FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD A. LEAVITT, No. 08-99002
Petitioner-Appellee,
D.C. No.
v.
CV-93-00024-
ARVON J. ARAVE, of the Idaho S-BLW
State Prison,
OPINION
Respondent-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
October 13, 2009—Pasadena, California
Filed May 17, 2011
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
Pamela Ann Rymer, Circuit Judges.
Opinion by Chief Judge Kozinski;
Dissent by Judge Reinhardt
6467
LEAVITT v. ARAVE 6471
COUNSEL
L. LaMont Anderson (argued), Deputy Attorney General,
Chief, Capital Litigation Unit, Criminal Law Division, Boise,
Idaho, for respondent-appellant and Lawrence G. Wasden,
Attorney General of Idaho, Boise, Idaho.
David Z. Nevin (argued), Nevin, Benjamin, McKay, & Bart-
lett, LLP, Boise, Idaho and Andrew Parnes (argued),
Ketchum, Idaho, for petitioner-appellee.
6472 LEAVITT v. ARAVE
OPINION
KOZINSKI, Chief Judge:
With fifteen strokes of his knife, Richard Leavitt slashed
and stabbed Danette Elg to death in her bedroom. Then, as
Ms. Elg lay dying on top of her punctured waterbed, Leavitt
hacked out her womanhood—just as his ex-wife had seen him
do to “play[ ] with the female sexual organs of a deer.” State
v. Leavitt (Leavitt I), 775 P.2d 599, 602 (Idaho 1989). We
decide whether Leavitt’s lawyer rendered ineffective assis-
tance of counsel while trying to have him acquitted of the
death penalty.
Facts
Our first opinion in this case recounts the facts of Leavitt’s
crime and trial. See Leavitt v. Arave (Leavitt III), 383 F.3d
809 (9th Cir. 2004). We repeat only those relevant to this
appeal. Jay Kohler and Ron Hart represented Leavitt at trial
and sentencing. After the jury convicted Leavitt of murder,
Kohler and Hart moved for appointment of a mental health
expert to evaluate Leavitt for sentencing purposes. The trial
court granted the motion and appointed Dr. David Groberg, a
forensic psychologist, to perform the evaluation.
Dr. Groberg diagnosed Leavitt with antisocial personality
disorder and intermittent explosive disorder. He reported that
Leavitt was otherwise “of average intelligence with no serious
deficits in his cognitive abilities.” Although he opined that
these disorders rarely have a physiological cause, Dr. Groberg
recommended that Leavitt receive neurological testing to be
sure. Kohler and Hart moved for such an examination, which
the trial judge granted.
Dr. Jaynes’s neurological examination of Leavitt revealed
“no evidence of higher cerebral dysfunction” nor any “objec-
tive neurological deficit.” Nevertheless, Dr. Jaynes believed
LEAVITT v. ARAVE 6473
that Leavitt’s CT scan showed a “very slight cortical cerebral
atrophy . . . . [that] may or may not have an effect on his
cognative [sic] function.” Based on this finding, Dr. Jaynes
suggested further testing. The trial judge denied the motion
for an MRI, stating that additional mental health evidence
would not be a significant factor in sentencing. At the conclu-
sion of the hearing, the trial judge found that the aggravating
factors outweighed the mitigating evidence and sentenced
Leavitt to death.
David Parmenter then replaced Kohler and Hart as
Leavitt’s counsel. Parmenter represented Leavitt in his appeal
to the Idaho Supreme Court and succeeded in having the
death sentence vacated. On remand, at the second sentencing
hearing, Parmenter made a strategic decision to focus on con-
vincing the judge that Leavitt was a “good guy” rather than
pursue the mental health angle that had proven unsuccessful
at the first sentencing. Despite this change in strategy, the trial
court again sentenced Leavitt to death, and this time the state
supreme court affirmed. State v. Leavitt (Leavitt II), 822 P.2d
523 (Idaho 1991).
After exhausting his direct appeals and state collateral
review, Leavitt petitioned for a writ of habeas corpus claiming
Parmenter was ineffective for failing to investigate his mental
health. The district court granted Leavitt’s request for the
MRI that the state court had denied, and the experts found that
it looked normal.
The district court dismissed Leavitt’s claims as procedur-
ally defaulted, but we reversed and remanded for the district
court to consider Leavitt’s ineffectiveness claims. Leavitt III,
383 F.3d at 814. On remand, the state moved for an additional
MRI because the defense never disclosed the results of its ear-
lier test. The new MRI showed white matter hyperintensities
(WMHs) in Leavitt’s brain, which could indicate an organic
cause of his personality disorders. Based on this evidence, the
district court concluded that Parmenter had been ineffective in
6474 LEAVITT v. ARAVE
failing to investigate Leavitt’s mental health before the second
sentencing hearing, specifically in failing to renew the request
that the court obtain an MRI. The district court granted a con-
ditional writ of habeas and the state appeals.
Analysis
We review de novo the district court’s grant of his petition
for writ of habeas corpus. See Martinez-Villareal v. Lewis, 80
F.3d 1301, 1305 (9th Cir. 1996). “To the extent it is necessary
to review findings of fact made in the district court, the
clearly erroneous standard applies.” Silva v. Woodford, 279
F.3d 825, 835 (9th Cir. 2002). Clear error review is “signifi-
cantly deferential” and requires us to accept the district
court’s findings absent a “definite and firm conviction that a
mistake has been committed.” Rhoades v. Henry, 596 F.3d
1170, 1177 (9th Cir. 2010) (quoting Silva, 279 F.3d at 835)
(internal quotation marks omitted). Because Leavitt filed his
original habeas petition in the district court before the effec-
tive date of AEDPA, its provisions do not apply. Alaca v.
Woodford, 334 F.3d 862, 868 (9th Cir. 2003). To establish
ineffective assistance of counsel, Leavitt must show both that
his counsel’s performance was objectively deficient and that
it prejudiced his sentencing. See Edwards v. Lamarque, 475
F.3d 1121, 1126 (9th Cir. 2007) (en banc) (citing Strickland
v. Washington, 466 U.S. 668, 687, 694 (1984)). We review
the district court’s determination as to both of these issues de
novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir.
1986).
1. Deficient Performance
[1] Judicial scrutiny of counsel’s performance is highly
deferential. Strickland v. Washington, 466 U.S. 668, 690
(1984) (“[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”). A defense
lawyer must make reasonable investigations that, at a mini-
LEAVITT v. ARAVE 6475
mum, permit informed decisions about how best to represent
his client. Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.
1994). But “strategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690.
Here, Parmenter made a thorough investigation in prepara-
tion for the sentencing hearing. He met with Leavitt just a few
days after he was appointed. He discussed the case with prior
counsel and reviewed all transcripts and records from the
prior proceedings. He spoke with Leavitt’s mother and father
“many more than 25” times. He interviewed Leavitt’s broth-
ers and sister, and “had many conversations” with Leavitt’s
ex-wife. Parmenter also interviewed several prison guards to
gather information about Leavitt’s behavior while incarcer-
ated. This case thus does not present the typical capital case
ineffectiveness situation where counsel scrambled to prepare
just before the penalty phase, or failed to investigate entire
areas of mitigation. See, e.g., Hamilton v. Ayers, 583 F.3d
1100 (9th Cir. 2009).
[2] Petitioner nonetheless argues Parmenter was ineffec-
tive for failing to gather additional mental health evidence for
the second sentencing hearing. We reject this argument
because the decision to forego further investigation into
Leavitt’s mental health condition was reasonable in light of
counsel’s knowledge of what had transpired at, and in prepa-
ration for, the initial sentencing hearing.
[3] To begin with, Parmenter knew that Kohler and Hart
had already spent significant time investigating mental health
evidence during the course of their representation. All of
Leavitt’s prior mental health records, two from licensed psy-
chologists and one from a psychiatrist, diagnosed him with a
personality disorder, without suggesting any possibility of an
organic brain injury. Dr. Groberg, a psychologist retained spe-
cifically to gather mitigation evidence, also diagnosed Leavitt
with a personality disorder. Original counsel requested a sec-
6476 LEAVITT v. ARAVE
ond expert, Dr. Jaynes, to conduct more testing. Leavitt’s
EEG came back completely normal, but the CT scan revealed
a “very slight” cortical atrophy that suggested a “possibility”
of disease. But even Dr. Jaynes, who identified this abnormal-
ity, concluded that there was no “objective neurological defi-
cit on examination” nor any “evidence of higher cerebral
dysfunction.”
[4] “While a lawyer is under a duty to make reasonable
investigations, a lawyer may make a reasonable determination
that particular investigations are unnecessary.” Babbit v. Cal-
deron, 151 F.3d 1170, 1173 (9th Cir. 1998); see also Cullen
v. Pinholster, 131 S. Ct. 1388, 1406-07 (2011). Parmenter’s
review of prior counsel’s efforts provided an informed basis
for him to decide not to investigate further. The dissent dis-
misses this conclusion as “appellate factfinding.” Dissent at
6493. But our job is not to divine Parmenter’s actual reasons
for failing to seek additional testing, but rather to “affirma-
tively entertain the range of possible ‘reasons [Leavitt’s]
counsel may have had for proceeding as [he] did.’ ” Pinhol-
ster, 131 S. Ct. at 1407 (emphasis added).
[5] Leavitt argues that Parmenter could not have made a
reasonable strategic decision to forgo further investigation
because Dr. Jaynes’s findings constituted a promising lead
that required follow up. Our recent decision in West v. Ryan,
608 F.3d 477 (9th Cir. 2010), suggests otherwise. In West, we
held that counsel was not deficient for failing to unearth addi-
tional mental health evidence where the doctor’s report con-
tained purported “red flags.” Id. at 488-89. These flags
included slow movement of his right hand, which could
reflect neurological deficits. Id. at 489. Based on this finding,
the doctor commented that he could not “rule[ ] out” a cogni-
tive impairment absent further testing. Id. We held that this
did not create a duty to investigate further because earlier tests
revealed that the defendant’s “intellectual memory, language
and perceptual functioning” were normal. Id. at 488. The doc-
tor ultimately concluded that “the results . . . [of the evalua-
LEAVITT v. ARAVE 6477
tion were] more consistent with an individual of low
educational status . . . than with any cognitive impairment.”
Id. (alteration in original) (internal quotation marks omitted).
[6] Similarly, Leavitt’s doctor may have found some evi-
dence suggesting a cognitive impairment, but he ultimately
concluded that the results—including his performance on per-
sonality, psychological and cognitive tests—were more con-
sistent with a diagnosis of a personality disorder. As in West,
we conclude that “such an equivocal finding . . . is not the
kind of ‘powerful mitigating evidence’ sufficient to overcome
Strickland’s presumption that counsel acted reasonably in
declining to investigate further the possibility that [the defen-
dant] might suffer from a cognitive impairment.” Id. (citing
Bobby v. Van Hook, 130 S. Ct. 13, 19 (2009)).
[7] Second, even had Parmenter wanted to investigate fur-
ther, he had good reason to believe a motion for another
court-appointed doctor would be denied. Leavitt was not con-
stitutionally entitled to a third court-appointed psychiatric
expert under Ake v. Oklahoma, 470 U.S. 68 (1985). Contra
dissent at 6497-98. Leavitt himself has never tried to argue
otherwise, and with good reason: By its own terms, Ake
“limit[ed] the right [it] recognize[d]” to “provision of one
competent psychiatrist.” Ake, 470 U.S. at 79 (emphasis
added). Given this unambiguous language, we’ve held that the
defendant “lacks the right to appointment of a second psychi-
atrist,” Pawlyk v. Wood, 248 F.3d 815, 824 (9th Cir. 2001),
even where the first psychiatrist is alleged to be incompetent
or reaches a diagnosis unfavorable to the defense, see Harris
v. Vasquez, 949 F.2d 1497, 1516-17 (9th Cir. 1990). We’ve
recognized that Ake’s “limitation to a single, independent psy-
chiatrist is critical given that ‘[p]sychiatry is not . . . an exact
science, and psychiatrists disagree widely and frequently . . .
on the appropriate diagnosis.’ ” Pawlyk, 248 F.3d at 823
(quoting Ake, 470 U.S. at 80) (alteration and first omission in
original). Accordingly, neither we, nor the Supreme Court,
has ever held that a trial court violated Ake by refusing to
6478 LEAVITT v. ARAVE
appoint a second, let alone third, mental health expert. E.g.,
Harris, 949 F.2d at 1516 (Ake did not require appointment of
a third psychiatrist); see also, e.g., Granviel v. Lynaugh, 881
F.2d 185, 191 (5th Cir. 1989) (Ake did not require appoint-
ment of an additional psychiatrist); Martin v. Wainwright, 770
F.2d 918, 934 (11th Cir. 1985) (Ake did not require appoint-
ment of a second neurologist). Leavitt had not one, but two
court-appointed experts, and so was not entitled to an addi-
tional evaluation.
[8] Sensing the walls of precedent closing in on its conclu-
sion, the dissent resorts to arguing that Leavitt was denied his
right to “a competent psychiatrist who will conduct an appro-
priate examination.” Dissent at 6497. First, it’s far from clear
that such a right exists, see Vickers v. Stewart, 144 F.3d 613,
615 (9th Cir. 1998), or that, if it does, we’d be able to review
it on habeas, see Wilson v. Greene, 155 F.3d 396, 400-01 (4th
Cir. 1998) (refusing to recognize an Ake claim “solely based
on whether [the first mental health expert] conducted an
‘appropriate’ examination”); cf. Harris, 949 F.2d at 1516-17
(refusing to recognize an Ake claim based on the argument
that the first expert was incompetent). Second, there’s no indi-
cation that the examinations in this case were in any way
inappropriate. The doctors reviewed Leavitt’s files, conducted
a battery of psychological tests and administered both an EEG
and a CT scan to detect neurological abnormalities. Due pro-
cess does not require a state to fund every technologically
conceivable test to rule out the possibility of an organic men-
tal disorder. Third, even putting aside the issue of adequacy,
Leavitt wasn’t entitled to additional testing because he
couldn’t have “made a preliminary showing that his [mental
health was] likely to be a significant factor” in his sentencing
in light of the judge’s express indication to the contrary. Ake,
470 U.S. at 74; see also Williams v. Stewart, 441 F.3d 1030,
1048 (9th Cir. 2006) (upholding trial court’s denial of an
expert under Ake because the defendant “failed to establish
that his sanity was likely to be a significant factor in his
defense”). Ake did not give Leavitt the right to another expert;
LEAVITT v. ARAVE 6479
had the state trial court granted him one, it would have been
a matter of judicial grace, not constitutional right.
[9] Given that Leavitt was not entitled to a third expert, the
judge’s previous hostility towards appointing another doctor
became all the more relevant in Parmenter’s development of
a mitigation strategy. Parmenter knew about prior counsel’s
failed attempt to obtain an MRI. Not only did the judge deny
Kohler and Hart’s request, he had an order ready and waiting
before they had even presented it. The order stated that “any
further evidence of the mental condition of the defendant . . .
will not be a significant factor in the sentencing . . . [and so
the MRI] shall not be ordered.” Given the judge’s emphatic
statement that mental health evidence would not be signifi-
cant, it was perfectly reasonable for Parmenter to believe that
he “might pretty routinely deny” a second request for an MRI.
Counsel need not file motions that are likely to lose, because
doing so may cost the defendant “some of his lawyer’s credi-
bility with the judge.” Lowry v. Lewis, 21 F.3d 344, 346 (9th
Cir. 1994).
[10] Preserving credibility was particularly important
because the judge was not just presiding over the hearing, but
deciding the ultimate issue of whether to impose the death
penalty. Parmenter recognized that, in general, filing frivolous
motions “may have some effect on [the judge’s] fact finding.”
In this situation, it would have been reasonable for him to fear
that renewing the motion would irritate the judge and hurt his
client’s case. We review counsel’s decision solely to deter-
mine whether it fell within the “wide range of reasonable pro-
fessional assistance.” Strickland, 466 U.S. at 689. A decision
to avoid annoying the judge—at least when it comes at the
small price of forgoing the filing of a motion that was once
denied and will likely be denied again—falls well within Str-
ickland’s range of reasonableness.
[11] Leavitt’s direct request to the sentencing judge for
more psychological testing did not obligate Parmenter to
6480 LEAVITT v. ARAVE
renew the motion. “The decisions on . . . what trial motions
should be made, and all other strategic and tactical decisions[,
is within] the exclusive province of the lawyer . . . .” ABA
Standards for Criminal Justice 4-5.2 (2d ed. 1980) (emphasis
added). In fact, because the judge indicated that he “was
going to consider” Leavitt’s request, Parmenter could reason-
ably have believed it was unnecessary to submit a motion.
Even with the benefit of hindsight, Parmenter testified that he
wasn’t sure what new information he could have added to the
original motion to convince the trial judge to change his mind.
Parmenter reviewed all of Leavitt’s medical records and the
judge’s denial of the original motion, and exercised his inde-
pendent judgment that “it wouldn’t do much good to take
another run at Judge George [for] additional testing.”
Leavitt’s disagreement with counsel’s decision did not render
it unreasonable.
[12] Third, Parmenter’s decision to steer clear of the men-
tal health issue was reasonable because the judge had already
decided the mental health evidence was an aggravating factor.
The judge stated that the personality disorder diagnosis was
“not a mitigating factor, but rather a condemning factor
[because i]t is the catalyst to provoke another possible homi-
cide or serious physical injury.” Parmenter “didn’t want Judge
George to have additional ammunition” and acknowledged
that this concern “may have been part of the reason that . . .
Mr. Leavitt and I decided not to pursue that angle.” His con-
cern was reasonable because “in some cases, presenting evi-
dence of . . . mental disorders to create empathy . . . might
actually cause . . . worry and concern that the defendant is an
‘irreparable monster.’ ” Edwards v. Ayers, 542 F.3d 759, 776
(9th Cir. 2008) (quoting John M. Fabian, Death Penalty Miti-
gation and the Role of the Forensic Psychologist, 27 Law &
Psychol. Rev. 73, 90 (2003)). The trial judge had considered
Leavitt’s mental health aggravating at the first sentencing, and
it was thus reasonable for Parmenter to fear that he would
treat it as aggravating again.
LEAVITT v. ARAVE 6481
Instead of continuing with a mitigation strategy Parmenter
knew had been rejected by the trial judge, he reasonably
decided to switch gears. Parmenter’s goal was to humanize
Leavitt by portraying him as something other than the mon-
ster the prosecution made him out to be. Parmenter wanted to
develop a theme “that Rick Leavitt is a pretty good guy and
not the kind of guy that should be put to death.” Evidence of
mental health may have detracted from, or even conflicted
with, this strategy. See Cox v. Ayers, 613 F.3d 883, 897 (9th
Cir. 2010). Parmenter acknowledged that raising a mental
condition at mitigation “might [have] be[en] somewhat incon-
sistent with Mr. Leavitt’s defense at trial. In Cox, we held that
“counsel reasonably decided not to present, and not to look
further for, evidence concerning Petitioner’s character and
emotional state [where t]hat decision reflected counsel’s stra-
tegic choice to emphasize their primary argument at the pen-
alty phase.” Id. Parmenter likewise made a conscious and
informed decision to focus the mitigation case on portraying
the defendant as a “good guy,” rather than try to excuse the
crime by presenting evidence that he might have had mental
health problems.
Counsel is not required to undertake all possible investiga-
tions. See Strickland, 466 U.S. at 690. There will always be
more documents that could be reviewed, more family mem-
bers that could be interviewed and more psychiatric examina-
tions that could be performed. But, as the Supreme Court
recently reminded us, “[t]here comes a point where a defense
attorney will reasonably decide that another strategy is in
order, thus ‘mak[ing] particular investigations unnecessary.’ ”
Pinholster, 131 S. Ct. at 1407 (quoting Strickland, 466 U.S.
at 691) (alteration in original); see also Bobby v. Van Hook,
130 S. Ct. 13, 19 (2009) (per curiam) (holding that at some
point, additional evidence would be only cumulative “and the
search for it distractive from more important duties”). Par-
menter had developed a knowledgeable foundation—from
reading expert trial testimony, reviewing and marking up
6482 LEAVITT v. ARAVE
medical reports and meeting with Leavitt—on which to base
his decision to take the mitigation case in a different direction.
While Parmenter’s chosen strategy failed, we must avoid
the temptation to evaluate his decision through the “fabled
twenty-twenty vision of hindsight.” Brown v. Uttecht, 530
F.3d 1031, 1035 (9th Cir. 2008) (internal quotation marks
omitted). We must evaluate his performance only based on
whether he made reasonable, informed decisions based on
what he knew at the time.
[13] So what did Parmenter know once he took over the
second sentencing? He knew that Leavitt had been examined
by at least five mental health professionals, all of whom diag-
nosed him with personality disorders. He knew that the trial
judge had summarily denied a request for more testing. And
he knew that the judge who would ultimately decide whether
to impose the death penalty didn’t consider such evidence to
be mitigating. Having seen former counsel try and fail with a
mental impairment mitigation strategy, it was not unreason-
able for counsel to try a different tack. Such strategic deci-
sions are precisely of the kind we vest in the discretion of
informed, experienced trial counsel.
2. Prejudice
[14] Even if we assume that Parmenter’s performance was
deficient, Leavitt suffered no prejudice. Petitioner has the bur-
den of showing a reasonable possibility that, but for counsel’s
deficient performance, the death sentence would not have
been imposed. Wong v. Belmontes, 130 S. Ct. 383, 386
(2009). Where the defendant claims ineffective assistance for
failure to file a particular motion, he must “not only demon-
strate a likelihood of prevailing on the motion, but also a rea-
sonable probability that the granting of the motion would
have resulted in a more favorable outcome.” Styers v. Schriro,
547 F.3d 1026, 1030 n.5 (9th Cir. 2008). Because it is
unlikely that Judge George would have granted the motion for
LEAVITT v. ARAVE 6483
additional testing, or that the results of any such testing would
have changed the outcome of the sentencing, we cannot say
the alleged deficiency was prejudicial.
Leavitt has not established a reasonable probability that the
motion would have been granted had Parmenter presented it.
Although Parmenter believed that Judge George might be “a
little more wishy-washy than other judges,” he also testified
that the judge had “already made himself clear in the first sen-
tencing hearing” and was therefore likely to deny the request.
Parmenter might have supported a renewed motion with evi-
dence of Leavitt’s behavior while imprisoned over the four
years, but as the prison officers testified, Leavitt was a model
prisoner who had no incidents of explosive behavior. This
undermined the theory that he had an organic brain disorder
that rendered him uncontrollably violent from time to time.
It would certainly not have been an abuse of discretion for
the judge to deny the motion. See United States v. George, 85
F.3d 1433, 1437-38 (9th Cir. 1996). As discussed above, the
defendant had no right to an additional expert under Ake. See
pp. 6477-79 supra. Moreover, although the Idaho Supreme
Court vacated the original sentence, it did not do so on the
ground that there should have been more mental health test-
ing. To the contrary, the court “[did] not disagree with the
findings of the trial court that the defendant herein is pos-
sessed of an ‘intermittent explosive disorder’ ” or that the
mental health evidence should be considered aggravating.
Leavitt I, 775 P.2d at 608. It disagreed only with the “trial
court’s misperception of the alternatives available to him” and
authorized him, “in [his] discretion, . . . [to] obtain additional
information and/or testimony.” Id. (emphasis added). Having
already appointed two experts, Judge George’s exercise of
that discretion to deny the motion would have been appeal-
proof.
Most damaging to Leavitt’s prejudice claim, however, is
the fact that Judge George actually considered his request for
6484 LEAVITT v. ARAVE
additional testing but did not grant it. At the beginning of the
second sentencing hearing, Leavitt told the judge that he
“would like to have . . . a[nother] psychological evaluation
done on [him].” Judge George could have denied the request
as untimely or required Parmenter to submit a motion as
Leavitt’s counsel, but instead he said he would “consider what
might need to be done.” At the close of the hearing, Judge
George again indicated his intent to consider Leavitt’s
request: “Mr. Leavitt in the beginning indicated that the court
might consider . . . some further psychological report. I’m not
passing judgment on that right now. I’m certainly going to
consider that.” A little over a month later, the court sentenced
Leavitt to death. There is no reason to believe the judge didn’t
take Leavitt’s request into consideration, as he promised he
would. If the judge considered it, but did not grant it, Par-
menter’s failure to file a formal motion to the same effect can-
not have been prejudicial.
Even if the motion had been granted, Leavitt must show
that technology was sufficiently advanced in 1989 to enable
a doctor to detect the abnormalities. The district court
acknowledged that the abnormalities in the 1996 MRI were
overlooked by Leavitt’s doctor, and were not discovered until
2006, but ultimately credited his neurological expert who tes-
tified that a reasonable medical examiner would have been
able to spot the abnormalities on an MRI in 1989. Because the
district court’s resolution of the factual dispute was not
clearly erroneous, we proceed on the assumption that the
abnormalities would have been detected at that time had an
MRI been performed. See Bonin v. Calderon, 59 F.3d 815,
823 (9th Cir. 1995).
Starting with that assumption, “we [must] reweigh the evi-
dence in aggravation against the totality of available mitigat-
ing evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).
Thus, we must examine what these abnormalities were and
how they would have impacted the mitigation case. White
Matter Hyperintensities, like those on Leavitt’s brain scan, are
LEAVITT v. ARAVE 6485
“simply bright spots that appear on an MRI.” But the WMHs,
previously called UBOs, or “unidentified bred [sic] objects,”
just don’t tell us very much. In trying to explain what the
bright spots might mean, Dr. Bigler testified that WMHs rep-
resent a disruption in the normal flow of electrical impulses,
which “can” affect behavioral regulation and “may” slow
down brain responses. Dr. Beaver testified that he would “hy-
pothesize” that the WMHs were an underlying cause of
Leavitt’s personality disorders. Such opinions, which couch
results in tentative language, are simply not enough to show
prejudice. Rhoades, 596 F.3d at 1193 (finding no prejudice
where expert reports “talk in terms of conditions that [the
defendant] ‘likely’ has or ‘may’ have”); cf. Sears v. Upton,
130 S.Ct. 3259, 3263 (2010) (finding prejudice where “the
expert’s opinion [of brain pathology] was unequivocal”).
The experts’ testimony was not only tentative, but also
highly speculative. Dr. Bigler opined that the location of the
WMHs “seems to have a bearing” on the type of problem
manifested. Dr. Beaver then testified that because the bright
spots are located in an area associated with emotion and
behavior, they might have caused Leavitt’s violent outbursts.
But Dr. Martell testified, and the district court accepted, that
brain injury anywhere in the brain could lead to violent
behavior. And, although Dr. Bigler testified that WMHs are
more likely to be present in people with psychological disor-
ders, he conceded that they are also seen in the MRIs of some
perfectly healthy people. This kind of speculative mitigation
evidence is not entitled to significant weight. See Bible v.
Ryan, 571 F.3d 860, 871 (9th Cir. 2009) (finding no prejudice
because argument that “brain dysfunction . . . can be an expla-
nation for violent behavior” was speculative).
Moreover, there’s a significant possibility that, had this
highly speculative evidence been given any weight at all, it
would have been treated as aggravating rather than mitigating.
See Atkins v. Virginia, 536 U.S. 304, 321 (2002). In Cullen
v. Pinholster, 131 S. Ct. 1388 (2011), for example, the
6486 LEAVITT v. ARAVE
Supreme Court found that new evidence of an “organic per-
sonality syndrome” and “brain damage” was “by no means
clearly mitigating, as the jury might have concluded that [the
defendant] was simply beyond rehabilitation.” Id. at 1396-97,
1410. The Court concluded that, in light of the ambiguous
nature of the brain injury, “[t]here [wa]s no reasonable proba-
bility that the additional evidence . . . would have changed the
jury’s verdict.” Id. at 1409. Here, too, there’s no way of
knowing which way evidence of a biological mental impair-
ment would have cut; it very well may have counted against
Leavitt.
Even assuming the evidence of WMHs would have been
treated as mitigating, we must discount its weight because any
evidence of a brain dysfunction causing uncontrolled, sudden,
violent impulses would not explain the most disturbing aspect
of the murder here—the surgical mutilation of the victim’s
body. Cf. Belmontes, 130 S. Ct. at 389. We agree with the dis-
trict court that “Leavitt’s removal of Ms. Elg’s sexual organs
is more strongly associated with simple depravity than a con-
tinuation of rage or anger.” Even had the trial judge been con-
vinced by Leavitt’s experts that the repeated, violent stabbing
of the victim could be explained by some abnormalities in his
brain, the sexual mutilation, for which no expert testimony
was available, pointed to a different cause altogether. See
Mickey v. Ayers, 606 F.3d 1223, 1248 (9th Cir. 2010) (finding
no prejudice in counsel’s failure to adequately prepare mental
health expert whose testimony “suffered from [the] funda-
mental weakness . . . that a jury was unlikely to believe that
a defendant suffering as [the expert] diagnosed could act as
the facts of the crime showed [the defendant] did”); Pizzuto
v. Arave, 280 F.3d 949, 962 (9th Cir. 2002) (finding no preju-
dice in counsel’s failure to request neurological testing
because “a[n organic brain] disorder could not account for, or
have any bearing upon, the Herndon murders which the evi-
dence demonstrates were premeditated, planned out, and part
of a consecutive series of complex acts”).
LEAVITT v. ARAVE 6487
[15] The evidence is less weighty still because it is merely
adds to what had already been presented. See Bible, 571 F.3d
at 871-72. The trial judge knew that Leavitt had a slight atro-
phy in his cerebral cortex. This was more than just a “lead,”
it was itself evidence of some physiological problem. True, it
was not clear exactly what the brain atrophy meant—Dr.
Jaynes had testified that it “may or may not” lead to cognitive
impairment—but neither is it clear what the WMHs mean.
The WMHs are thus additional, cumulative evidence of the
brain disorder the sentencing judge already knew Leavitt had.
For the prejudice analysis, cumulative evidence is given less
weight because it is not as likely to have affected the outcome
of the sentencing. Babbitt, 151 F.3d at 1175.
[16] We must look at the effect of the omitted evidence in
light of all the mitigation evidence presented. Wiggins, 539
U.S. at 534. The sentencing judge was aware of all the evi-
dence, including mental health evidence, that was given at the
first trial. The court already treated evidence of Leavitt’s
intermittent explosive disorder as mitigating. To this, Par-
menter added the testimony of several witnesses from
Leavitt’s past, including family members who spoke very
highly of him. Parmenter also presented the testimony of sev-
eral prison guards, who testified that Leavitt had been a model
prisoner in the intervening years, that he thrived in the struc-
tured prison environment and that he did not pose a threat of
harm to other prisoners. Parmenter additionally introduced
evidence that Leavitt was an accomplished artist and poet and
had won awards for his talent. The sentencing judge also con-
sidered mitigating evidence that Leavitt was married, had
reestablished contact with his son, had been steadily
employed and had no prior felony convictions. The addition
of an ambiguous result from Leavitt’s third mental health
evaluation is not enough to raise a reasonable possibility that
the outcome would have been different.
[17] Given the exceptional depravity of this murder, it is
unlikely that additional evidence of a brain abnormality would
6488 LEAVITT v. ARAVE
have made a difference. See, e.g., Woodford v. Visciotti, 537
U.S. 19, 25-26 (2002) (per curiam); Campbell v. Kincheloe,
829 F.2d 1453, 1464 (9th Cir. 1987) (“[G]iven the over-
whelming aggravat[ing] factors and the heinous nature of the
crime there is no reasonable likelihood that the jury’s verdict
would have been different had mitigating evidence been intro-
duced.”). The Supreme Court’s recent decision in Wong v.
Belmontes, 130 S. Ct. 383 (2009), is instructive. Belmontes
was sentenced to death after bludgeoning his victim to death
with a steel dumbbell during the course of a robbery. Id. at
384. The Supreme Court held that excluded evidence of “im-
pairment of the neurophysiological mechanisms for planning
and reasoning” was not prejudicial because it was “hard to
imagine expert testimony . . . outweighing the [gruesome]
facts of [the] murder.” Id. at 389, 391. Belmontes’s crime was
gruesome, to be sure, but it pales in comparison to Leavitt’s
murder of Danette Elg:
Leavitt’s repeated and pitiless stabbing and cutting
of his victim in all parts of her body, including even
a thrust through her eye and into her brain, was
vicious and remarkable enough for the most jaded
reviewer of this genre of crimes. The added organ-
removing mutilation of the victim “as part of the
death dealing attack or as a grisly aftermath” is yet
another marker of the unnecessary tortuousness of
this crime.
Leavitt, 383 F.3d at 837 (quoting Leavitt, 822 P.2d at 526).
The details of this crime are simply too atrocious for the
exclusion of tentative, cumulative evidence to undermine con-
fidence in the sentence.
The dissent would have us believe that an MRI would have
revealed critical new mitigating evidence sufficient to shake
our confidence in the judge’s imposition of a capital sentence.
Dissent at 6501-05. But this is simply not so. The state trial
judge—who made the ultimate life or death decision—
LEAVITT v. ARAVE 6489
described the mitigating evidence as “feathers on the scale”
when weighed against the heinousness and brutality of
Leavitt’s crime. Reweighing all the evidence presented at the
second sentencing hearing, the additional feather provided by
the MRI evidence would not have been nearly enough to tip
the scale in Leavitt’s favor, so there was no prejudicial error.
***
[18] One definition of insanity is repeating the same course
of action twice and expecting a different result. Parmenter’s
decision to cease further investigation into Leavitt’s already
heavily analyzed mental health was entirely rational. Leavitt
has not made out his claim that Parmenter’s assistance was
constitutionally deficient. Even if he had, the gruesome nature
of the crime, coupled with the relatively weak additional evi-
dence that might have been revealed had an MRI been
granted, leads us to conclude that any ineffectiveness was not
prejudicial.
REVERSED.
REINHARDT, Circuit Judge, dissenting:
The circumstances of Richard Leavitt’s murder of Danette
Elg are indeed horrendous. That alone should have been a sig-
nal that there was something radically wrong with Leavitt,
who was otherwise a law-abiding citizen, a father and a hus-
band. I agree with the trial judge who sentenced Leavitt to
death that “the fact that” such a person “would do this act
leaves one[ ] asking why.” Leavitt’s counsel, David Par-
menter, failed to provide an answer to that question that could
have saved his client’s life: Leavitt suffered from an organic
brain disorder in the part of the brain responsible for regulat-
ing emotion and impulse control. Despite the majority’s many
tangents and alternative holdings, Leavitt’s habeas petition
6490 LEAVITT v. ARAVE
concerns one simple point: whether counsel should have made
a motion for the MRI examination of his brain that the court-
appointed neurologist had recommended. Had Parmenter
done so, the examination would have revealed Leavitt’s
organic neurological disorder — powerful mitigating evi-
dence that could well have altered the sentencing decision of
the trial court. That alone is sufficient to resolve this case.
Parmenter’s failure, despite the neurologist’s recommenda-
tion, to seek the examination that was necessary to establish
the existence of Leavitt’s organic brain disorder unquestion-
ably rendered his performance deficient; and that inexplicable
conduct prejudiced his client under any reasonable standard.
Not surprisingly, the United States District Court for the Dis-
trict of Idaho so found, and we are asked simply to affirm the
lower court.
Parmenter, who represented Leavitt at his resentencing,
knew the following at the time of that hearing: (1) Prior to
Leavitt’s original sentencing, his court-appointed neurologist
had recommended further examination, specifically an MRI,
to determine if Leavitt had “organic or physiological disfunc-
tion [sic] of the brain” after a CT scan revealed abnormalities
in his brain’s white matter. (2) Leavitt’s original trial counsel
had then attempted to obtain an MRI before Leavitt was sen-
tenced, but the trial court had denied counsel’s motion for a
continuance to do so. (3) The trial court had erroneously con-
sidered Leavitt’s diagnosis — for personality disorders, rather
than an organic brain disorder — to be an aggravating, rather
than a mitigating, factor, in pronouncing Leavitt’s first death
sentence. (4) The Idaho Supreme Court had subsequently
vacated Leavitt’s death sentence on appeal, because the trial
court record failed to show (a) “an adequate weighing of miti-
gating circumstances against the aggravating factors” and (b)
a “demonstrat[ion] that the trial court adequately considered
long-term penal confinement as an adequate protection of
society, as contrasted with the imposition of the death penal-
ty.” State v. Leavitt, 775 P.2d 599, 601 (Idaho 1989). (5)
When the case was on remand, both Leavitt and his mother
LEAVITT v. ARAVE 6491
had requested a new “presentence investigation” and asked
Parmenter to further develop the neurological evidence. (6)
During the resentencing hearing, the trial court expressed its
“desire to give the defendant all of his rights.” (7) One of
those rights included “access to a competent psychiatrist who
will conduct an appropriate examination and assist in evalua-
tion, preparation, and presentation of the defense,” as to
which Leavitt’s mental condition had been shown to be a sig-
nificant factor. Ake v. Oklahoma, 470 U.S. 68, 83 (1985)
(emphasis added). And (8) in general, as capital defense coun-
sel he was obligated to investigate and present evidence of
mental impairment, in light of the mitigating force of such
evidence. See, e.g., Evans v. Lewis, 855 F.2d 631, 636-637
(9th Cir. 1988).
Any reasonable attorney under these circumstances would
have renewed the motion for the MRI scan that Leavitt was
wrongly denied prior to his original sentencing — a scan that
we now know would have revealed white matter hyperintensi-
ties in the right frontal lobe of his brain, which are organic
neurological irregularities in an area believed to be responsi-
ble for regulating emotion and impulse control. Because evi-
dence of such an organic disorder is the kind of mitigating
evidence by which a defendant’s “moral culpability would
have been reduced,” a reasonable attorney might well have
saved his client from the death penalty by obtaining that evi-
dence and presenting it to the court. Caro v. Ryan, 280 F.3d
1247, 1257-1258 (9th Cir. 2002). Nevertheless, Parmenter
totally neglected to do so upon resentencing, even though the
Idaho Supreme Court had already expressed concern over
Leavitt’s mitigation profile — a failure that Parmenter himself
has since admitted “[i]n retrospect” was “probably” unjusti-
fied.
In light of the clear evidence of Parmenter’s deficient per-
formance regarding the most important aspect of the penalty
phase of Leavitt’s trial, and Leavitt’s inexplicable behavior
surrounding the commission of the murder, there is, at the
6492 LEAVITT v. ARAVE
least, a “reasonable probability” that, had Parmenter sought
and obtained the test that would have shown Leavitt’s organic
brain disease, a reasonable trial court would have sentenced
Leavitt to life without parole, or alternatively that the new
death sentence, like the first, would have been reversed on
appeal or vacated on habeas corpus. Strickland v. Washington,
466 U.S. 668, 694 (1984). Leavitt was therefore prejudiced by
Parmenter’s ineffective assistance. Accordingly, I would
affirm the judgment of the Chief Judge of the United States
District Court for the District of Idaho, including his condi-
tional grant of the writ.
I. Deficient Performance
Parmenter chose not to move for an MRI examination dur-
ing the resentencing proceedings — notwithstanding his cli-
ent’s own request that he do so — for the simple reason that
he thought the trial court would deny the motion again. As he
acknowledged at the evidentiary hearing in these habeas pro-
ceedings, however, “there was really no reason not to at least
ask the judge to grant” a renewed motion, especially in light
of the failure of counsel at the first hearing to advise the judge
of the controlling Supreme Court decision, Ake. Parmenter’s
fear that the motion might be denied again did not justify his
failure to attempt to obtain the critical evidence that would
allow him to make the strongest argument possible in his cli-
ent’s favor.
The majority’s view — that it was “perfectly reasonable”
for Parmenter to refrain from renewing the MRI request
because moving for further neurological investigation could
have “irritate[d] the judge and hurt his client’s case,” maj. op.
at 6497 — cannot be taken seriously, for it “rests on the
apparent belief that our Nation’s trial judges . . . are unwilling
to accept zealous advocacy and that, once antagonized by it,
will punish such advocates with adverse rulings.” Melendez-
Diaz v. Massachusetts, 129 S. Ct. 2527, 2555 (2009) (Breyer,
J., dissenting) (internal quotation marks and alteration omit-
LEAVITT v. ARAVE 6493
ted). To the contrary, “in death cases” judges generally expect
that, given the stakes, “[i]t’s the battle of the zealots.” Alex
Kozinski, Tinkering with Death — A death-penalty judge
reflects: How does it feel to send another man to die?, The
New Yorker (Feb. 10, 1997), at 50. Even worse is the idea
that the judge whose actions we review would order the exe-
cution of a capital defendant because he became irritated by
the lawyer’s renewal of a motion. “[S]igning the order that
will lead to the death of another human being” is the gravest
duty a judge has, capable of “filling [him] with a nagging
sense of unease, something like motion sickness.” Kozinski,
Tinkering with Death, at 48, 52. In this circumstance, no rea-
sonable person could believe that annoyance at a lawyer’s
motion would lead a judge to reach that result.
Indeed, any fear Parmenter may have had of an adverse rul-
ing was unreasonable in light of the weight of authority that
would have supported his motion, including a critical
Supreme Court decision that original counsel had not brought
to the trial court’s attention during Leavitt’s first sentencing
proceedings. Under Ake, when a mental health professional
has made a plausible showing that testing, such as an MRI,
constitutes part of an “appropriate examination,” that testing
is one of the “raw materials integral to the building of an
effective defense” that the State must provide to the defen-
dant. Id. at 77. No reasonable counsel, knowing that control-
ling authority on a critical issue had not been presented the
first time, would have declined to even attempt to renew the
motion.
The majority nonetheless offers a number of other theories
as to why Parmenter’s failure to request an MRI examination
was a reasonable strategic decision. First, the majority sug-
gests that Parmenter deliberately decided not to revisit the
organic neurological issue in light of the inconclusive neuro-
logical findings prior to Leavitt’s original sentence. Maj. op.
at 6475-76. That bit of appellate factfinding must come as
news to Parmenter, who testified, as set forth above, that he
6494 LEAVITT v. ARAVE
had not renewed the motion for further neurological examina-
tion because the trial court had previously denied that motion
during the first sentencing proceedings — not that he believed
the neurological case to be weak. In any event, there is no
way Parmenter could have actually decided whether a mitiga-
tion strategy based on Leavitt’s organic brain disorder was the
superior one without first investigating whether Leavitt in fact
had such a disorder.1
Second, the majority suggests that Leavitt’s counsel made
a reasonable choice not to move for an MRI because the trial
court had previously considered “the mental health issue” to
be an aggravating factor rather than a mitigating factor. Maj.
op. at 6480. But the majority’s sleight of hand should not mis-
lead anyone; characterizing an MRI examination as merely
additional “mental health evidence” blurs an important dis-
tinction. The manner in which the trial court had previously
considered Leavitt’s then-diagnosed personality disorder
would have told Parmenter nothing about how the court
would have viewed the neurological disorder that the MRI
would have revealed. Evidence of “organic brain dysfunction
could have provided significant mitigating evidence,” Sum-
merlin v. Schriro, 427 F.3d 623, 643 (9th Cir. 2005) (en
banc). Defense counsel accordingly had a “duty to investigate
and present mitigating evidence of mental impairment.” Bean
v. Calderon, 163 F.3d 1073, 1080 (9th Cir. 1998).
1
Cullen v. Pinholster, 131 S. Ct. 1388 (2011), does not bear on our anal-
ysis. That case, unlike this one, was governed by AEDPA and its “doubly
deferential” standard of reviewing counsel’s performance. Id. at 1403,
1410. Moreover, Pinholster did not modify the standard for deficient per-
formance set forth in Strickland; it simply applied that standard under the
“highly deferential” mode of analysis dictated by AEDPA. Id. at
1403-1408. Pinholster reaffirmed that, under Strickland, “ ‘counsel has a
duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.’ ” Id. at 1407 (quoting
Strickland, 466 U.S. at 691) (alterations and emphasis omitted). Under this
standard, Parmenter’s decision was unreasonable.
LEAVITT v. ARAVE 6495
Even in cases involving many aggravating factors, includ-
ing the gruesomeness of the crime, counsel’s failure to present
evidence of an organic neurological condition at the sentenc-
ing phase is sufficiently prejudicial to establish ineffective
assistance of counsel. See Douglas v. Woodford, 316 F.3d
1079 (9th Cir. 2003). Indeed, the Supreme Court has made
clear that “evidence about the defendant’s background and
character is relevant 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) (citing California v.
Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring)).
Thus, it was entirely unreasonable to fear broaching “the men-
tal health issue” again, even if Parmenter did think of organic
neurological disorders and personality disorders as indistinct,
particularly given that the trial judge was no doubt aware of
the fact that the Idaho Supreme Court had already reversed his
decision for failing to give sufficient consideration to mitigat-
ing factors.2
The majority is left with the argument that Parmenter
“made a strategic decision to focus on convincing the judge
that Leavitt was a ‘good guy,’ ” and accordingly “made a
thorough investigation in preparation for the sentencing hear-
2
The majority’s suggestion that in vacating Leavitt’s first death sen-
tence, the Idaho Supreme Court approved of the trial court’s decision to
consider evidence of Leavitt’s personality disorders to be aggravating is
totally unsupported by the state court’s opinion. Maj. op. at 6483. The
court first noted that it did not disagree with the trial court’s factual find-
ing that Leavitt had an “intermittent explosive disorder.” Leavitt, 755 P.2d
at 608. Then, the court observed that while “the defendant’s personality
and psychological makeup may make the possibility of ‘rehabilitation and
possible probation’ non-existent,” the absence of such a possibility did not
excuse the court’s failure to consider whether the mitigating evidence
presented should have yielded a sentence of life imprisonment rather than
death. Id. Unsurprisingly, when considering the same psychological evi-
dence on remand, the trial court recategorized it as mitigating evidence.
6496 LEAVITT v. ARAVE
ing” by reviewing the transcripts and records from prior pro-
ceedings, speaking with Leavitt’s immediate family members,
and inquiring into Leavitt’s behavior while incarcerated. Maj.
op. at 6473, 6475. Parmenter could not have “made a strategic
decision” as to which mitigation argument to make, however,
without knowing whether Leavitt had organic brain damage.
That he conducted a thorough investigation relevant to one
possible strategy does not make any more reasonable his fail-
ure to investigate a potentially much stronger case for mitiga-
tion. Parmenter simply neglected the one subject that he
should have known mattered most.
The majority is correct in one respect: “Good guys” simply
don’t go around “hack[ing] out [a dying victim’s] woman-
hood” or “playing with the female organs of a deer.” Maj. op.
at 6472. It is far more likely that a person who engages in
such conduct has an organic mental disorder than it is that he
is simply a likeable fellow who had a bad day — or two.
Faced with Dr. Jaynes’s testimony from the first sentencing
proceedings that cortical atrophy suggested a possibility of
organic neurological disease, and the reality that further test-
ing would be required to determine if Leavitt had “organic or
physiological disfunction [sic] of the brain,” Parmenter sim-
ply lacked any excuse for not moving for the MRI examina-
tion to which Leavitt was constitutionally entitled.3 See
3
The majority cites West v. Ryan, 608 F.3d 477 (9th Cir. 2010), to argue
that Jaynes’s report contained mere “red flags” that Parmenter could rea-
sonably have decided to ignore in favor of other mitigation strategies. Maj.
op. at 6476-77. The majority’s reliance on West — another case governed
by the “deferential” AEDPA standard, unlike this one, id. at 486 — is mis-
placed. In West, an examining physician’s report stated that it could not
“rule[ ] out” a cognitive impairment caused by head injuries or substance
abuse absent further testing, but there is no record that the physician affir-
matively recommend such testing, in light of his many other tests of the
defendant. Id. at 489. Dr. Jaynes did recommend further testing of Leavitt
“to determine whether he has an organic or physiological disfunction [sic]
of the brain” — a recommendation that counsel at Leavitt’s first sentenc-
ing acted upon by requesting an MRI examination. Whether counsel may
LEAVITT v. ARAVE 6497
Summerlin, 427 F.3d at 630 (“We have long recognized an
attorney’s duty to investigate and present mitigating evidence
of mental impairment.”) (internal quotation marks omitted).
No reasonable, competent counsel would have conducted
Leavitt’s resentencing proceedings as Parmenter did. His per-
formance was without question deficient.
II. Prejudice
If Parmenter had submitted a motion for an MRI in 1989,
there is at least a “reasonable probability” that an objective
decision maker would have granted the motion. Strickland,
466 U.S. at 694. If, for some reason, the court had denied
such a motion, there is a reasonable probability that this error
would have been reversed on appeal — either by the state
appellate court or during federal habeas proceedings — and
the MRI would ultimately have been ordered. I can be confi-
dent that this is so because under governing Supreme Court
authority that existed by that time, when an indigent “defen-
dant demonstrates to the trial judge that his [mental condition]
at the time of the offense is to be a significant factor at trial,
the State must, at a minimum, assure the defendant access to
a competent psychiatrist who will conduct an appropriate
examination and assist in evaluation, preparation, and presen-
tation of the defense.” Ake, 470 U.S. at 83 (emphasis added).
Here, it seems, there was even more than a “reasonable
probability” that the motion would not have been denied
again: Parmenter testified that, in his experience, the particu-
lar trial judge who presided over Leavitt’s case was more
prone to change his decisions than other judges were, if
reasonably fail to follow up on every lead even hinted at in the record con-
cerning possibly mitigating evidence like the vaguely defined “cognitive
impairment” due to trauma or substance abuse, as in West, and whether
counsel may reasonably reject the specific recommendation of a medical
expert concerning categorically mitigating evidence such as an organic
brain disorder, are two entirely different questions.
6498 LEAVITT v. ARAVE
shown a good reason for doing so, and the Ake argument that
had been overlooked the first time would certainly have been
a good reason. Moreover, any objective sentencing judge who
followed the applicable law would have allowed neurological
testing to take place if competent counsel had timely filed a
motion under Ake requesting an MRI. Then, had testing been
ordered, an MRI undertaken in 1989 would have revealed
Leavitt’s brain injury, as the district court found and neither
the State nor the majority dispute. There is a reasonable prob-
ability that the court would then have seriously considered the
mitigating evidence of Leavitt’s brain injury and sentenced
him to life imprisonment rather than death.
The majority disagrees, contending that Leavitt was not
prejudiced by Parmenter’s ineffectiveness because, it assures
us, there is no way the motion would have been granted had
it been made. Apparently, the majority believes that the trial
judge would have disregarded professional norms, Supreme
Court precedent, and this court’s precedent, and ruled errone-
ously on a motion to obtain further neurological testing. Even
if, in actuality, the trial court had not been willing to apply
controlling law, that would not be relevant to our inquiry;
instead, for purposes of a prejudice analysis, Leavitt is enti-
tled to the presumption of a reasonable, lawful, and “objec-
tive” adjudicator who will follow the law. See Summerlin, 427
F.3d at 643. “[A] defendant has no entitlement to the luck of
a lawless decisionmaker,” and neither does the State, so we
cannot presume that the motion would have been denied not-
withstanding controlling law to the contrary. Strickland, 466
U.S. at 695. Furthermore, even if the motion had been denied,
or if the trial court failed to give significant weight to the
result of the MRI examination, competent counsel would have
appealed — and there is a reasonable probability that the state
supreme court would then have reversed the sentencing judge
(again) or vacated the sentence during state habeas proceed-
ings. See, e.g., State v. Leavitt, 775 P.2d 599, 608 (Idaho
1989) (reversing Leavitt’s first death sentence for errors dur-
ing sentencing proceedings). In short, there was no excuse for
LEAVITT v. ARAVE 6499
Parmenter’s failure to renew the motion for further neurologi-
cal examination. That failure rendered his performance defi-
cient, and that deficiency prejudiced Leavitt.
Alternatively, the majority finds “no reason to believe the
judge didn’t take Leavitt’s [own oral] request [for another
psychological evaluation] into consideration,” and therefore
concludes that a properly filed motion would similarly have
been considered and denied. Maj. op. at 6484. But we have
absolutely no evidence, and the district court made no factual
finding, that the sentencing judge did consider the informal
oral request made by the defendant, as he would have been
required to consider a written motion prepared by counsel.
Indeed, while the trial court ruled on counsel’s motion during
the first sentencing hearing in a written order, the court did
not rule on Leavitt’s oral request at all. Furthermore, had Par-
menter submitted a motion for an MRI, it surely would have
included citations to the applicable authorities, such as Ake,
and therefore would have been far more persuasive than
Leavitt’s informal request, which did not mention either an
MRI or the legal authority supporting his request. “That gov-
ernment hires lawyers to prosecute and defendants who have
the money hire lawyers to defend are the strongest indications
of the wide-spread belief that lawyers in criminal courts are
necessities, not luxuries.” Gideon v. Wainwright, 372 U.S.
335, 344 (1963). Leavitt’s own oral request did not and could
not render harmless his counsel’s failure to move for an MRI
examination, as the majority appears to believe.
The majority also holds that Leavitt was not prejudiced by
Parmenter’s conduct because Leavitt’s white matter hyperin-
tensities, which would have been discovered had an MRI been
ordered, “just don’t tell us very much.” Maj. op. at 6485. It
reaches that conclusion because the medical experts who testi-
fied at Leavitt’s evidentiary hearing spoke in hedged terms
about the causes and effects of these anomalies in the brain.
My colleagues fail to appreciate that doctors, unlike litigators,
do not speak with absolute certainty and confidence — partic-
6500 LEAVITT v. ARAVE
ularly where, as here, they are describing the scientific find-
ings in a field where research is ongoing and the scientific
community’s understanding of the brain’s inner workings is
constantly developing.4 Moreover, the prejudice inquiry is not
concerned with certainties; rather, we must consider simply
whether “there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would
have been different,” meaning “a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S.
at 694. It is therefore sufficient that the MRI evidence would
have revealed abnormalities that are significantly correlated
with “neuropsychiatric disorders,” because this evidence of
organic brain damage is “sufficient to undermine confidence”
that Leavitt would still have been sentenced to death had that
evidence been presented.
Applying Strickland, we have set aside sentences on the
basis of ineffective assistance of counsel without needing to
speculate about what sentence would be imposed at the new
sentencing hearing to follow. Rather, it has sufficed that our
confidence in the sentence on review has been “undermined”
because of counsel’s deficient performance, even when the
circumstances of the crime of conviction were particularly
brutal. See, e.g., Lambright v. Schriro, 490 F.3d 1103, 1121,
1126 (9th Cir. 2007); Summerlin, 427 F.3d at 643; Stankewitz
4
Nor is the evidence of a brain disorder “speculative”; the MRIs Leavitt
introduced into the record provide strong evidence of them. Maj. op. at
6485 (citing Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 2009)). But see
Bible, 571 F.3d at 871 (“Bible does not contend that he actually suffers
from organic brain damage and he submitted no evidence of that . . . .
Bible’s argument, as we see it, relies on speculation that he may have
some type of organic brain dysfunction or disorder. . . . Bible does not
demonstrate that the results of further testing would have found a brain
disorder. In his petition to the PCR court, Bible submitted a brief affidavit
from a psychologist who opined that a neurological examination could
document the effects of brain damage, but did not express the opinion that
Bible suffered from any effects from early illnesses. Bible has not shown
that more tests would have discovered and disclosed mitigation evidence
sufficient to establish prejudice.”).
LEAVITT v. ARAVE 6501
v. Woodford, 365 F.3d 706, 723 (9th Cir. 2004); Douglas, 316
F.3d at 1091; Ainsworth v. Woodford, 268 F.3d 868, 878 (9th
Cir. 2001). The majority should have adopted the same
approach in this case.
Even if I were to attempt to predict the outcome of a hypo-
thetical new sentencing hearing, as the majority does, I could
not reach the same result with any confidence. Evidence of
organic brain injury, of a kind that may physically compel
behavior or prevent emotional regulation of certain conduct,
is the kind of evidence that suggests a defendant’s “moral cul-
pability would have been reduced.” Caro, 280 F.3d at
1257-1258. Under our case law, such evidence, if it is credi-
ble, is considered weightier than evidence of non-organic,
purely psychiatric or personality disorders, such as intermit-
tent explosive disorder, that involve “a lack of emotional con-
trol.” Id. at 1258. Leavitt’s organic brain injury is of a kind
that typically prevents individuals from exercising control
over their behavior. His injury is present in the area of the
brain thought to be responsible for regulating emotions,
impulse control, and conduct, and falls firmly within the cate-
gory of disorders that a sentencing court should ordinarily
weigh more significantly in mitigation than run-of-the-mill
psychiatric problems or non-organic personality disorders.
When considering punishment, courts generally treat an
individual’s failure to control a personality disorder, or to sup-
press an anti-social or psychopathic personality, as more
blameworthy than an individual’s response to an organic brain
disorder. Whether or not this difference in assessing blame is
warranted in this case is not a matter for us to decide; the
court’s duty is to apply the law as it now exists.5 This court’s
5
The criminal law’s treatment of mental health issues evolves over time,
for better or worse. The definition of insanity, for example, has changed
from time to time. See, for example, the Durham test, as set forth in Dur-
ham v. United States, 214 F.2d 862 (D.C. Cir. 1954) (“an accused is not
criminally responsible if his unlawful act was the product of mental dis-
6502 LEAVITT v. ARAVE
case law is replete with examples of the considerable weight
that should be accorded at sentencing to evidence of neuro-
logical or organic damage.
In Caro, for example, we held that there had been prejudice
at sentencing resulting from counsel’s failure to call an expert
during the penalty phase of the trial to testify about a capital
defendant’s organic brain injury, even though the jury heard
testimony regarding other psychological or emotional prob-
lems. We emphasized that particular weight should always be
given by a trier of fact during sentencing to evidence of
organic injury because of the effect of such evidence on a
finding of moral culpability. Id. at 1257-1258. In Douglas v.
Woodford, 316 F.3d 1079 (9th Cir. 2003), we similarly deter-
mined that the petitioner received ineffective assistance of
counsel because counsel failed to investigate and present miti-
gation evidence that the petitioner suffered from “possible
organic impairment” and test results revealed “some level of
preexisting neurological deficit.” Id. at 1086. We held that the
petitioner suffered prejudice at the sentencing phase because
such evidence “was precisely the type of evidence that we
have found critical for a fact-finder to consider when deciding
whether to impose a death sentence.” Id. at 1090. I therefore
believe that we cannot have confidence that if the sentencing
judge had been presented with mitigating evidence pertaining
to Leavitt’s brain injury he would have imposed the death
penalty nonetheless.
ease or defect”), as contrasted with the stricter and currently accepted test
of an individual’s ability to distinguish right from wrong. See Clark v. Ari-
zona, 548 U.S. 735, 742 (2006). Still, one difference that may serve to
make the distinction at issue here somewhat justified is that, as the district
court found, victims of a physical brain disease are able to control their
conduct in a structured environment, whereas individuals who suffer from
intermittent explosive disorder are not, decreasing the likelihood that an
individual with an organic injury will pose a risk to others while incarcer-
ated.
LEAVITT v. ARAVE 6503
That there may not be a direct causal connection between
Leavitt’s brain abnormalities and his criminal act does not
affect this analysis. Although it is difficult to conceive of the
“horrific” offense committed by Leavitt being committed by
anyone with a normal mind — or, in legal-medical terms,
anyone without an organic brain disorder — the Supreme
Court has held that no such connection is necessary for the
existence of mental disorders to serve as a mitigating factor
during sentencing. See, e.g., Penry v. Johnson, 532 U.S. 782,
797 (2001) (holding that the sentencing factfinder should
“consider and give effect to” all potentially mitigating cir-
cumstances at sentencing.).
Moreover, the very existence of neurological problems may
serve as mitigation at sentencing by eliciting sympathy from
the sentencer. See Douglas, 316 F.3d at 1090; see also Hen-
dricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir. 1995) (hold-
ing that mental health evidence could be mitigating at the
penalty phase “even though it is insufficient to establish a
legal defense to conviction in the guilt phase”). The district
court correctly held that evidence of an organic brain defect
may humanize a defendant, “in a way that the labels of anti-
social personality disorder and intermittent explosive disorder
d[o] not.” As the district court noted in its findings of fact and
conclusions of law, the role that Leavitt’s brain injury may
have played in his commission of the murder is “still not
entirely free from ambiguity and uncertainty,” but despite this
uncertainty, there is no doubt that “the complete picture”
including Leavitt’s organic brain disorder “presents a stronger
and more sympathetic mitigation profile than the one that was
before the sentencing factfinder.”
Evidence of serious mental problems — even such prob-
lems that are not organic in nature — may be sufficiently mit-
igating to warrant the imposition of a life sentence, rather than
the death penalty, even in cases in which individuals have
been convicted of truly horrific crimes. For that reason, our
court and the Supreme Court have held that assistance of
6504 LEAVITT v. ARAVE
counsel was ineffective when potentially mitigating evidence
of a defendant’s mental condition was not presented. See, e.g.,
Rompilla v. Beard, 545 U.S. 374, 391 (2005); Williams v.
Taylor, 529 U.S. 362, 398 (2000); Lambright, 490 F.3d at
1125; Stankewitz, 365 F.3d at 723. Thus, we cannot assume
that the grievous nature of the offense renders the failure to
present evidence of the organic nature of a brain disorder non-
prejudicial. The potential mitigating effect of Leavitt’s neuro-
logical impairment was all the more likely given that the
“factfinder” at the penalty phase of Leavitt’s trial was a judge,
who we must presume to have been well-versed in the case
law and modern notions of criminal culpability, rather than a
“jury[,] [which] might have concluded that [Leavitt] was sim-
ply beyond rehabilitation.” Pinholster, 131 S. Ct. at 1410;
contra maj. op. at 6485-86. Parmetner’s failure to present evi-
dence of such problems prejudiced Leavitt’s defense. To put
it differently, the failure should be sufficient to undermine our
confidence in the verdict.
The majority’s effort to downplay the evidence of organic
brain damage as “cumulative” mitigation evidence is simply
incorrect. “We certainly have never held that counsel’s effort
to present some mitigation evidence should foreclose an
inquiry into whether a facially deficient mitigation investiga-
tion might have prejudiced the defendant.” Sears v. Upton,
130 S. Ct. 3259, 3266 (2010). In this case, some mitigation
evidence was presented on an unrelated topic, but none of that
evidence approached what an MRI scan would have revealed
in its ability to portray Leavitt as mentally disabled, rather
than mentally disturbed. The MRI evidence would be far
more than an “additional feather” on the scale of mitigating
and aggravating evidence. Contra Maj. op. at 6489. Nor is
Wong v. Belmontes, 130 S. Ct. 383 (2009) (per curiam), “in-
structive” on this point. In Belmontes, counsel failed to pres-
ent evidence pertaining to the defendant’s upbringing and
character that was, according to the Court, substantially simi-
lar in type to evidence that counsel did present regarding the
defendant’s family life. Evidence of Leavitt’s organic brain
LEAVITT v. ARAVE 6505
disorder, by contrast, is entirely unlike the evidence of emo-
tional or other mental problems introduced in this case — evi-
dence that may in fact reflect a mistaken diagnosis — given
the greater power of the former class of evidence to reduce
moral culpability. See Caro, 280 F.3d at 1257-1258.
Finally, it should be obvious to anyone that the more hor-
rendous the crime, the more likely it is that the perpetrator is
suffering from some form of mental disorder. When that dis-
order is organic, it becomes more understandable to society
why a human being would commit such an horrendous act.6
Under our legal system, a brain disorder, no matter how seri-
ous, does not provide a defense unless it results in an inability
to distinguish right from wrong. (Here, there is no question of
legal insanity.) The law does, however, require that the sen-
tencer be presented with all available information regarding
an organic brain ailment and that such information be fully
weighed in the balance before a decision is made to terminate
the life of the person suffering from that disease. The most
compelling mitigation evidence in the case of horrendous
crimes is, in fact, evidence of organic brain disorder. In every
such case, that evidence must be given serious consideration.
Under the present state of the law, given the relationship
between the egregiousness of the offense and the gravity of
the mental disorder, it is difficult to envision how we could
ever be confident in advance that an objective sentencer
would impose a death penalty notwithstanding that the defen-
dant is suffering from an organic brain ailment.
***
6
At Leavitt’s second sentencing hearing, the trial judge suggested that
he was struggling to understand why Leavitt had committed the murder,
stating that “[t]he fact that a[ ] generally law-abiding citizen, a father, hus-
band, and so would do this act leaves one’s [sic] asking why.” Evidence
of Leavitt’s organic brain disorder would have made the commission of
such a horrendous crime far more comprehensible to the judge.
6506 LEAVITT v. ARAVE
In short, there can be little doubt that Parmenter’s incompe-
tent performance is “sufficient to undermine confidence in the
outcome,” and thus prejudiced Leavitt. Strickland, 466 U.S. at
694. It would not have been “insan[e]” for Parmenter to move
the trial court for the MRI examination to which Leavitt was
constitutionally entitled, and to cite the controlling Supreme
Court authority of which the trial judge had not been advised
the first time. Contra Maj. op. at 6488-89. To the contrary,
making such a motion was an essential part of Parmenter’s
duty to provide effective assistance. His failure to seek,
obtain, and introduce the evidence establishing that Leavitt
suffered from organic brain damage necessarily undermines
any reasonable jurist’s confidence in the outcome of the sen-
tencing proceeding. I regret that my colleagues, rather than
reach the same conclusion, have decided to disregard the con-
trolling law and the compelling facts of this case. Accord-
ingly, I dissent.