FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICKY LEE EARP,
Petitioner-Appellant,
No. 08-99005
v.
VINCENT CULLEN,* Warden of D.C. No.
2:00-CV-06508-R
California State Prison at San
OPINION
Quentin,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
March 22, 2010—San Francisco, California
Filed October 19, 2010
Before: Jerome Farris, Dorothy W. Nelson, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
*Vincent Cullen is substituted for his predecessor, Robert L. Ayers, Jr.,
as Warden of California State Prison at San Quentin. Fed. R. App. P.
43(c)(2).
17251
17256 EARP v. CULLEN
COUNSEL
Robert S. Gerstein (argued); Statia Peakheart and Dean R.
Gits, Office of the Federal Public Defender; Sean Kennedy,
Federal Public Defender, Los Angeles, California, for
petitioner-appellant Ricky Lee Earp.
James W. Bilderback, II (argued), Supervising Deputy Attor-
ney General; Keith H. Borjon, Supervising Deputy Attorney
General; Pamela C. Hamanaka, Senior Assistant Attorney
General; Dane R. Gillette, Chief Assistant Attorney General;
Edmund G. Brown, Jr., Attorney General of California, Los
Angeles, California, for respondent-appellee Vincent Cullen.
EARP v. CULLEN 17257
OPINION
TALLMAN, Circuit Judge:
Petitioner-Appellant Ricky Lee Earp was sentenced to
death after a jury convicted him of first-degree murder for the
rape and murder of eighteen-month-old Amanda Doshier.1 We
affirmed in part but remanded in part Earp’s first appeal of the
denial of his petition for a writ of habeas corpus and
instructed the district court to conduct an evidentiary hearing
addressing two specific issues: (1) Earp’s allegations of pro-
secutorial misconduct relating to the testimony of witness
Michael Taylor; and (2) Earp’s claim of ineffective assistance
of counsel arising from a failure to sufficiently investigate
mitigation evidence. Earp v. Ornoski, 431 F.3d 1158, 1164
(9th Cir. 2005). After conducting numerous hearings, the dis-
trict court again denied the petition, but granted a certificate
of appealability on both claims. We affirm the denial of
Earp’s claim of ineffective assistance of counsel and reverse
and remand the denial of the prosecutorial misconduct claim.
I
A
In his petition for a writ of habeas corpus, Earp alleged that
the deputy district attorney, Robert Foltz, engaged in miscon-
duct by intimidating Michael Taylor, a witness who was
going to testify in support of Earp’s motion for a new trial.
Taylor initially averred that he overheard fellow inmate Den-
nis Morgan admit, while the two were incarcerated in Los
Angeles, to being at Earp’s home the day Amanda was
1
The facts and circumstances surrounding the crime are detailed in both
the California Supreme Court opinion resulting from Earp’s direct appeal,
People v. Earp, 978 P.2d 15 (Cal. 1999), and our opinion in Earp’s prior
appeal, Earp v. Ornoski, 431 F.3d 1158, 1165-66 (9th Cir. 2005). We
recite the facts again only as necessary to understand our opinion.
17258 EARP v. CULLEN
attacked. Taylor later recanted his original statement by
claiming that it was a lie, and that Earp offered to pay Taylor
if he would say that Morgan admitted to being present the day
the crime occurred. However, Taylor again changed his story.
This time, Taylor claimed that prosecutor Foltz and Edwin
Milkey, the investigating sheriff’s homicide detective,
coerced him into recanting his original statement, and he
affirmed his earlier statement about Morgan’s admission.
The district court originally found Taylor incredible on the
basis of his multiple declarations and denied Earp’s claim of
prosecutorial misconduct without conducting an evidentiary
hearing. We reversed the district court after concluding that
a question that turns on the “veracity of the witnesses . . .
could not be adjudicated without an evidentiary hearing.”
Earp, 431 F.3d at 1170. In analyzing both whether Earp had
a full and fair opportunity to develop his claim and whether
he presented a colorable claim, we emphasized the impor-
tance of conducting an evidentiary hearing before making the
requisite credibility determinations. Id. at 1169-72. We
remanded to allow Earp “an opportunity to prove the facts
supporting his claim.” Id. at 1172.
On remand, Taylor, Foltz, and Milkey testified. Taylor tes-
tified that Foltz and three police officers met with him to dis-
cuss his original declaration and coerced him into recanting.
Taylor claimed that Foltz threatened him and that Foltz
directed Taylor on how to respond to certain questions.
Finally, Taylor reaffirmed the statements he made in his origi-
nal declaration. Foltz stated that he conducted an interview
with Taylor after receiving Taylor’s original statement claim-
ing he overheard Dennis Morgan admit to being present at
Earp’s home. Foltz testified that Taylor voluntarily recanted
his statement after learning that he would have to testify in
court. Foltz maintained that neither he nor Milkey instructed
Taylor on how to answer questions. They also did not threaten
Taylor in any manner during any part of the interview. Milkey
corroborated Foltz’s testimony. He testified that Taylor
EARP v. CULLEN 17259
became nervous after learning that he would have to testify
regarding his statement, and that Taylor was not coached on
how to answer questions posed during the interview. Milkey
denied all allegations that he or Foltz threatened or intimi-
dated Taylor.
In an effort to bolster the credibility of Taylor, Earp sought
to introduce the testimony of Cindy Doshier, the victim’s
mother, at the evidentiary hearing. According to Earp,
Doshier was prepared to testify that she too was intimidated
by Foltz after she testified in support of the defense at trial.
The district court allowed Earp to call Doshier as a witness,
but then appointed separate counsel to advise Doshier of her
rights under the Fifth Amendment. Doshier subsequently
invoked her Fifth Amendment right against self-
incrimination, and the district court accepted her invocation
on a blanket basis.
In its order denying Earp’s petition, the district court
expressly rejected Taylor’s testimony as incredible, and found
Foltz and Milkey to be credible witnesses independent of all
other testimony received. Consequently, the district court
denied Earp’s allegation of prosecutorial misconduct. Earp
now challenges the exclusion of Doshier’s testimony, assert-
ing that he was deprived of a full and fair opportunity to prove
his claim due to the district court’s improper acceptance of
Doshier’s invocation of her rights under the Fifth Amend-
ment.
B
[1] We conduct de novo review of challenges to the invo-
cation of the Fifth Amendment. United States v. Antelope, 395
F.3d 1128, 1133 (9th Cir. 2005). The Fifth Amendment states
that “[n]o person . . . shall be compelled in any criminal case
to be a witness against himself.” U.S. Const. amend. V. In
order to properly claim the protections against self-
incrimination, a witness must show that his testimony would
17260 EARP v. CULLEN
“support a conviction under a federal criminal statute . . . [or]
would furnish a link in the chain of evidence needed to prose-
cute the claimant for a federal crime.” Hoffman v. United
States, 341 U.S. 479, 486 (1951). A witness justifiably claims
the privilege if he is “confronted by substantial and real, and
not merely trifling or imaginary, hazards of incrimination.”
United States v. Apfelbaum, 445 U.S. 115, 128 (1980) (inter-
nal quotation marks and citations omitted).
[2] While the Fifth Amendment protects witnesses from
incriminating themselves on the basis of past conduct, it “pro-
vides no protection for the commission of perjury.” Id. at 127;
Glickstein v. United States, 222 U.S. 139, 142 (1911) (“[I]t is
also true that the immunity afforded by the constitutional
guaranty relates to the past, and does not endow the person
who testifies with a license to commit perjury.”). There is “no
doctrine of ‘anticipatory perjury,’ ” and a “future intention to
commit perjury” does not create a sufficient hazard of self-
incrimination to implicate the Fifth Amendment privilege.
Apfelbaum, 445 U.S. at 131.
[3] We applied this principle in United States v. Vavages,
151 F.3d 1185, 1192 (9th Cir. 1998), and held that the district
court erred in recognizing a witness’s invocation of the Fifth
Amendment when the basis for the invocation was the wit-
ness’s fear that the testimony about to be given “would sub-
ject her to a perjury prosecution.” When a witness has not yet
testified, “[t]he shield against self-incrimination . . . is to tes-
tify truthfully, not to refuse to testify on the basis that the wit-
ness may be prosecuted for a lie not yet told.” Id. (quoting
United States v. Whittington, 783 F.2d 1210, 1218 (5th Cir.
1986)). A blanket invocation of the Fifth Amendment in such
circumstances is not acceptable because there is no “valid
basis” for the assertion. Id.
[4] This case is indistinguishable from Vavages. The dis-
trict court permitted Doshier to anticipatorily claim the Fifth
Amendment privilege because it believed that she was going
EARP v. CULLEN 17261
to testify untruthfully. Supreme Court and Ninth Circuit pre-
cedent clearly preclude pre-emptive invocations of the privi-
lege. The district court erred by accepting Doshier’s assertion
of the Fifth Amendment.
[5] Nonetheless, the State contends that Doshier properly
asserted her Fifth Amendment privilege because she faced a
substantial and real hazard of incrimination. According to the
State, the testimony Doshier planned to give at the evidentiary
hearing could have established that a declaration she com-
pleted in 1997 was perjurious. “Fear of a perjury prosecution
can typically form a valid basis for invoking the Fifth Amend-
ment . . . where the risk of prosecution is for perjury in the
witness’ past testimony.” Vavages, 151 F.3d at 1192 n.3. This
argument is not persuasive, however, because the district
court did not rely on Doshier’s past testimony as the basis for
her Fifth Amendment privilege. It is the district court’s duty
to determine the basis for a witness’s assertion of the Fifth
Amendment privilege. Hoffman, 341 U.S. at 486 (“It is for the
court to say whether [a witness’s] silence is justified, and to
require him to answer if ‘it clearly appears to the court that
he is mistaken.’ ” (citations omitted)). The district court
allowed Doshier to invoke the Fifth Amendment because her
proposed testimony would expose her to the possibility of
prosecution; it believed she would commit perjury if allowed
to testify. The district court did not focus on Doshier’s poten-
tial liability for statements made in her earlier declaration.
Because a witness cannot validly assert her Fifth Amendment
rights upon a fear that she is about to commit perjury, there
was no viable basis for the district court’s acceptance of
Doshier’s invocation.
Moreover, there was no substantial risk that Doshier would
be prosecuted for perjury on the basis of her 1997 declaration
due to the federal and state statutes of limitation. Under fed-
eral law, a person may not be prosecuted for perjury more
than five years after the offense. 18 U.S.C. § 3282(a). Califor-
nia law imposes a limitation of three years. Cal. Penal Code
17262 EARP v. CULLEN
§§ 126, 801, 803. Doshier’s trial testimony occurred sixteen
years before the evidentiary hearing, and she completed her
declaration ten years prior to the hearing. The relevant statutes
of limitation had long since expired.
[6] Our initial remand of this case was for the purpose of
allowing Earp an opportunity to develop facts in support of
his claim of prosecutorial misconduct. The district court
deprived Earp of a full and fair hearing because it erroneously
accepted Doshier’s invocation of the Fifth Amendment. Thus,
we remand this claim for another evidentiary hearing at which
Earp should be afforded a full and fair opportunity to develop
the facts supporting his allegations. At the evidentiary hear-
ing, the district court is free to control the admission or exclu-
sion of evidence by exercising its discretion under the Federal
Rules of Evidence, specifically Rules 404(b) and 608. Our
decision to remand Earp’s prosecutorial misconduct claim is
based solely on the district court’s erroneous acceptance of
Doshier’s invocation of the Fifth Amendment, and this opin-
ion should not be interpreted as a comment on the merits of
his claim.
C
[7] In his opening brief, Earp requested that, upon remand,
we reassign the case to a different judge. In the absence of
personal bias, we assign a case to a new judge on remand only
in “unusual circumstances.” United States v. Sears, Roebuck
& Co., Inc., 785 F.2d 777, 780 (9th Cir. 1986). To make a
determination that unusual circumstances exist, we consider
whether: (1) “the original judge would reasonably be expected
upon remand to have substantial difficulty in putting out of
his or her mind previously-expressed views or findings deter-
mined to be erroneous or based on evidence that must be
rejected”; (2) “reassignment is advisable to preserve the
appearance of justice”; and (3) “reassignment would entail
waste and duplication out of proportion to any gain in pre-
EARP v. CULLEN 17263
serving the appearance of fairness.” Id. (quoting United States
v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979)).
[8] We regrettably conclude that the circumstances of this
case warrant reassignment. In its order, the district judge
made explicit credibility findings—it found Taylor incredible
and Foltz and Milkey credible. On remand, we cannot reason-
ably expect the district judge to set aside these credibility
findings and reassess the viability of Earp’s claim of prosecu-
torial misconduct in light of Doshier’s testimony. Addition-
ally, during the pendency of the original proceedings on
remand, we had to intervene and enter an emergency stay in
response to the district judge’s refusal to continue the eviden-
tiary hearing in order to allow Earp and the California Depart-
ment of Corrections time to locate and transport inmate
Taylor to Los Angeles to testify. At the next hearing, the dis-
trict judge was very critical of the request for a stay, notwith-
standing the importance our remand order placed on assessing
Taylor’s accusation. Under these circumstances, reassignment
is necessary to uphold the appearance of justice.
A finding of only one of the first two factors identified in
Arnett supports reassignment on remand. Sears, 785 F.2d at
780. Not only do the first two factors weigh in favor of reas-
signment, but doing so would not result in an undue waste of
judicial resources. To this point, the district judge has facili-
tated the whittling of Earp’s federal habeas claims from nine-
teen to two. It will not take a different district judge much
time to become acquainted with the facts underlying Earp’s
claim of prosecutorial misconduct—the only issue that will
need to be addressed on remand. We express no opinion on
the ultimate credibility determination. The district court is
free to conduct such proceedings and rule however the credi-
ble evidence warrants.
17264 EARP v. CULLEN
II
A
[9] In his petition for a writ of habeas corpus, Earp also
asserted a claim of ineffective assistance of counsel. Specifi-
cally, he alleged that trial counsel neglected to conduct suffi-
cient investigation into potential mitigating evidence. Had
sufficient investigation occurred, Earp argued that trial coun-
sel would have uncovered school records indicating emotional
and psychological problems, additional information about
Earp’s familial background—including a history of substance
abuse and mental health problems—and significant mental
health evaluations evincing organic brain damage. Earp, 431
F.3d at 1172.
[10] At an evidentiary hearing held by the district court,
Earp presented numerous witnesses in support of his claim of
ineffective assistance of counsel. Adrienne Dell, Earp’s coun-
sel for the penalty phase of trial and later his wife, testified
on direct examination that she did minimal investigation and
did not personally interview the witnesses presented at the
penalty phase. She claimed that she did not inquire into
Earp’s history of drug abuse, nor did she investigate his men-
tal health or request a neuropsychological exam. However, on
cross-examination, she equivocated when confronted with her
own billing records indicating several conferences with her
co-counsel, investigator, and others regarding penalty phase
matters, and she admitted that Earp had been evaluated by
two psychologists. In fact, she acknowledged receiving one
psychologist’s conclusion that Earp “fit the profile of being a
child molester.” She also acknowledged that “several” investi-
gators were retained to assist with both the guilt phase and the
penalty phase of Earp’s trial. Dell identified notes she
received prior to Earp’s trial stating that there were no indica-
tors of organic brain damage, and admitted that she probably
would have presented evidence of organic brain damage if the
evidence had indicated Earp had any such damage.
EARP v. CULLEN 17265
Earp also elicited the testimony of a social worker for the
California Youth Authority (“CYA”) who had compiled a
report on Earp containing psychiatric and psychological eval-
uations, medical and dental reports, a social history, and eval-
uations of Earp’s interactions within his CYA living unit. He
presented three childhood acquaintances, who all testified
about Earp’s drug and alcohol abuse during his teenage years.
Earp’s brother and sister testified about Earp’s childhood and
his relationships with his father, mother, and stepfather.
[11] During the evidentiary hearing, Earp sought to intro-
duce the testimony of Dr. Inez Monguio, a neuropsychologist
who evaluated Earp in 2002 to determine whether he had
organic brain damage. She testified that had she examined
Earp in 1991, she would have reached the same conclusions
as she did in 2002, and that the tests she utilized during her
evaluation were either available in 1991 or had comparable
counterparts at that time. On cross-examination, Dr. Monguio
stated that she did not confer with any of the mental health
professionals who had evaluated Earp at the time of his trial.
She also admitted that she could not reliably opine on Earp’s
mental state at the time of the crime. After that admission, the
State moved to strike Dr. Monguio’s testimony. The district
court granted the motion to strike, concluding that Dr.
Monguio’s testimony was not helpful because, in 2002, she
could not determine whether Earp had organic brain damage
at the time of his trial in 1991.
[12] Earp’s final witness at the evidentiary hearing was
Ezekiel Perlo, an experienced capital case attorney licensed to
practice in California. The State objected to Perlo’s testimony
on the basis that the purpose of the testimony was to opine
regarding the effectiveness of Earp’s trial counsel—a legal
conclusion to be made by the district court. The district court
allowed Perlo to testify regarding what trial counsel should
have done, but excluded his ultimate legal opinion pertaining
to the adequacy of Earp’s trial counsel’s performance.
Accordingly, Perlo testified about the applicable standards of
17266 EARP v. CULLEN
attorney competence in 1991. Specifically, he stated that trial
counsel should develop evidence if there is an indication of
drug abuse or mental health problems, but he also acknowl-
edged that there is an end to the duty to investigate.
In response, the State presented the testimony of investiga-
tor Sheryl Duvall, a member of Earp’s defense team who had
been responsible for discovering mitigation evidence, and two
attorneys assigned to Earp’s case before Dell was appointed.
The defense investigator reported that the extensive pre-trial
inquiry she conducted produced psychological and psychiatric
reports, probation records, and prison records. Duvall also
met with Earp, his mother, his sister, his brother, his stepfa-
ther, his aunt, and his cousin. Duvall spoke with Earp’s for-
mer teachers, former partners, and employees at the CYA.
Louis Bernstein, lead defense counsel during the guilt
phase of Earp’s trial, testified that Earp’s lack of candor
impeded attempts to uncover additional mitigation evidence.
He stated that he and Dell worked together and offered advice
and assistance to one another. Marcia Morrissey, the attorney
originally assigned to the penalty phase of Earp’s trial, veri-
fied that she obtained pre-trial psychological reports from
Earp’s childhood, and she identified records of meetings she
held with two mental health experts regarding potential miti-
gating evidence. Morrissey testified that she transferred
everything to Dell at the time she ceased working on the case,
and recalled telling Dell that more investigation needed to be
done to obtain a “coherent picture” of Earp.
After receiving all of this evidence, the district court found
that Earp did not satisfy his burden of proof “as to either defi-
cient performance or resulting prejudice.” It discredited the
testimony of Adrienne Dell because her testimony was
“vague, inconsistent, and subject to lapses of memory in sig-
nificant areas.” Additionally, Dell’s testimony contradicted
her own contemporaneous records and notes and was incon-
sistent with other testimony. The district court also rejected
EARP v. CULLEN 17267
the testimony of the social worker, Earp’s childhood friends,
and his family as being cumulative, unpersuasive, and biased.
The court discussed Dr. Monguio’s testimony, and reaffirmed
its decision to strike it. Finally, the district court stated that
Perlo’s testimony was not “particularly illuminative or use-
ful.”
[13] Earp now challenges the district court’s limitation of
Perlo’s testimony and its decision to strike Dr. Monguio’s tes-
timony. Similar to his argument regarding the prosecutorial
misconduct allegation, Earp claims that the district court’s
evidentiary rulings deprived him of a full and fair opportunity
to present his claim of ineffective assistance of counsel. Earp
also contends that the district court erred in denying his inef-
fective assistance of counsel claim on the merits.
B
We review de novo a district court’s decision to deny or
grant habeas relief. Lambert v. Blodgett, 393 F.3d 943, 964
(9th Cir. 2004). The Anti-Terrorism and Effective Death Pen-
alty Act governs our review of Earp’s petition because it was
filed after April 24, 1996. Woodford v. Garceau, 538 U.S.
202, 210 (2003). Because there is no reasoned state court
decision addressing the merits of Earp’s ineffective assistance
of counsel claim, we conduct an independent review of the
record and determine whether the state court’s decision was
objectively unreasonable. Richter v. Hickman, 578 F.3d 944,
951 (9th Cir. 2009) (en banc).
Ineffective assistance of counsel claims are governed by the
two-prong analysis pronounced in Strickland v. Washington,
466 U.S. 668 (1984). First, a claimant must “show that coun-
sel’s performance was deficient.” Id. at 687. Counsel renders
deficient performance when representation falls “below an
objective standard of reasonableness.” Id. at 688. We conduct
a “highly deferential” review of counsel’s conduct because “it
is all too easy for a court, examining counsel’s defense after
17268 EARP v. CULLEN
it has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.” Id. at 689. Therefore,
“a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Id.
If a claimant establishes that counsel’s performance was
deficient, he must then show that the deficiencies were
prejudicial—“that they actually had an adverse effect on the
defense.” Id. at 692-93. Prejudice occurs when “there is a rea-
sonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” Id. at 694; Rhoades v. Henry, 611 F.3d 1133, 1141 (9th
Cir. 2010).
Earp premises his claim of ineffective assistance of counsel
on two deficiencies: (1) inadequate investigation of organic
brain damage; and (2) inadequate investigation of Earp’s
background. The district court denied Earp’s claim, finding
that he failed to show that either allegation constituted defi-
cient performance or that either alleged deficiency caused
prejudice. Specifically, the district court found that “counsel
made adequate investigation into [Earp’s] background and
family history and that counsel did not curtail required inves-
tigation into possible emotional, psychological or neurologi-
cal problems stemming from early childhood, any possible
organic brain damage, or the mitigating possibility of youthful
drug abuse.” Furthermore, it concluded that there was nothing
in the record that indicated that Earp was “prejudiced by any
purported deficiency of counsel.” We need not address
whether Earp was prejudiced by trial counsel’s performance
because we conclude that trial counsel’s performance was not
deficient. See Hein v. Sullivan, 601 F.3d 897, 918 (9th Cir.
2010) (“[W]e may dispose of [the ineffective assistance of
counsel] claim if [the claimant] fails to satisfy either prong of
the two-part test.”).
EARP v. CULLEN 17269
1
Before reaching the merits of Earp’s claim of ineffective
assistance of counsel, we address his challenge to the district
court’s decision to limit the testimony of Perlo. We review a
district court’s decision to admit or exclude expert testimony
for an abuse of discretion. United States v. W.R. Grace, 504
F.3d 745, 759 (9th Cir. 2007). At the evidentiary hearing, the
district court precluded Perlo from opining on Earp’s trial
counsel’s performance and repeatedly admonished Earp that
such questions were improper. The district court did, how-
ever, permit Earp to question Perlo regarding what competent
trial counsel in a death penalty case should have done in 1991.
Expert testimony is not necessary to determine claims of
ineffective assistance of counsel. Hovey v. Ayers, 458 F.3d
892, 910 (9th Cir. 2006). When determining whether to admit
expert testimony, the district court must consider the proba-
tive value of the testimony—a consideration that hinges on
the court’s ability to “assess the issues.” Id. at 911. Because
a district court is “qualified to understand the legal analysis
required by Strickland,” it does not abuse its discretion in
excluding expert testimony relating to that analysis. Id.
[14] The aspects of Perlo’s testimony that were excluded
by the district court in this case impacted only the determina-
tion of whether Earp’s trial counsel satisfied the appropriate
standard of care. It was not an abuse of discretion for the dis-
trict court to prevent Perlo from testifying regarding this ulti-
mate legal conclusion because it was a determination the
district court was qualified to make.
2
Earp alleges that he received ineffective assistance of coun-
sel at the penalty phase of his trial due to his counsel’s failure
to investigate whether he suffered from organic brain damage.
In support of his claim, Earp elicited the testimony of his pen-
17270 EARP v. CULLEN
alty phase counsel, Dell. She stated that she neither investi-
gated Earp’s mental state nor requested a neuropsychological
evaluation. However, she did acknowledge that two psycholo-
gists and a psychiatrist evaluated Earp. Dell also confirmed
that she reviewed notes from Marcia Morrissey, the attorney
originally assigned to the penalty phase of Earp’s trial, which
stated that there were no indications of organic brain damage.
Finally, Dell admitted that she wrote a letter during prepara-
tion for Earp’s trial explicitly stating that the medical records
contained no information suggesting that Earp had organic
brain damage.
Earp also relied on the testimony of neuropsychologist Dr.
Inez Monguio.2 In her report and deposition testimony, Dr.
Monguio concluded that Earp had deficits in processing speed
and working memory that were consistent with organic brain
damage. The testing also revealed that Earp experienced diffi-
culty with verbal and visual functions, which indicated prob-
lems in the anterior areas of both the left and right
hemispheres of the brain. Dr. Monguio summarized her find-
ings as “consistent with organic damaged [sic] by traumatic
brain injury.”
[15] Notwithstanding Dr. Monguio’s conclusions that Earp
had organic brain damage that was diagnosable in 1991 and
Dell’s statements that she did not investigate the possibility of
organic brain damage, we conclude that Earp has not estab-
lished that his trial counsel was deficient for failing to investi-
gate this potential mitigating evidence. Earp contends that
because Dr. Monguio’s 2002 report clearly establishes that he
had organic brain damage at the time of his trial in 1991, his
2
Earp argues that the district court abused its discretion when it struck
Dr. Monguio’s testimony. For purposes of resolving Earp’s appeal, we
assume that Dr. Monguio was qualified to testify as an expert and that the
district court improperly excluded her testimony. Therefore, we accept the
conclusions outlined in her comprehensive report and deposition testi-
mony.
EARP v. CULLEN 17271
trial counsel was ineffective for failing to discover and pres-
ent this mitigating evidence. The record belies Earp’s allega-
tions of insufficient investigation of organic brain damage.
[16] When there is no “objective indication” that a defen-
dant has a mental illness or brain damage, we cannot label
counsel “ineffective for failing to pursue this avenue of miti-
gation.” Gonzales v. Knowles, 515 F.3d 1006, 1015 (9th Cir.
2008). Dell’s testimony, in combination with the records cre-
ated at the time of the penalty phase of Earp’s trial, establish
that Earp’s defense counsel was pursuing the possibility of
organic brain damage—there was just no evidence to support
that theory. Rather, one psychologist concluded that Earp was
a sociopath and that he had a higher probability than the aver-
age person to be a child molester. We cannot fault trial coun-
sel for failing to further investigate potential mitigating
evidence of organic brain damage when the thorough defense
investigation, that explicitly pursued the possibility of organic
brain damage, uncovered no helpful information.
[17] Furthermore, Dr. Monguio’s contradictory diagnosis
of organic brain damage, received eleven years after Earp’s
trial, is insufficient to overcome the contemporaneous docu-
mentation that indicated that Earp did not have organic brain
damage. See Boyde v. Brown, 404 F.3d 1159, 1166-67 (9th
Cir. 2005) (rejecting a retrospective competency determina-
tion in favor of contemporaneous evidence that showed the
defendant was competent to stand trial); id. at 1167 (holding
that defendant could not establish that his trial counsel was
ineffective for failing to request a competency hearing when
all of the contemporaneous evidence supported the conclusion
that the defendant was competent). The fact that Earp can
now present a neuropsychologist who is willing to opine that
he had organic brain damage at the time of his trial does not
impact the ultimate determination of whether Earp’s trial
counsel insufficiently investigated that possibility.
The pertinent question is whether Earp’s counsel pursued
the possibility that Earp had organic brain damage—it indis-
17272 EARP v. CULLEN
putably did, but to no avail. Even if the mental health profes-
sionals who evaluated Earp at the time of his trial incorrectly
concluded that Earp did not have organic brain damage,
Earp’s claim fails. An expert’s failure to diagnose a mental
condition does not constitute ineffective assistance of counsel,
and Earp has no constitutional guarantee of effective assis-
tance of experts.
[18] We agree with the district court’s finding that “the
possibility of brain damage was carefully considered before
being excluded.” We reject Earp’s claim of ineffective assis-
tance of counsel for failing to investigate organic brain dam-
age due to his inability to show that his trial counsel rendered
deficient performance.
3
Earp next contends that trial counsel violated professional
norms by failing to adequately investigate Earp’s familial
background, childhood, and social history. Specifically, Earp
argues that trial counsel should have contacted three child-
hood friends and a CYA social worker. At the evidentiary
hearing, Earp’s childhood friends testified that Earp began
using drugs in seventh or eighth grade. Earp asserts that the
evidence of his extensive drug use as a teenager would have
“humanized” him and reinforced any references to the possi-
bility of organic brain damage. He claims further that had trial
counsel contacted the CYA social worker, her report would
have led to additional mitigation evidence and could have
revealed another strategy for conducting the penalty phase of
Earp’s trial.
[19] The fact that Earp now presents additional witnesses
who were not contacted prior to the penalty phase of Earp’s
trial does not compel a finding that trial counsel rendered
ineffective assistance. The Supreme Court recently reaffirmed
the proposition that we cannot fault trial counsel for failing to
find more mitigating evidence if trial counsel reasonably
EARP v. CULLEN 17273
believed that further investigation would produce only cumu-
lative evidence. Bobby v. Van Hook, 130 S. Ct. 13, 19 (2009).
Indeed, requiring additional research in such instances could
have potentially negative implications because it would dis-
tract trial counsel from performing more important responsi-
bilities. See id.
[20] Although Earp presented four witnesses not contacted
before the penalty phase of his trial, we cannot agree that trial
counsel inadequately investigated his familial background,
childhood, and social history. The defense investigator hired
by Earp’s trial counsel conducted extensive research and field
work. She interviewed Earp numerous times, met with his
childhood friend, David Callenchini, interviewed his immedi-
ate and extended family, and spoke with his former teachers
and juvenile probation officers. Additionally, she obtained
records from Earp’s prior psychiatric hospitalization, previous
psychological examinations, medical examinations, and a psy-
chological evaluation conducted after Earp’s father died. She
even pursued Earp’s father’s mental health records. The
investigator also acquired Earp’s school and juvenile proba-
tion records. It is evident that Earp’s defense team was vigi-
lant in its investigation of his past notwithstanding the
difficulties caused by Earp’s lack of honesty with his lawyers.
[21] “[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690. Trial counsel’s
failure to contact the four witnesses Earp now presents does
not violate objective standards. “This is not a case in which
the defendant’s attorneys failed to act while potentially pow-
erful mitigating evidence stared them in the face, or would
have been apparent from documents any reasonable attorney
would have obtained.” Bobby, 130 S. Ct. at 19 (internal cita-
tions omitted). In fact, there is no evidence in the record that
trial counsel knew, or should have known, of Earp’s relation-
ship with these four witnesses. Consistent with Perlo’s testi-
mony regarding what competent capital counsel should
17274 EARP v. CULLEN
investigate, Earp’s trial counsel obtained school records,
prison records, CYA records, and doctors’ records, in addition
to speaking with Earp’s family and his former teachers.
Earp’s penalty phase counsel conducted sufficient investiga-
tion into Earp’s social history in an effort to uncover potential
mitigating evidence.
III
The district court erred when it allowed Cindy Doshier to
invoke her Fifth Amendment right against self-incrimination.
This error deprived Earp of a full and fair opportunity to pres-
ent his claim of prosecutorial misconduct. Therefore, we
REVERSE the district court’s denial of this claim, REMAND
for a full and fair evidentiary hearing on only the prosecu-
torial misconduct claim, and instruct that this case be reas-
signed to another district judge on remand. We further hold
that Earp has not shown in any respect that his trial counsel’s
performance was deficient. We thus AFFIRM the district
court’s denial of Earp’s claim of ineffective assistance of
counsel.
AFFIRMED in part; REVERSED and REMANDED in
part. Each party shall bear its own costs.