FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARVEY LEE HEISHMAN, III,
Petitioner-Appellant, No. 07-99016
v.
D.C. No.
CV-90-01815-VRW
ROBERT L. AYERS, for California
State Prison at San Quentin, OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, Chief District Judge, Presiding
Argued and Submitted
June 2, 2010—Pasadena, California
Filed September 8, 2010
Before: Barry G. Silverman, Raymond C. Fisher and
Milan D. Smith, Jr., Circuit Judges.
Per Curiam Opinion;
Concurrence by Judge Silverman
13627
HEISHMAN v. AYERS 13631
COUNSEL
Geoffrey Rotwein, San Francisco, California, and Michael
Satris (argued), Bolinas, California, for the petitioner-
appellant.
Edmund G. Brown, Jr., Attorney General of California, Dane
Gillette, Chief Assistant Attorney General, Gerald A. Engler,
Senior Assistant Attorney General, Alice B. Lustre, Deputy
Attorney General, and Glenn R. Pruden (argued), Supervising
Deputy Attorney General, San Francisco, California, for the
respondent-appellee.
OPINION
PER CURIAM:
Harvey Lee Heishman, III, a California prisoner under sen-
tence of death, appeals from denial of a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Heishman
asserts claims of prosecutorial misconduct during the guilt
phase of his trial and ineffective assistance of counsel during
the penalty phase. We affirm.
I. Background and Standard of Review
Heishman met Nancy Lugassy in July 1979. Lugassy
invited Heishman to her home the evening they met, and that
13632 HEISHMAN v. AYERS
night Lugassy ran crying to her neighbor and told him that she
had been raped. Lugassy identified Heishman from a photo
array, and police arrested him and charged him with rape.
Heishman posted bail and then appeared for arraignment on
October 24, 1979. The municipal court scheduled a prelimi-
nary examination for November 20, 1979.
On November 1, 1979, Nancy Lugassy was shot dead in
her front yard, and Heishman was eventually arrested and
charged with the murder. At trial, the prosecution presented
the testimony of Lugassy’s neighbors, who had heard gun-
shots or identified the car that had driven away after the
shooting, but the only direct evidence of Heishman’s involve-
ment in the killing came from two witnesses: Cheryl Miller
and Nancy Gentry. Both testified that they had been involved
in Heishman’s plan to kill Lugassy, and both testified only
after receiving complete immunity. Gentry was the only wit-
ness who placed Heishman at the scene on the night of the
murder, and during more than a day of cross-examination
Heishman’s attorneys, assistant public defenders William A.
Keep and John Costain, conducted a thorough impeachment.
Nevertheless, at the conclusion of the guilt phase, the jury
found Heishman guilty of first degree murder with special cir-
cumstances.
During the penalty phase of Heishman’s trial, the aggrava-
tion evidence focused on Lugassy’s murder and Heishman’s
history of sexual violence. See People v. Heishman, 753 P.2d
629, 666-67 (Cal. 1988). Five women testified that they had
been sexually assaulted by Heishman, and the prosecution
submitted evidence of convictions for sexual assaults of two
of the five witnesses and three additional victims. Id. at 650.
Overall, the prosecution’s evidence showed that from Decem-
ber 1969 until July 1978, Heishman was either on probation,
on parole or in prison for various sexual assaults. Id. at 666.
Heishman’s attorneys also presented a case in mitigation,
which “pertained to [Heishman’s] general character and back-
HEISHMAN v. AYERS 13633
ground.” Id. at 650. A chaplain, corrections officers and for-
mer employers testified as to Heishman’s good character and
work habits, and two ex-girlfriends and his ex-wife testified
as to their positive and nonviolent relationships with him. Id.
at 650-51. His mother testified that he was an Rh-factor baby,
requiring blood transfusions, and she and other family mem-
bers described Heishman’s discovery of the body of his
grandmother after she had committed suicide and his resultant
withdrawal. Id. at 651. Heishman’s sister testified that she had
participated in therapy sessions with her brother while he was
in prison and that, when Heishman had talked about his prior
rape cases, he had begun crying and expressed remorse for his
earlier acts. Id. Heishman’s counsel did not present any psy-
chiatric evidence. At the conclusion of the penalty phase, the
jury sentenced Heishman to death.
Heishman pursued direct appeals culminating in a lengthy
decision by the California Supreme Court affirming the con-
viction. See id. at 712. He filed his federal habeas petition on
June 26, 1990. After returning to state court multiple times to
exhaust state remedies, Heishman filed the operative fourth
amended federal petition in October 1993. The district court
held multiple evidentiary hearings and issued over 200 pages
of decisions before denying the last of Heishman’s claims on
June 12, 2007, and entering judgment. After Heishman sub-
mitted a notice of appeal, the district court issued a certificate
of appealability for the claims that we now address.
“We review de novo a district court’s decision to deny a
petition for habeas corpus,” Bailey v. Hill, 599 F.3d 976, 978
(9th Cir. 2010), although “[t]he district court’s factual find-
ings are reviewed for clear error,” Stanley v. Schriro, 598 F.3d
612, 617 (9th Cir. 2010). The decision to grant or deny an
indigent habeas petitioner’s request for expert services “will
be overturned on appeal only for an abuse of discretion.”
Stubbs v. Gomez, 189 F.3d 1099, 1107 (9th Cir. 1999). We
similarly review “the decision to admit or deny expert testi-
mony for abuse of discretion.” United States v. Reed, 575
13634 HEISHMAN v. AYERS
F.3d 900, 918 (9th Cir. 2009). The Anti-Terrorism and Effec-
tive Death Penalty Act (AEDPA) does not apply to Heish-
man’s petition for habeas corpus, which was filed nearly six
years before AEDPA became law on April 24, 1996. See
Lindh v. Murphy, 521 U.S. 320, 322, 327 (1997).
II. Guilt Phase Error
[1] Heishman first argues that the district court erred by
finding that false testimony the prosecution failed to correct
and Brady material the prosecution failed to disclose was
immaterial. We agree with the district court and hold that
there is no reasonable likelihood that the false testimony
could have changed the jury’s verdict or that the cumulative
impact of the false testimony and undisclosed Brady material
would have changed the jury’s verdict. See Jackson v. Brown,
513 F.3d 1057, 1075-77 (9th Cir. 2008).
The district court assumed without deciding that the prose-
cution failed to correct false testimony under the obligations
outlined in Napue v. Illinois, 360 U.S. 264 (1959), and either
found or assumed failure to produce categories of favorable
discovery required by Brady v. Maryland, 373 U.S. 83 (1963),
and Giglio v. United States, 405 U.S. 150 (1972). Specifi-
cally, the district court found that the prosecution’s key wit-
ness — Nancy Gentry — testified falsely concerning both the
scope of her prior criminal activity and remuneration for her
testimony. The district court assumed without finding “that
the prosecutor knowingly allowed Gentry to testify falsely
that her criminal activity was limited to that discussed at trial
and that she was receiving no consideration for her testimony
other than immunity.” The district court also either found or
assumed that the prosecution failed to turn over material con-
cerning Gentry’s sexual relationships with law enforcement
officers, police reports and a misdemeanor warrant concern-
ing bad checks, a police report of a book theft and records of
funds provided to cover costs incurred in connection with tes-
tifying.
HEISHMAN v. AYERS 13635
[2] Even adopting the district court’s assumption that the
prosecution was aware that Gentry’s testimony was false,
there is no reasonable likelihood that the false testimony
could have changed the jury’s verdict or that the cumulative
impact of the false testimony and undisclosed Brady material
would have changed the jury’s verdict. See Jackson, 513 F.3d
at 1075-77. Corrections of the false statements and the sup-
pressed Brady material were similar to and cumulative of the
extremely thorough impeachment during Gentry’s cross-
examination, including proof that Gentry was an incorrigible
liar and had lied numerous times during the proceedings,
including while under oath. See United States v. Lopez, 577
F.3d 1053, 1059 (9th Cir. 2009) (distinguishing between
favorable evidence that must be produced under Brady and
material evidence whose suppression requires a court to set
aside the challenged conviction or sentence). Specifically,
correcting testimony or disclosing information related to Gen-
try’s criminal activity would have been redundant with the
history of passing bad checks, petty theft and theft of rental
cars exposed during Gentry’s testimony. Payment for trans-
portation, meals and lodging to facilitate testimony is petty in
comparison to Gentry’s receipt of immunity. Cf. Hayes v.
Brown, 399 F.3d 972, 986-87 (9th Cir. 2005) (en banc) (hold-
ing that Napue error concerning a “critical deal” is material).
Nor is it reasonably likely that cumulative consideration of
Brady and Napue error would have swayed the jury in light
of impeachment evidence concerning perjury, prior bad acts
and Gentry’s involvement in the killing. A witness may be
“so thoroughly impeached” that even evidence of perjury at
trial is “merely cumulative.” United States v. Polizzi, 801 F.2d
1543, 1551 (9th Cir. 1986).
III. Penalty Phase Ineffective Assistance of Counsel
Heishman also contends that his trial counsel rendered inef-
fective assistance of counsel at the penalty phase of the trial
and failed to present an adequate case in mitigation. He
alleges that counsel were deficient in two major respects.
13636 HEISHMAN v. AYERS
First, he maintains that counsel failed to conduct a timely and
thorough investigation of his background and family relation-
ships. Second, he contends that counsel failed to investigate
his mental condition adequately. In particular, Heishman
asserts that counsel provided ineffective representation by
failing to follow a recommendation by Dr. Hugh Winig that
Heishman be evaluated by a psychologist. According to
Heishman, such investigation would have revealed past psy-
chological and physical trauma, namely alleged sexual abuse
by his grandfather, Jack Schatt. He also maintains that a psy-
chologist was likely to have diagnosed him with post-
traumatic stress disorder (PTSD) stemming from the abuse.
Heishman argues this information might have moved a juror
to vote for life without parole instead of a death sentence.
We review this claim under Strickland v. Washington, 466
U.S. 668 (1984). Heishman must establish that his counsel’s
performance was deficient and that it prejudiced the outcome
of his trial. Id. at 687-89, 694. To establish deficiency, Heish-
man “must show that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. To establish
prejudice, he “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “The legal
question of whether a defendant received ineffective assis-
tance of counsel is reviewed de novo, while any factual find-
ings of the district court are reviewed for clear error.”
Stankewitz v. Woodford, 365 F.3d 706, 714 (9th Cir. 2004).
A. Unreasonable Delay in Investigation
[3] Heishman first argues that trial counsel failed to begin
the penalty phase mitigation investigation early enough. “The
failure to timely prepare a penalty-phase mitigation case is . . .
error.” Allen v. Woodford, 395 F.3d 979, 1001 (9th Cir. 2005).
Thus, “preparation for the sentencing phase of a capital case
should begin early.” Id. In Allen, we held that counsel’s per-
formance fell below professional standards when counsel “did
HEISHMAN v. AYERS 13637
not specifically prepare for the sentencing phase until after the
guilt phase had concluded,” leaving “counsel one week in
which to prepare the witnesses and evidence necessary to per-
suade the jury to spare [the defendant’s] life.” Id. at 1002; see
also Williams v. Taylor, 529 U.S. 362, 395 (2000) (“The
record establishes that counsel did not begin to prepare for
[the penalty] phase of the proceeding until a week before the
trial.”).
Here, trial counsel opened the penalty phase investigation
in August 1980, two months before trial, when they asked
Heishman to prepare a list of potential witnesses. In Septem-
ber, counsel engaged Dr. Winig as their mental health consul-
tant, directed their investigator to interview persons
concerning Heishman’s background for the penalty phase and
instructed the investigator to obtain Heishman’s Atascadero
State Hospital, probation and prison records.
[4] We find no constitutional error under 1980 professional
standards in beginning the investigation two months before
trial or in interviewing witnesses and retaining Dr. Winig only
a month before trial. Although these efforts could have been
initiated earlier, Heishman has not shown that counsel’s time-
table was per se constitutionally deficient under professional
norms existing in 1980.
[5] Trial counsel’s failure to seek Heishman’s state mental
hospital, probation and prison records before September 1980
presents a closer question of deficient performance. Because
these records were not requested until September, counsel did
not receive them until October — when trial was already
beginning and perhaps too late to be useful for establishing
investigative leads, identifying witnesses or informing Dr.
Winig’s psychological evaluation. See Allen, 395 F.3d at
1001. We need not determine whether this delay constituted
deficient performance, however, because any error was not
prejudicial. See Strickland, 466 U.S. at 697 (“If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
13638 HEISHMAN v. AYERS
sufficient prejudice, which we expect will often be so, that
course should be followed.”). The primary advantage of
obtaining these records sooner would have been to provide
them to Dr. Winig. Dr. Winig, however, recommended further
psychological evaluation of Heishman even without review-
ing the records. Absent prejudice, the delay does not amount
to ineffective assistance of counsel.1
B. Failure to Investigate Heishman’s Family and Social
History
[6] Heishman contends that trial counsel failed to conduct
a reasonable investigation into his family and social history.
Professional standards in 1980 required counsel to investigate
a capital defendant’s background, family relationships and
mental condition as potential sources of mitigation evidence,
in order to present “an individualized assessment of the
appropriateness of the death penalty.” Ainsworth v. Woodford,
268 F.3d 868, 876-77 (9th Cir. 2001); see also Smith v. Stew-
art, 189 F.3d 1004, 1009-14 (9th Cir. 1999); Evans v. Lewis,
855 F.2d 631, 636-37 (9th Cir. 1988); 1 ABA Standards for
Criminal Justice 4-4.1 (2d ed. 1980). A superficial investiga-
tion yielding “only rudimentary knowledge of [a defendant’s]
history from a narrow set of sources” is constitutionally inad-
equate. Wiggins v. Smith, 539 U.S. 510, 524 (2003).
Here, trial counsel’s primary approach to the penalty phase
1
For similar reasons, we reject Heishman’s argument that trial counsel
provided ineffective assistance of counsel by failing to provide these
records to Dr. Winig after counsel obtained them. We agree with Heish-
man and with the district court that failure to provide these records to Dr.
Winig constituted deficient performance. See Stanley v. Schriro, 598 F.3d
612, 624 (9th Cir. 2010) (“[T]rial counsel has an affirmative duty to pro-
vide mental health experts with all information relevant to the formulation
of their conclusions.”); Wallace v. Stewart, 184 F.3d 1112, 1117 (9th Cir.
1999). Like the district court, however, we conclude that the error was not
prejudicial given that Dr. Winig recommended further evaluation even
without seeing the records.
HEISHMAN v. AYERS 13639
investigation was to ask Heishman to provide a list of schools,
references, work experience and girlfriends and then to direct
their investigator to use these witnesses to develop informa-
tion “to make [Heishman] seem human to the jury.” Trial
counsel did not, however, compile a comprehensive social
history for Heishman and performed only limited interviews
of Heishman’s family members in anticipation of the penalty
phase.
According to Heishman, had trial counsel conducted a
more comprehensive investigation, and begun the penalty
phase investigation earlier, they might have discovered addi-
tional mitigation evidence of Heishman’s difficult childhood
(even distinct from the sexual abuse we address separately
below). A declaration submitted by Dr. Leslie Lebowitz, a
clinical psychologist retained by Heishman in connection with
these habeas proceedings, describes several aspects of Heish-
man’s background that might have been offered as mitigation
evidence, including his sickly childhood, the family’s favorit-
ism toward his sister and infliction of emotional and physical
abuse, including whippings inflicted by his father and beat-
ings from his grandfather. According to Dr. Lebowitz, Heish-
man’s “fundamental relationships were uniformly abusive,
terrorizing and denigrating,” and “left him damaged, needy to
the point of desperation and self-loathing.” In comparison to
the picture painted by Dr. Lebowitz’s declaration, the jury
heard very little of Heishman’s troubled childhood.
[7] Whether trial counsel adequately investigated Heish-
man’s background under 1980 standards presents a close
question. On the one hand, counsel conducted some investiga-
tion into Heishman’s background, presented some mitigation
evidence of his troubled childhood and offered some evidence
designed to humanize him to the jury. On the other hand, the
investigation was limited. Neither Heishman nor his family
were interviewed extensively about his background, and a
more complete investigation might have revealed additional
mitigating evidence.
13640 HEISHMAN v. AYERS
[8] Even assuming counsel’s performance was deficient in
this respect, however, we conclude that there was no constitu-
tional error because Heishman has not shown prejudice. Put-
ting aside the history of sexual abuse discussed separately
below, the additional mitigation evidence that might have
been uncovered is not compelling when weighed against the
case in aggravation. The compelling aggravation case
included evidence of eight sexual assaults, and the jury had
just convicted Heishman of a calculated, cold-blooded murder
of another rape victim to prevent her from testifying — a truly
heinous crime. Thus, even if Heishman had offered the addi-
tional evidence of his difficult upbringing, he has not shown
a reasonable probability that the jury would have imposed a
sentence of life without parole. See, e.g., Wong v. Belmontes,
130 S. Ct. 383, 390 (2009) (per curiam) (finding no prejudice
where the aggravation evidence was “simply overwhelming”);
Rhoades v. Henry, 596 F.3d 1170, 1195 (9th Cir. 2010) (hold-
ing “that [petitioner’s] newly proffered facts . . . add too little,
and the aggravating circumstances are too strong, to make it
reasonably probable that the sentencing decision would have
been different but for counsel’s performance”). Counsel’s
investigation of Heishman’s background thus does not estab-
lish a Sixth Amendment violation.2
2
There is also no merit to Heishman’s related contention that counsel
unreasonably disregarded “red flags” in Heishman’s prison, probation and
state mental hospital records that should have prompted them to conduct
a more extensive investigation into his mental health background. To be
sure, an attorney has a duty to pursue investigatory leads suggested by a
defendant’s records. See, e.g., Wiggins, 539 U.S. at 526-27; Stankewitz,
365 F.3d at 719-20. But “[a] fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of
hindsight . . . and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689. With the benefit of hindsight, and in
particular given Heishman’s disclosure of childhood sexual abuse in 1990,
the records in possession of trial counsel in 1980 seem to point to the pos-
sibility of such abuse. Trial counsel, however, had neither the benefit of
those 1990 revelations nor training in psychology, and they had little rea-
son at the time to suspect that Heishman had been sexually abused as a
child.
HEISHMAN v. AYERS 13641
C. Failure to Follow Dr. Winig’s Recommendation for
Further Evaluation
Heishman also contends that counsel provided ineffective
assistance of counsel by disregarding Dr. Winig’s recommen-
dation to have Heishman evaluated by Dr. Paul Berg, a psy-
chologist. We hold that counsel’s performance was deficient,
but Heishman has not shown prejudice.
1. Relevant Facts
Trial counsel retained Dr. Winig to perform a psychologi-
cal evaluation of Heishman and to determine whether Heish-
man had any mental health defenses. On the first day of trial,
after meeting briefly with Heishman, Dr. Winig reported to
Costain, junior defense counsel, that Heishman was “evasive”
and could “give us nothing re mitigation” but recommended
that counsel obtain further “psychological evaluation.” Dr.
Winig recommended two psychologists, including Dr. Paul
Berg.
In response to Dr. Winig’s recommendation, trial counsel
asked for and obtained authorization from the public defend-
er’s office to retain Dr. Berg. But counsel inexplicably failed
to retain him. At the evidentiary hearing in the district court,
Costain testified that he likely advised Keep, his superior, of
Dr. Winig’s recommendation. Keep, on the other hand, testi-
fied that he could not recall Costain having discussed the rec-
ommendation with him. Keep asserted that had Costain
conveyed the recommendation to him, he would have
instructed Costain to retain Dr. Berg.
2. Reasonable Tactical Decision versus Deficient
Performance
[9] Counsel’s failure to follow Dr. Winig’s advice to
investigate Heishman’s mental condition constitutes deficient
performance unless it can be justified as a reasonable tactical
13642 HEISHMAN v. AYERS
decision. See Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th
Cir. 1995) (“[W]here counsel is on notice that his client may
be mentally impaired, counsel’s failure to investigate his cli-
ent’s mental condition as a mitigating factor in a penalty
phase hearing, without a supporting strategic reason, consti-
tutes deficient performance.”); see also Bean v. Calderon, 163
F.3d 1073, 1078-80 (9th Cir. 1998) (finding penalty-phase
ineffective assistance of counsel where counsel waited 10
months to follow the recommendation of two mental health
experts for further neuropsychological testing, because “when
testing requested by expert witnesses is not performed, . . . a
capital defendant has not received effective penalty phase
assistance of counsel”); cf. Hendricks, 70 F.3d at 1037 (reject-
ing a guilt-phase ineffective assistance of counsel claim where
counsel followed a psychiatrist’s advice to obtain additional
psychological evaluation). We therefore turn to whether coun-
sel’s actions can be justified as a reasonable tactical decision,
as the state argues and the district court found.
[10] The district court concluded that counsel’s failure to
follow Dr. Winig’s advice was a reasonable tactical decision
because it was a byproduct of a reasonable decision on the
part of counsel not to offer any psychological evidence at the
penalty-phase trial. According to the district court, if counsel
were justified in ruling out a psychological defense, they nec-
essarily were also justified in cutting off further investigation
of such defenses. We cannot agree with that assessment. A
decision by counsel not to present mitigating evidence at trial
cannot be excused as a strategic decision unless it is supported
by reasonable investigations. Correll v. Ryan, 539 F.3d 938,
948 (9th Cir. 2008). Here, counsel did not know what psycho-
logical evidence Dr. Berg’s evaluation might have produced.
Hence, their decision to rule out a psychological defense can-
not have been reasonable.
[11] The state alternatively argues that we should presume
that trial counsel made a reasonable tactical decision not to
follow Dr. Winig’s recommendation because counsel can no
HEISHMAN v. AYERS 13643
longer remember the actual reasons for their actions. We need
not decide whether to adopt such a presumption, cf. Sallahdin
v. Mullin, 380 F.3d 1242, 1251 (10th Cir. 2004); Williams v.
Head, 185 F.3d 1223, 1228 (11th Cir. 1999); Fretwell v. Nor-
ris, 133 F.3d 621, 624 (8th Cir. 1998), because Keep has no
memory of receiving Winig’s recommendation. Presuming
that Costain told Keep of the recommendation that Heishman
be evaluated and that Keep then made a tactical decision not
to follow Dr. Winig’s advice would contradict Keep’s testi-
mony rather than filling a gap in memory, contravening the
Supreme Court’s admonition against adopting “a post hoc
rationalization of counsel’s conduct” instead of relying on an
“accurate description of their deliberations.” Wiggins, 539
U.S. at 526-27. We therefore hold that counsel’s failure to
investigate his client’s mental condition, without a supporting
strategic reason, constitutes deficient performance. See Hen-
dricks, 70 F.3d at 1043.
3. Prejudice
[12] We nonetheless conclude that Heishman has not
shown prejudice. The district court found that Heishman
would not have revealed his sexual abuse in 1980 even if
counsel had referred him to Dr. Berg. That finding is entitled
to deference. See Silva v. Woodford, 279 F.3d 825, 835 (9th
Cir. 2002) (“Our review for clear error is ‘significantly defer-
ential,’ in that we must accept the district court’s factual find-
ings absent a ‘definite and firm conviction that a mistake has
been committed.’ ” (quoting United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000))); see also Strickland, 466 U.S. at
698; Cullen v. United States, 194 F.3d 401, 405 (2d Cir. 1999)
(distinguishing “a factual issue, albeit a hypothetical one”
from the ultimate issue of prejudice). We find no clear error
here because, as we shall explain, the evidence on this ques-
tion was equivocal.
On one hand, some evidence presented to the district court
supports a conclusion that Dr. Berg would have uncovered
13644 HEISHMAN v. AYERS
Heishman’s history of sexual abuse and diagnosed him with
PTSD. Melody Ermachild, a trained habeas investigator, was
able to elicit Heishman’s history of what appears to be shock-
ing sexual abuse by his grandfather (since deceased) by con-
ducting 10, two-hour interviews with Heishman over a six-
month period in 1990, using techniques similar to those which
would have been used by Dr. Berg in 1980. Dr. Berg himself
testified about the methods he would have used to extract
information from Heishman and about a number of “red
flags” in Heishman’s records that would have alerted him to
the possibility of sexual abuse and PTSD, and opined that it
was reasonably likely that he would have been able to elicit
the sexual abuse history and to diagnose PTSD in 1980. Dr.
Jay Jackman, another expert testifying on Heishman’s behalf,
concurred in those opinions.
Other evidence is to the contrary, however. For instance,
Heishman had never disclosed the sexual abuse to anyone
prior to 1990, despite opportunities to do so. For example,
although Heishman underwent treatment by psychiatrist Fred-
erick Boyes for nearly a year in 1969, he did not reveal his
grandfather’s abuse. Similarly, Heishman underwent exten-
sive evaluation with psychologist D.L. Kuykendall over a
five-month period in 1968 — “a detailed analysis of more
than twenty hours of diagnostic and therapeutic work” —
without revealing this information. Once, in 1967, Heishman
affirmatively denied — to a probation officer — that he had
been abused.
Heishman also might not have revealed the sexual abuse to
Dr. Berg “out of loyalty to his beloved grandmother,” who
was still alive in 1980, but who had passed away by the time
Heishman revealed the alleged abuse in 1990. Dr. Lebowitz
and Dr. Jackman also testified about “patterns of secrecy” and
a “code of silence” within the Heishman family. Drs.
Lebowitz, Jackman, Daniel Martell (the state’s expert) and
Berg all testified that men are more reticent to reveal sexual
abuse than women. Drs. Jackman and Berg also testified
HEISHMAN v. AYERS 13645
about the reluctance of prisoners to reveal a history of sexual
abuse based on fear that they will be sexually abused by other
inmates. Each of these factors would have presented an obsta-
cle in 1980.
We emphasize that the district court heard the testimony
from Dr. Berg and Dr. Jackman first hand and was therefore
in the best position to assess the weight to be accorded their
opinions. Dr. Berg’s testimony was weakened in several
respects: he conceded that he was unfamiliar with the Heish-
man family’s “code of secrecy”; he never personally inter-
viewed Heishman; and, most significantly, his opinion was
contradicted by Dr. Martell, who testified that it was unlikely
Heishman would have revealed the sexual abuse in 1980.
[13] Given the equivocal nature of the evidence, we cannot
say that the district court’s finding that Heishman would not
have disclosed the sexual abuse to Dr. Berg is clearly errone-
ous. Having so held, we necessarily must reject Heishman’s
prejudice argument. If Heishman would not have disclosed
the abuse, his attorneys could not have presented evidence of
the abuse or PTSD to the jury, and no juror could have been
swayed by such evidence to vote for life without parole.
Heishman’s ineffective assistance claim therefore fails.3
3
The concurrence posits that Heishman may be fabricating his claims of
sexual abuse. We recognize that possibility, though we point out both that
we need not reach that issue and that the possibility of prevarication is
contrary to the weight of the evidence in the record before us. Even the
state’s expert, Dr. Martell, acknowledged that the abuse likely occurred,
see Martell Depo. 21-22, and the state has not meaningfully challenged
that conclusion in these proceedings.
We also need not speculate about how Heishman’s alleged history of
sexual abuse would, or would not, have been presented to the jury in 1980
had Heishman revealed the abuse to Dr. Berg. We note, however, that the
jury could have heard about Heishman’s sexual abuse in one of two ways.
First, trial counsel could have presented expert psychological testimony
regarding Heishman’s diagnosis for post-traumatic stress disorder. If so,
the expert would have been able to base her opinions on inadmissible
13646 HEISHMAN v. AYERS
IV. Strickland Expert
After the district court hearing concerning the ineffective
assistance claim, Heishman moved to expand the record to
include testimony of a Strickland expert and for authorization
of funds to retain the expert. In the alternative, Heishman
moved to supplement the record with a declaration from the
proposed expert. The district court denied these requests, con-
cluding that “expert testimony on the standard of care is not
required.” We hold that the district court did not abuse its dis-
cretion by concluding that it was “in a position to evaluate
counsel’s performance” and “that petitioner’s proffered expert
would not assist the court in determining the issues before it.”
[14] A federal court may determine that it does not require
expert assistance “to understand the legal analysis required by
Strickland.” Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir.
1995); see also Fed. R. Evid. 702, 1972 Comm. Note (direct-
ing courts to ask whether the finder of fact “would be quali-
fied to determine intelligently and to the best possible degree
the particular issue without enlightenment from those having
a specialized understanding of the subject involved in the dis-
pute”). Although some judges may find expert testimony
helpful, see, e.g., Sims v. Brown, 425 F.3d 560, 584 (9th Cir.
2005) (upholding denial of a Strickland claim where eight
hearsay — Heishman’s out-of-court statements regarding sexual abuse —
and to discuss both those opinions and the underlying hearsay in court,
just as Heishman’s experts have done in these habeas proceedings. See
Cal. Evid. Code § 801(b). Second, Heishman himself might have testified
about the alleged abuse. Putting Heishman on the stand would have pres-
ented risks, but would not necessarily have exposed him to sweeping
cross-examination. See People v. Ramirez, 791 P.2d 965, 987-88 (Cal.
1990) (holding that the scope of cross-examination did not extend to any
bad acts committed by the defendant during his life where defendant pres-
ented evidence of adverse circumstances that he experienced in his early
childhood rather than evidence of his general good character). It is there-
fore at least plausible that trial counsel would have chosen to have Heish-
man testify about the abuse.
HEISHMAN v. AYERS 13647
experts testified but none addressed “prevailing legal norms”),
it is within a district court’s discretion to exclude proposed
expert testimony concerning a legal standard of care and to
rely solely on the briefs, see LaGrand v. Stewart, 133 F.3d
1253, 1271 n.8 (9th Cir. 1998); see also Williams v. Wood-
ford, 384 F.3d 567, 613 n.17 (9th Cir. 2004) (holding that
rejection of a proposed Strickland expert was not a prejudicial
abuse of discretion). Because the district court was in the best
position to determine whether it would benefit from expert
testimony concerning prevailing death penalty defense stan-
dards, it did not abuse its discretion by declining to authorize
payment for a Strickland expert and excluding the expert’s
declaration.
V. Uncertified Issues
[15] We decline to issue a certificate of appealability con-
cerning Heishman’s competency or cumulative error claims.
Heishman has not made a substantial showing of a denial of
a constitutional right based either on the likelihood that he
would not have disclosed childhood abuse to defense counsel
had he been asked or on cumulative error. See 28 U.S.C.
§ 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322,
335-38 (2003).
VI. Conclusion
For the preceding reasons, we hold that the district court
did not err by denying Heishman’s Brady, Napue and Strick-
land claims and did not abuse its discretion by denying funds
for an expert concerning death penalty defense standards or
by declining to admit the opinion evidence of such an expert.
AFFIRMED.
13648 HEISHMAN v. AYERS
SILVERMAN, Circuit Judge, concurring:
There is only one living witness to the abuse supposedly
inflicted on Heishman by his grandfather, Jack Schatt — peti-
tioner Harvey Lee Heishman himself. And yet Heishman has
never testified that he was abused by Schatt; he has submitted
no declaration to that effect; and his counsel have made no
avowal or proffer that Heishman would ever so testify.
How, then, did this “fact” get before the court? The answer
is that mitigation specialists hired by Heishman’s federal
habeas counsel reported that they succeeded in eliciting this
information from him. It was their reports of Heishman’s out-
of-court statements to them that came before the court, not
any first-hand testimony from Heishman himself.
Rule 703 of the Federal Rules of Evidence permits experts
to render opinions even if based on hearsay so long as the
hearsay is of the type reasonably relied on by experts in that
field. But that rule does not convert the underlying inadmissi-
ble hearsay into admissible testimony — it only makes the
opinion admissible. As we said in Paddack v. Dave Christen-
sen, Inc., 745 F.2d 1254, 1261-2 (9th Cir. 1984), “Rule 703
merely permits such hearsay, or other inadmissible evidence,
upon which an expert relies, to be admitted to explain the
basis of the expert’s opinion. [citations omitted.] It does not
allow the admission of the reports to establish the truth of
what they assert.”
This is just common sense. If the law were otherwise, a
party could use an expert as a conduit for self-serving state-
ments and totally avoid cross-examination. In fact, that is
what has happened here — Heishman has gotten his newly-
developed abuse story before the court (of which he alone
supposedly has first-hand knowledge) without having to sub-
ject himself to any questions about it.
And it is not as though this blatant hearsay is particularly
reliable and therefore admissible under the residual hearsay
HEISHMAN v. AYERS 13649
exception of Federal Rule of Evidence 807. To the contrary,
the hearsay from Heishman’s experts not only flatly contra-
dicts Heishman’s previous and long-standing statements about
his childhood, but was developed after he had lost his state
court appeals, was turned down by the United States Supreme
Court, and was inching closer and closer to execution. In
other words, these hearsay statements were made at a time
when Heishman had a very strong incentive to prevaricate.
Moreover, these statements were not made to clinicians in a
therapeutic setting for the purposes of treatment, a situation
that imparts a circumstantial guarantee of trustworthiness.
Rather, they were made to experts hired by his own lawyers
to develop information in aid of the litigation.
I do not know whether or not Heishman had been abused
by his grandfather. The only living soul who does know is
Heishman, and he neither testified nor furnished a declaration.
Thus, there was no admissible evidence before the district
court that the supposed abuse ever occurred. In the absence of
such proof, the premise of the habeas petition fails. Neverthe-
less, if we hypothesize that Heishman would have testified in
court to the things his proxies say he told them, the reasoning
of the per curiam opinion is sound: the district court did not
abuse its discretion in finding as a matter of fact that Heish-
man would not have made his disclosure about his grandfa-
ther back in 1980, even if his trial counsel had caused him to
be examined by Dr. Berg. For that reason, I concur.