FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SCOTT DETRICH,
Petitioner-Appellant, No. 08-99001
v.
D.C. No.
4:03-cv-00229-DCB
CHARLES L. RYAN,* OF ARIZONA
DEPARTMENT OF CORRECTIONS, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
January 27, 2010—Pasadena, California
Filed August 20, 2010
Before: Harry Pregerson, M. Margaret McKeown, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
*Charles L. Ryan is substituted for his predecessor Dora B. Schriro as
Director of the Arizona Department of Corrections. Fed. R. App. P.
43(c)(2).
12429
DETRICH v. RYAN 12435
COUNSEL
Jennifer S. Bedier (argued), Arizona Capital Representation
Project, and Gregory J. Kuykendall, Kuykendall & Asso-
ciates, Tucson, Arizona, for petitioner-appellant David Scott
Detrich.
Terry Goddard, Attorney General; Kent E. Cattani (argued),
Chief Counsel; and Donna J. Lam, Assistant Attorney Gen-
eral, Tucson, Arizona, for respondent-appellee Dora B.
Schriro.
OPINION
PAEZ, Circuit Judge:
An Arizona judge sentenced David Scott Detrich to death
after a jury convicted him of murder, kidnapping, and sexual
abuse. After exhausting his state remedies, Detrich filed a
petition for habeas corpus in federal district court alleging,
among other things, that his trial counsel was unconstitution-
ally ineffective at the penalty phase for failing to investigate
and present substantial mitigating evidence and for failing to
rebut the state’s arguments that aggravating circumstances
warranted a death sentence.1 Applying the standards of the
Antiterrorism and Effective Death Penalty Act of 1996
1
Detrich also raised claims relating to the guilt phase of his trial. We
address those claims in a memorandum disposition filed concurrently with
this opinion.
12436 DETRICH v. RYAN
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, the district
court denied relief. We reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Crime
As recounted in the Arizona Supreme Court’s opinion on
direct appeal, Detrich and a co-worker, Alan Charlton, left
work on November 4, 1989, and went to a local bar in Ben-
son, Arizona, where the two consumed between 12 and 24
beers each, according to Charlton’s estimate. State v. Detrich
(Detrich II), 932 P.2d 1328, 1331 (Ariz. 1997). The men then
drove to Tucson, where they drank more beer at more bars.
Id. Later that night, they picked up Elizabeth Souter, the even-
tual victim, who was walking along the road. Id. At Detrich’s
request, Souter directed him to a “roadhouse” where he could
buy cocaine. Id. The two men and Souter then drove to Sou-
ter’s home, where Detrich attempted to cook the cocaine in a
spoon so that it could be injected. Id. When the syringe would
not pick up the cocaine, Detrich began screaming that “the
needle wasn’t any good, or the cocaine wasn’t any good” and
told Souter that she would have to pay for the bad drugs by
having sex with him. Id. Three witnesses—Charlton and two
others—reported that Detrich was holding a knife against
Souter’s throat. Id.
Detrich then told Souter they were going for a ride, and
Detrich, Charlton, and Souter left in Charlton’s car. Id. Charl-
ton drove, Detrich sat in the middle, and Souter sat on the pas-
senger side, against the door. Id. Charlton testified that, while
stopped at a red light, he saw Detrich “humping” Souter and
asking her how she liked it. Id. Soon thereafter, Charlton
looked again and saw that Souter’s throat was slit. Id. Charl-
ton further testified that Detrich then hit Souter and asked her
who gave her the drugs, and that Souter only gurgled in
response. Id. at 1331-32. Detrich asked twice more, and Sou-
ter again responded with only a gurgle. Id. at 1332. Charlton
DETRICH v. RYAN 12437
claims that he never saw Detrich actually stab Souter, but that
he himself was poked in the arm with a knife several times.
Id. A pathologist established that Souter was stabbed forty
times. Id.
Charlton testified that, at this point, Detrich said to him,
“It’s dead but it’s warm. Do you want a shot at it?” Id. Charl-
ton declined. Id. The two pulled over in a remote area approx-
imately fifteen minutes from Souter’s home, and Detrich
dragged Souter’s body into the desert. Id. The two men then
drove to a friend’s house in Tucson. Id. The friend testified
that the men showed up at his house at 4 a.m., that Detrich
was covered in blood, and that Charlton had blood only on his
right side. Id. About an hour later, Detrich told the friend that
he had killed a girl by slitting her throat because she had
given them bad drugs. Id.
Several days later, the friend called in an anonymous tip to
the police. Id. Based on the tip, the police arrested Charlton,
who confessed to his involvement in the crime. Id. Several
days later, Detrich was arrested in New Mexico with a folding
knife in his possession. Id. Although Charlton admitted the
knife was his, he explained that it often fell out of his pants,
and that Detrich had the knife on the night of the murder and
the next morning, when it was covered in blood. Id.
Charlton entered into a plea bargain under which he
pleaded guilty to kidnapping and agreed to testify against Det-
rich in exchange for the prosecution dropping the capital mur-
der charge against him. Charlton was sentenced to ten and a
half years’ imprisonment.
B. 1990-1991 Trial, Sentencing, and Appeal
Detrich was charged with first-degree murder, kidnapping,
and sexual assault. State v. Detrich (Detrich I), 873 P.2d
1302, 1304 (Ariz. 1994). Detrich’s first trial ended in a mis-
trial when a prosecution witness mentioned that Detrich had
12438 DETRICH v. RYAN
invoked his right to remain silent at one point during the
investigation. Id. After a retrial, the jury convicted Detrich of
first-degree murder and kidnapping, acquitted him of sexual
assault, and convicted him of the lesser-included offense of
sexual abuse. Id. The state sought the death penalty. See id.
at 1303.
Pursuant to Arizona law, the sentencing judge held a hear-
ing to determine whether aggravating and mitigating circum-
stances were present. See Ariz. Rev. Stat. § 13-703(B) (1995).2
Under Arizona law at the time, if the sentencing judge found
one or more of ten enumerated aggravating circumstances, he
had to impose the death penalty unless mitigating circum-
stances outweighed the aggravating factors. Id. § 13-703(E).
At the sentencing hearing, the prosecution urged the court to
find as an aggravating circumstance that the crime was “espe-
cially cruel, heinous, or depraved.”
In response, defense counsel noted that a doctor had testi-
fied that he could not tell whether the victim had actually
experienced conscious, physical pain and suffering and urged
the court to find several mitigating circumstances. First, coun-
sel argued that Detrich did not have the capacity to appreciate
the wrongfulness of his acts or to conform his conduct to the
law due to his extreme intoxication, and possible black-out, at
the time of the murder. In support of this argument, counsel
noted that Detrich had no known pattern of aggressive behav-
ior and that Detrich’s problems with alcohol had existed since
he was nine years old. Further, defense counsel urged the
court to find as mitigating circumstances Detrich’s co-
defendant’s mere ten-and-a-half-year sentence and Detrich’s
remorse.
Three days after this hearing, the trial judge sentenced Det-
rich to death, concluding that the murder had been committed
2
Unless otherwise indicated, all citations to Arizona Revised Statutes
§ 13-703 are to the 1995 version of the law.
DETRICH v. RYAN 12439
in an “especially cruel, heinous, and depraved” manner, and
that no mitigating circumstances were proven.
Detrich appealed his conviction and sentence to the Ari-
zona Supreme Court. See Detrich I, 873 P.2d at 1303. That
court reversed his kidnapping and murder convictions because
of a defective jury instruction and remanded for a new trial on
those charges. Id. at 1306 07.
C. 1994-1995 Trial, Sentencing, and Appeal
New counsel, Harold Higgins, was appointed for Detrich’s
retrial. The jury convicted Detrich of kidnapping and first-
degree murder, but did not unanimously agree on a single the-
ory of first-degree murder: nine jurors found premeditation;
eleven found felony murder; and eight found both.
The prosecution sought the death penalty and filed a sen-
tencing memorandum alleging as an aggravating circumstance
that the crime was especially cruel, heinous, and depraved,
and arguing that this aggravating factor outweighed the miti-
gating factors. In response, Detrich’s counsel filed a three-
page sentencing memorandum that did not challenge the
state’s aggravation case, and instead argued that the court
should not impose the death penalty because the jury’s lack
of unanimity about whether Detrich had committed premedi-
tated murder or just felony murder indicated that the jury was
not convinced that Detrich actually committed the murder. In
addition, the memorandum pointed to new evidence presented
at the second trial that suggested that Charlton, not Detrich,
may have actually killed Souter.
The sentencing memorandum also listed five mitigating
factors, with little elaboration or argument: Detrich’s dimin-
ished capacity due to voluntary intoxication, his “abusive
background,” his lack of previous convictions involving seri-
ous injury or threat thereof, his remorse, and the minimal sen-
tence received by his co-defendant. The only elaboration on
12440 DETRICH v. RYAN
any of these factors was a note that Detrich’s “abusive back-
ground” was “[f]ully detailed in” an October 18, 1994, letter
from Detrich’s sister, and an explanation that “[t]he evidence
was clear that Defendant Detrich was highly intoxicated due
to alcohol at the time of the incident, and perhaps had also
ingested cocaine. In addition, [the sister’s letter] makes it
clear Defendant has a lengthy history of alcohol abuse and
was encouraged into same by his parent-figures.”
Higgins did little to bolster these arguments. He did not
employ a mitigation investigator, nor did he ask his investiga-
tor, James Williams, to investigate mitigating evidence. In
any event, Williams was not qualified to do a life history
investigation. At most, Williams made phone calls to family
members, but no one responded. According to Detrich’s sis-
ter, Diana Jo Stevens, someone from the defense team con-
tacted her shortly before the sentencing hearing and asked her
to write a letter “about David.” She wrote the letters not
knowing what to include or for what purpose they would be
used. In all, Higgins spent only ten and a half hours on the
penalty phase of Detrich’s trial, including the time spent at the
penalty-phase hearings themselves.
In February 1995, the court held an aggravation/mitigation
hearing. At the beginning of the hearing, Higgins gave the
sentencing judge two more letters, totaling ten hand-written
pages, from Detrich’s sister, Diana Jo Stevens. One letter pro-
vided information about Detrich’s abusive childhood, and the
other letter simply made a plea for mercy. To give himself
time to consider these newly submitted letters, the trial judge
scheduled the sentencing for two days later.
At the aggravation/mitigation hearing, the prosecution
argued that the crime was “especially cruel, heinous, [and]
depraved,” an aggravating circumstance that could authorize
a death sentence under Arizona Revised Statutes § 13-
703(F)(6). The prosecution argued that the crime was “espe-
cially cruel” because Souter suffered a slit throat and forty-
DETRICH v. RYAN 12441
five knife injuries, some of which were defensive; because
she was conscious during some of the attack, as indicated by
her gurgling attempts to respond to Detrich’s questions; and
because she suffered mentally when she was held at
knifepoint and threatened with sexual assault. In addition, the
prosecution argued that the crime was “especially heinous or
depraved” because it involved gratuitous violence, “well
beyond that required to accomplish the killing”; because Det-
rich apparently relished the murder, as evidenced by his ask-
ing Charlton if he “want[ed] a shot” at the dead body and his
telling a friend the next morning that he slit her throat because
she had gotten him bad drugs; because the killing was sense-
less; and because the victim was helpless.
Higgins responded with three arguments: (1) Detrich was
not death-eligible under Tison v. Arizona, 481 U.S. 137
(1987), because he did not actually commit the murder, (2)
the crime was not especially cruel, heinous, or depraved, and
(3) mitigating circumstances called for leniency. First, Hig-
gins argued that Detrich was not death-eligible under Tison v.
Arizona, given the “many uncertainties that now exist as to
what specifically happened, and as to who did what.” In sup-
port of this argument, Higgins pointed to new evidence pres-
ented in Detrich’s second trial suggesting that Detrich may
not have actually committed the murder. Higgins argued that
the jurors’ failure to reach unanimous agreement that Detrich
had committed premeditated murder reflected their doubt
about Charlton’s testimony that Detrich had murdered the vic-
tim. According to Higgins, if Detrich was not the perpetrator,
he was not death-eligible under Tison.
Second, to rebut the prosecution’s aggravation case, Hig-
gins argued that the uncertainty about who actually committed
the murder prevented finding that Detrich had acted in a cruel,
heinous, or depraved manner. In addition, Higgins argued that
many of the knife wounds were “minor”; that it was unclear
whether Souter lived, and suffered, after the first of the most
serious wounds was inflicted; and that Charlton’s statement
12442 DETRICH v. RYAN
that Detrich had asked him if he “want[ed] a shot at” the dead
body was of questionable credibility.
Third, Higgins argued that mitigating circumstances war-
ranted leniency. In support of his mitigation case, Higgins cal-
led no witnesses, introduced as evidence only the three letters
from Detrich’s sister, Diana Jo Stevens, and made a short
argument spanning only five transcript pages.
In his mitigation argument, Higgins first contended that
Detrich’s intoxication at the time of the crime diminished his
capacity to appreciate the wrongfulness of his conduct. Hig-
gins explained that Detrich had a longstanding problem with
alcohol, as he had been “encouraged by a parent at a very,
very early age to engage in this type of alcohol abuse,” and
that, given this history, Detrich’s intoxication should not be
considered fully “voluntary.” As the pre-sentence report
(“PSR”) and letters from Detrich’s sister reported, Detrich
had begun using alcohol at age eight or nine at the encourage-
ment of his step-father, Skip. When Skip and Detrich’s
mother would fight, Skip would take Detrich and leave, and
the two would stay out drinking all night long. When Detrich
was about fifteen years old, he could guzzle a half-pint of
whiskey in one drink for Skip’s friends. Once, Skip and Det-
rich went on a week-long drinking spree and ended up three
hundred miles away.
Higgins next briefly pointed to abuse Detrich suffered as a
child as a mitigating factor. According to the letters from Det-
rich’s sister, Detrich had suffered physical and mental abuse
and had been introduced to drinking by his parents. Although
Higgins did not present any live witnesses or other evidence
that would compellingly portray Detrich’s abusive childhood,
the sentencing judge was aware of the basic facts of Detrich’s
upbringing from the PSR, psychological reports (none of
which Higgins had provided the court), and the letters from
Detrich’s sister. In particular, the sentencing judge knew that
Detrich was born with a cleft palate that was surgically cor-
DETRICH v. RYAN 12443
rected, that his parents divorced when he was young, and that
he and his siblings began living with their father after his
father and step-mother refused to let them return to their
mother’s home after a two-week visit. The sentencing judge
knew that Detrich was “severely mistreated and frequently
physically abused” by his step-mother, Jean, who frequently
told the children how much she hated them and did not want
them around, once held Detrich underwater in the bathtub,
and once tied him to a post outside, telling him he was no bet-
ter than a dog. Detrich sometimes wet the bed at night, and
Jean would spank him with a belt, make him wash the sheets
before school, and publicly humiliate him about it. Once, Jean
pushed Detrich’s brother, Danny, down the basement steps
and then put a pistol to Danny’s head, screaming that she
would kill the kids if they told their father what happened.
After five years with their father, Detrich and his siblings
moved back with their mother and Skip. Skip was verbally
and physically abusive to Detrich’s mother, who abused drugs
and was “just there.” As a child, Detrich would sometimes
leave for two or three weeks, and his mother would never ask
him where he had been.
At the aggravation/mitigation hearing, Higgins next pointed
out that Detrich had no prior criminal record involving vio-
lence and that he had exhibited remorse about having been
involved in the crime. Additionally, Higgins suggested that
the short sentence given to Charlton should constitute a miti-
gating circumstance. Finally, Higgins urged the court to con-
sider as mitigation the fact that Detrich had a ten-year-old
son, “who ought to have some contact with some fatherly
influence.”
The prosecutor then rebutted defense counsel’s arguments
that there was residual doubt about who actually committed
the murder and that mitigating circumstances warranted a sen-
tence less than death. The prosecutor dismissed the evidence
of Detrich’s abusive childhood because “there has to be some
kind of causal connection between the abuse or the dysfunc-
12444 DETRICH v. RYAN
tional family background and the conduct.” Higgins did not
respond to this, or any other, argument.
Two days later, the court sentenced Detrich to death. The
court found that Detrich was death-eligible under Tison and
that the prosecution had proved the statutory aggravating cir-
cumstance that the crime was especially cruel, heinous, and
depraved.
The court also found five mitigating circumstances to be
present, but ascribed them little weight. Specifically, the court
found as mitigating circumstances the fact that Detrich’s
intoxication significantly impaired his capacity to appreciate
the wrongfulness of his conduct or to conform his conduct to
the law, his abusive background, his remorse, his lack of prior
convictions involving violence, and the fact that his intoxica-
tion on the night of the murder stemmed from a longstanding
history of alcohol and substance abuse. The court found that
these mitigating factors were “not sufficiently substantial to
outweigh the aggravating circumstances [sic] of having com-
mitted this offense in an especially cruel, heinous or depraved
manner” and accordingly sentenced Detrich to death.
Detrich again appealed his conviction and sentence to the
Arizona Supreme Court. See Detrich II, 932 P.2d at 1331. The
Supreme Court affirmed Detrich’s sentence and convictions.
Id. at 1340.
D. State Petition for Post-Conviction Relief
Detrich filed a petition for post-conviction relief in state
court, alleging, among other things, that his trial counsel was
ineffective for failing to present mitigating evidence and for
failing to present an expert witness to rebut the state’s aggra-
vation case. Detrich’s post-conviction counsel repeatedly
requested funding for an investigator to assist in preparing
Detrich’s petition for post-conviction relief or, in the alterna-
tive, an evidentiary hearing on this request. The court denied
DETRICH v. RYAN 12445
the requests and ultimately ruled on the petition without
appointing an investigator or holding an evidentiary hearing.
The post-conviction court, however, did grant funding for
a neuropsychological expert, Dr. Robert Briggs, who pro-
duced a report on Detrich’s neuropsychological functioning.
The report concluded that Detrich’s decision-making, espe-
cially when compromised by alcohol, “was not based on any
consequence-driven thought process, but rather a leaned [sic]
behavior that bypassed right or wrong.” According to Dr.
Briggs, Detrich’s abuse led him to develop a “mindset . . . in
which instinct took over and reason could not be accessed.”
On neuropsychological testing, Detrich performed “in the nor-
mal range of psychological function,” earning a score of 25
on a scale for which scores between 0 and 26 were normal.
Dr. Briggs’s report explained, however, that this represented
“a recovered picture,” and that “improvement in function
occurs as time (and sobriety) from the incidents [of head inju-
ries and drug use] increase.” Dr. Briggs further opined that an
interaction between Detrich’s emotional status and mild
neuropsychological deficits likely caused a greater overall
impairment in function. Finally, the report concluded, among
other things, that, as would be expected given his abusive
childhood, Detrich was immature, alienated, self-indulgent,
aggressive, impulsive, hostile, resentful, and irritable; that his
abusive childhood could have taught him to use violence; and
that he may have antisocial or paranoid personality or para-
noid disorder. Detrich’s post-conviction counsel requested an
evidentiary hearing on the neuropsychological findings,
explaining that Dr. Briggs could testify that Detrich was brain
damaged and impulsive, and that his impulsiveness, combined
with the effects of alcohol, constituted mitigating circum-
stances. The state court denied the request.
This report supplemented other new evidence that counsel
presented to the state post-conviction court. As exhibits to the
petition for relief, counsel attached statements by Detrich’s
mother, sister, and step-father that provided additional details
12446 DETRICH v. RYAN
about the abuse Detrich suffered as a child, the custody battle
between his mother and father, his history of drinking alcohol
with his step-father beginning at a young age, and car and
motorcycle accidents that he had when he was younger.
In his petition for post-conviction relief, Detrich also con-
tended that his trial counsel was ineffective for failing to pres-
ent expert pathologist testimony that would have rebutted the
state’s argument that the crime was especially cruel, heinous,
or depraved by showing that Souter did not actually suffer.
After considering Detrich’s arguments and the new mitigat-
ing evidence, the court summarily denied all of Detrich’s
claims. The state moved for reconsideration to clarify the
court’s findings in order to “insulate [them] from unwarranted
federal review.” The state submitted a proposed order, which
the court adopted as its ruling on the petition for post-
conviction relief. The order—the last and only reasoned state-
court judgment—dismissed in one paragraph Detrich’s claim
of ineffective assistance of counsel for failure to present miti-
gating evidence at the sentencing phase:
Petitioner has not presented a colorable claim that
trial counsel was ineffective at the sentencing stage
of the proceedings for failing to have Dr. Briggs, a
neuropsychologist, testify on Petitioner’s behalf, or
to present additional evidence of Petitioner’s abusive
background. After considering the initial psychologi-
cal report, the presentence report, a sentencing mem-
orandum, and written statements from Petitioner’s
sister citing multiple examples of both physical and
mental abuse suffered by Petitioner as a child, this
Court found statutory and non-statutory mitigating
circumstances. Dr. Briggs’ report was not signifi-
cantly different from the report considered by this
Court. Indeed Dr. Briggs found that Petitioner’s gen-
eral neuropsychological functioning was normal and
showed an absence of cognitive dysfunction. There-
DETRICH v. RYAN 12447
fore, there is no reasonable probability that this testi-
mony would have compelled this Court to impose a
sentence less than death. Moreover, additional evi-
dence of Petitioner’s dysfunctional childhood would
have been merely cumulative and was not “newly
discovered.” This claim is summarily dismissed.
The court similarly dismissed, in one short paragraph, Det-
rich’s claim that his counsel was ineffective for failing to
rebut the state’s aggravation case:
Petitioner failed to present a colorable claim that his
trial counsel was ineffective in failing to retain an
expert to rebut the State pathologist’s testimony that
the victim could have made “gurgling” sounds in
response to questioning by Petitioner, after sustain-
ing knife wounds to her throat. Contrary to an affida-
vit submitted by Petitioner, there was no testimony
that the victim “engaged in conversation” or was
conscious for a long period of time. The victim sus-
tained four serious wounds to the neck, and it is
merely speculative to assume that the victim’s
attempt to respond occurred after the most serious
wound. No prejudice accrued to Petitioner, in any
event, because evidence other than Charlton’s testi-
mony regarding the “gurgling” sounds independently
supported a finding of cruelty at sentencing. Petition-
er’s claim that expert rebuttal testimony would have
discredited Charlton’s credibility is unavailing,
where overwhelming evidence apart from Charlton’s
testimony supported the finding that Petitioner com-
mitted the murder. This claim is summarily dis-
missed.
In its conclusion, the court further clarified that “the Court
finds that neither prong of the Strickland v. Washington test
has been met as to any claims of ineffective assistance of
12448 DETRICH v. RYAN
counsel.” Detrich appealed, but the Arizona Supreme Court
denied review.
E. Federal Habeas Petition
Detrich filed a habeas petition in federal district court on
April 29, 2003. The district court dismissed most of Detrich’s
claims without an evidentiary hearing, including his claim
that his counsel was unconstitutionally ineffective at sentenc-
ing for failing to present expert evidence to rebut the state’s
aggravation case. The district court did, however, hold a four-
day evidentiary hearing on Detrich’s claim of ineffective
assistance of counsel at sentencing for failure to investigate
and present mitigating evidence. At the hearing, Detrich’s
new counsel presented eighty-seven exhibits and called six
live witnesses.
The district court concluded that Detrich’s counsel per-
formed deficiently by failing to investigate and present miti-
gating evidence. The court nonetheless denied relief because
it found that Detrich suffered no prejudice from his trial coun-
sel’s deficient performance. According to the district court,
“despite extensive additional investigation into [Detrich’s]
background and mental health, [Detrich] has not discovered
significant new or more weighty mitigation than was consid-
ered by the sentencing judge.” Detrich appealed, and the dis-
trict court granted a certificate of appealability on his claim
that trial counsel was ineffective for failing to investigate and
present mitigating evidence. We later also granted a certifi-
cate of appealability on his claim that trial counsel was inef-
fective for failing to rebut the state’s aggravation case and on
the two guilt-phase claims that we address in a concurrently
filed memorandum disposition.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 2253. We review
de novo the district court’s denial of Detrich’s petition for
DETRICH v. RYAN 12449
habeas corpus, and we review the district court’s findings of
fact for clear error. Brown v. Ornoski, 503 F.3d 1006, 1010
(9th Cir. 2007). Because Detrich filed his federal habeas peti-
tion after 1996, the AEDPA governs his action. Id.
The AEDPA requires that we defer to the last reasoned
state court decision. Id. Specifically, 28 U.S.C. § 2254 pro-
vides that a federal court may grant a state prisoner’s habeas
petition with respect to a claim that was “adjudicated on the
merits in State court proceedings” only if the state court’s
adjudication:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d).
For purposes of § 2254(d)(1), “clearly established Federal
law” consists only of the holdings, and not the dicta, of
Supreme Court opinions as of the time of the state court deci-
sion. Terry Williams v. Taylor, 529 U.S. 362, 412 (2000).
However, we can also consider circuit precedent in assessing
what constitutes “clearly established” Supreme Court law and
whether the state court applied that law unreasonably. Clark
v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003).
A state court decision is “contrary to” federal law under
§ 2254(d)(1) if it applies a rule that contradicts the governing
law set forth in Supreme Court cases or if it “confronts a set
of facts that are materially indistinguishable from a decision
of this Court and nevertheless arrives at a result different from
[Supreme Court] precedent.” Terry Williams, 529 U.S. at
405-06.
12450 DETRICH v. RYAN
A state court decision involves an “unreasonable applica-
tion” of federal law under § 2254(d)(1) if “the state court
identifies the correct governing legal rule from this Court’s
cases but unreasonably applies it to the facts of the particular
state prisoner’s case” or if it “either unreasonably extends a
legal principle from our precedent to a new context where it
should not apply or unreasonably refuses to extend that prin-
ciple to a new context where it should apply.” Terry Williams,
529 U.S. at 407. The Supreme Court need not have applied a
specific legal rule to a closely analogous fact pattern for the
state court’s decision to constitute an unreasonable applica-
tion of clearly established federal law because “even a general
standard may be applied in an unreasonable manner.” Panetti
v. Quarterman, 551 U.S. 930, 953 (2007). A state court deci-
sion will involve an “unreasonable application” of clearly
established federal law, however, only if the state court’s
decision was “objectively unreasonable,” and not merely
incorrect. Terry Williams, 529 U.S. at 409-10.
Finally, a state court’s determination of fact is “unreason-
able” under § 2254(d)(2) only if this court is “convinced that
an appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is sup-
ported by the record [before the state court].” Taylor v. Mad-
dox, 366 F.3d 992, 1000 (9th Cir. 2004).
In certain circumstances a federal court may also consider
new evidence presented for the first time in the federal pro-
ceedings. See 28 U.S.C. § 2254(e)(2). When we consider such
new evidence, we presume that the state court’s factual find-
ings are correct unless the petitioner rebuts that presumption
with clear and convincing evidence. 28 U.S.C. § 2254(e)(1);
see Taylor, 366 F.3d at 1000.
III. DISCUSSION
Detrich contends that his trial counsel was ineffective
because he failed to investigate and present mitigating evi-
DETRICH v. RYAN 12451
dence including social background and expert neuropsy-
chological testimony at the penalty phase.3 In reviewing this
claim, we apply the “clearly established” standard for analyz-
ing ineffective assistance claims that the Supreme Court set
forth in Strickland v. Washington, 466 U.S. 668 (1984). See
Terry Williams, 529 U.S. at 391 (“It is past question that the
rule set forth in Strickland qualifies as ‘clearly established
Federal law, as determined by the Supreme Court of the
United States.’ ”). Under Strickland, to prevail on his ineffec-
tive assistance of counsel claim, Detrich must show (1) “that
counsel’s performance was deficient,” and (2) “that the defi-
cient performance prejudiced the defense.” Strickland, 466
U.S. at 687.
A. Deficient Performance
We first consider whether the state court unreasonably
applied Strickland when it concluded that Detrich’s counsel
did not perform deficiently by failing to investigate and pres-
ent mitigating evidence at sentencing.4 Under Strickland,
counsel’s performance is deficient if, considering all the cir-
cumstances, it “fell below an objective standard of reason-
ableness . . . under prevailing professional norms.” Id. at 688.
In evaluating counsel’s performance as compared to these
3
Detrich also contends that his counsel was unconstitutionally ineffec-
tive because he failed to offer expert forensic testimony to rebut the state’s
argument that the crime was especially cruel, heinous, and depraved.
Because we conclude that Detrich is entitled to relief based on his coun-
sel’s failure to investigate and present mitigating evidence, we do not
reach this second claim of ineffective assistance.
4
Although the state court provided no reasoning to support its conclu-
sion that Detrich failed to establish deficient performance under Strick-
land, its decision nonetheless is entitled to AEDPA deference. See Himes
v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (applying AEDPA defer-
ence to a state court decision issued without explanation). Where a state
court makes a decision on the merits but offers no supporting reasoning,
a federal court must “perform an independent review of the record to
ascertain whether the state court decision was objectively unreasonable.”
Id. (internal quotations and citation omitted).
12452 DETRICH v. RYAN
“prevailing professional norms,” we may refer to American
Bar Association (“ABA”) guidelines in effect at the time of
the representation “as evidence of what reasonably diligent
attorneys would do.” Bobby v. Van Hook, 130 S. Ct. 13, 17
(2009); see also Strickland, 466 U.S. at 688. Our review of
counsel’s representation is “highly deferential,” as we apply
“a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance” and that
counsel’s challenged omission “might be considered sound
trial strategy.” Strickland, 466 U.S. at 689.
[1] Strickland establishes that “counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Id. at 691.
The Supreme Court has since made clear that this duty
includes an obligation to “conduct a thorough investigation of
the defendant’s background.” Terry Williams, 529 U.S. at
396; see also Porter v. McCollum, 130 S. Ct. 447, 452 (2009)
(per curiam) (finding it “unquestioned” that counsel had this
duty “under the prevailing professional norms” in 1989). Det-
rich’s trial counsel, Harold Higgins, made no such reasonable
investigation here, nor did he make any reasonable decision
that made a thorough investigation unnecessary. Indeed,
applying AEDPA deference, the Supreme Court has found
deficient performance in cases where sentencing counsel did
more than Higgins. We accordingly conclude that the Arizona
post-conviction court unreasonably applied the clearly estab-
lished federal law of Strickland when it concluded that Det-
rich’s sentencing counsel’s performance was not deficient.
1. No reasonable investigation
Detrich contends that Higgins devoted unreasonably little
time to penalty phase preparations, failed to seek reasonably
available mitigating evidence, and unreasonably failed to
enlist the assistance of a mental health expert. We agree.
[2] Higgins did not begin work on Detrich’s penalty phase
until after the jury’s guilty verdict and two weeks before the
DETRICH v. RYAN 12453
sentencing hearing. Higgins thus began preparing for the pen-
alty phase even later than the counsel whom the Supreme
Court found ineffective in Terry Williams v. Taylor, who had
delayed penalty phase preparations until a week before trial.
Terry Williams, 529 U.S. at 395. And Higgins’s delayed initi-
ation of penalty-phase preparations fell even further below the
standards reflected in the ABA guidelines in place at the time,
which provided that counsel should begin conducting an
investigation relating to the penalty phase of a capital trial
immediately upon taking the case. Am. Bar. Ass’n, Guide-
lines for the Appointment and Performance of Defense Coun-
sel in Death Penalty Cases 11.4.1 (1989) [hereinafter 1989
ABA Guidelines], available at http://www.abanet.org/
deathpenalty/resources/docs/1989Guidelines.pdf. With prepa-
rations delayed for so long, Higgins then spent only ten and
a half total hours on the penalty-phase of Detrich’s case.
[3] Higgins also did not employ a mitigation investigator,
nor did he ask his investigator, who in any event was not
qualified to do a life history investigation, to investigate miti-
gating evidence. At most, the investigator made phone calls
to family members, with no response. According to Detrich’s
sister, Diana Jo Stevens, someone from the defense team con-
tacted her shortly before the sentencing hearing and asked her
simply to write a letter “about David.” This fell below the pre-
vailing professional standards as reflected in the 1989 ABA
guidelines, which provided that the penalty-phase investiga-
tion for a capital trial should “comprise efforts to discover all
reasonably available mitigating evidence,” by drawing on
sources including an interview with the accused, interviews
with potential witnesses familiar with the defendant’s life his-
tory, and expert assistance. 1989 ABA Guidelines at
11.4.1(C), (D).
[4] Higgins’s minimal investigation cannot be justified by
any reasonable reliance on the previous investigation con-
ducted by Detrich’s counsel at his first sentencing in 1991. As
Higgins himself acknowledged, Detrich’s first trial counsel
12454 DETRICH v. RYAN
had conducted only a “very minimal” sentencing phase inves-
tigation and provided only a “very skeletal and not particu-
larly useful file.” Moreover, the first trial counsel’s mitigation
presentation had proven decidedly ineffective: after consider-
ing the minimal mitigating evidence that Detrich’s first trial
counsel presented, the trial judge found no mitigating factors
to be present and accordingly sentenced Detrich to death.
[5] Higgins’s extremely limited mitigation investigation
was all the more unreasonable in light of the indications in the
pre-sentence report, letters from Detrich’s sister, and 1985
and 1991 psychological reports—all of which Higgins had seen5
—that Detrich’s past likely contained many mitigating cir-
cumstances. These documents put Higgins on notice that Det-
rich had an extremely troubled childhood involving abuse by
his step-mother, alcohol abuse encouraged by his step-father
starting at a very young age, a prolonged custody battle
between his parents, drug abuse by his mother, and frequent
absences from school. Despite this evidence that Detrich’s
background contained many mitigating circumstances, Hig-
gins did not investigate further.
[6] In this way, Higgins’s performance was strikingly simi-
lar to the counsel’s performance that the Supreme Court
found deficient in Wiggins v. Smith, 539 U.S. 510, 525
(2003). In Wiggins, the defendant’s attorneys had failed to
investigate thoroughly a capital defendant’s background, even
though their limited investigation had revealed that the defen-
dant’s mother was an alcoholic, that the defendant was shut-
tled from foster home to foster home as a child, that the
defendant frequently missed school, and that, at least once, his
mother had left him and his siblings alone for days without
food. Id. Applying AEDPA deference, the Supreme Court
held that the state court unreasonably applied Strickland in
5
The 1985 psychological report was attached to the pre-sentence report,
and Higgins acknowledged at the sentencing hearing that he had seen the
1991 psychological report.
DETRICH v. RYAN 12455
finding counsel’s performance adequate. Id. at 528-29.
According to the Supreme Court, “any reasonably competent
attorney would have realized that pursuing these leads was
necessary to making an informed choice among possible
defenses.” Id. at 525. Similarly, here, “any reasonably compe-
tent attorney” would have pursued an investigation into Det-
rich’s childhood and the effects his childhood traumas had on
him. Higgins’s failure to do so fell below professional stan-
dards under any reasonable application of Strickland.
[7] Compounding this deficiency, Higgins’s failure to con-
sult a mental health expert also fell below professional stan-
dards. The 1989 ABA guidelines provided that an attorney
“should secure the assistance of experts where it is necessary
or appropriate for . . . presentation of mitigation.” 1989 ABA
Guidelines at 11.4.1(D)(7)(D). According to the 1989 guide-
lines, counsel should consider enlisting experts “to provide
medical, psychological, sociological or other explanations for
the offense(s) for which the client is being sentenced [and] to
give a favorable opinion as to the client’s capacity for rehabil-
itation.” Id. at 11.8.3(F)(2). In addition, counsel should con-
sider presenting expert testimony concerning the defendant’s
medical, family, and social history “and the resulting impact
on the client, relating to the offense.” Id. at 11.8.6(B)(8).
Consulting these guidelines, we recently held in a post-
AEDPA case that the state court had unreasonably concluded
that counsel was not ineffective where he failed to enlist a
partisan mental health expert to help present a mitigation case
at a sentencing that took place around the same time as Det-
rich’s. Jones v. Ryan, 583 F.3d 626, 637-38, 640 (9th Cir.
2009); see State v. Jones, 917 P.2d 200 (Cal. 1996). In Jones
v. Ryan, sentencing counsel had presented a court-appointed
expert’s psychological analysis of the defendant as part of his
mitigation case. Jones, 583 F.3d at 630-31. Such an analysis
by a “neutral” court-appointed psychologist, however, did not
satisfy the defendant’s right to have “access to a competent
psychiatrist who will conduct an appropriate examination and
12456 DETRICH v. RYAN
assist in evaluation, preparation, and presentation of the
defense.” Id. at 638 (quoting Ake v. Oklahoma, 470 U.S. 68,
83 (1985)). Counsel could not reasonably rely on the “neu-
tral” expert’s testimony because “[t]he responsibility to afford
effective representation is not delegable to parties who have
no obligation to protect or further the interests of the defen-
dant.” Id. (quoting Lambright v. Schriro, 490 F.3d 1103,
1120-21 (9th Cir. 2007)) (emphasis in original).
[8] Detrich’s counsel did even less than the counsel whose
performance we found deficient in Jones. Higgins did not pro-
vide any expert mental health evaluations to the court, much
less use them to bolster his mitigation case; he presented no
live testimony by any mental health expert, court-appointed or
otherwise; and he admits that he did not enlist the assistance
of any mental health professional. Indeed, the only expert
mental health reports before the sentencing judge were two
1985 evaluations by a state psychologist and psychiatrist that
were attached to the PSR and a 1991 court clinic psycholo-
gist’s evaluation that the state had provided the court.6 In
other words, unlike Jones’s counsel, Detrich’s counsel pre-
sented no expert mental health evidence at all. The fact that
the sentencing judge had the 1985 and 1991 reports to con-
sider did not excuse this failure; Higgins could not reasonably
rely on these reports because they were not conducted by
“partisan” experts. See Jones, 583 F.3d at 640. What is more,
those reports were not based on a full account of Detrich’s
background and thus could not provide an “accurate profile of
the defendant’s mental health.” Caro v. Woodford, 280 F.3d
1247, 1254 (9th Cir. 2002) (noting that counsel have “an affir-
mative duty” to provide background information to mental
health experts).
6
The 1985 reports had been produced in connection with Detrich’s ear-
lier incarceration for writing worthless checks. The 1991 report was pro-
duced by a psychologist at a state-run clinic at the request of the attorney
who represented Detrich in his first trial for Souter’s murder.
DETRICH v. RYAN 12457
[9] Detrich’s counsel’s performance thus was strikingly
similar to, or even worse than, the performances found defi-
cient even after applying AEDPA deference in Terry Wil-
liams, Wiggins, and Jones. We therefore must conclude that
Detrich’s counsel’s failure to conduct a more thorough miti-
gation investigation and to enlist the assistance of a mental
health expert constituted deficient performance under Strick-
land, and that the state court decision to the contrary was
objectively unreasonable, unless special considerations made
a thorough mitigation investigation unnecessary in this partic-
ular case.
2. No reasonable decision that made a thorough
investigation unnecessary
[10] In some circumstances, a less-than-thorough mitiga-
tion investigation can nonetheless satisfy constitutional
requirements if it is based on “a reasonable decision that
makes particular investigations unnecessary.” Strickland, 466
U.S. at 691. The state contends that Higgins reasonably
decided not to pursue a mitigation investigation here (1)
because Detrich did not want to involve his family, and (2)
because Higgins reasonably chose to pursue a residual doubt
strategy that did not require a thorough mitigation investiga-
tion. We conclude that neither of these considerations justi-
fied limiting the mitigation investigation.
a
[11] Detrich’s purported desire not to involve his family,
and his family’s alleged unavailability, did not justify limiting
the mitigation investigation for three reasons. First, the record
does not show that Detrich in fact discouraged Higgins from
contacting his family. While the PSR and a letter from Det-
rich’s sister indicate that Detrich did not want to involve his
family in the first sentencing, nothing indicates that Detrich
felt the same way during his second sentencing, after having
received one death sentence.
12458 DETRICH v. RYAN
Second, even if Detrich did not want to involve his family,
or if his family was uncooperative, that would not excuse
Higgins’s failure to seek expert assistance to explain the miti-
gating evidence that was known or his failure to seek evi-
dence from other sources, such as medical records and records
from Detrich’s parents’ custody battle. Indeed, even where a
defendant is “actively obstructive,” counsel must investigate
available records. See Rompilla v. Beard, 545 U.S. 374, 381,
383, 389 (2005) (holding that the state court’s conclusion that
counsel did not perform deficiently was “objectively unrea-
sonable” under the AEDPA).
Third, even if Detrich’s desire not to involve his family in
his first sentencing could reasonably be understood as an
instruction not to present any mitigation case at all—which
we doubt it could—such an instruction would not excuse
counsel from conducting a thorough mitigation investigation.
“A defendant’s insistence that counsel not call witnesses at
the penalty phase does not eliminate counsel’s duty to investi-
gate mitigating evidence or to advise the defendant of the
potential consequences of failing to introduce mitigating evi-
dence, thereby assuring that the defendant’s decision regard-
ing such evidence is informed and knowing.” Williams v.
Woodford, 384 F.3d 567, 622 (9th Cir. 2004). Although a
defendant’s informed wishes can justify failing to present mit-
igating evidence, it cannot justify failing to investigate such
evidence because counsel retains a duty to inform his client
about the risks and potential benefits of presenting a mitiga-
tion case. See id.
b
[12] Detrich’s counsel’s sentencing-phase strategy of
emphasizing residual doubt about whether Detrich had actu-
ally committed the murder likewise did not make a thorough
mitigation investigation unnecessary. First, the record reveals
that Higgins made no strategic choice to emphasize residual
doubt to the exclusion of a classic mitigation presentation
DETRICH v. RYAN 12459
here. Higgins avowed in a declaration that his failure to con-
duct a thorough investigation of Detrich’s background, or to
present a fuller mitigation case at the penalty hearing, was not
based on a sentencing strategy. Indeed, he avowed that, had
he known the mitigating information about Detrich’s past and
mental health problems, he would have presented it. The fact
that Higgins did present a limited mitigation case to the sen-
tencing court corroborates this claim. See Wiggins, 539 U.S.
at 526 (reasoning that counsel’s presentation of a “halfhearted
mitigation case” demonstrated that the failure to put on a
stronger mitigation case was not a strategic choice).
Second, even if Higgins had made such a strategic choice,
that choice would not have been reasonable. The Supreme
Court has made clear that the investigation supporting a deci-
sion not to introduce mitigating evidence must be reasonable
because a thorough investigation is necessary to make “a fully
informed decision with respect to sentencing strategy.” Wig-
gins, 539 U.S. at 523, 527. Where a strategic choice is made
“ ‘after less than complete investigation,’ ” a court must defer
to that choice “only to the extent that ‘reasonable professional
judgments support the limitations on investigation.’ ” Id. at
533 (quoting Strickland, 466 U.S. at 690-91). As explained
above, Higgins did not reasonably limit the investigation here
because the information that Higgins knew about Detrich’s
past would have led “any reasonably competent attorney” to
pursue further investigation. See id. at 525. Because it would
not have been supported by a reasonable investigation, a strat-
egy focusing on residual doubt to the exclusion of a classic
mitigation defense would not have been reasonable.
[13] Moreover, we doubt that such a strategy would have
been reasonable here, even if supported by an adequate inves-
tigation. Where a judge is likely to find an aggravating factor
that would make the death penalty mandatory in the absence
of sufficient counterbalancing mitigating evidence, counsel’s
failure to make a strong mitigation case falls short of profes-
sional standards. Summerlin v. Schriro, 427 F.3d 623, 640
12460 DETRICH v. RYAN
(9th Cir. 2005). Here, it was likely that the sentencing judge
would find such an aggravating factor: the previous sentenc-
ing judge had found that the crime was especially heinous,
cruel, or depraved. And under Arizona law at the time, the
presence of this factor required imposition of the death pen-
alty unless the sentencing court found mitigating circum-
stances substantial enough to outweigh it. Ariz. Rev. Stat.
§ 13-703. Under Summerlin, professional standards therefore
required Higgins to present a strong mitigation case. He did
not. Indeed, he did little to supplement the mitigation case
from Detrich’s first sentencing that had led the first sentenc-
ing judge to find no mitigating factors, much less sufficiently
weighty ones. The only new evidence Higgins offered in sup-
port of leniency were the three letters from Detrich’s sister.
[14] For these reasons, no special consideration justified
Higgins’s failure to pursue a thorough mitigation investiga-
tion here. Neither Detrich’s purported wish not to involve his
family nor his counsel’s purported strategic choice to pursue
a residual doubt strategy at sentencing made a thorough miti-
gation investigation unnecessary. Higgins’s performance was
therefore deficient under Strickland, and the state court’s
decision to the contrary was objectively unreasonable.
B. Prejudice
[15] Having concluded that the state court unreasonably
held that Detrich’s counsel did not perform deficiently, we
must next determine whether the deficient performance preju-
diced Detrich’s defense. See Strickland, 466 U.S. at 687.
Under Strickland, counsel’s performance is prejudicial if
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. A “reasonable probability” of prej-
udice exists “even if the errors of counsel cannot be shown by
a preponderance of the evidence to have determined the out-
come”; indeed, a “reasonable probability” need only be “a
probability sufficient to undermine confidence in the out-
DETRICH v. RYAN 12461
come.” Id. In other words, Detrich suffered prejudice if “there
is a reasonable probability that, absent the errors, the sen-
tencer . . . would have concluded that the balance of aggravat-
ing and mitigating circumstances did not warrant death.” Id.
at 695. In assessing that probability, we “consider ‘the totality
of the available mitigation evidence . . .’ and ‘reweig[h] it
against the evidence in aggravation.’ ” Porter, 130 S. Ct. at
453-54 (quoting Terry Williams, 529 U.S. at 397-98). In so
doing, we do not consider the “idiosyncracies of the particular
decisionmaker, such as unusual propensities toward harshness
or leniency.” Strickland, 466 U.S. at 695.
Detrich presented volumes of new evidence of his
extremely abusive childhood and new expert assessments of
his brain damage and neuropsychological deficits for the first
time in federal district court. Even without considering this
compelling new evidence, however, we conclude that the state
court unreasonably determined that Detrich was not preju-
diced by his counsel’s deficient performance. In particular, we
conclude that there is a reasonable probability that the sen-
tencing judge would have imposed a sentence less than death
had Detrich’s counsel obtained and presented an expert evalu-
ation of Detrich’s neuropsychological functioning.
1. State Court Decision
[16] The only evidence of Detrich’s mental health before
the sentencing judge was a 1991 psychological evaluation by
a court clinic psychologist conducted at the request of Det-
rich’s first counsel and two 1985 reports, one by a state psy-
chologist and the other by a state psychiatrist, from when
Detrich was incarcerated for writing worthless checks. These
reports provided only a snapshot of Detrich’s psychological
profile. The 1985 reports mentioned in passing that Detrich
was impulsive, noting that he was “an impulsive individual”
and that he had “occasional impulsive responses,” while the
1991 report indicated to the contrary that a test that could
reflect impulsivity was “not elevated.” The reports concluded
12462 DETRICH v. RYAN
that he had above-average intelligence, with cognitive func-
tioning largely intact. The 1985 reports contradictorily noted
that he had poor judgment and that his judgment was “grossly
intact.” They noted that he externalized problems, was sensi-
tive to rejection, had an impaired ability to relate to others,
and had a low tolerance for frustration. The 1991 report con-
cluded that he exhibited antisocial attitudes, beliefs, and
behaviors, and that he had probable antisocial personality dis-
order.
Had Detrich’s trial counsel enlisted the assistance of a
neuropsychological expert, he would have been able to offer
an evaluation with much greater mitigating weight. An evalu-
ation by neuropsychologist Dr. Briggs that Detrich presented
to the state post-conviction court indicated that Detrich suf-
fered neuropsychological deficits and opined that his crime
was driven by instinct that grew out of his abusive childhood,
not by consequence-driven thought or reason.
[17] The state post-conviction court concluded that there
was no “reasonable probability” that this neuropsychological
evaluation “would have compelled this Court to impose a sen-
tence less than death.” In support of this conclusion, the state
court reasoned, “Dr. Briggs’ report was not significantly dif-
ferent from the report considered by this Court. Indeed, Dr.
Briggs found that Petitioner’s general neuropsychological
functioning was normal and showed an absence of cognitive
dysfunction.”
[18] This conclusion was “based on an unreasonable deter-
mination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). To be sure,
Dr. Briggs’s report did state that Detrich earned scores on
neuropsychological tests that were “in the normal range of
neuropsychological functioning.” But the state court failed to
mention a critical part of Dr. Briggs’s assessment: his report
later makes clear that this reflected a “recovered picture,” as
“improvement in function occurs as time (and sobriety) from
DETRICH v. RYAN 12463
the incidents [of head injuries and drug use] increase.” Signif-
icantly, the report indicated that Detrich scored 25 on a scale
for which 0-26 represented “normal” neuropsychological
functioning. In other words, over ten years after the crime, at
the time of these tests, Detrich’s neuropsychological function-
ing was just two points shy of abnormal. Thus, considering
Dr. Briggs’s finding of “normal” functioning in context, along
with his statement that this represented a “recovered picture,”
the most reasonable inference is that Detrich’s neuropsy-
chological functioning was not normal at the time of the
crime.
[19] The state court’s failure to account for Dr. Briggs’s
statement that Detrich’s functioning had improved since the
time of the crime resulted in an unreasonable determination of
the facts. We have previously made clear that a state court
unreasonably determines the facts when it “overlook[s] or
ignore[s] evidence [that is] highly probative and central to
petitioner’s claim.” Taylor, 366 F.3d at 1001. Evidence is suf-
ficiently “probative” and “central” if it is “sufficient to sup-
port petitioner’s claim when considered in the context of the
full record bearing on the issue presented in the habeas peti-
tion.” Id. The portion of Dr. Briggs’s report suggesting that
Detrich’s neuropsychological functioning was almost cer-
tainly abnormally impaired at the time of the crime is central
to Detrich’s claim. As we explain at length below, if an expert
would have testified about such abnormality at the sentencing,
there is a reasonable probability that Detrich would not have
received the death penalty. The “state court’s failure to con-
sider, or even acknowledge” this highly probative evidence
therefore “casts serious doubt on the state-court fact-finding
process and compels the conclusion that the state-court deci-
sion[ ] [was] based on an unreasonable determination of the
facts.” Id. at 1005.
2. De Novo Prejudice Assessment
[20] We proceed to consider whether Dr. Briggs’s report,
read as a whole, shows that there is a reasonable probability
12464 DETRICH v. RYAN
that Detrich’s sentencing counsel’s failure to seek and intro-
duce expert neuropsychological evidence prejudiced Detrich’s
defense. As an initial matter, we must first determine whether
we must continue to apply AEDPA deference after having
concluded that the state court’s decision was “based on an
unreasonable determination of the facts” under § 2254(d)(2).
We conclude that the AEDPA imposes no such requirement.
The Supreme Court has made clear that “[w]hen a state
court’s adjudication of a claim is dependent on an antecedent
unreasonable application of federal law, the requirement set
forth in § 2254(d)(1) is satisfied[, and a] federal court must
then resolve the claim without the deference AEDPA other-
wise requires.” Panetti, 551 U.S. at 953. In Panetti, the
Supreme Court considered a post-AEDPA habeas petition by
a prisoner alleging that he was incompetent to be executed. Id.
at 934-35. In reviewing this claim, the Court first concluded
that the state court had unreasonably applied clearly estab-
lished law in implicitly concluding that it had offered consti-
tutionally adequate procedures to resolve the prisoner’s claim
of incompetence. Id. at 952-53. Because the state court’s
determination of the merits of the prisoner’s competency
claim depended on those clearly inadequate procedures, the
Supreme Court did not defer to that determination, but rather
considered the merits de novo. See id. at 954.
We see no reason why our approach should differ where a
state court’s adjudication of a claim is dependent on an ante-
cedent unreasonable determination of fact. Under § 2254(d),
the unreasonable determination of fact alone authorizes a fed-
eral court to grant habeas relief—provided, of course, that the
petitioner’s constitutional rights were in fact violated. Section
2254(d) is phrased in the disjunctive: we may grant relief only
if the state court decision was contrary to or involved an
unreasonable application of clearly established Supreme
Court law or if the state court decision was based on an unrea-
sonable determination of fact. See 28 U.S.C. § 2254(d). Sec-
tion 2254(d)’s plain language therefore does not require that
DETRICH v. RYAN 12465
a state court decision involve both an unreasonable determina-
tion of fact and an unreasonable application of law before we
may grant relief.
[21] We therefore hold that, when a state court adjudica-
tion is based on an antecedent unreasonable determination of
fact, the requirement set forth in § 2254(d) is satisfied, and we
may proceed to consider the petitioner’s claim de novo. The
Eleventh Circuit, in a recent en banc decision with only one
judge dissenting on an unrelated issue, agrees, and we have
found no case from any other circuit that holds otherwise. See
Jones v. Walker, 540 F.3d 1277, 1288 & n.5 (11th Cir. 2008)
(en banc).
This understanding is consistent with the principle of defer-
ence. Because we do not know what the state court would
have decided had it applied the law to the correct facts, there
is no actual decision to which we can defer. Continuing to
apply AEDPA deference even after concluding that the state
court had unreasonably determined the facts to which it
applied the law would therefore require us to assess the rea-
sonableness of a decision that the state court never actually
reached. Yet it is beyond question that the AEDPA does not
require us to defer to such hypothetical decisions. For
instance, on several occasions, the Supreme Court has consid-
ered ineffective assistance of counsel claims under the
AEDPA in cases where the relevant state courts had not
reached one of the two Strickland prongs. See Porter, 130 S.
Ct. at 452; Rompilla, 545 U.S. at 390. In those cases, the
Supreme Court did not ask whether it would have been objec-
tively unreasonable for the state court to decide the unreached
Strickland prong adversely to the habeas petitioner, but rather
reviewed that prong de novo, as there was no actual state
court decision to which it could defer. Porter, 130 S. Ct. at
452; Rompilla, 545 U.S. at 390. Like the state courts that
never reached one of the Strickland prongs in those cases, the
state court here similarly never considered whether Detrich’s
defense was prejudiced by his counsel’s failure to present
12466 DETRICH v. RYAN
expert evidence of Detrich’s abnormal neuropsychological
functioning. We therefore likewise examine this question de
novo.
[22] Evaluating Detrich’s claim of prejudice de novo, we
conclude that, had his trial counsel presented expert evidence
like that provided by Dr. Briggs, there is a “reasonable proba-
bility” that Detrich would have received a sentence less than
death, particularly in light of the sentencing scheme in effect
at the time. Under Arizona law at the time of Detrich’s sen-
tencing, the sentencing judge had to “weigh the mitigating cir-
cumstances against the aggravating circumstances to
determine if leniency is required.” State v. Gretzler, 659 P.2d
1, 13 (Ariz. 1983) (internal quotations and citation omitted).
The law enumerated ten aggravating factors whose presence
would require imposition of the death penalty unless the judge
also found “mitigating circumstances sufficiently substantial
to call for leniency.”7 Ariz. Rev. Stat. § 13-703(E), (F). In
weighing the aggravating and mitigating factors, “the number
of aggravating and mitigating circumstances is not disposi-
tive, but rather their gravity.” Gretzler, 659 P.2d at 13. In Det-
rich’s case, expert evidence demonstrating that he suffered
from neuropsychological dysfunctions would have affected
the “gravity” of the circumstances on both sides of the bal-
ance: it would have not only strengthened the mitigating cir-
cumstances, but also weakened the aggravating factor—that
the crime was especially cruel, heinous, and depraved—that
authorized Detrich’s death sentence. We are therefore con-
vinced that there is a reasonable probability that Detrich
would have received a more lenient sentence had his trial
counsel presented such evidence.
7
The statute enumerated five mitigating circumstances, but also autho-
rized sentencing judges to consider other, non-statutory mitigating factors.
Ariz. Rev. Stat. § 13-703(G); accord State v. Castaneda, 724 P.2d 1, 12
(Ariz. 1986) (“[The statute] lists some mitigating circumstances though
the court is not limited to those listed but must set forth any mitigating fac-
tor which might call for leniency.”).
DETRICH v. RYAN 12467
a
Dr. Briggs’s report provides qualitatively new information
that the sentencing judge did not consider: it indicated for the
first time that the crime may have been driven by an instinc-
tive, learned behavior that stemmed from Detrich’s abusive
past and by Detrich’s neuropsychological deficits. This expert
evidence would have added significant mitigating weight.
First, Dr. Briggs explained how Detrich’s upbringing
shaped his psychological profile. He explained that Detrich’s
abusive background—in which he was “taught to fear and
hate”—created “an atmosphere where the problem solving
process is more ‘take advantage of the person before the per-
son does it to me.’ ” According to Dr. Briggs, “this stance
makes perfect sense in the world where adults have and teach
no boundaries and no respect, much less sympathy and feel-
ings other than inappropriate touch and abuse.” He further
opined that the abuse Detrich suffered caused him to develop
a mindset “in which instinct took over and reason could not
be accessed.” Dr. Briggs’s analysis thus explains both the
mindset that led Detrich to commit this crime and the cause
of that mindset.
By suggesting a “causal nexus” between Detrich’s abusive
childhood and the crime, this expert analysis could “impact
‘the quality and strength of the mitigation evidence.’ ” State
v. Tucker, 160 P.3d 177, 201 (Ariz. 2007) (quoting State v.
Newell, 132 P.3d 833, 849 (Ariz. 2006)). We have repeatedly
noted that expert testimony like this can offer a powerful
explanation of a defendant’s crimes, and that the failure to
introduce such evidence can therefore prejudice a defendant.
In Douglas v. Woodford, we held that counsel’s failure to
present expert testimony explaining the possible causal link
between the defendant’s childhood and his crime was prejudi-
cial. Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir.
2003). Although counsel had argued that the defendant’s dis-
advantaged childhood had created a “demon” within him that
12468 DETRICH v. RYAN
had contributed to the crimes, that argument “lacked force
without some expert testimony to back it up.” Id. Similarly,
in Caro v. Calderon, we held that counsel may have preju-
diced the defendant where he failed to present expert testi-
mony “to explain the ramifications” of the defendant’s life
experiences on his behavior. Caro v. Calderon, 165 F.3d
1223, 1227 (9th Cir. 1999). There is a reasonable probability
that Detrich’s counsel’s failure to provide available expert tes-
timony about how Detrich’s abusive childhood influenced his
psychological development and contributed to his crime like-
wise prejudiced Detrich’s defense.
Second, Dr. Briggs’s report not only offers an expert expla-
nation of the causal link between Detrich’s horrific childhood
and his crime, but also raises the possibility that his neuropsy-
chological deficits may have contributed to the crime. In addi-
tion to indicating that Detrich’s neuropsychological
functioning was almost certainly deficient at the time of the
crime, Dr. Briggs’s report also explains that Detrich’s neurop-
sychological deficits interacted with his emotional status to
cause “a greater overall impairment in function” and that
being under the influence of drugs further inhibits Detrich’s
abilities. Neuropsychological deficits would likely have had
greater mitigating weight than the diagnoses reflected in the
psychological reports that the sentencing judge considered,
which concluded only that Detrich had probable antisocial
personality disorder. See State v. Walton, 769 P.2d 1017, 1034
(Ariz. 1989) (explaining that “some types of [mental] impair-
ments clearly bear more weight than others,” and that “per-
sonality disorders have not sufficed to tilt the balance in favor
of leniency”).
Although Dr. Briggs’s report, standing alone, does not
explain how Detrich’s neuropsychological deficits would
have affected his behavior, the state post-conviction court
denied Detrich the opportunity to develop this evidence at an
evidentiary hearing at which Dr. Briggs could have provided
more detail about Detrich’s deficits and their effects. In any
DETRICH v. RYAN 12469
event, the report does at least suggest some ways in which
Detrich’s deficits might have contributed to his crime. The
report remarks on Detrich’s impulsivity, calling him “very
impulsive,” noting impulsivity in several areas of testing, and
characterizing his “basic problem” as being “impulsive and
insist[ing] on having his own way regardless of the law or the
feelings of other people.” The report concludes that, given
Detrich’s history, his “decision-making, especially when com-
promised by alcohol, was not based on any consequence-
driven thought process, but rather a leaned [sic] behavior that
bypassed right or wrong.” Dr. Briggs’s report thus at least
raises the possibility that Detrich’s neuropsychological defi-
cits caused the impulsivity that contributed to his crime. There
is therefore a reasonable probability that the failure to intro-
duce such expert evidence prejudiced Detrich’s defense.
[23] Moreover, expert analyses presented to the federal
district court confirm that Detrich’s neuropsychological defi-
cits may have contributed to Detrich’s crime in this way.
Although Dr. Briggs’s report alone convinces us that Detrich
suffered prejudice from his counsel’s failure to obtain and
present an expert assessment of Detrich’s neuropsychological
functioning and of the effects of his horrific childhood on his
mental state, the additional evidence presented in federal
court reinforces this conclusion.
[24] As an initial matter, we can properly consider this
new evidence that Detrich presented for the first time in fed-
eral court, and that the state courts therefore had no opportu-
nity to consider. We may consider such evidence so long as
two conditions are met: First, the petitioner must have been
“diligent in his efforts” to develop the evidence in state court.
Michael Williams v. Taylor, 529 U.S. 420, 435 (2000); accord
Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam)
(holding that new evidence can be considered so long as the
petitioner “was not at fault in failing to develop that evidence
in state court”). Second, the new evidence must not so “funda-
mentally alter the legal claim already considered by the state
12470 DETRICH v. RYAN
courts” as to render it unexhausted. Vasquez v. Hillery, 474
U.S. 254, 260 (1986).
Here, Detrich exercised diligence by presenting the state
court with evidence of neuropsychological impairment and
requesting a hearing to develop that evidence further. See
Michael Williams, 529 U.S. at 437 (“Diligence will require 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.”). He is not to blame for the state court’s denial of
that request.
Nor does the new evidence render Detrich’s ineffective
assistance of counsel claim unexhausted. “[N]ew factual alle-
gations do not render a claim unexhausted unless they ‘funda-
mentally alter the legal claim already considered by the state
courts.’ ” Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.
1999) (internal quotations and citation omitted). The new evi-
dence that Detrich presents does not. Detrich provided the
state court with a neuropsychological expert’s initial analysis
indicating he had some neuropsychological deficits and
explaining he exhibited “impulsive” behaviors. Moreover, his
post-conviction counsel specifically informed the state court
that “complete” testing could show Detrich’s impaired ability
to reason or function in stressful situations and a biological
cause of his impairments, and requested a hearing at which
evidence of Detrich’s brain damage could be developed. The
new evidence presented in federal court simply offers details
about Detrich’s brain damage, the biological causes of his
impairments, and his impaired ability to function. The new
evidence thus does not “fundamentally alter” Detrich’s
claims, and the state court had “a meaningful opportunity to
consider” them. Vasquez, 474 U.S. at 257. Particularly
because the failure to present the new evidence to the state
court “stemmed from the state courts’ refusal to grant [the
petitioner] an evidentiary hearing on the matter, rather than
from any failure of diligence on his part,” the new evidence
DETRICH v. RYAN 12471
does not render Detrich’s claim unexhausted. Weaver, 197
F.3d at 364.
The expert testimony that Detrich presented to the federal
district court provides significant new details about Detrich’s
neuropsychological deficits, their behavioral effects, and their
causes. Particularly considering this new evidence, we are left
with no doubt that, had Detrich’s trial counsel enlisted the
assistance of a mental health expert, there is a reasonable
probability that Detrich would have received a sentence less
than death.
In the district court, Detrich presented the expert opinion of
neuropsychiatrist Dr. Amezcua-Patiño, who diagnosed Det-
rich with cognitive disorder secondary to congenital deficits
and concluded that Detrich has “severe Neuro Psychiatric
conditions that he acquired at birth, most likely as a result of
Congenital malformations, worsened by significant abuse and
neglect, and eventually further deteriorated by the use of
drugs and alcohol.” Dr. Amezcua-Patiño opined that Detrich’s
abnormal cognitive functioning “directly affected [his] ability
to problem solve and control his actions . . . , including during
the commission of [his] crimes,” and “affected his ability to
appreciate the wrongfulness of his actions.” Another doctor,
Dr. Froming, similarly noted damage in the frontal-
subcortical areas of functioning, which resulted in impul-
sivity, impulsive errors, and problems in self-monitoring. Dr.
Froming also described Detrich as “very fast responding with
an inability to stop once he had started on something.” Dr.
Cuniff, a medical geneticist, similarly noted that when Detrich
attempted a difficult task, he often would not abandon an inef-
fective strategy. According to Dr. Froming, when “[u]nder the
influence of alcohol and other drugs, Mr. Detrich’s ability to
inhibit, plan ahead, make decisions, and perform in an error-
free fashion would be significantly reduced, especially given
his neurological damage.” Dr. Froming even remarked that
Detrich’s behavior during the testing “was so extraordinary
that I have not witnessed it in any of my previous evaluations
12472 DETRICH v. RYAN
since 1979.” Finally, she opined that Detrich’s functioning
would have improved over time as he remained sober, indicat-
ing that Detrich’s functioning would have been even more
impaired at the time of the crime.
[25] All of these expert analyses indicate how Detrich’s
deficits could have affected his behavior in a way that could
explain his crime: cognitive deficits caused him to act impul-
sively and impaired his ability to control his actions. Such an
explanation could have significant mitigating weight. As the
Supreme Court has recognized, evidence that a defendant’s
“violent behavior was a compulsive reaction rather than the
product of cold-blooded premeditation” could alter the selec-
tion of a penalty. Terry Williams, 529 U.S. at 398. Evidence
that such a compulsive reaction stemmed from neuropsy-
chological deficits would have even greater mitigating force.
Cf. Caro, 280 F.3d at 1258 (holding that the failure to intro-
duce evidence of physiological defects that can cause “im-
pulse discontrol” can prejudice a defendant because such
evidence could reduce a defendant’s “moral culpability”).
Dr. Amezcua-Patiño also offered more detail on how Det-
rich’s abusive childhood could have led to his neuropsy-
chological deficits. The development of the prefrontal cortex
—which controls reasoning, problem solving, motivation, and
response flexibility—is “vitally dependent on reciprocal inter-
actions with an emotionally attuned caregiver.” Abuse
impedes the normal development of the brain and likely leads
to an underdeveloped cortex and a hyperactive response to
stress. Extreme stress interferes with the functioning of the
thinking part of the brain that is “particularly important in
inhibiting the stress response.” By establishing another causal
link between Detrich’s abusive childhood and his crime, this
evidence would have increased the mitigating weight of Det-
rich’s horrific childhood. See Tucker, 160 P.3d at 201.
In sum, had Detrich’s sentencing counsel consulted a men-
tal health expert to assist in the penalty phase of Detrich’s
DETRICH v. RYAN 12473
second trial, he would have been able to present expert analy-
ses showing how both neuropsychological deficits and Det-
rich’s abusive childhood contributed to his crime. Had the
sentencing judge heard such testimony, there is a reasonable
probability that he would have afforded more weight to the
mitigating circumstances.
The fact that the state has presented experts who disagree
with Detrich’s experts’ analyses does not alter our conclusion.
As the Supreme Court recently recognized, even where state
experts identify problems with the tests and conclusions of
defense experts, “it [is] not reasonable to discount entirely the
effect that [the expert’s] testimony might have had on the jury
or the sentencing judge.” Porter, 130 S. Ct. at 455.
Further, this is not a case where expert testimony is unnec-
essary because laypeople can easily understand the mitigating
evidence without assistance. Recently, in Wong v. Belmontes,
the Supreme Court held that a defendant did not suffer preju-
dice from his attorney’s failure to introduce expert testimony
about how the defendant’s childhood could have contributed
to his crimes because “the body of mitigating evidence . . .
was neither complex nor technical. It required only that the
jury make logical connections of the kind a layperson is well
equipped to make.” Wong v. Belmontes, 130 S. Ct. 383, 388
(2009). In Belmontes, however, the mitigating evidence was
not about brain development and cognitive impairments, but
rather about how traumas the defendant experienced as a child
“caused him to ‘los[e] ground in comparison with his peers
[both] academically [and] socially’ and ‘intensified [his]
sense of himself as defective, something from which he never
recovered.’ ” See Belmontes v. Ayers, 529 F.3d 834, 853 (9th
Cir. 2008), rev’d, 130 S. Ct. 383. Whereas a jury can use “its
common sense or own sense of mercy,” Belmontes, 130 S. Ct.
at 588, to understand the psychological impact of an abusive
childhood, a sentencer would likely need expert testimony to
understand how a traumatic childhood could shape brain
development in a way that would lead to impulsive behavior.
12474 DETRICH v. RYAN
Because expert testimony would provide additional explana-
tions beyond a layperson’s understanding of Detrich’s inabil-
ity to curb his impulses, there is a reasonable probability that
this testimony would have increased the weight of the mitigat-
ing evidence.
b
[26] In addition to strengthening the mitigating evidence,
the expert evidence of Detrich’s neuropsychological dysfunc-
tions would have weakened the statutory aggravating factor
that the sentencing court found to authorize imposition of the
death penalty, i.e., that Detrich’s crime was especially cruel,
heinous, and depraved. Under Arizona law, “cruelty involves
the pain and distress visited upon the victims, and . . . heinous
and depraved go to the mental state and attitude of the perpe-
trator as reflected in his words and actions.” Gretzler, 659
P.2d at 10. Based on the evidence before it, the sentencing
court found that the number and severity of wounds, some of
which were defensive, showed that the crime was especially
cruel, and that Detrich’s words and actions at the time of the
crime evidenced a heinous and depraved state of mind. For
the reasons we explain below, evidence of Detrich’s neurop-
sychological deficits could have provided an alternative
explanation of Detrich’s words and actions and accordingly
could have decreased the weight of the “especially cruel, hei-
nous, and depraved” aggravating factor.
To be sure, evidence of Detrich’s neuropsychological dys-
functions would not bear on the cruelty of the crime, which
focuses on the victim’s suffering. See Gretzler, 659 P.2d at
10. Because there is therefore no reasonable probability that
this expert evidence would have led the sentencing court to
find no aggravating circumstances whatsoever, the death pen-
alty would have remained an option. See Ariz. Rev. Stat.
§ 13-703(E), (F). Nonetheless, under Arizona law, sentencing
judges look not only to whether an aggravating circumstance
is present, but also to the weight of that aggravating circum-
DETRICH v. RYAN 12475
stance. See State v. Canez, 42 P.3d 564, 596 (Ariz. 2002)
(assessing the weight of the (F)(6) aggravating circumstance
after reversing the finding of heinousness and depravity but
upholding the finding of cruelty); State v. Gulbrandson, 906
P.2d 579, 604 (Ariz. 1995) (noting that “[t]he (F)(6) aggravat-
ing circumstance would have even more weight if defendant
had relished the murder”). Thus, even assuming that Detrich
could not successfully rebut the state’s argument that the mur-
der was especially cruel, the neuropsychological evidence
could diminish the weight of the aggravating factor by show-
ing that the crime was not especially heinous and depraved.
Contrary to the district court’s understanding, the hei-
nous/depraved inquiry turns on the defendant’s subjective
state of mind, not on his mere words and acts. The Arizona
Supreme Court has made clear that, to determine whether a
crime was committed in an especially heinous or depraved
manner, a court must consider “the killer’s state of mind at the
time of the offense,” which “may be shown by his behavior.”
State v. Lujan, 604 P.2d 629, 636 (Ariz. 1979); accord State
v. Fulminante, 778 P.2d 602, 620 (Ariz. 1988) (“The terms
‘heinous’ and ‘depraved’ focus upon a defendant’s state of
mind at the time of the offense, as reflected by his words and
acts.”); State v. Martinez-Villareal, 702 P.2d 670, 680 (Ariz.
1985) (“In order to determine depravity the court must focus
on defendant’s state of mind. Defendant’s state of mind may
be inferred from behavior at or near the time of the offense.”
(citation omitted)). Because this factor focuses on a defen-
dant’s subjective state of mind, expert psychiatric evidence
can demonstrate that a defendant’s crime was not especially
heinous or depraved. See Summerlin, 427 F.3d at 641-42
(holding that counsel’s failure to present psychiatric evidence
of a defendant’s “lack of impulse and emotional control and
organic brain dysfunction” prejudiced the defendant because
that evidence “could directly counter . . . that the crime had
been committed in a ‘heinous, cruel, or depraved manner’ ”).
The Arizona Supreme Court has identified five factors that
can lead to a finding of heinousness or depravity: the defen-
12476 DETRICH v. RYAN
dant’s relishing of the murder, infliction of gratuitous vio-
lence, mutilation of the victim, senselessness of the crime, and
helplessness of the victim. Gretzler, 659 P.2d at 11. In Det-
rich’s case, the sentencing judge found that four of the five
factors—all but mutilation—were present. According to the
sentencing judge, Detrich’s asking Charlton if he wanted “a
shot” at the “dead” but “warm” body indicated that Detrich
relished the crime. The forty wounds evidenced gratuitous
violence. And the crime was senseless in that the victim posed
no threat to Detrich, and the victim was helpless. These fac-
tors led the sentencing judge to conclude that the crime was
especially heinous and depraved.
[27] Expert testimony could have rebutted the finding that
the gratuitous violence and Detrich’s apparent relishing of the
crime evidenced a heinous and depraved state of mind. First,
expert testimony that Detrich exhibited an “inability to stop
once he had started on something,” and that his “ability to
inhibit, plan ahead, [and] make decisions . . . would be signifi-
cantly reduced, especially given his neurological damage,”
could have provided the sentencing judge with a different
understanding of the victim’s forty wounds. Rather than evi-
dencing a “shockingly evil state of mind,” Gretzler, 659 P.2d
at 11, the sheer number of wounds reflected Detrich’s impul-
sive and persistent behavior, which was caused by his neuro-
logical deficits. The state argues that Detrich’s brain
dysfunctions do not explain the gratuitous violence because
there is no evidence that he was out of control, as Detrich
apparently directed Charlton to drive out of town, told him to
pull over, and later lied that he had been in a fight when his
friend asked why he was covered in blood. That Detrich may
have regained control after committing the murder, however,
does not indicate that he also had control over his impulses
while inflicting the wounds.
Second, given the neuropsychological evidence, there is a
reasonable probability that the sentencing judge would have
concluded that Detrich’s comment offering Charlton “a shot”
DETRICH v. RYAN 12477
at the dead body evidenced impulsivity and immaturity, not
relishing of the killing. Indeed, the Arizona Supreme Court
has acknowledged that “post-murder statements suggesting
indifference, callousness, or a lack of remorse constitute ‘rel-
ishing,’ only when they indicate, beyond a reasonable doubt,
that the killer savored or enjoyed the murder at or near the
time of the murder.” State v. Greene, 967 P.2d 106, 115-16
(Ariz. 1998). The Arizona Supreme Court has, for example,
found that a defendant’s statement that he had “clubbed” a
“faggot,” while callous, did not establish relishing. Id. at 115.
Similarly, that court rejected a finding of relishing where a
defendant bragged that his victim had “squealed like a rabbit.”
State v. Graham, 660 P.2d 460, 463 (Ariz. 1983). In that case,
the court attributed the defendant’s statement not to his savor-
ing of the crime, but to his immaturity and need to impress his
peers, which a psychological report had noted. Id. Similarly,
here, expert analyses would have reported that Detrich was
“very immature” and impulsive. These neuropsychological
characteristics, explained in part by Detrich’s brain develop-
ment and abusive childhood, could have provided an alterna-
tive explanation of Detrich’s callous statement to Charlton:
his statement reflected immaturity and impulsivity, not his
enjoyment of the act of killing Souter.
Thus, expert testimony about Detrich’s neuropsychological
dysfunctions could have shed a different light on Detrich’s
words and actions at the time of the crime. Had the sentencing
judge heard expert testimony about Detrich’s impulsivity,
inability to change a course of action once started, and imma-
turity, there is a reasonable probability that he would have
concluded that the callous statement to Charlton and the num-
ber of wounds reflected these neuropsychological characteris-
tics, not relishing or knowing infliction of gratuitous violence
that reflected a heinous and depraved state of mind. And there
is more than a reasonable probability that this expert evidence
would have at least precluded the sentencing judge from find-
ing beyond a reasonable doubt that Detrich’s actions reflected
a heinous and depraved state of mind. See State v. Jordan,
12478 DETRICH v. RYAN
614 P.2d 825, 828 (Ariz. 1980) (holding that aggravating cir-
cumstances must be proven beyond a reasonable doubt).
Moreover, had the sentencing judge not found gratuitous vio-
lence or relishing, he almost certainly would not have found
the crime to have been especially heinous or depraved,
because the other two factors urged by the state—
senselessness of the crime and helplessness of the victim—
rarely support a finding of heinousness and depravity on their
own. See State v. Hyde, 921 P.2d 655, 684 (Ariz. 1996).
[28] There is therefore a reasonable probability that expert
evidence of Detrich’s neuropsychological deficits would have
changed the aggravation side of the sentencing balance.
Because there is a reasonable probability that the sentencing
judge would not have found Detrich’s crime to be especially
heinous and depraved, there is a reasonable probability that he
would have afforded less weight to the aggravating factor that
authorized imposition of the death penalty here. If the aggra-
vator had less weight, it would of course take less mitigating
evidence to outweigh it.
c
Had Detrich’s trial counsel presented expert evidence of
Detrich’s neuropsychological dysfunction, there is a reason-
able probability that the sentencing judge would have ascribed
more weight to the mitigating circumstances and less weight
to the aggravating circumstance that the crime was especially
heinous, cruel, or depraved. Critically, there is a reasonable
probability that these changes in weights on both sides of the
sentencing balance would have resulted in a sentence less
than death.
[29] This is not a case where the aggravating factors are so
overwhelming that a death sentence was all but assured. First,
even for very gruesome crimes, the death penalty is not neces-
sarily unavoidable. Douglas, 316 F.3d at 1091. Second, we
have found that aggravating circumstances are so significant
DETRICH v. RYAN 12479
as to preclude a finding of prejudice only where the aggravat-
ing circumstances were worse, and the omitted mitigating evi-
dence weaker, than those here. For example, in Bible v. Ryan,
we held that the severity of the aggravating factors precluded
a finding of prejudice where the defendant had kidnaped,
stripped, molested, tied up, and murdered a nine-year-old girl,
and where the omitted mitigating evidence showed only that
the defendant had high fevers as a child that theoretically
could have resulted in organic brain damage. Bible v. Ryan,
571 F.3d 860, 863-64, 870 (9th Cir. 2009). Here, not only are
the aggravating circumstances of Detrich’s crime less egre-
gious, but he has offered evidence that he actually suffers
organic brain damage that could help explain his crime. Cf.
Bible, 571 F.3d at 871 (emphasizing that the defendant did not
contend that he actually had organic brain damage in conclud-
ing that the failure to introduce this evidence did not prejudice
him). The aggravating factors similarly far outweighed the
omitted mitigating evidence in Woodford v. Visciotti, where
the Supreme Court held that the state court was not objec-
tively unreasonable in finding no prejudice where a defen-
dant, who had previously knifed a man and stabbed a
pregnant woman, had committed a pre-planned armed robbery
that involved an execution-style killing and another attempted
killing. Woodford v. Visciotti, 537 U.S. 19, 26-27 (2002).
There, the mitigating evidence that counsel failed to present
was far weaker than that here: the defendant had been berated
as a child, had no self-esteem, moved twenty times growing
up, was born with club feet, and suffered from depression,
feelings of inadequacy and incompetence, and a possible sei-
zure disorder. Id. at 26. Similarly, in Cox v. Ayers, we
recently found no prejudice where the “weight of the aggra-
vating factors was staggering,” as the petitioner had “set out
to kill everyone in [a] house, including children sleeping in
their beds, . . . for money.” Cox v. Ayers, No. 07-99010, 2010
WL 2853764, *15 (9th Cir. July 22, 2010). Balanced against
these “staggering” aggravating factors was “mostly cumula-
tive” evidence of the petitioner’s abusive childhood, but no
12480 DETRICH v. RYAN
evidence, new or otherwise, of any neuropsychological defi-
ciencies that could explain the crime. Id. at *12, *15.
[30] Because the mitigating evidence that Detrich’s coun-
sel failed to present is powerful, and because the aggravating
circumstances surrounding Detrich’s crime are not so severe
as practically to preclude a finding of prejudice, there is a rea-
sonable probability that the new evidence of Detrich’s
neuropsychological dysfunctions would have led the sentenc-
ing judge to conclude that the mitigating circumstances out-
weighed the aggravating circumstances and accordingly to
impose a sentence less than death.8
[31] In sum, Detrich’s trial counsel’s failure to conduct an
adequate penalty phase investigation, and the resulting failure
to present powerful available mitigating evidence, deprived
Detrich of his Sixth Amendment right to the effective assis-
tance of counsel. The state court unreasonably applied Strick-
land in concluding that counsel’s performance was not
deficient. Moreover, the state court’s conclusion that Det-
rich’s counsel’s performance did not prejudice Detrich’s
penalty-phase defense was based on an unreasonable determi-
nation that Dr. Briggs’s report indicated that Detrich’s
neuropsychological functioning was normal. Because avail-
able expert neuropsychological evidence that Higgins failed
to obtain and present would have provided a powerful expla-
nation of Detrich’s crime, we conclude that there is a reason-
able probability that Detrich would have received a sentence
less than death if Higgins had provided adequate representa-
tion. We therefore hold that Detrich is entitled to habeas relief
on his penalty phase ineffective assistance of counsel claim.
8
Because we conclude that the failure to introduce such expert mental
health evidence alone prejudiced Detrich’s defense, we need not decide
whether Detrich’s counsel’s additional failure to introduce evidence of
Detrich’s abusive childhood, his successful adaptation to prison, or the
impact that his execution would have on his family also prejudiced him.
DETRICH v. RYAN 12481
IV. CONCLUSION
For the reasons explained above, we reverse the district
court’s denial of habeas relief on Detrich’s penalty phase inef-
fective assistance of counsel claim. The case is remanded for
the district court to issue a writ of habeas corpus vacating
Detrich’s death sentence unless the state re-sentences Detrich
within a reasonable time set by the district court. If the state
chooses not to re-sentence, Detrich’s sentence will automati-
cally be converted to life in prison in accordance with Arizona
law.
REVERSED and REMANDED.