settled
notion that prejudice is determined by balancing aggravating and mitigat-
ing circumstances. See Strickland, 466 U.S. at 695. Accordingly, I believe
that Hovey and Douglas support my view that Cox was prejudiced by the
omission of his extensive childhood abuse, notwithstanding strong aggra-
vating evidence.
 COX v. AYERS 10463
of Cox’s childhood and presented evidence of the severe
abuse and trauma that Cox experienced as a child, there is a
reasonable probability that at least one juror would have felt
sympathy for Cox and voted differently. See Wiggins, 539
U.S. at 537. Accordingly, “consider[ing] all the relevant evi-
dence that the jury would have had before it if [Cox’s attor-
neys] had pursued a different path,” Belmontes, 130 S. Ct. at
386, Cox’s attorneys’ failure to obtain and present evidence
of Cox’s extensive childhood abuse was prejudicial.

D. The Length of the Jury’s Deliberations During the
Death Penalty Phase Supports a Finding of
Prejudice

I also believe that the length of the jury’s deliberations dur-
ing the penalty phase of Cox’s trial strongly supports a find-
ing of prejudice. See e.g. Daniels v. Woodford, 428 F.3d
1181, 1209 (9th Cir. 2005) (finding prejudice, in part, because
“[t]he jury deliberated for two days before returning a verdict
of death”). Here, the jury deliberated for three days during the
penalty phase of Cox’s trial and asked to see key pieces of
evidence regarding the identity of the shooter. The length of
the jury deliberations and the jury’s request for additional evi-
dence indicates that the jury’s decision to impose a sentence
of death was not an easy one and that any additional mitigat-
ing evidence may have changed the outcome.

Accordingly, I believe that a reasonable probability exists
that the additional mitigating evidence of childhood abuse
would have led at least one juror to vote for a sentence of life
in prison rather than a sentence of death.

III. Conclusion

At the time of the murders, Cox was eighteen years old.
Although the jury was left with the incorrect impression that
Cox had experienced a fairly normal childhood, the record
demonstrates that Cox suffered severe abuse at the hands of
10464 COX v. AYERS
his mother and was routinely exposed to extreme violence. I
believe that Cox’s attorneys provided ineffective assistance
by failing to obtain and present evidence of Cox’s severe
childhood abuse, which was readily available in Cox’s depen-
dency court file and in Cox’s mother’s arrest records and
court files. Had this evidence been presented to the jury, a
reasonable probability exists that this evidence would have
evoked sympathy for Cox and led at least one juror to vote for
a sentence of life in prison rather than death.10

Accordingly, I dissent.

10
In the face of counsel’s clear ineffective assistance at the penalty
phase of Cox’s trial, I see no need to reach the shackling issue.