Samayoa v. Ayers

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICHARD GONZALES SAMAYOA,  No. 09-99001
Petitioner-Appellant, D.C. No.
v.  3:00-CV-02118-
ROBERT L. AYERS JR., W-AJB
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding

Argued and Submitted
August 25, 2010—Pasadena, California

Filed April 4, 2011

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
Barry G. Silverman, Circuit Judges.

Opinion by Judge Silverman;
Dissent by Judge Reinhardt

4403
 SAMAYOA v. AYERS 4405

COUNSEL

Glen Niemy, Bridgton, Maine, for the petitioner-appellant.

Annie Featherman Fraser (argued), Deputy Attorney General,
and Raymond M. DiGuiseppe, Deputy Attorney General, San
Diego, California for respondent-appellee.

OPINION

SILVERMAN, Circuit Judge:

It is undisputed that on December 18, 1985, appellant Rich-
ard Samayoa beat Nelia Silva to death with a wrench in the
4406 SAMAYOA v. AYERS
course of burglarizing her home. Samayoa also beat to death
Nelia’s two-year-old daughter, Katherine. The pathologist
estimated that Nelia was struck in the head 24 times. The jury
heard testimony that the faces of both mother and daughter
were smashed in, their skulls crushed, and fragments of bone
penetrated their brains. It is undisputed that Samayoa left
Nelia and Katherine naked from the waist down — he said he
did that to make the crime look like a rape — and then he
stole jewelry from the Silva house that he gave away as gifts
to members of his family. The mutilated bodies of both vic-
tims were found by Rolando Silva, Nelia’s husband and Kath-
erine’s father. Photos of the decedents and of the bloody
crime scene were introduced into evidence.

Nine years earlier, Samayoa had raped and sodomized a
woman with multiple sclerosis, who begged him, “Please
don’t rape me. I’m a cripple.” He was convicted of burglary
and rape and sentenced to prison. Five years later, while stay-
ing overnight at a friend’s home, Samayoa entered the bed-
room of the friend’s sister and smashed a flower pot in her
face in an effort to rape her. She suffered a laceration of her
face that penetrated to her cheek bone. He was convicted of
assault with a deadly weapon and again sentenced to prison.
Samayoa also had a prior conviction for another burglary.
Altogether, he had been sentenced to prison three separate
times.

At the trial of the double Silva murders, which Samayoa
conceded he committed, defense counsel presented testimony
from three psychologists and a written report from a fourth to
the effect that Samayoa suffers from, among other diagnoses,
an organic brain disorder that could explain his violence. In
addition, at the penalty phase of the trial defense counsel pres-
ented evidence that Samayoa had been a compliant prisoner
during his previous incarcerations, proving that he can be
safely incarcerated. They also presented evidence from his
mother and sisters to the effect that they loved him and hoped
his life would be spared.
 SAMAYOA v. AYERS 4407
The jury returned a penalty phase verdict of death after
about 80 minutes of deliberation.

Samayoa now claims that his two defense lawyers were
ineffective at the penalty phase because they failed to dis-
cover and prove that when Samayoa was a child, his extended
family physically fought with each other and abused drugs, as
did he; that sexual abuse was prevalent in the family, and an
uncle may have abused Samayoa at age eight or nine; that
Samayoa’s family was poor; that his father was a harsh disci-
plinarian; and that his mother was “emotionally distant.”

On state habeas review, the California Supreme Court
rejected the claim of ineffective assistance of counsel. It did
so on the merits but without further explanation.

The question posed in the present federal habeas petition is
whether the state court’s decision rejecting the ineffective
assistance of counsel claim is contrary to or an unreasonable
application of United States Supreme Court law. The district
court assumed (without definitively deciding) that Samayoa’s
trial lawyers fell below the standard of care in not presenting
the evidence of Samayoa’s childhood at the penalty phase of
the trial. However, the district court held that the state court
was not unreasonable in denying relief because Samayoa can-
not show that he was prejudiced by any supposed failings of
counsel. In other words, in light of the atrociousness of the
two Silva murders, the heinousness of Samayoa’s prior
crimes, and the fact that counsel had already presented signifi-
cant evidence of Samayoa’s organic brain disorder to the jury
during the guilt phase, the California state court was not
unreasonable in deciding that there was no reasonable proba-
bility that the jury would have returned a different verdict had
it heard the additional evidence about Samayoa’s childhood.

We agree with the district court that the California Supreme
Court’s decision was not contrary to or an unreasonable appli-
cation of Supreme Court law. The two murders themselves
4408 SAMAYOA v. AYERS
were uncommonly brutal, and the aggravating evidence hor-
rific. If the evidence of an organic medical explanation for
Samayoa’s behavior, which the jury did hear, did not per-
suade it to impose a lesser sentence, it was not unreasonable
for the state court to decide that the additional evidence prob-
ably would not have produced a different verdict. We affirm.

I. Facts

A. The Crimes

In the direct appeal, the California Supreme Court set forth
the facts of the crime:

In December 1985 Nelia Silva resided with her hus-
band, Ronaldo [sic], and their two-year-old daughter,
Katherine, on Piedra Street in Southeast San Diego.
Defendant lived across the street from the Silva fam-
ily. On the morning of December 18, 1985, Ronaldo
[sic] Silva walked his daughter across the street to a
babysitter’s home and left his daughter there. At
approximately 6 p.m., Mrs. Silva returned from work
and picked up her daughter from the babysitter.

Mr. Silva arrived home at approximately 7:30 p.m.
that evening. He opened the garage door, observed
his wife’s car parked in the garage, and smelled
smoke. He entered the kitchen through the interior
garage door and found smoke spewing from the
stove top where food was burning. After calling out
for his wife and receiving no response, he looked
down the hallway and saw the bodies of his wife and
daughter lying on the floor in pools of blood. After
touching his wife and daughter, he realized they
were dead and ran outside seeking help. At 8 p.m.,
San Diego Police Department officers arrived at the
Silva residence and entered through the garage. They
discovered the bodies of a small child and a woman
 SAMAYOA v. AYERS 4409
lying in the hallway. The child was nude from the
waist down, with a large indentation in her head. The
woman also was nude from the waist down, wearing
only a shirt, and her face was smashed.

Outside the residence, Mr. Silva was comforted by
Raul and Deana Samayoa, defendant’s brother and
sister. Raul and defendant lived across the street with
their mother and other members of the Samayoa
family.

Detective Richard Carey of the San Diego Police
Department arrived at the scene at 9:35 p.m.
Approaching the hallway from the kitchen, he
observed large pools of blood in the area of the
woman’s body and the child’s head, and blood spat-
tered on the walls and in the three bedrooms off the
hallway.

That evening a police department technician
searched the area surrounding the Silva residence.
He found a wrench and several pieces of jewelry on
the ground near an area spattered with blood. He was
unable to lift fingerprints from the wrench, the jew-
elry, or the interior of the residence. Missing from
the house were a jewelry box and jewelry, and Mrs.
Silva’s purse.

Blood samples taken from the two victims and from
defendant all were determined to be type A. Mr.
Silva knew of defendant, but neither he, nor to his
knowledge his wife, ever had spoken with him.

A forensic pathologist, Dr. Robert Bucklin, per-
formed autopsies on both victims. Mrs. Silva’s arms,
hands, and fingers were covered with multiple
bruises and abrasions. She had been struck with
blunt force on the head and neck approximately 24
4410 SAMAYOA v. AYERS
times. Multiple blunt lacerations covered both sides
of her head and scalp. Dr. Bucklin testified that a
blunt laceration is a crushing type of injury made
with a heavy force without a sharp edge. Her jaw
bones and teeth were fractured and the left cheek
bone was crushed. The eyes were crushed around the
orbital ridges on both sides. Upon removal of the
scalp, the pathologist observed several skull frac-
tures, one of which had caused a piece of bone to
penetrate the brain, and another serious fracture
along the skull base that was caused by extensive
force.

The pathologist testified that Mrs. Silva would have
died within several minutes following the infliction
of her injuries. He further testified that the wrench
(recovered from outside the residence) was consis-
tent with and could have been the instrument that
caused the injuries.

The autopsy of Katherine revealed three injuries, all
blunt lacerations of the scalp. One injury on the right
side was two inches long and penetrated the skull
into the brain, producing hemorrhaging. The most
severe injury fractured the skull base. The brain con-
tusions caused hemorrhaging and edema. The
wrench was consistent with, and could have been,
the instrument that caused the injuries.

A criminalist with the district attorney’s office
developed a crime scene reconstruction, determining
that Mrs. Silva had received many blows while she
was lying on the floor. Katherine had been struck
once while near the left leg of her mother and then
moved along the hallway, smearing blood on the
wall, where she was struck again.

Following the commission of the crimes, defendant
gave various items of jewelry to family members. He
 SAMAYOA v. AYERS 4411
gave his mother, Mercedes Samayoa, a hair comb,
and gave his sister, Deana, a pearl necklace and a
bracelet. Defendant’s other sister, Inez Sykes, found
a man’s diamond gold ring sitting on her bathroom
counter. Defendant told her that the ring belonged to
him. Each of these items of jewelry later was identi-
fied as belonging to Mr. or Mrs. Silva.

In January 1986, following defendant’s arrest for a
violation of his parole in another criminal case, his
mother and his sister alerted the police that defen-
dant had given them items of jewelry. On January
20, 1986, Officers Art Beaudry and Ronald Jordan
met with defendant’s mother, brother, and sisters at
the Samayoa residence and collected the jewelry.
After the officers informed the Samayoas that a jew-
elry box also was missing, Raul Samayoa discovered
it wrapped in a blanket under a shed in the Samayoa
backyard. When shown the wrench that was discov-
ered outside the Silva residence, Raul Samayoa told
the officers that it appeared similar to the one he had
kept in his tool shed.

People v. Samayoa, 938 P.2d 2, 13-16 (Cal. 1997).

On January 31, Samayoa confessed to the killings.

B. The Trial

Defense counsel’s strategy at the guilt phase of the trial (a
strategy that is not challenged here) was to concede that
Samayoa had killed the victims and to present for Samayoa a
diminished capacity defense aimed at negating the allegations
of the special circumstances1 that would make the case a capi-
tal one if proven.
1
The special circumstances alleged were multiple murders and murders
in the course of a burglary.
4412 SAMAYOA v. AYERS
In his opening statement to the jury, defense counsel
conceded defendant’s guilt of two counts of first
degree murder and one count of residential burglary.
Counsel asserted that evidence of defendant’s brain
damage would be presented to establish that at the
time of his commission of the crimes, defendant
lacked the intent to kill his victims (which intent
was, at the time of the commission of the crimes, an
element of the burglary-murder special-circumstance
allegation) (see People v. Anderson (1987) 43 Cal.3d
1104, 240 Cal.Rptr. 585, 742 P.2d 1306). Thereafter,
in support of this theory, the defense presented at the
guilt phase the testimony of two psychologists, who
testified that the results of neuropsychological tests
administered to defendant indicated the presence of
organic brain damage.

Dr. Meredith Friedman, a licensed clinical psycholo-
gist and chief psychologist at the Metropolitan Cor-
rectional Center, testified she had been retained by
the defense to conduct preliminary neuropsychologi-
cal testing of defendant. Dr. Friedman explained that
the field of neuropsychology involves the relation-
ship of cognitive and perceptual behavior to underly-
ing brain dysfunction. In August 1986, Dr. Friedman
conducted a battery of neuropsychological tests,
including the Luria-Nebraska series, the Canter
Background Interference Procedure, and the Bender-
Gestalt visual motor test. (She acknowledged she
had no formal training in the administration of the
Luria-Nebraska tests.) She also analyzed the results
of tests conducted one month earlier, applying the
Wechsler Adult Intelligence Scale. Additionally, Dr.
Friedman interviewed defendant regarding his his-
tory of head injuries, and defendant disclosed he had
been rendered unconscious in a bicycle accident at
13 years of age, and again in 1972, when he was
 SAMAYOA v. AYERS 4413
struck on the head by a billy club wielded by a
police officer.

According to Dr. Friedman, the test results indicated
global intellectual deterioration and brain damage
associated with the left parietal, occipital, temporal,
and frontal lobe areas of the brain, which would
cause hypersensitivity, unmodulated reaction, and
overreaction in novel or stressful situations. Such
brain damage also would cause episodes of “rage
reaction,” resulting in an explosive lack of control,
and panic in “fight or flight” situations. Dr. Fried-
man also testified that defendant demonstrated “vis-
cosity,” signifying that he obsessively pursued or
repeated a single function or response—an action
consistent with temporal lobe damage.

***

Dr. Saul Saddick, a licensed clinical psychologist,
testified that he specialized in neuropsychological
assessment, although he does not hold a board certi-
fication in neuropsychology. Dr. Saddick adminis-
tered to defendant the Halsted-Reitman battery of
tests and interviewed him regarding his history of
head injuries. Dr. Saddick testified that the test
results indicated brain damage to the frontal, tempo-
ral, and parietal lobes of the brain, which would
cause poor impulse control, impairment of reasoning
skills, low frustration tolerance, assaultive behavior,
and a “short fuse” profile, consistent with frontal
temporal damage. Defendant also demonstrated “vis-
cosity” and “perseveration,” signifying that once
engaged in an activity such as aggressive behavior,
he would have difficulty discontinuing his actions.
Viscosity and perseveration were consistent with left
temporal lobe damage. Defendant’s confession to the
police was indicative of viscosity, in that his state-
4414 SAMAYOA v. AYERS
ment was a monologue unresponsive to questions
asked, and he spoke in repetitive circles. Persons
with the type of brain damage suffered by defendant
may experience episodes of “rage reactions,” and
according to Dr. Saddick it is difficult to determine
whether a person locked into a rage reaction is aware
of his conduct or, if aware, is able to stop his con-
duct. He acknowledged that defendant was aware of
the difference between killing someone and inflict-
ing serious bodily injury. Dr. Saddick ultimately
diagnosed defendant as having an (1) organic “ex-
plosive type” personality syndrome, (2) antisocial
personality disorder, and (3) moderate cerebral dys-
function.

The parties stipulated that People’s exhibit No. 66
was a drawing by defendant of the court reporter,
given by defendant to her. The parties further stipu-
lated that Dr. Dixon, the psychologist retained by the
district attorney’s office who tested defendant on
February 3, 1986, observed during the Rorschach
test that defendant often perseverated, indicating “or-
ganicity” (i.e., brain damage), the origin of which
could be alcohol or drug abuse.

Samayoa, 938 P.2d at 16-17.

The government presented two experts to rebut the defen-
dant’s brain damage evidence. Id. at 17-18. On surrebuttal,
the defense presented an additional expert:

Dr. Melvin Schwartz, a clinical neuropsychologist
and forensic psychologist who was board certified in
neuropsychology, examined the same materials
reviewed by the other experts. Dr. Schwartz agreed
with Dr. Saddick’s conclusion that defendant suf-
fered left hemisphere brain damage. Behavior of the
type demonstrated by defendant (viscosity and per-
 SAMAYOA v. AYERS 4415
severation) frequently was demonstrated by brain-
damaged individuals. He opined that Dr. Saddick
competently had administered the tests in the present
case, although Schwartz had found errors in Sadd-
ick’s work in another case.

Id. at 18.

The jury deliberated for about 45 minutes and found
Samayoa guilty of two counts of first degree murder and one
count of residential burglary. The jury also found that
Samayoa used a deadly weapon (the wrench) during the
crimes, had served three prior prison terms, and had two prior
serious felony convictions. Finally, the jury found true the
multiple-murder special circumstance allegation — i.e., that
in the present case, Samayoa was convicted of more than one
count of murder. It also found true the felony murder special
circumstances — i.e., that each murder was committed in the
course of a burglary. Id. at 13.

The penalty phase of the trial then commenced before the
same jury. The state presented the following evidence in
aggravation:

The 1976 preliminary hearing testimony of Berta
Lou Raymond in a prior unrelated criminal prosecu-
tion for burglary and rape was read to the jury. (Ray-
mond was deceased and therefore unavailable as a
witness.) Raymond testified that she suffered from
multiple sclerosis and usually was confined to a
wheelchair. On July 8, 1975, at 2:15 a.m., she was
at home alone asleep in bed. She was awakened by
the sound of the bedroom door opening, and a flash-
light was shined in her face. She could hear two men
but could not see them. One of the men held a knife
at her throat, asking her where she kept her money.
When she heard a belt buckle being loosened and a
zipper unzip, she screamed, “Please don’t rape me,
4416 SAMAYOA v. AYERS
I’m a cripple.” A male voice responded, “I know, I
won’t hurt you.” The man then removed his pants
and raped her. At one point he turned her over and
entered her rectum with his penis. The initial act of
intercourse lasted approximately 15 to 20 minutes.
Another man repeatedly entered the bedroom, refer-
ring to the man who was raping her as “Jack.” She
heard a total of three different voices.

***

David Drew Anderson was one of the participants in
the Raymond burglary and had pleaded guilty to the
crimes. In the present proceedings, at the penalty
phase of defendant’s trial, Anderson testified that on
July 7 and 8, 1975, he had been with defendant and
James Glasgow, drinking and ingesting heroin.
Defendant, recently having been released from cus-
tody, needed money. Both defendant and Glasgow
lived in close proximity to Raymond, and the three
men decided to burglarize her house. They agreed to
use fictitious names in the event they needed to com-
municate with each other while inside the residence.
Defendant entered first and began to rape Raymond.
Anderson disclosed for the first time (i.e., at the pen-
alty phase of the trial in the present case) that he and
Glasgow also had sexually assaulted Raymond. In
1976, Anderson had denied culpability for the rape
in order to avoid prosecution for that offense.

The prosecution also presented evidence of defen-
dant’s 1981 conviction for assault with a deadly
weapon on Elvira R. Rosendo R., the brother of the
victim, testified that on the evening of November 13,
1981, he returned from a party, accompanied by
defendant. They both fell asleep in Elvira’s bed-
room. Elvira was alone in her bedroom, asleep.
 SAMAYOA v. AYERS 4417
Elvira testified that she was awakened that evening
by someone striking her. Her assailant threatened
that he would kill her if she pulled down the covers,
and said he wanted to make love to her. When she
jumped up, he responded by forcefully striking her
in the face. She saw his face and recognized him,
crying out, “Oh my God Richard.” After she begged
him to allow her to wipe her face, he allowed her to
leave the room. She was taken to the hospital that
evening for treatment for severe lacerations on her
face, requiring stitches.

Finally, the prosecution also introduced evidence of
defendant’s 1974 burglary conviction.

Id. at 18-19.

In presenting the case in mitigation, defense counsel built
upon the brain damage evidence previously presented, adding
testimony from corrections officers and family members.

Paul Dillard, a counselor with the Department of
Corrections, testified that in 1981, while defendant
was a prison inmate, defendant held a position in the
prison kitchen, demonstrating his reliability and
responsibility.

Ronald Baldwin, an officer at a correctional facility,
testified that he had daily contact with defendant for
nearly a year in 1983, and that defendant had been
a cooperative, above-average worker.

Id. at 19. Similarly, Robert Smith, a retired corrections officer
from Soledad Correctional Training Facility, testified that
Samayoa worked on his prison crew six hours a day for
approximately a year. Smith rated Samayoa’s job perfor-
mance as “very satisfactory.”
4418 SAMAYOA v. AYERS
Samayoa’s mother, Mercedes, and two sisters, Inez and
Deana, testified. Their testimony was designed to humanize
Samayoa and elicit sympathy and mercy for him and his fam-
ily. They testified that Samayoa was an artist who loved his
family. Mercedes identified drawings and hand-made cards
Samayoa had made and sent to her and family photographs,
including pictures of Samayoa as a child. Mercedes also iden-
tified photos the family sent to Samayoa while he was in
prison. Similarly, Deana identified a card Samayoa had sent
to her. Deana also testified that Samayoa had a seven-year-old
son, and Samayoa and his son loved each other very much.
Inez and Deana testified that they had cooperated with the
police but loved Samayoa and hoped his life would be spared.

The jury deliberated for 80 minutes before returning a
death penalty verdict.

Samayoa filed a post-verdict motion to reduce his sentence
to a life sentence. The trial court independently reweighed
aggravating and mitigating evidence and denied the motion,
concluding that the death penalty was “the only fitting
response” to the “unspeakable crimes” and that aggravation
“vastly outweigh[ed]” mitigation. Id. at 44-46. As aggrava-
tion, the trial court cited the “overwhelming” evidence of the
special circumstances, the “viciousness and brutality of the
crimes,” the fact that Samayoa “bludgeoned” the victims “to
death in the course of . . . a burglary,” and the “prior violence
against highly vulnerable female victims.” Id. at 45.

C. State Appellate and Post Conviction Proceedings

The California Supreme Court unanimously affirmed the
convictions and sentence on direct review. Id. at 49. The
Supreme Court reviewed the motion to reduce sentence and
held that the trial court did not abuse its discretion when it
reweighed the aggravating and mitigating factors and con-
cluded that the “aggravating circumstances ‘vastly outweigh
the mitigating circumstances.’ ” Id. at 46.
 SAMAYOA v. AYERS 4419
Samayoa filed his first state habeas petition with the Cali-
fornia Supreme Court in 1997, arguing that counsel was inef-
fective for failing to investigate and present mitigation
evidence. On February 23, 1998, while the state habeas peti-
tion was pending, the United States Supreme Court denied
certiorari on Samayoa’s direct appeal. Samayoa v. California,
522 U.S. 1125 (1998). On September 27, 2000, the California
Supreme Court denied the ineffective assistance habeas claim
“on the merits,” without explanation.

D. Federal Habeas Petition

Samayoa filed his first federal habeas petition on January
28, 2002, and amended it in 2005, claiming that counsel was
ineffective for failing to investigate and present mitigation
evidence at the penalty phase. He filed numerous supporting
affidavits providing additional social history. Several family
members stated that Samayoa had grown up witnessing vio-
lent fights among extended family members, using drugs, and
drinking alcohol. One uncle admitted that he and his brothers
had tossed Samayoa around like a ball when he was an infant.
Several family members claimed that Samayoa’s mother,
Mercedes, was unaffectionate towards him. Samayoa’s father,
Ralph, was a disabled war veteran who received disability
income and had serious heath problems until his 1982 death.
Samayoa and his two brothers stated that their father harshly
disciplined them. According to Samayoa’s two brothers and
mother, one time Ralph disciplined Samayoa by putting
Samayoa’s hands into a flame as punishment for either burn-
ing their father’s five homing pigeons alive or for killing a
cat. Two cousins stated that Samayoa told them over phone
from prison that he had been molested by the uncle at age 9.
Samayoa admitted only that the uncle once attempted to
molest him. Other relatives described pervasive sexual abuse
in the extended family.

Marion Pasas, the defense investigator, signed an affidavit,
stating that the investigation was “not as thorough as [she] felt
4420 SAMAYOA v. AYERS
it should be” and that lead counsel, Michael Popkins, did not
spend time with Samayoa’s family. Assistant defense counsel,
Michael Marrinan, stated in his affidavit that, although he had
worked with mental health experts to prepare for trial, he was
unaware of abuse in Samayoa’s family. Had Marrinan known
about abuse, he would have presented the facts to the experts,
and to the jury as mitigation evidence.

E. District Court’s Ruling

The district court accepted all of the affidavits as true, and
assumed without deciding that the defense investigation fell
below the objective standard of reasonableness. However, the
district court held that the California Supreme Court was not
unreasonable in deciding that Samayoa suffered no prejudice
from the supposed failings of counsel.

The district court assumed that trial counsel could have
presented all of the new mitigating evidence, and the court
considered it in combination with the previously presented
evidence, which included (1) expert testimony that Samayoa
suffered head injuries which caused brain damage and caused
Samayoa to suffer a “rage reaction” on the night of the mur-
ders; (2) testimony by prison officials that Samayoa was a
productive prison worker, indicating that he could be safely
incarcerated; (3) testimony by Samayoa’s two sisters and
mother that Samayoa sent them hand-made cards and letters
from prison, that his child loved him, and that they felt guilty
for having helped convict him; and (4) counsel’s arguments
that Samayoa helped the police by confessing and that he did
not intend to kill the victims.

The district court then weighed all of this evidence against
the aggravating evidence. The court noted that the crime in
this case involved an extremely brutal double murder of a
mother and two-year-old daughter who were bludgeoned to
death with a wrench during a burglary. Both victims were
half-dressed and both had been struck many times while lying
 SAMAYOA v. AYERS 4421
on the floor. Samayoa subsequently gave the jewelry he stole
to members of his family. In addition, the court considered the
previous burglary, sexual assault, and assault with a deadly
weapon convictions. Considering the extremely violent nature
of the murders and his prior crimes, the district court con-
cluded that even if the additional mitigation had been pre-
sented to the jury, there was no reasonable possibility that one
of the jurors would have voted for life. The district court
added that the jurors deliberated on the guilt verdict for less
than 45 minutes and on the penalty for less than an hour and
a half. The court concluded that the California Supreme
Court’s rejection of the ineffective assistance claim involved
neither an unreasonable determination of the facts nor an
unreasonable application of Strickland v. Washington, 466
U.S. 668 (1984).

II. Analysis

A. Standard of review

The Antiterrorism and Effective Death Penalty Act applies
to this case. Woodford v. Garceau, 538 U.S. 202, 207 (2003).
A federal court may not grant habeas relief unless the decision
of the state court “was contrary to, or involved an unreason-
able application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). We review the district court’s denial of the
habeas petition de novo. Wilson v. Czerniak, 355 F.3d 1151,
1154 (9th Cir. 2004). Because the California Supreme Court
denied the ineffective assistance of counsel claim without
explanation, we independently review the record to determine
whether the state court unreasonably applied Strickland. Id.
“We do not independently decide the contested legal question,
but focus on whether the State Court decision should be
reversed under the § 2254 standard.” Id. (citing Delgado v.
Lewis, 223 F.3d 976, 982 (9th Cir. 2000)).

[1] The clearly established law in this case is the two-
prong Strickland test. Wiggins v. Smith, 539 U.S. 510, 522
4422 SAMAYOA v. AYERS
(2003). To prevail on the first Strickland prong, Samayoa
must establish that counsel acted below the objective standard
of reasonableness by not conducting a more thorough back-
ground investigation. Porter v. McCollum, 130 S.Ct. 447,
452-53 (2009). The critical issue is whether, applying prevail-
ing professional norms, trial counsel conducted an objectively
reasonable investigation for mitigating evidence. Id.; Wiggins,
539 U.S. at 522-23, 533. Our review “includes a context-
dependent consideration of the challenged conduct as seen
‘from counsel’s perspective at the time,’ ” rather than in hind-
sight. Wiggins, 539 U.S. at 523.

[2] To assess prejudice, we consider the mitigating evi-
dence that was presented along with the new mitigating evi-
dence and reweigh all of it against the aggravating evidence
to determine whether there is a “reasonable probability” that
it would have produced a different verdict. Sears v. Upton,
130 S.Ct. 3259, 3266-67 (2010); Wong v. Belmontes, 130
S.Ct. 383, 386 (2009). Of course, we must consider the total-
ity of the evidence before the jury when determining preju-
dice. Berghuis, 130 S.Ct. at 2264.

B. Analysis

[3] It is not at all clear that counsel should have been
expected to do more to uncover the evidence that Samayoa
now claims should have been presented.2 However, like the
2
The heart of Samayoa’s claim is an affidavit of the defense investiga-
tor, Marion Pasas, stating that the investigation was “not as thorough as
[she] felt it should be” and that lead counsel, Michael Popkins, did not
spend time with Samayoa’s family. But, Pasas’s opinion — which is only
an opinion — is directly contradicted by the record, which establishes an
early mitigation investigation and numerous meetings between counsel
and Samayoa. Popkins started the mitigation investigation two years
before trial, meeting with the investigator, discussing mitigating evidence
with both the investigator and Samayoa, and reviewing prison and crimi-
nal records in 1986. Pasas’s 1987 letter to Popkins, sent a year before trial,
establishes that she had interviewed immediate and extended family mem-
 SAMAYOA v. AYERS 4423
district court, we will assume without definitively deciding
that counsel should have found and presented the additional
evidence now in issue. We agree with the district court that
the California Supreme Court was not unreasonable in decid-
ing that the additional evidence of Samayoa’s childhood prob-
ably would not have caused a different verdict to be rendered.
Here’s why:

• The crimes were brutal and horrendous: not just
one murder but two, of a mother and her child, and
for no other reason than to steal jewelry from their
house.

• Samayoa’s prior record was also brutal and hor-
rific, terrible crimes marked by vicious cruelty. His

bers for mitigation and was obtaining school records. According to Pasas,
the family was “very quiet” and did “not give up information easily,” the
father was “absent most of the time,” and the mother was “extremely pas-
sive.” All of the mental health experts testified at trial that they reviewed
school records when they tested Samayoa.
Popkins’s contemporaneous notes show 66 meetings with Samayoa
before the penalty trial, including meetings to discuss mitigation evidence
two years before trial. Similarly, Michael Marrinan’s notes show that he
met 49 times with Samayoa. Between them, they also interviewed
Samayoa’s mother, grandmother, aunt, godchild, sisters and brothers
before the penalty trial. Despite all of these meetings — some specifically
to discuss mitigation — none of Samayoa’s immediate family members
state that counsel and the investigator failed to ask about abuse or family
history. Other relatives were asked to provide information that would put
Samayoa in a positive light. During one interview, counsel apparently
asked an aunt to provide only such information. But none of Samayoa’s
relative volunteered anything about the abuse they now describe.
After years of investigation, defense counsel has not identified any doc-
uments revealing “red flags” of abuse that would require further investiga-
tion, either. Rompilla v. Beard, 545 U.S. 374, 382-93 (2005) (holding that
counsel should have reviewed school and prior conviction records); Wig-
gins, 539 U.S. at 524-25 (holding that counsel should have further investi-
gated where social services records revealed abuse).
4424 SAMAYOA v. AYERS
three previous trips to prison had not prevented the
murders of Nelia and Katherine Silva.

• The jury had been presented with other mitigating
evidence, including substantial evidence from psy-
chologists purporting to link Samayoa’s violence to
an organic brain injury. That evidence was “more
significant[ ]” than the “[e]nvironmental factors” he
now proffers. Sears, 130 S.Ct. at 3262. Prison offi-
cials called Samayoa a reliable worker, and his
immediate family showed sympathetic cards and
photographs and described how Samayoa’s son
loved him.

• The evidence of Samayoa’s childhood does not
paint a pretty picture, but it is not so dramatic or
unusual that it would likely carry the day for
Samayoa given that his much more probative brain
injury evidence did not. His story, sadly, is not an
uncommon one: harsh discipline, poverty, drug
abuse, and violence and sexual abuse among
extended family members. It is not clear whether
Samayoa was actually sexually abused by an uncle
or if the uncle merely made an unsuccessful attempt.
Either way, it was a one-time event that pales in per-
suasive force compared to evidence of organic brain
dysfunction that failed to move the jury. Faced with
a similar situation in Wong v. Belmontes, the
Supreme Court said that it was “hard to imagine”
that additional facts about Belmontes’ difficult child-
hood would outweigh the facts of the murder he
committed — a crime similar to Samayoa’s. 130
S.Ct. at 391. Belmontes beat a woman to death with
a steel dumbbell bar, crushing her skull with 15 to 20
blows. Id. at 390. Samayoa crushed the skulls of two
people, inflicting 24 blows to the head of the mother
and beating to death her helpless young daughter.
 SAMAYOA v. AYERS 4425
III. Conclusion

In the final analysis, the question is not whether we think
that the newly-developed mitigating evidence would have
averted a verdict of death. We do not think so, but that is not
what matters. What matters is whether the California Supreme
Court was unreasonable in deciding that the additional evi-
dence would not likely have caused the jury to reach a differ-
ent verdict. For the reasons we have given, we hold that the
California state court’s decision was not an unreasonable
application of, or contrary to, United States Supreme Court law.3

AFFIRMED.

REINHARDT, Circuit Judge, dissenting:

This is a capital case in which the trial defense counsel, for
reasons that are impossible to fathom, deliberately and know-
ingly refused to investigate the capital defendant’s abusive
family background, the type of mitigating evidence that the
Supreme Court has repeatedly emphasized is highly relevant
to a jury’s decision whether to impose the death penalty. See,
e.g., Wiggins v. Smith, 539 U.S. 510, 535 (2003). In fact, in
this case it was the only mitigating evidence by which counsel
would have had any realistic chance of persuading the jury to
spare his client’s life.

Because Richard Samayoa’s trial counsel refused to inves-
tigate the circumstances of his client’s upbringing, the jury
that sentenced him to death never learned that he was raised
under unimaginably horrific conditions: that he was the victim
of constant and severe physical and psychological abuse, that
his family environment was rife with sexual abuse of children,
3
We decline to issue a certificate of appealability for the uncertified
issue briefed by Samayoa.
4426 SAMAYOA v. AYERS
and that he had drugs pushed upon him by abusive adult rela-
tives starting at an extremely young age. Samayoa’s counsel
had no strategic justification for failing to obtain such evi-
dence and present it to a jury, especially as, in light of
Samayoa’s brutal offense and his past brutal crimes, the only
hope of persuading the jury to spare his life was to explain his
criminal behavior as a product of the truly depraved condi-
tions which from the outset shaped his existence. The failure
to introduce that evidence probably made his death sentence
inevitable.

The mitigation case presented by Samayoa’s trial counsel
not only failed to provide the jury with a single reason to
spare Samayoa’s life, but likely contributed to some degree to
its decision to order him executed. The incompetence of the
psychological experts upon whom the defense relied to
attempt to prove that Samayoa suffered from organic brain
damage must have been evident to all, including the jurors:
the “experts” made basic mathematical errors in tabulating
test results, diagnosed Samayoa with a non-existent psycho-
logical condition,1 and presented the jury with a mislabeled,
upside-down diagram of the human brain. The testimony of
the prison guards called by the defense was equally without
import: the guards simply testified that Samayoa was “above
average,” for a prison worker.2 And the testimony of
Samayoa’s mother and two sisters was of no assistance to him
whatsoever: they testified that they loved Samayoa and would
1
Specifically, one of Samayoa’s experts, Dr. Saul Saddick, testified that
Samayoa suffered from “Organic Rage Reaction.” A government rebuttal
expert noted that “Organic Rage Reaction” is not a condition recognized
by the American Psychological Association. Even today, more than
twenty years later, a Google search for “Organic Rage Reaction” returns
only three results, all of which are documents arising from Samayoa’s liti-
gation that note there is no such condition as “Organic Rage Reaction.”
2
One correctional officer began by testifying that Samayoa was a “very
good worker,” and only later revised his assessment by stating that
Samayoa was an “above-average worker.” Shortly thereafter, that guard
stated that Samayoa was, “an okay worker.”
 SAMAYOA v. AYERS 4427
feel guilty if he were executed, because they helped turn him
in. One sister stated that she would “understand” if the jury
sentenced him to death, and both testified that until they
learned Samayoa was the culprit they had believed that who-
ever committed the murders for which he was convicted
should be executed. Obviously, such testimony could not pos-
sibly have served the purpose of swaying any juror that might
have otherwise been inclined to sentence Samayoa to death.

In order to establish that he is entitled to relief based upon
his trial attorney’s ineffective assistance, Samayoa must dem-
onstrate both that counsel’s performance was deficient, and
that the deficient performance prejudiced his chances of a ver-
dict of less than death. Strickland v. Washington, 466 U.S.
668, 687 (1984). Because there is no conceivable explanation
for the deliberate and willful refusal of Samayoa’s trial coun-
sel to investigate the physical and psychological abuse that
permeated Samayoa’s upbringing and to obtain information
concerning the horrendous experiences that might have been
responsible for his criminal conduct, I would hold that coun-
sel’s performance in this case was deficient. And in light of
the stark gulf between the worthless mitigating evidence pre-
sented to the jury and the potentially persuasive mitigating
evidence that Samayoa’s counsel failed to present, it seems
evident that “[h]ad the jury been able to place petitioner’s
excruciating life history on the mitigating side of the scale,
there is a reasonable probability that at least one juror would
have struck a different balance.” Wiggins, 539 U.S. at 537. At
the very least the jurors would have been given some basis for
understanding why Samayoa became what he did and to pon-
der whether execution is truly the appropriate remedy for
someone whose inexplicable conduct may have been the
product of the unconscionable physical and psychological
abuse to which he was himself subjected. I therefore dissent
from the majority’s conclusion that it would have been rea-
sonable for the California Supreme Court to hold that
Samayoa was not prejudiced by his counsel’s deficient perfor-
mance.
4428 SAMAYOA v. AYERS
I. Deficient Performance

“The proper measure of attorney performance [is] simply
reasonableness under prevailing professional norms.” Strick-
land, 466 U.S. at 688. As the Supreme Court has explained,
“[r]epresentation of a criminal defendant entails certain basic
duties.” Id. Among these, “counsel has a duty to make reason-
able investigations or to make a reasonable decision that
makes particular investigations unnecessary.” Id. at 691. As
the Supreme Court has repeatedly recognized, this duty to
conduct reasonable investigations includes a specific “obliga-
tion to conduct a thorough investigation of the defendant’s
background.” Porter v. McCollum, 130 S.Ct. 447, 452-53
(2009) (quoting Williams v. Taylor, 529 U.S. 362, 396 (2000)
(discussing 1980 ABA Standards for Criminal Justice))
(emphasis added); see also Wiggins, 539 U.S. at 523-29.

In his collateral challenge of his conviction, Samayoa sub-
mitted a declaration from Michael Marrinan, who served as
his co-counsel during his trial. Marrinan stated that
Samayoa’s defense lawyers were unaware of the abusive cir-
cumstances in which he was raised and “had no tactical rea-
son for not discovering [his abusive upbringing] and in not
presenting this information to . . . the jury as mitigation for
the crimes.” This concession alone would probably suffice as
evidence that, under Strickland, Samayoa’s attorneys did not
make “a reasonable decision that [made] . . . investigation [of
Samayoa’s background] unnecessary.” Strickland, 466 U.S. at
691.

However, the record in this case demonstrates that
Samayoa’s trial counsel not only failed to discover the abu-
sive circumstances of Samayoa’s childhood, but also actively
resisted conducting investigations that would have revealed
this information. Maria Pasas, who served as an investigator
for the defense during Samayoa’s trial, sent a letter to lead
counsel Michael Popkins prior to trial informing him that
Samayoa’s “family are very quiet and do not give up informa-
 SAMAYOA v. AYERS 4429
tion easily,” but that “[t]he picture seems to be emerging of
a rather marginally functioning family.” On habeas, Pasas
provided a declaration stating that despite this letter and
despite her attempts to persuade Popkins to investigate
Samayoa’s background:

[Samayoa’s] attorneys did not understand or seem
interested in the penalty phase. There was no
strategizing about the penalty phase and the penalty
phase investigation was not up to par. . . . Mike Pop-
kins did not spend time with [Samayoa’s] family. I
had to force him to go see [Samayoa’s] grandma
Inez.

Similarly evidencing Popkins’s active unwillingness to inves-
tigate Samayoa’s family background is a habeas declaration
from Samayoa’s aunt stating that when she was interviewed
by Popkins in preparation for the penalty phase,

[Popkins] did not want to hear what I had to say
. . . The attorney told me that he did not want to hear
negative things about [Samayoa] or the family. He
did not ask me many questions and he spent less than
a half hour with me. If Mr. Popkins had asked or
permitted me to tell him about the molests, abuse,
violence, alcohol and drug use that existed in my
extended family, I would have done so.

This evidence stands uncontradicted in the record. The
record thus demonstrates that Samayoa’s counsel did not just
fail to conduct even the most cursory of investigations into the
possibility that Samayoa was abused, but actively resisted
doing so. There is no conceivable strategic basis for Popkins’s
failure to so much as ask basic preliminary questions of
Samayoa’s family regarding a potentially crucial avenue of
mitigation evidence, and, even if there were, the uncontra-
dicted declaration of Michael Marrinan makes clear that trial
counsel’s failure to discover Samayoa’s history of physical
4430 SAMAYOA v. AYERS
and psychological abuse was not based upon such “a reason-
able decision that makes particular investigations unneces-
sary.” Strickland, 466 U.S. at 691.

To be sure, a truly determined and creative jurist could
engage in speculation and conjure up fanciful strategic justifi-
cations for Popkins’s refusal to investigate Samayoa’s back-
ground. One could, if one were particularly imaginative,
speculate that Popkins was concerned that questions as to
Samayoa’s childhood would alienate his family, and result in
their refusal to testify. In such case, the jurors would not have
heard that although his family had initially felt that the perpe-
trator of Samayoa’s offense deserved to be executed, they
appreciated the greeting cards he occasionally sent them from
prison. Or perhaps Popkins felt that he could not afford to
divert his focus from the correctional officers who would tes-
tify that Samayoa was an above-average worker. However,
even if such flights of fancy could provide a minimally color-
able strategic rationale for counsel’s refusal to investigate
Samayoa’s background (which they plainly cannot),
Samayoa’s lead counsel did not provide any statement to that
effect, and second counsel stated that no such strategic calcu-
lation justified the refusal to investigate. On the basis of the
record before us, it would be nigh impossible for a fairminded
jurist to deny that the “decision not to investigate [Samayoa’s
background] did not reflect reasonable professional judg-
ment.” Porter, 130 S.Ct. at 453. To the extent that the Califor-
nia Supreme Court’s denial of Samayoa’s ineffective
assistance claim reflected a contrary conclusion, it was “con-
trary to, or involved an unreasonable application of,” 28
U.S.C. § 2254(d)(2), Strickland’s requirement that “counsel
has a duty to make reasonable investigations or to make a rea-
sonable decision that makes particular investigations unneces-
sary.” 466 U.S. at 691.

The majority’s half-hearted effort to suggest that trial coun-
sel’s performance may have been adequate does not address
the actual basis of Samayoa’s ineffective assistance claim.
 SAMAYOA v. AYERS 4431
That, as the majority emphasizes, Samayoa’s attorneys met
with him dozens of times and even spoke with several of his
family members is simply irrelevant. Samayoa does not claim
that his trial lawyers failed to put in adequate “face time” or
that they never met with his family members. Rather, he
argues that his defense team deliberately, though inexcusably,
refused to so much as consider the possibility that his
upbringing was anything other than ideal, failed to investigate
the most elementary but critical factual area of mitigation law,
and accordingly failed to present in mitigation the only evi-
dence that might have caused one or more jurors to conclude
that his brutal criminal history was attributable to anything
other than his innate depravity. Innumerable cases and studies
show that individuals who commit vicious violent acts are
often, like Samayoa, themselves victims of unspeakable past
abuse, See, e.g., Wiggins, 539 U.S. 510; Rompilla v. Beard,
545 U.S. 374 (2005); see also W.H. Auden, September 1,
1939 (“I and the public know / What all schoolchildren learn
/ Those to whom evil is done / Do evil in return.”), and the
Supreme Court has accordingly made clear that evidence of
such abuse is of the greatest importance to a jury’s assessment
of a defendant’s culpability. See, e.g., Wiggins, 539 U.S. at
535.

The only argument that the majority provides that is
responsive to this claim is its suggestion that counsel’s perfor-
mance was acceptable because there were no “ ‘red flags’ of
abuse that would require further investigation.” In the same
footnote in which the majority states that there were no red
flags, it quotes extensively from Pasas’s letter to Popkins,
while conveniently omitting the letter’s conclusion that “[t]he
picture seems to be emerging of a rather marginally function-
ing family.” Such an observation would have alerted a compe-
tent attorney to the possibility that Samayoa’s family
background was worth investigating, but evidently this was a
possibility in which Popkins was not the least bit interested.
Moreover, while the absence of “red flags” might possibly
excuse a lawyer who simply fails to ask certain questions, it
4432 SAMAYOA v. AYERS
cannot justify a trial attorney’s affirmative rejection of a
potentially valuable line of death penalty mitigation evidence,
without even the most minimal investigation. In Wiggins v.
Smith, 539 U.S. 510 (2003), the Supreme Court found coun-
sel’s penalty-phase performance deficient because “counsel
abandoned their investigation of petitioner’s background after
having acquired only rudimentary knowledge of his history
from a narrow set of sources.” Id. at 524. Here, counsel
actively resisted acquiring even a “rudimentary knowledge”
of Samayoa’s family background, let alone undertaking the
“requisite, diligent investigation into his client’s troubling
background and unique personal circumstances.” Williams v.
Taylor, 529 U.S. 362, 415 (2000) (opinion of O’Connor, J.).
Such inexplicable unwillingness to discharge one’s basic
responsibilities, wholly unredeemed by any identifiable strate-
gic consideration, presents a clear-cut case of deficient perfor-
mance. Regrettably, rather than acknowledge even that
obvious point, the majority decides not to confront the ques-
tion and concludes instead that “the California Supreme Court
was not unreasonable in deciding that the additional evidence
of Samayoa’s childhood probably would not have caused a
different verdict to be rendered.”

II. Prejudice

To establish prejudice, a habeas petitioner must demon-
strate “a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466
U.S. at 694. “It is not enough ‘to show that the errors had
some conceivable effect on the outcome of the proceeding.’
Counsel’s errors must be ‘so serious as to deprive the defen-
dant of a fair trial, a trial whose result is reliable.’ ” Harring-
ton v. Richter, 131 S. Ct. 770, at 787-88 (quoting Strickland,
466 U.S. at 687, 693, 694) (citations omitted). Because a
unanimous verdict was required to sentence Samayoa to
death, however, counsel need only show a reasonable proba-
 SAMAYOA v. AYERS 4433
bility that a single juror would have weighed his culpability
differently if made aware of the horrendously abusive circum-
stances in which he was brought up. Here, where the crimes
were horrendous, the evidence presented in mitigation utterly
impotent, and the mitigation evidence not presented to the
jury was powerful and offered the only conceivable explana-
tion for Samayoa’s depraved behavior, I believe that it is self-
evident that the unpresented “mitigating evidence . . . might
well have influenced” one or more jurors’ “appraisal of
[Samayoa’s] culpability,” and therefore that “the likelihood of
a different result if the evidence had gone in is sufficient to
undermine confidence in the outcome actually reached at sen-
tencing.” Rompilla, 545 U.S. at 393 (citations and internal
quotations omitted).

A. Mitigation Evidence Not Investigated or Presented to
the Jury

Had Popkins, rather than insisting that he “did not want to
hear negative things about [Samayoa] or the family,” con-
ducted an investigation of the sort conducted by Samayoa’s
habeas counsel, he would have uncovered mitigation evidence
far more substantial than the majority acknowledges.
Samayoa, it turns out, was raised in an extended family in
which sexual, physical, psychological, and substance abuse
occurred as a matter of course. As one psychology expert
retained by Samayoa for his habeas proceedings put it, “[i]n
family systems theory, the Gonzales/Samayoa family is a
catalogue of classic and severe dysfunction.” The expert
described the family as a “locked system that kept its mem-
bers prisoners to corrosive and corrupt influences from gener-
ation to generation.” Another expert stated that Samayoa’s
family was “a casting director’s dream of violence, sexual
abuse, alcoholism, drug abuse, and criminality.”

Samayoa was raised in a savagely violent family environ-
ment. Adult members of his extended family viciously beat
one another bloody in front of children at family gatherings
4434 SAMAYOA v. AYERS
“pretty much every weekend.”3 The declarations of
Samayoa’s cousins paint a picture of brutal, senseless vio-
lence among family members on a basis so routine as to
amount to a ritual of sorts: Samayoa’s uncles beating their
father (Samayoa’s grandfather) in front of his grandchildren;
outsiders at family gatherings being set upon and beaten, par-
ties that “always ended up with major fights and blood on the
walls.”4 Not surprisingly for a family in which “[v]iolence
was a way of life,”5 Samayoa himself was regularly and
severely beaten by his father, who did not work and spent his
family’s welfare benefits on liquor. One family member
recalls that, “[Samayoa’s] dad would beat the shit out of the
boys,” and that Samayoa drew a disproportionate share of his
father’s beatings, apparently because he refused to cry. That
relative states that, “[w]hen . . . [Samayoa] was thirteen or
fourteen years old, I saw him get beat five to ten times a
month.” Another relative recounts that Samayoa’s father
would lie on the family’s couch with a belt rolled up at his
side, so that he would be able to beat his children with its
buckle at a moment’s notice. Nor were belt buckles his only
means of brutalizing his children: Samayoa’s mother
recounted that, “[o]nce, when my husband was very angry
with Richard, he put Richard’s hands in a flame to punish
him.”

In addition to pervasive physical abuse, Samayoa was
raised in a family in which sexual abuse of minors at the
hands of adult relatives was a common occurrence. During
Samayoa’s state habeas proceeding members of Samayoa’s
extended family submitted largely consistent declarations
attesting to adult relatives’ regular sexual abuse of the
Samayoa family’s children. Those declarations discuss family
gatherings in which various pedophile uncles enjoyed ready
access to Samayoa and his cousins. One of Samayoa’s cousins
3
Declaration of Marie Alarcon.
4
Declaration of Bernadene Severns.
5
Declaration of Marie Alarcon.
 SAMAYOA v. AYERS 4435
explained that, “[s]exual molestation happened quite a bit in
my family. [Samayoa’s] uncle David Gonzalez molested
most, if not all of the kids in [Samayoa’s] generation.” Other
males in Samayoa’s family likewise engaged in incestuous
sexual abuse of their minor relatives, including Samayoa’s
great-uncle Sal Celestin, Samayoa’s second cousin Juan Gon-
zales, Samayoa’s uncle Eddie, and Samayoa’s uncle “Chat.”
While Samayoa denies having been molested himself (as male
victims of sexual abuse often do), his relatives suggest that he
may well have been molested by his uncle Chat when he was
eight or nine years old. Samayoa acknowledges that when he
was a child his uncle Chat tried to lure him into his bedroom,
but claims he sensed something was amiss, and avoided his
uncle’s advances.

Moreover, had Popkins been inclined to investigate
Samayoa’s family history, he would have learned that nearly
every member of Samayoa’s extended family abused drugs
and alcohol, that Samayoa’s father was an alcoholic who fre-
quently wet his pants at family events, and that Samayoa’s
uncles were habitual drug users who initiated Samayoa into
substance abuse at an early age. At Samayoa family gather-
ings, adults did not stop young children from simply taking
beer from the fridge and drinking it; they were, according to
one of Samayoa’s cousins, “too drunk to notice.” Samayoa’s
cousin, Benny Girdley, states that when he “was in the fourth
grade and . . . [Samayoa] was around seven or eight,” they
were given pot and alcohol by their substance-abusing uncles.
By the eighth grade, Samayoa and Girdley abused hallucino-
gens together frequently; by the tenth grade, they abused PCP.
Not long after, Samayoa and Girdley began using crystal
methamphetamine. Samayoa’s abuse of crystal methamphet-
amine would continue until his arrest in this case.

The majority, after considering this same evidence, dis-
misses his upbringing as, “sadly . . . not an uncommon one.”
Maj. Op. at 4424. I’m not aware how and where my col-
leagues obtain their information about family life in this coun-
4436 SAMAYOA v. AYERS
try, but I must strongly disagree. Common or not, the defining
events of Samayoa’s family life were as follows: near-weekly
parties in which he routinely witnessed his adult relatives
senselessly beating one another; in which he was given free
access to alcohol; and in which he and his cousins were left
to their own guile in avoiding sexual abuse at the hands of
various pedophile uncles. Away from these parties, Samayoa
was constantly and brutally abused by his alcoholic father,
and was pushed to abuse serious narcotics by the uncles to
whom he looked up. As a psychiatrist retained by Samayoa
for his habeas petition put it, “to label Mr. Samayoa’s devel-
opmental periods as having significant abuse [would be] a
gross understatement. The extended family in which Mr.
Samayoa was reared is so extreme as to almost defy belief.”
In short, his was hardly an upbringing that was “not uncom-
mon.”

Evidence of Samayoa’s tortured background would have
provided the jury with a basis for concluding that he “ha[d]
the kind of troubled history [the Supreme Court has] declared
relevant to assessing a defendant’s moral culpability.” Wig-
gins v. Smith, 539 U.S. 510, 535 (2003). As one expert report
submitted in support of Samayoa’s habeas petition explains,
Samayoa’s criminal history cannot be fully understood apart
from his uniquely pathological upbringing:

Mr. Samayoa’s psychological profile is not one that
can be easily condensed by the shorthand of conven-
tional psychiatric diagnosis. His behavior can be
much better understood when viewed in the context
of his longitudinal psychosocial development which
was rife with abuse (sexual, physical and emotional),
and extreme dyssocialization. . . .

Given this severe dyssocialization rampant through-
out most, if not all, of Mr. Samayoa’s life, it
becomes understandable that he has frequently inter-
faced with the criminal justice system. His rearing
 SAMAYOA v. AYERS 4437
left him confused in most dealings with other indi-
viduals as to appropriate roles and behavior. His
upbringing also rendered him incapable of benefit-
ting from feedback correction of his behavior. . . .

In my opinion, the effect of this pervasive dyssocial-
ization upon Mr. Samayoa would be to make his
reactions in situations of stress very unpredictable,
with exception that they would most likely in all
cases suffer from lack of impulse control. . . . Mr.
Samayoa has been so exposed to physically destruc-
tive rage in the family setting in which he was reared
as to virtually make it normal for him.

The Supreme Court has stated that such evidence regarding a
defendant’s troubled background is relevant to death penalty
sentencing decisions “because of the belief, long held by this
society, that defendants who commit criminal acts that are
attributable to a disadvantaged background . . . may be less
culpable than defendants who have no such excuse.” Penry v.
Lynaugh, 492 U.S. 302, 319 (1989). Samayoa’s background
was not simply “troubled” or “disadvantaged”; it was cruel,
warped, twisted, and pathological. In short, the evidence that
Samayoa’s trial counsel neglected was powerful and directly
relevant to the sentencing jury’s assessment of Samayoa’s
culpability.

B. Mitigation Evidence Actually Presented to the Jury

Having failed to investigate and present to the jury the cir-
cumstances of Samayoa’s upbringing, his trial counsel instead
relied on three types of mitigating evidence, each of which
was not only completely unpersuasive, but likely counterpro-
ductive. First, Samayoa’s counsel referred the jury to the
diagnoses of two psychological experts6 who had testified
6
A third expert, Dr. Melvin Schwartz, was called by the defense as a
sur-rebuttal witness. Dr. Schwartz testified that although he had not him-
4438 SAMAYOA v. AYERS
before it at the guilt phase of the trial. The experts had told
the jury that Samayoa suffered from organic brain damage
and could not form the requisite intent to commit first-degree
“special circumstance” felony murder, as defined by Califor-
nia at that time. The jury implicitly rejected the testimony of
these experts when it convicted Samayoa, and it did so with
good reason.7 Both psychologists were manifestly inept and
lacked credibility. The first, Dr. Meredith Friedman, conceded
under cross-examination that she had made a number of errors
in calculating Samayoa’s test results (including several
involving simple arithmetic); that she administered an out-
dated test to Samayoa and was unaware that the test had been
substantially overhauled; that her only formal training in
neuropsychological evaluation was a week-long training pro-
gram for the administration of a test other than the one that
she administered to Samayoa; and that a number of
Samayoa’s test results indicated that he was not brain dam-
aged. This is but a sample of Dr. Friedman’s lack of compe-
tence and understanding of the subject matter, as a fuller
account would require reprinting a fair amount of her cross-
examination.8

self tested Samayoa for brain damage, he had reviewed test results com-
piled by one of Samayoa’s two main experts, Dr. Saul Saddick, and
believed that they supported a diagnosis of left-hemisphere brain damage.
Dr. Schwartz further testified that he believed Dr. Saddick to have over-
diagnosed brain damage in other cases, and that he had testified in an ear-
lier case that he “believe[d Dr. Saddick] to be trained rather than well
trained.”
7
While it is of course possible that in some cases the jury would reject
organic brain damage as a reason to negate intent, but still be influenced
by it in its assessment of a defendant’s culpability, counsel clearly had no
basis to expect the jury to do so here, where the record reflects that the
defense’s psychological experts blundered repeatedly and were generally
lacking in competence.
8
Consider, for example, the following exchange:
Q: I am asking you to localize the injury based upon the results
of your tests, if you are capable of doing that.
 SAMAYOA v. AYERS 4439
The credibility of the second psychological expert upon
whom the defense relied, Dr. Saul Saddick, likewise had been
destroyed by the prosecution at the guilt phase of the trial.
There, one government rebuttal witness testified that Saddick
had diagnosed Samayoa with a psychological condition not
recognized by the American Psychological Association.
Another testified that Saddick had presented to the jury a dia-
gram of the human brain that was upside-down and misla-
beled, and observed (perhaps unnecessarily) that a person
who could not correctly label a diagram of the brain was not
competent to analyze the existence and behavioral implica-
tions of brain damage. Moreover, both Dr. Friedman and Dr.
Saddick might well have bolstered the prosecution’s case for
sentencing Samayoa to death by testifying at the trial that they
believed him to be a sociopath, a diagnosis that is notoriously
unresponsive to treatment, and that any competent defense
lawyer would work diligently to avoid introducing into evi-
dence. In short, by the sentencing phase of the trial,
Samayoa’s counsel must have been aware that when they tes-
tified at the trial his psychological experts had been damaging
to the defense, and that the jury had implicitly rejected their
brain damage theory by rejecting the defense of inability to
form the requisite intent. Nonetheless counsel proceeded to
rely upon their prior testimony as the key to defendant’s miti-

A: Well, the injury wasn’t localized. The injury — and I don’t
even know if it was an injury. We are talking about dysfunction.
I don’t know if it came from an injury or not. . . .
Q: . . . Locate, if you can, the specific area of the dysfunction
within those specific parts of the brain.
A: I can’t.
Q: Okay. Because it’s impossible to do that, or you don’t have
the training?
A: I think somebody who may be more sophisticated in this
would be able to pinpoint it better. I am just saying that this is
what the test suggested.
4440 SAMAYOA v. AYERS
gation case, and sought to find no other experts who might
testify at the sentencing hearing and offer testimony that
might truly be mitigating. To rely on the trial witnesses’ testi-
mony regarding organic brain damage a second time rather
than to seek out and introduce evidence of Samayoa’s shock-
ingly abusive childhood almost certainly sealed his fate.

The second type of mitigating evidence upon which the
trial counsel relied was the testimony of three correctional
officers who had supervised Samayoa’s work while he was in
prison and lukewarmly praised his qualities as a worker. One
testified that Samayoa was a “very good worker,” but later
stated that Samayoa was an “above-average worker,” and
when pressed further, “an okay worker.” Another, testified
that “[Samayoa] was an average worker, and sometimes even
above average.” Yet a third correctional officer stated that
Samayoa’s position as a “beverage man” in the prison cafete-
ria indicated Samayoa was a reliable worker, but conceded
that he had not actually had any hands-on experience working
with Samayoa. Much like the psychological “expert” testi-
mony, the prison guards’ testimony was clearly unhelpful and
possibly counterproductive, for to present as his best possible
witnesses prison guards who testified that he is a “sometimes
. . . above-average” prison worker suggested that there was
truly very little to be said on his behalf.

Finally, counsel presented the testimony of Samayoa’s
mother and two sisters. Samayoa’s mother identified several
old photographs of Samayoa with his family, showed the jury
a Valentine’s Day card he had sent her from prison reading
“Sweetheart of the Year,” and related that because she had
helped turn Samayoa in to the police, she would feel guilty if
he received the death penalty. One of Samayoa’s sisters, Inez
Sykes, testified that she had no regrets about turning him in,
and that before she learned that her brother was the murderer
she had told her family that she felt “a person who’d do some-
thing like that deserved anything they had coming to them.”
She testified that if he received a death sentence, she would
 SAMAYOA v. AYERS 4441
“understand.” His sister Deanna testified that Samayoa had a
son who was very fond of him, although he rarely saw his
father. She further testified that, Samayoa was “not fit to be
on the street . . . but I would not like to see him get the gas
chamber.” Much like her sister Inez, Deanna Samayoa testi-
fied that before she learned that her brother was the killer, she
had told others that she felt whoever was responsible for the
killings deserved “to get it.”

Needless to say, the jury was unlikely to be swayed toward
mercy by such testimony. Indeed, one would expect that any
juror already willing to consider imposing a death sentence
would feel validated in doing so by Inez’s testimony that she
would “understand” such a vote, not to mention both sisters’
testimony that before learning of Samayoa’s guilt they had
felt that the perpetrator of his offenses deserved the death pen-
alty. Moreover, the testimony of Samayoa’s relatives gave the
jury the impression that Samayoa committed his crimes
despite coming from a normal and loving family background,
when in fact nothing could have been further from the truth.

In sum, this pathetic mitigation presentation likely did more
harm than good to Samayoa’s prospects of a sentence other
than death. Trial counsel asked the jury to spare Samayoa’s
life based upon the prior testimony of psychological experts
whose many blunders included basic mathematical mistakes,
the administration of an outdated test, the mislabeling of an
upside-down diagram of the human brain, and the diagnosis
of Samayoa as a sociopath. He also presented the testimony
of three prison guards who testified principally that Samayoa
was somewhat above-average for a prison worker, and of
family members who testified that they loved Samayoa and
would feel guilt if he were executed because they turned him
in, but would understand if the jury chose a death sentence.
At no point did the jury hear a word about Samayoa’s
depraved and abusive upbringing, and, in fact, it was led to
believe by the testimony of his mother and sisters that he was
raised in a normal and loving household.
4442 SAMAYOA v. AYERS
C. Confidence in the Outcome

The question before this court is whether the California
Supreme Court unreasonably applied United States Supreme
Court law in its apparent conclusion that there was not “a rea-
sonable probability that, absent [counsel’s] errors, the [jury]
. . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.” Strickland,
466 U.S. at 694. A reasonable probability is a probability of
a different verdict that is “sufficient to undermine confidence
in the outcome.” Id. at 695. Because a unanimous verdict was
required to produce a death sentence in this case, one cannot
be confident in Samayoa’s death sentence unless one is confi-
dent that not a single one of the twelve jurors would have
been moved to vote for a sentence of life without parole had
he heard the unpresented evidence of Samayoa’s physically
and psychologically abusive childhood.

The jury was instructed that:

[t]he weighing of aggravating and mitigating circum-
stances does not mean a mere mechanical counting
. . . . You are free to assign whatever moral or sym-
pathetic value you deem appropriate to each and all
of the various factors that you are permitted to con-
sider.

The evidence that was not presented was of crucial impor-
tance to the individualized, open-ended moral deliberation in
which the jury was instructed to engage. As noted earlier, the
Supreme Court has explained that a defendant’s “troubled his-
tory” is “relevant to assessing a defendant’s moral culpabili-
ty,” Wiggins, 539 U.S. at 535, “because of the belief, long
held by this society, that defendants who commit criminal acts
that are attributable to a disadvantaged background . . . may
be less culpable than defendants who have no such excuse.”
Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoted in Wig-
gins, 539 U.S. at 535).
 SAMAYOA v. AYERS 4443
Each of the twelve jurors would have almost certainly dif-
fered to some degree with respect to how much “moral or
sympathetic value” he chose to assign to the nightmarish cir-
cumstances of Samayaoa’s childhood and the effect it had on
him during his adulthood. Given that each juror in this case
was called upon to weigh the aggravating and mitigating cir-
cumstances in light of his own empathy and moral judgment,
counsel’s failure to inform the jury that Samayoa was raised
in an unimaginably abusive environment, both physically and
emotionally, would, alone, suffice to call into question any
“reliance on the outcome of the proceeding.” Strickland, 466
U.S. at 692. But this case involves more than just counsel’s
failure to obtain and present readily available evidence going
directly to Samayoa’s moral responsibility; for what the jury
heard instead was a mitigation case that almost certainly
sealed Samayoa’s death sentence, a case consisting of dis-
credited experts, lukewarm prison guards, and family mem-
bers who misleadingly testified that Samayoa was raised in a
loving environment. I therefore would hold, in line with Por-
ter, 130 S.Ct. 447, Rompilla, 545 U.S. 374, and Wiggins, 539
U.S. 510, that it would have been an unreasonable application
of Strickland for the state court to conclude that Samayoa was
not prejudiced by his counsel’s inexcusable performance.

In coming to a contrary conclusion,9 the majority first
emphasizes the undeniable brutality of Samayoa’s crime, as
well as that of his prior offenses. However, in Rompilla, 545
9
The majority applies an incorrect standard. The question is not, as the
majority suggests, whether effective assistance of counsel “probably
would not have produced a different verdict.” Maj. Op. at 4408. Strickland
clearly states that, “a defendant need not show that counsel’s deficient
conduct more likely than not altered the outcome in the case.” 466 U.S.
at 693. However, despite applying the wrong standard the majority
appears to conclude that counsel’s failure to present the troubling circum-
stances of Samayoa’s upbringing and his decision to instead present a mit-
igation case that would almost certainly lead to a sentence of death, is not
“sufficient to undermine confidence” in Samayoa’s death sentence.
Accordingly, we can overlook that particular error.
4444 SAMAYOA v. AYERS
U.S. 374, the Supreme Court held that a defendant with a sim-
ilarly brutal crime and a similar criminal record was entitled
to habeas relief due to his counsel’s failure to introduce evi-
dence of a traumatic, abusive upbringing. The defendant in
Rompilla was convicted of murdering his victim during the
course of a robbery in which he stabbed the victim multiple
times, “including 16 wounds around the neck and head,” id.
at 397, beat the victim with a blunt object, and gashed the vic-
tim’s face, “possibly with shards from broken liquor and beer
bottles found at the scene of the crime,” id. He then set his
victim’s body on fire. Id. Moreover, like Samayoa, the Rom-
pilla defendant had a “significant history of felony convic-
tions,” id. at 378, including a rape conviction for an offense
in which he held his victim at knifepoint, slashed her breast,
and “raped her for over an hour,” id. at 402 (Kennedy, J., dis-
senting). Despite the brutality of the offense and past convic-
tions in Rompilla, the Court nonetheless held that the
defendant was prejudiced by his counsel’s failure to investi-
gate and provide the jury with certain mitigating evidence,
such as the fact that Rompilla had abused alcohol from an
early age and been raised in a highly abusive environment. Id.
at 391-93. While this case and Rompilla differ in some factual
respects, as any two cases necessarily will, Rompilla’s hold-
ing forecloses the majority’s pat conclusion that because
Samayoa’s crime and past convictions were brutal the judicial
system need not concern itself with the fact that he was sen-
tenced to death despite his attorney’s failure to investigate or
present the jury with the powerful mitigating evidence of his
horrendous upbringing and the shocking abuse to which he
was subjected throughout his youth.10
10
The majority emphasizes the Supreme Court’s recent statement in
Wong v. Belmontes, 130 S.Ct. 383 (2009), that it is “hard to imagine” that
the defendant in that case, who was convicted of a brutal murder, would
have received a lesser sentence had his counsel presented additional evi-
dence regarding his abusive childhood. However, the facts that the
Supreme Court felt were unlikely to sway the jury in that case were that
the defendant’s baby sister died of a brain tumor when he was five years
old, that his grandmother suffered from alcoholism and prescription drug
 SAMAYOA v. AYERS 4445
The majority next suggests that counsel’s failure to intro-
duce any evidence of Samayoa’s upbringing did not prejudice
him because the evidence of organic brain injury that was
presented during the guilt phase of his trial is a type of evi-
dence that is “more significant” than “environmental factors.”
Maj. Op. at 4424 (quoting Sears v. Upton, 130 S.Ct. 3259,
3262 (2010)). Even if it is true that evidence of organic brain
damage is, as a general matter, “more significant” than evi-
dence of childhood abuse, that is certainly not the case where
the defense’s psychological experts are exposed as inept and
are discredited, and the jury has already implicitly rejected
their testimony that the defendant suffers from organic brain
damage. Actual evidence of many years of severe physical
and psychological abuse is undeniably “more significant”
than evidence of organic brain damage that is not credible,
and that has already been rejected by the very jury that will
determine the capital defendant’s fate. Here, counsel failed
entirely to present uncontroverted mitigating evidence that is
of undeniable import, choosing instead to refer the jury to the
discredited evidence it had already rejected.

III. Conclusion

Recently, in an en banc opinion joined by one member of
the majority, this court held that the “dynamics of the jury
process” are so delicate that if a jury reports that it is unable
to agree upon a final sentence in a capital case in which it is
presented with a number of sentencing choices, a trial judge

addiction, and that his extended family lived in a state of “constant strife.”
Id. at 388. Those facts, while far from a picture of a happy childhood, pale
in comparison to the deranged and profoundly abusive environment in
which Samayoa was raised. Moreover, Belmontes did not purport to over-
rule Rompilla. There is no presumption that a jury will necessarily sen-
tence to death any individual convicted of a particularly brutal offense. At
present the law provides that even individuals convicted of particularly
brutal crimes have a Sixth Amendment right to effective representation
during the penalty phase of their proceedings.
4446 SAMAYOA v. AYERS
should not be required to ask if the jury is deadlocked on the
question of eligibility for the death penalty, for fear that such
questioning might somehow influence the jury’s delibera-
tions. See Harrison v. Gillespie, ___ F.3d ___, 2011 WL
546585 (9th Cir. 2011). This court’s belief that a jury’s deci-
sion in a capital case can be so easily swayed led to the con-
clusion in Harrison that the Double Jeopardy Clause did not
bar the defendant from being charged with capital murder a
second time, even though the jury in his first trial appeared to
have concluded that he was not eligible for execution. In the
present case, a belief that juries can be so easily swayed
would compel a finding that Samayoa was prejudiced by his
trial counsel’s failure to introduce mitigating evidence of the
nature that the Supreme Court has repeatedly held to be rele-
vant to a jury’s assessment of a capital defendant’s culpabil-
ity. Yet here, my colleagues’ view that even a judge’s
questions might influence a jury’s verdict in a capital sentenc-
ing case has mysteriously disappeared and is nowhere to be
found in the majority opinion. Instead they find the failure of
counsel to inform the jury of the mitigating evidence most rel-
evant to the question of the appropriate punishment to be of
no possible consequence.

The Supreme Court’s ineffective assistance of counsel
jurisprudence calls upon us to determine how each member of
a jury that was convened twenty-three years ago would have
responded to evidence that was never presented to it. In light
of the significant difficulties inherent in such speculation, I
believe that it is an act of significant hubris for the majority
to assure us, on the basis of a highly abbreviated analysis, that
the California Supreme Court would have been reasonable in
concluding that Samayoa was not prejudiced by his counsel’s
incompetence. It is, without question, difficult to speculate
intelligently as to how each of twelve jurors would have
responded to the evidence that Samayoa’s trial attorney failed
to present. For that very reason, when the deprivation of a
defendant’s constitutional rights results in the jury’s not hear-
ing the only mitigating evidence that could have led to a sen-
 SAMAYOA v. AYERS 4447
tence other than death, I think it clear that the “errors [are] so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Strickland, 466 U.S. at 687. Here, however,
the majority and I need not decide this case on that basis
alone: it is clear both under the facts and on the law that the
evidence that Samayoa’s counsel failed to investigate, dis-
cover, and present to the jury deprived the jurors of the oppor-
tunity to consider the substantial damage wreaked on
Samayoa during his childhood and its relation to his subse-
quent criminal conduct. Counsel’s unquestionably ineffective
performance with regard to this critical mitigating evidence
necessarily undermines one’s confidence in the jury’s verdict.

I dissent.