Allen v. Woodford

Volume 1 of 2

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CLARENCE RAY ALLEN,  No. 01-99011
Petitioner-Appellant, D.C. No.
v. CV-88-01123-FCD-
JEANNE S. WOODFORD, Warden, of  JFM
the California State Prison at San ORDER AND
Quentin, AMENDED
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding

Argued and Submitted
June 12, 2003—San Francisco, California

Filed May 6, 2004
Amended January 24, 2005

Before: Susan P. Graber, Kim McLane Wardlaw, and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Wardlaw

941
 ALLEN v. WOODFORD 945

COUNSEL

Michael Satris, Bolinas, California, and Michael Thorman,
Hayward, California, for the appellant.

Ward A. Campbell, Supervising Deputy Attorney General,
Sacramento, California, for the appellee.

ORDER

The Opinion filed on May 6, 2004 and appearing at 366
F.3d 823 (9th Cir. 2004), is amended as follows: On slip opin-
ion page 5831 insert the following language at the end of the
first paragraph:

We do not hold that humanizing, non-exculpatory
evidence can never be enough to establish prejudice.
Rather, we simply hold that the quality and quantity
of the particular evidence offered by Allen, in light
of the heinous nature of his crimes, does not estab-
lish prejudice.

The mandate shall issue forthwith.

With this amendment, the panel has voted unanimously to
deny the petition for rehearing and to reject the suggestion for
rehearing en banc.

The full court has been advised of the suggestion for
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
946 ALLEN v. WOODFORD
The petition for rehearing is DENIED and the suggestion
for rehearing en banc is REJECTED. No subsequent petition
for rehearing or rehearing en banc may be filed.

OPINION

WARDLAW, Circuit Judge:

Clarence Ray Allen appeals the denial of his petition for
writ of habeas corpus by the United States District Court for
the Eastern District of California. He asserts numerous claims
of constitutional error in both the guilt and penalty phases of
his 1982 trial for the Fran’s Market triple-murder and related
conspiracy to murder.

The evidence of Allen’s guilt for the crimes of conviction
is overwhelming. His own testimony provided perhaps the
most incriminating evidence of that of the 58 witnesses who
testified over 23 days during his jury trial, which ended in
convictions for triple-murder and conspiracy to murder seven
people, and a judgment imposing a sentence of death. Just as
overwhelmingly plain, however, is that Allen’s representation
at the penalty phase of his trial fell below an objective stan-
dard of reasonableness. Trial counsel admits he did nothing to
prepare for the penalty phase until after the guilty verdicts
were rendered, and even then, in what little time was avail-
able, he failed sufficiently to investigate and adequately pre-
sent available mitigating evidence.

We must decide whether, if counsel had adequately investi-
gated, presented and explained the available mitigating evi-
dence, there is a reasonable probability that the result of
Allen’s penalty phase would have been a sentence other than
death. Having carefully and independently weighed the miti-
gating evidence, “both that which was introduced and that
which was omitted or understated,” Mayfield v. Woodford,
 ALLEN v. WOODFORD 947
270 F.3d 915, 928 (9th Cir. 2001) (en banc), against the
extraordinarily damaging aggravating evidence, we are com-
pelled to conclude, as did the district court before us, that it
is not reasonably probable that even one juror would have
held out for a life sentence over death. Given that Allen had
just been convicted by his death-qualified jury of orchestrat-
ing — from jail — a conspiracy to murder seven people, and
succeeding in the actual killing of three, all to retaliate for
their prior testimony against him and to prevent future damag-
ing testimony, and that the potential evidence in mitigation
was neither explanatory nor exculpatory and was provided by
persons unaware of Allen’s numerous horrendous crimes or
who were otherwise impeachable, we must conclude that
there is no reasonable probability, i.e., “a probability suffi-
cient to undermine confidence in the outcome,” Strickland v.
Washington, 466 U.S. 668, 694 (1984), that the jury would
have reached a different result. We therefore affirm.

I. Background1

The “sordid events,” Allen, 42 Cal. 3d at 1236, underlying
this appeal were set in motion in June 1974, when Allen
decided to burglarize Fran’s Market in Fresno, California.
Ultimately, Allen was convicted of the burglary and related
first-degree murder of Mary Sue Kitts, the crime for which he
was serving a life sentence when he committed his current
crimes of conviction in an effort to silence the witnesses who
testified at the 1977 Fran’s Market/Kitts murder trial.
1
We derive much of this recitation of facts and proceedings from that
of the California Supreme Court in People v. Allen, 42 Cal. 3d 1222,
1236-47 (1986), and from our own independent review of the record.
Many of the relevant facts are undisputed, and the California Supreme
Court’s factual findings are adequately supported by the record.
948 ALLEN v. WOODFORD
A. The Fran’s Market Burglary and Murder of Mary Sue
Kitts

Allen had known the owners of Fran’s Market, Ray and
Frances Schletewitz, for more than a decade. To assist in the
burglary, Allen enlisted the help of his son Roger, as well as
Carl Mayfield and Charles Jones, employees in Allen’s secur-
ity guard business and frequent coconspirators in prior crimi-
nal pursuits.

On the night of the burglary, Roger Allen invited the
Schletewitz’s 19-year-old son, Bryon, to an evening swim-
ming party at Allen’s house. There, Bryon’s keys to Fran’s
Market were taken from his pants pocket while he was swim-
ming. Later in the evening, while Bryon was on a date
arranged by Allen with 17-year-old Mary Sue Kitts, son
Roger’s live-in girlfriend at the time, Allen, Mayfield, and
Jones used Bryon’s keys to burglarize his parents’ market.
They removed a safe from the market and divided the $500
in cash and over $10,000 in money orders found inside. With
help from his son Roger, his girlfriend Shirley Doeckel, Kitts,
and two others — Barbara Carrasco and her stepson Eugene
Leland (“Lee”) Furrow — Allen cashed the stolen money
orders at southern California shopping centers by using false
identifications. While the stolen money orders continued to be
cashed, Kitts contacted Bryon Schletewitz and tearfully con-
fessed to him that she had helped to cash the money orders
stolen from Fran’s Market by Allen.

Bryon confronted Roger Allen with this story, and Roger
admitted that the Allen family had burglarized the store.
Bryon, in turn, confirmed to Roger that Kitts had been the one
to confess the burglary to him. When Roger told his father of
Bryon’s accusation based on Kitts’s confession, Allen
responded that Bryon and Kitts would have to be “dealt with.”
Allen next told Ray and Frances Schletewitz that he had not
burglarized their store and that he loved Bryon like his own
son. He also threatened and intimidated the Schletewitzes,
 ALLEN v. WOODFORD 949
however, by hinting that someone was planning to burn down
their house and by having Roger pay Furrow $50 to fire sev-
eral gunshots at their home one midnight.

Meanwhile, Allen called a meeting at his house and told
Jones, Mayfield, and Furrow that Kitts had been talking too
much and should be killed. Allen called for a vote on the issue
of Kitts’s execution. The vote was unanimous because those
present feared what would happen if they did not go along
with Allen’s plan. Allen had previously told his criminal
accomplices that he would kill snitches and that he had
friends and connections to do the job for him even if he were
in prison. He had also referred to himself as a Mafia hitman
and stated that the “secret witness program” was useless
because a good lawyer could always discover an informant’s
name and address. Allen kept a newspaper article about the
murder of a man and woman in Nevada, and claimed he had
“blown them in half” with a shotgun.

Allen thereafter developed a plan to poison Kitts by trick-
ing her into taking cyanide capsules at a party to be held at
Doeckel’s Fresno apartment. Allen sent Mayfield and Furrow
to get the cyanide and took some heavy stones from his house
to weigh down Kitts’s body, which was to be dumped into a
canal. He overruled Jones’s suggestion that Kitts merely be
sent somewhere until “things died down,” and he dismissed
Doeckel’s objection to having a murder committed in her
apartment. Shortly before the party began, Allen told Furrow
that if he refused to commit the killing, Allen could just as
easily get rid of two people as one.

Allen left Doeckel’s apartment shortly before Kitts arrived.
When Kitts arrived and refused to take the “pills” offered to
her, Mayfield and Jones called Allen. Allen told Furrow to
kill her one way or another because he just wanted her dead.
Later, when Kitts still would not take the cyanide pills, Allen
met Furrow outside the apartment and stressed that he “didn’t
care how it was done but do it.” Allen added that Furrow
950 ALLEN v. WOODFORD
would be killed if he tried to leave the apartment. When Fur-
row and Kitts were finally left alone, Furrow began to stran-
gle Kitts, only to be interrupted by a phone call from Allen
asking if he had killed her yet. When Furrow answered no,
Allen ordered him to “do it” and hung up. Furrow then stran-
gled Kitts to death. Warning Jones, Doeckel, and Furrow that
they were all equally involved in the murder, Allen had them
tie stones to Kitts’s wrapped-up body and, while he watched
for traffic, throw it into a canal.

After the murder, Allen threatened and bragged to his vari-
ous cohorts. To Carrasco, Allen said of Kitts that he had had
to “ride her up, wet her down and [feed] her to the fishes.”
When Mayfield asked how Furrow was doing, Allen
responded that he was “no longer in existence,” explaining
that it is easy to go to Mexico, get someone killed, and have
the body disposed of for only $50. Allen also told Shirley
Doeckel that Furrow was no longer around and repeated his
claim that he had killed a woman in Las Vegas. Allen had not
actually killed Furrow, however, and would later enlist his
help in the 1974 robbery of an elderly couple at their jewelry
store. About six months after the murder, when Mayfield
asked Allen if he was worried about others talking, Allen said
that he was not afraid, that “things would be taken care of”
if that happened, that he would have snitches killed, and that
he would take care of “secret witness” informers even if he
were imprisoned.

Allen told Jones and others that “talking was a spreading
disease and that the only way to kill it was to kill the person
talking.” Allen would say of his cohorts that “none of [these]
people talked” and that, if they did, “he would get them from
inside or outside prison.” When Jones’s home was burglarized
some time after the murder and Jones told Allen about the
burglary, Allen responded that the burglary showed how eas-
ily Jones could be reached. Allen later gave Jones a key that
fit his residence, and told him in front of his five-year-old son
 ALLEN v. WOODFORD 951
that he knew Jones “would like his kids to grow up without
harm.”

Allen later brought in new employees, Allen Robinson and
Benjamin Meyer, and bragged to Meyer that he “had a broad
helping them who got mouthy so they had to waste her” and
that she “sleeps with the fishes.” He further warned Meyer,
“If you bring anybody in my house that snitches on me or my
family, I’ll waste them. There’s no rock, bush, nothing, he
could hide behind.” When Meyer asked what would happen
if Allen was arrested and could not make bail, Allen replied,
“You’ve heard of the long arm of the law before? Well don’t
underestimate the long arm of this Indian. I will reach out and
waste you.”

After holding meetings with his new employees and his son
Roger, Allen arranged for the group to rob a K-Mart store in
Tulare. Chastising Robinson for making mistakes, Allen told
Meyer, “We just might waste him,” and later replaced Robin-
son with Larry Green as his “inside man.” During an armed
robbery of a Visalia K-Mart in March 1977, Green shot a
bystander, and police arrested him along with Meyer and
Allen. Allen was tried and convicted in 1977 of robbery,
attempted robbery, and assault with a deadly weapon. His
arrest also led to his second 1977 trial, for the Fran’s Market
burglary, conspiracy, and the murder of Mary Sue Kitts.
Numerous witnesses, including Bryon Schletewitz, Mayfield,
Jones, Furrow, Doeckel, Carrasco, and Meyer, testified on
behalf of the prosecution. Allen was convicted of burglary,
conspiracy, and the first-degree murder of Kitts, and was sen-
tenced to life in prison with the possibility of parole.

B. The Fran’s Market Triple-Murder and Witness
Retaliation Scheme

While incarcerated at Folsom Prison, Allen called and
wrote his second son, Kenneth, to request several copies of a
magazine article about Kitts’s murder. He explained that he
952 ALLEN v. WOODFORD
wanted to send the copies to other prisons to solicit help retal-
iating against those who had testified against him.

In Folsom, Allen met Billy Ray Hamilton, a fellow inmate
and convicted robber who was housed nearby and worked
with Allen in the prison’s kitchen for two months in mid-
1980. Hamilton, nicknamed “Country,” became Allen’s
“dog,” running errands and taking care of various problems in
return for cash. Another inmate, Gary Brady, would occasion-
ally assist Hamilton. Brady was scheduled to be paroled on
July 28, 1980; Hamilton was scheduled for parole one month
later.

After Hamilton and Brady had been helping him for some
time, Allen informed them that he had an appeal coming up
and wanted certain people taken “out of the box, killed,”
because “they had been onto his appeal,” and “messed him
around on a beef.” Allen mentioned the names “Bryant”
(Bryon), Charles Jones, and “Sharlene” as witnesses to be
killed, and offered Hamilton $25,000 for the job. Allen also
confided to another inmate, Joseph Rainier, that he had been
convicted of first-degree murder based on the testimony of
“the guy who did the actual killing” and that he would like to
see this person, as well as four other witnesses, killed. Rainier
saw Allen and Hamilton huddled close together and talking
on the prison yard bleachers and track every day for the four
to six weeks before Hamilton’s release in late August 1980.
In response to Rainier’s repeated inquiries about what was
going on, Allen stated that Hamilton was “going to take care
of some rats for [him].” Allen later elaborated that Hamilton
was going to “get paid for the job” and that “Kenny was going
to take care of transportation.” Allen said that he could likely
“win his appeal” if the witnesses were killed and offered to
have witnesses who had testified against Rainier killed as
well.

Allen asked his eldest son Kenneth, and Kenneth’s wife
Kathy to visit him in jail, which they did with their baby on
 ALLEN v. WOODFORD 953
August 15. Allen told Kenneth that both Ray and Bryon
Schletewitz were going to be murdered and that the other wit-
nesses against him would also be eliminated so that he would
prevail on retrial if he won his appeal. He added that Shirley
Doeckel had agreed to change her testimony if he were
granted a new trial. Allen gave Hamilton’s mug shot to Ken-
neth and explained that Hamilton — whom he referred to as
“Country” — would commit the killings and that he expected
Kenneth to supply “Country” with guns and transportation.
Kenneth agreed to find guns for Hamilton with Kathy’s help,
and Kenneth smuggled Hamilton’s photo out of prison in his
baby’s diaper. He and Kathy thereafter received a series of
letters from Allen detailing the evolving plans.

Soon after Hamilton was paroled, Kenneth wired him trans-
portation money and met him at the Fresno bus depot. At
Kenneth’s house, Hamilton confirmed that he was there to
murder Bryon and Ray Schletewitz, and asked to see the
weapons he would be using. He explained that he would not
kill Doeckel yet because she was helping him locate the other
hit-list witnesses. Hamilton’s girlfriend, Connie Barbo, joined
Hamilton in Fresno. She told acquaintances that she had a
chance to get a few thousand dollars and a hundred dollars
worth of “crank” for “snuffing out a life.”

On Thursday, September 4, Hamilton went to Kenneth’s
house to get a sawed-off shotgun, a .32 caliber revolver, and
seven shotgun shells from Kenneth. Hamilton discussed
Fran’s Market, stating that he knew there were two safes
there, one in the wall and the other in the freezer. He left that
evening with Barbo, telling Kenneth he was going to murder
Ray and Bryon Schletewitz. The two returned at about 9:45
p.m., however, explaining that they had aborted the execution
because Barbo objected to killing a 15-year-old Mexican boy
who was also in the store that night.

The next evening Hamilton took thirteen additional shotgun
shells and six more cartridges from Kenneth, and went with
954 ALLEN v. WOODFORD
Barbo back to Fran’s Market. When they arrived at 8 p.m.,
just before closing time, Bryon Schletewitz and employees
Douglas Scott White, Josephine Rocha, and Joe Rios were
there. Shortly after entering, Hamilton brandished the sawed-
off shotgun and Barbo produced the .32 caliber revolver.
Hamilton led White, Rocha, Rios, and Bryon toward the
stockroom and ordered them to lie on the floor. He told White
to get up and walk to the freezer, warning White he knew
there was a safe inside. When White told Hamilton there was
no safe there, Hamilton responded, “Get out ‘Briant.’ ” Bryon
Schletewitz then volunteered, “I am Bryon.” Following Ham-
ilton’s demand, Bryon gave up his keys and assured Hamilton
he would give him all the money he wanted.

While Barbo guarded the other employees, Bryon led Ham-
ilton to the stockroom where, from seven to twelve inches
away, Hamilton fatally shot him in the center of his forehead
with the sawed-off shotgun. Hamilton emerged from the
stockroom and asked White, “Okay, big boy, where’s the
safe?” As White responded, “Honest, there’s no safe,” Hamil-
ton fatally shot him in the neck and chest at point-blank range.
As Josephine Rocha began crying, Hamilton fatally shot her
through the heart, lung, and stomach from five to eight feet
away. Meanwhile, Joe Rios had escaped to the women’s rest-
room. Hamilton found him, opened the restroom door,
pointed the shotgun at Rios’ face, and shot him from three
feet away. Rios, however, had put his arm up in time to take
the blast in the elbow, saving his life. Assuming that Rios was
dead, Hamilton and Barbo fled the store, only to be spotted
by neighbor Jack Abbott, who had come to investigate after
hearing the shots. Barbo retreated back into the store’s rest-
room, and Hamilton and Abbott traded fire. Although hit,
Abbott managed to shoot Hamilton in the foot as he ran to his
getaway car. Barbo was apprehended by officers at the scene.

Hamilton called Kenneth later that evening, saying he had
“lost his kitten” and “things went wrong at the store.” The two
met and exchanged cars. Hamilton next drove to the Modesto
 ALLEN v. WOODFORD 955
home of Gary Brady, the Folsom inmate who had been
paroled one month before Hamilton. While staying with
Brady, Hamilton told him he had “done robbery” and had
“killed three people for Ray.” He had Brady’s wife write to
Allen requesting the money he was owed for the job. The let-
ter, signed “Country,” gave Brady’s Modesto address as the
return address. Shortly thereafter, police arrested Hamilton for
robbing a liquor store across the street from Brady’s apart-
ment. The police seized from Hamilton an address book con-
taining a list of names and addresses of the eight people who
had testified against Allen at the 1977 Kitts murder trial —
Lee Furrow, Barbara Carrasco, Benjamin Meyer, Charles
Jones, Carl Mayfield, Shirley Doeckel, and Ray and Bryon
Schletewitz. When investigators visited Kenneth Allen’s
home, Kathy Allen gave them Hamilton’s mug shot.

After an article about the Fran’s Market triple-murder
appeared in the newspaper, Allen asked fellow inmate Rai-
nier, “Why don’t you testify against me . . . and see if you can
help yourself or get some time off?” When Rainier responded
that he could not do that, Allen patted him on the back and
said, “You wouldn’t want to do that anyway because you do
have a lovely daughter.”

Shortly after the Fran’s Market murders, Kenneth was
arrested on drug charges. The police interviewed Kenneth
about the murders. A week later, he contacted the police to
offer his testimony in return for protective custody and his
choice of prisons. He eventually entered into a plea agreement
in which he promised to testify “truthfully and completely” in
all proceedings against Hamilton, Barbo, and Allen. In June
1981, Allen was charged in the Fran’s Market triple-murder
and underlying conspiracy. Kenneth testified at Allen’s pre-
liminary hearing.

C. Allen’s 1982 Trial for the Fran’s Market Triple-
Murder and Conspiracy

Allen was charged with murdering Bryon Schletewitz
(count one), Douglas Scott White (count two), and Josephine
956 ALLEN v. WOODFORD
Rocha (count three), and conspiring to murder Bryon Schlete-
witz, Ray Schletewitz, Lee Furrow, Barbara Carrasco, Benja-
min Meyer, Charles Jones, and Carl Mayfield (count four).
The information further alleged eleven special circumstances:
five under count one, three under count two, and three under
count three.

The jury heard from 58 witnesses over the 23-day guilt
phase of Allen’s trial. Although the prosecutor terminated
Kenneth’s plea agreement after discovering Kenneth had writ-
ten to Allen promising to change his testimony at trial, Ken-
neth, stating he wanted to testify truthfully, and having been
fully advised of his rights and the fact that the previous plea
agreement was terminated, testified for the prosecution.

In addition, Allen took the stand in his own defense. He
denied any involvement in the Fran’s Market murders or in
the conspiracy to execute the witnesses who testified against
him in his previous trial; however, he admitted on cross-
examination that he had told his “good dog” Hamilton to go
to Fresno, and that he wrote all of the letters received into evi-
dence and conceded they referred to Hamilton’s impending
visit to Fresno. Allen confirmed that parts of those letters
referred to Meyer, Mayfield, and Jones, and that a phrase he
had used — “taken care of” — meant “to kill.” He also
acknowledged that he had access to mug shots in Folsom
Prison, and admitted talking to Hamilton in the bleachers at
the prison. After being confronted with a tape recording, he
admitted ordering Kathy Allen to call the Schletewitzes to
impersonate Mary Sue Kitts, and to pretend to be the mother
of Bryon’s baby so as to induce the family to call off the Kitts
murder investigation.

Allen’s testimony also confirmed many of the details about
his former criminal activities and convictions about which
Jones, Mayfield, Furrow, Meyer, Doeckel, and Carrasco had
all testified. He denied planning the Kitts murder, but
described how he had helped transport and dispose of her
 ALLEN v. WOODFORD 957
body. He also described in great detail his formula for execut-
ing “fool-proof” armed robberies of various K-Mart stores,
and described in detail his role in the Tulare K-Mart robbery.
Finally, Allen maintained that “when a guy puts a rat jacket
on himself [i.e., becomes a snitch], killing them would do
them a favor.”

Allen’s daughter-in-law, Kathy, tried to exculpate Allen
and implicate her husband, Kenneth, as the drug-crazed, hal-
lucinogenic mastermind of the Fran’s Market murders. She
recalled, however, that Kenneth had discussed getting “guns
for witnesses” with his father at Folsom and that Barbo had
told her that she and Hamilton could not leave any witnesses.
Kathy admitted that she had previously testified for Allen, had
tried to falsify evidence about the murders, and had transmit-
ted messages to Hamilton for Allen.

Three prison inmate witnesses, John Frazier, Henry Bor-
bon, and Andrew Thompson testified that Hamilton, Allen,
and Brady could not have met together in the Folsom yard.
Thompson nevertheless admitted that he called Allen “Dad”
and would lie to protect him. Borbon’s testimony was
impeached by that of other witnesses.

After three days of deliberation, on August 22, 1982, the
jury found Allen guilty as charged. Allen then admitted that
he had previously been convicted of murder, confirming three
of the eleven special circumstance allegations that had been
bifurcated from the trial pursuant to California Penal Code
§ 190.1(b).

Eight days later, the penalty phase began. The State’s evi-
dence showed that Allen had masterminded eight prior armed
robberies: (1) the August 12, 1974, armed robbery at Safina
Jewelry in Fresno, which yielded $18,000 worth of jewelry;
(2) the September 4, 1974, armed robbery of Don’s Hillside
Inn in Porterville in which $3,600 was taken from the safe and
hundreds of dollars in cash and credit cards were taken from
958 ALLEN v. WOODFORD
patrons at the scene; (3) the February 12, 1975, residential
armed robbery of William and Ruth Cross, an elderly Fresno
couple, in which a coin collection valued at $100,000 was
taken; (4) the June 18, 1975, attempted robbery at Wickes
Forest Products in Fresno, resulting in Allen’s arrest; (5) the
October 21, 1976, armed robbery at Skagg’s Drug Store in
Bakersfield, in which one of Allen’s associates accidentally
shot himself; (6) the November 20, 1976, armed robbery at a
Sacramento Lucky’s market, in which grocery clerk Lee
McBride was shot and sustained permanent damage to his
nervous system; (7) the February 10, 1977, robbery at a
Tulare K-Mart, in which more than $16,000 in cash was
taken; and (8) the March 16, 1977, Visalia K-Mart robbery,
during which Larry Green held a gun to the head of one
employee and shot another in the chest, permanently disabling
him.

Prosecution evidence also showed that while in the Fresno
County jail on June 27, 1981, Allen called a “death penalty”
vote for inmate Glenn Bell, an accused child molester.
According to the evidence, Allen directed an attack during
which inmates scalded Bell with two gallons of hot water, tied
him to the cell bars and beat him about the head and face, and
thereafter shot him with a zip gun and threw razor blades and
excrement at him while he huddled in his blanket in the cor-
ner of the cell.

The evidence also established that Allen repeatedly threat-
ened that anyone who “snitched” on the Allen gang would be
“blown away” or killed. Allen had also thwarted prosecution
of the attempted robbery at Wickes Forest Products by threat-
ening the chief prosecution witness and his family.

Allen’s prior convictions of (1) conspiracy, first-degree
murder, first-degree burglary, and (2) first-degree robbery,
attempted robbery, and assault with a deadly weapon were
introduced. The parties also stipulated to the consideration by
the jury of the guilt-phase testimony by Ray Schletewitz,
 ALLEN v. WOODFORD 959
Mayfield, Jones, Furrow, and Meyer concerning (1) the prior
conspiracy to murder and the first degree murder of Kitts; (2)
the 1974 robbery at the Safina Jewelry Store; (3) the 1977
burglary and robbery of the Tulare K-Mart; and (4) the 1977
assault with a deadly weapon, burglary, conspiracy to commit
robbery, and attempted robbery of the Visalia K-Mart.

Allen put on two witnesses. His former girlfriend, Diane
Appleton Harris, testified to his good character, explaining
that Allen had helped her financially both before and after her
marriage to Jerry Harris. Harris further testified that Allen had
helped rush her to the hospital on one occasion, that he was
good to children, and that he wrote poetry. But, Harris admit-
ted that Allen had also threatened to kill her husband.

The second witness, San Quentin inmate John Plemons,
testified that he had instigated the assault on accused child
molester Glenn Bell in the Fresno County jail, and that Allen
had nothing to do with it. Plemons’s testimony was rebutted
by Correctional Officer Delma Graves, who testified that Bell
told her immediately after the incident that Allen had insti-
gated the assault.

After deliberating for less than one day, the jury returned
a verdict of death. The trial court denied Allen’s “statutory
motion for a new trial” and sentenced him to death.

D. Appellate and Habeas Proceedings

The California Supreme Court affirmed Allen’s conviction
and sentence on December 31, 1986, Allen, 42 Cal. 3d at
1222, and summarily denied his December 1987 and March
1988 supplemental habeas petitions. Allen filed a federal
habeas petition on August 31, 1988, and moved for an eviden-
tiary hearing. The district court then stayed the proceedings
for exhaustion of all claims.

The district court reopened Allen’s federal habeas proceed-
ings in September 1993. Allen moved for an evidentiary hear-
960 ALLEN v. WOODFORD
ing, which was granted in part. In April 1997, the magistrate
judge presided over a six-day evidentiary hearing on the issue
of ineffective assistance of counsel in the penalty phase. On
March 9, 1999, the magistrate judge issued Findings and Rec-
ommendations denying Allen’s habeas petition. Following
objections to the magistrate judge’s Findings and Recommen-
dations, the district court conducted a de novo review of the
case in compliance with 28 U.S.C. § 636(b)(1)(C), holding
argument on April 26, 2001. On May 11, 2001, the district
court issued a Memorandum and Order adopting in full the
magistrate judge’s Findings and Recommendations and deny-
ing Allen’s petition. Allen timely filed a notice of appeal and,
on July 5, 2001, the district court issued a Certificate of
Appealability, certifying both guilt- and penalty-related
issues.

II. Jurisdiction and Standard of Review

We review Allen’s pre-AEDPA petition de novo. “In par-
ticular, claims alleging ineffective assistance of counsel are
mixed questions of law and fact and are reviewed de novo.”
Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.), cert. denied,
537 U.S. 942 (2002). We review the district court’s findings
of fact for clear error, present only where we have a “ ‘defi-
nite and firm conviction that a mistake has been committed.’ ”
Id. (quoting United States v. Syrax, 235 F.3d 422, 427 (9th
Cir. 2000)). “Although less deference to state court factual
findings is required under the pre-AEDPA law which governs
this case, such factual findings are nonetheless entitled to a
presumption of correctness unless they are ‘not fairly sup-
ported by the record.’ ” Id. at 835 (citing 28 U.S.C.
§ 2254(d)(8) (1996)). Thus, we owe the state court’s factual
findings less deference here than in a case governed by
AEDPA; however, such factual findings are entitled to a pre-
sumption of correctness as long as they are fairly supported
by the record. Id.
 ALLEN v. WOODFORD 961
III. Guilt-Phase Claims

[1] Allen collaterally challenges his conviction on numer-
ous grounds. As explained below, however, to the extent that
any claim of error in the guilt phase might be meritorious, we
would reject that error as harmless because the evidence of
Allen’s guilt is overwhelming. Because of the compelling
nature of the guilt-phase evidence, for purposes of decision,
we address the evidence of guilt before turning to Allen’s
claims of trial error.

A. Evidence of Allen’s Guilt

Allen’s own son Kenneth directly tied Allen to the Fran’s
Market triple-murder and conspiracy, testifying as to Allen’s
plotting and recruiting of Hamilton, Kathy, and himself.
Brady corroborated Kenneth’s testimony, explaining that
Allen attempted to recruit both Hamilton and Brady to kill
those who had testified against Allen, and describing how he
housed Hamilton immediately after the triple-murder.

Extensive evidence corroborated Kenneth’s and Brady’s
testimony and supported the jury’s guilty verdict. Joe Rainier
testified that Allen told him Hamilton was going to take care
of “some rats” for him, that Hamilton would be paid for the
job and that “Kenny [would] take care of transportation.” Rai-
nier also testified that he saw Allen and Hamilton talking
together in the prison yard every day for the four to six weeks
preceding Hamilton’s release. Even Kathy Allen, one of
Allen’s biggest supporters, testified that when she and Ken-
neth visited Allen, she heard Allen mention “guns for witness-
es.” In addition, the police found the list of witnesses against
Allen in Hamilton’s possession and a mug shot of Hamilton
— to which Allen had access in prison — in Kenneth and
Kathy’s home.

Most damning of all, though, was the evidence that came
directly from Allen. He admitted writing letters to Kenneth
962 ALLEN v. WOODFORD
and Kathy about “Country” Hamilton coming to town. In
those letters, Allen implied or spoke directly about the harm
he hoped would befall the witnesses against him. On August
26, 1980, for example, Allen wrote “Hey, I hear a ‘country’
music show is coming to ‘town’ around September 3rd.” Ken-
neth testified that “show” meant murder. The letter went on,
“ ‘Remember’ September 3? Around that date ya all plan on
listening to a lot of good ol’ ‘country’ music, okay? Just for
me. You know how I like ‘country.’ ” The following day,
Allen wrote another letter, entitled, “Happy days ahead.” This
letter stated, “Now remember around September 3rd, have
everything ready so ya all can go to that ‘country’ music
show. I know ya all really ‘enjoy yourselves.’ I know you
kids never liked ‘country’ music before, but I bet when you
hear that dude on lead guitar, you will be listening to it at least
once a week. Ha-ha.” Allen further asked Kenneth to “give
his best” to Carl Mayfield: “Tell him I am thinking of him and
I hope to see him one day, but I am sure he knows that
already.”

Allen also called Shirley Doeckel a “snitch bitch” and
wished her “many, many more” problems. He wrote of “his
dog,” Hamilton, leaving Folsom and wanting to find and meet
“Chuckettea” (a.k.a. Chuck Jones). Allen also wrote that
Hamilton wanted to meet “Mr. Jones and Mr. Mayfield and
a few other good friends” and that “he might move out close
to Raisin City,” home of Ben Meyer. Allen further admitted
asking Hamilton to go see Kenneth and Kathy in Fresno; at
first he claimed that he had merely asked Hamilton to visit his
children and grandchildren, but he eventually admitted that
Hamilton was to unload a “hot gun” from Kenneth and Kathy.
The jury was also able to examine several of Allen’s poems,
some of which emoted over and identified with the life of a
contract hit man, including the following “Allen Gang” poem:

Ray and his sons are known as the Allen Gang.
Sometimes you have often read
 ALLEN v. WOODFORD 963
how we rob and steal and for those who squeal
are usually found dying or dead.

The road gets slimmer and slimmer
and at times it is hard to see,
but we stand like a man
robbing every place we can,
because we know we’ll never be free.

Someday it will be over
and they will bury us side by side.
To some it will be grief,
but to us it’s relief
knowing we finally found a safe place to hide.

Allen’s testimony was fraught with damaging inconsisten-
cies and implausible explanations. He admitted lying and tell-
ing his associates that Lee Furrow had been killed in Mexico.
He implausibly asserted that he had not directed or been
involved in killing Mary Sue Kitts, but that he had only “as-
sisted in the disposal of her body.” Allen also testified that he
“barely even knew . . . Billy Ray Hamilton” and that he only
“talked to him maybe three or four times,” although he
referred to Hamilton numerous times as “his good dog”
(which, as he testified, meant “close acquaintance”) in his let-
ters to Kenneth and Kathy. Allen testified inconsistently as to
whether he went to San Diego to cash money orders stolen
from Fran’s Market and whether the Schletewitzes had come
to his house to pressure him to pay money that he owed them.
After having his memory refreshed by a tape recording, Allen
also admitted lying about having had Kathy Allen “call the
Schletewitzes and act as if she were Mary Sue Kitts.” Ques-
tioned repeatedly about the inmate photos in his cell, Allen
finally asserted that he was “planning on writing a book about
twelve convicts that [he] got acquainted with in Folsom.”
Allen further testified about much of his prior criminal his-
tory, including his knowing solicitation of someone — Larry
Green — that he considered to be “a very dangerous man”
964 ALLEN v. WOODFORD
and knew “might kill somebody” to commit burglaries.
Finally, Allen provided illuminating testimony regarding his
hatred of snitches. Among many other statements, Allen
explained: “[W]hen a guy puts a rat jacket on himself, killing
them would do them a favor.”

B. Guilt-Phase Claims

None of Allen’s claims has merit. Even if we were to find
any of his claims meritorious, we would not find that such
error “had a substantial and injurious effect on the jury’s ver-
dict.” Brecht v. Abrahamson, 507 U.S. 619, 627 (1993) (inter-
nal quotation marks omitted). Therefore, we address each
only briefly.

1. State’s Alleged Reliance on False Testimony

Allen claims that the State’s reliance on false testimony to
establish and maintain his conviction entitles him to relief.

‘[A] conviction obtained by the knowing use of per-
jured testimony is fundamentally unfair, and must be
set aside if there is any reasonable likelihood that the
false testimony could have [a]ffected the judgment
of the jury.’

United States v. Young, 17 F.3d 1201, 1203 (9th Cir. 1994)
(quoting United States v. Agurs, 427 U.S. 97, 103 (1976)).
Premised upon Kenneth Allen’s recantation after judgment
and Gary Brady’s alleged perjury, this claim falls of its own
weight.

a. Kenneth Allen’s Recantation

[2] Kenneth Allen’s later recantation of his trial testimony
does not render his earlier testimony false. See Dobbert v.
Wainwright, 468 U.S. 1231, 1233 (1984) (Brennan, J., dis-
senting from denial of certiorari) (“Recantation testimony is
 ALLEN v. WOODFORD 965
properly viewed with great suspicion.”); see also Carriger v.
Stewart, 132 F.3d 463, 483 (9th Cir. 1997) (en banc) (Kozin-
ski, J., dissenting) (“Appellate courts . . . look upon recanta-
tions with extreme suspicion.”); 58 Am. Jur., New Trial § 345
(“recantation testimony is generally considered exceedingly
unreliable”). Here, Kenneth’s recantation testimony is even
more unreliable because his trial testimony implicating Allen
is consistent with the other evidence, while his recantation is
not. For example, Kenneth now denies that he discussed kill-
ing witnesses with Allen during their visit at Folsom Prison
on August 15, 1980. At Allen’s trial, however, Kenneth’s
estranged wife Kathy, who testified on Allen’s behalf and
admitted trying to fabricate evidence to exculpate Allen, testi-
fied that she overheard Kenneth and Allen discussing “getting
guns for witnesses” at that Folsom Prison meeting. Kenneth
now also claims that Allen only sent Hamilton to Kenneth’s
house to give Hamilton an opportunity to look for a job. Allen
testified at trial, however, that Allen sent Hamilton to Fresno
to help Kenneth dispose of a “hot” gun and that Hamilton was
only stopping in Fresno on his way to San Diego.

Kenneth’s recantation also conflicts with all the other evi-
dence pointing to Allen’s involvement in planning the mur-
ders. For example, there are contradictions between
Kenneth’s recantation and: (1) Allen’s numerous letters to
Kenneth reminding him of Hamilton’s visit to Fresno; (2) the
list of witnesses from Allen’s first trial found on Hamilton
when he was arrested; and (3) Kenneth’s possession of a mug
shot of Hamilton. No reasonable juror could find the current
story credible when it is only Kenneth’s trial testimony that
makes sense in light of all the other evidence. Moreover,
Allen asserts no evidence, even assuming that Kenneth’s trial
testimony was false, that the State “knew, or should have
known” that it was false. United States v. Geston, 299 F.3d
1130, 1135 (9th Cir. 2002) (“It is a prosecutor’s duty to
refrain from knowingly presenting perjured testimony . . . .”)
(internal quotation marks omitted).
966 ALLEN v. WOODFORD
b. Gary Brady

Although Allen points out minor inconsistencies in Brady’s
testimony at pretrial proceedings, at Allen’s trial, at another
trial, and at Brady’s deposition, Allen fails to establish that
Brady’s testimony at Allen’s trial was untruthful. Indeed,
Brady has testified consistently as to the material facts. In
People v. Marshall, for example, Brady testified that Allen
asked Brady and Hamilton to kill some people who had testi-
fied against him. 13 Cal. 4th 799 (1996). Then in his deposi-
tion, Brady again confirmed that Allen offered to pay Brady
and Hamilton for killing the witnesses to the former proceed-
ing.

Brady’s trial testimony was also subjected to substantial
impeaching evidence, such as Brady’s substance abuse prob-
lem, prior felony convictions, blackouts, agreements with
prosecutors by which charges were dropped against Brady
and his wife in exchange for Brady’s testimony, and his
admission to the witness protection program. Inconsistencies
between Brady’s direct testimony at trial and his preliminary
hearing testimony were also pointed out to the jury.

Allen fails to establish either that Brady’s testimony was
false or that the State had any reason to believe it was false.

2. Coerced Testimony of Kenneth Allen

[3] We reject Allen’s argument that the prosecutor “co-
erced” Kenneth’s testimony, and that such “coercion” entitles
him to relief. Allen argues that the terms of the State’s bargain
with Kenneth Allen, and its withdrawal of that bargain, led
Kenneth to adhere to the testimony he gave at the preliminary
hearing, rather than tell the truth. This claim fails because the
plea agreement was proper, the jury was fully informed, and
the agreement had been withdrawn before Kenneth testified.

An agreement that requires a witness to testify truthfully in
exchange for a plea is proper so long as “the jury is informed
 ALLEN v. WOODFORD 967
of the exact nature of the agreement, defense counsel is per-
mitted to cross-examine the accomplice about the agreement,
and the jury is instructed to weigh the accomplice’s testimony
with care.” United States v. Yarbrough, 852 F.2d 1522, 1537
(9th Cir. 1988). Here, the jury was thoroughly informed,
through direct and cross-examination, of the plea agreement,
Kenneth’s subsequent letter, the prosecutor’s withdrawal of
the plea offer, and Kenneth’s belief that it remained valid. The
jury was also instructed to view accomplice testimony with
“distrust” and to credit it only if corroborated. Moreover,
Allen has presented no evidence supporting a finding of coer-
cion by the State.

3. Jury Instruction — CALJIC No. 2.11.5

The trial court instructed the jury pursuant to CALJIC No.
2.11.5 that it “must not discuss or give any consideration as
to why the other person or persons are not being prosecuted
in this trial or whether they have been or will be prosecuted.”
Allen claims that this instruction directed the jury not to con-
sider whether Kenneth and Kathy Allen might be tried for the
crimes and hence precluded it from considering whether Ken-
neth testified to protect his wife and himself from prosecution.

[4] A challenged instruction violates the federal constitu-
tion if there is a “reasonable likelihood that the jury has
applied the challenged instruction in a way that prevents the
consideration of constitutionally relevant evidence.” Boyde v.
California, 494 U.S. 370, 380 (1990). Even if the trial court
was mistaken to give this instruction, any mistake was cured
by the instructions read as a whole. See infra p. 1003. Here,
the jury was specifically instructed regarding witness bias,
interest, or other motive. It was also instructed that Kenneth
was an accomplice whose testimony should be viewed with
distrust, examined with care and caution, and corroborated. In
light of the trial court’s instructions read as a whole, there is
no reasonable likelihood that the jury understood CALJIC No.
2.11.5 to bar consideration of Kenneth’s motives for testify-
968 ALLEN v. WOODFORD
ing. See People v. Fauber, 2 Cal. 4th 792, 863 (1992) (giving
CALJIC No. 2.11.5 was harmless error given the totality of
the instructions).

4. Prosecutorial Misconduct

Allen contends that various incidents of prosecutorial mis-
conduct rendered his trial fundamentally unfair. To the extent
his claims of prosecutorial misconduct are not barred or factu-
ally or legally deficient, they do not constitute error of such
degree as to have substantially and injuriously affected the
verdict.

a. Due Process Right to Immunization of Defense
Witnesses

Allen asserts a due process right to judicial immunity for
his defense witnesses, independent of prosecutorial miscon-
duct. This assertion is a “new constitutional rule[ ] of criminal
procedure,” which is barred by Teague v. Lane. 489 U.S. 288
(1989). New constitutional rules of criminal procedure are
inapplicable to “cases which have become final before the
new rules are announced.” Id. at 310.

When Allen’s conviction became final on October 5, 1987,
only one court had recognized judicially conferred immunity
in select circumstances. See Virgin Islands v. Smith, 615 F.2d
964 (3d Cir. 1980). The remedy Allen seeks was thus hardly
compelled by precedent. See United States v. Lord, 711 F.2d
887, 891 n.2 (9th Cir. 1983) (expressly declining to reach the
merits of Virgin Islands’ concept of judicially conferred
immunity); People v. Hunter, 49 Cal. 3d 957, 974 (1989) (rec-
ognizing Virgin Islands as “the one case which has clearly
recognized [judicially conferred immunity]”).

b. Selective Immunization of Witnesses

[5] There is no evidence to support Allen’s claim that the
prosecutor selectively granted immunity. Allen argues the
 ALLEN v. WOODFORD 969
prosecutor had no good reason to deny immunity to Billy Ray
Hamilton, whose conviction and death sentence were on
appeal at the time, or to Connie Barbo. Allen has not demon-
strated that the prosecutor intentionally distorted the judicial
fact-finding process by denying immunity to a potential wit-
ness whose testimony would have been relevant to the
defense. Lord, 711 F.2d at 890-91. Allen presented no evi-
dence that the prosecutor’s denial of immunity to Barbo or
Hamilton was motivated by a desire to distort the fact-finding
process. Moreover, Allen fails to show how either Barbo’s or
Hamilton’s testimony would have exculpated him.

c. Failure to Disclose Exculpatory Information

[6] The State did not violate Brady v. Maryland, 373 U.S.
83 (1963), when it failed to disclose evidence that would have
impeached the credibility of both Brady and Kenneth. Specifi-
cally, Allen claims the prosecutor failed to disclose (1)
Brady’s cooperation with authorities and testimony in People
v. Marshall, 13 Cal. 4th 799 (1996), a case similar to Allen’s;
(2) information about Brady’s previous insanity finding and
Brady’s early case-related conversations with authorities; and
(3) the existence of a letter written by Kenneth’s wife Kathy,
instructing Kenneth how to change his testimony at Hamil-
ton’s trial.

The constitutional guarantee of due process imposes upon
the State the affirmative duty to disclose exculpatory informa-
tion. Brady, 373 U.S. at 87. The failure to disclose this infor-
mation “amounts to a constitutional violation only if it
deprives the defendant of a fair trial,” and requires reversal
“only if the evidence is material in the sense that its suppres-
sion undermines confidence in the outcome of the trial.”
United States v. Bagley, 473 U.S. 667, 678 (1985). The testi-
mony of Brady and Kenneth was substantially impeached.
The jury heard about Brady’s substance abuse problem,
numerous prior felony convictions, blackouts, agreements
dropping charges against Brady and his wife in exchange for
970 ALLEN v. WOODFORD
his testimony, and his placement in the witness protection
program. The jury was also fully apprised of Kenneth’s failed
plea bargain and inconsistent statements. The additional
impeachment evidence identified by Allen is simply cumula-
tive of other impeachment evidence.

d. Misconduct in Closing Argument

[7] Although some of the prosecutor’s comments during
closing argument were improper, none of them, considered
separately or cumulatively, prejudiced Allen. Improper pro-
secutorial argument violates rights under the federal constitu-
tion if it “ ‘so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’ ” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). It “is not enough
that the prosecutors’ remarks were undesirable or even uni-
versally condemned.” Id. (internal quotation marks omitted).

The prosecutor’s comments regarding Allen’s courtroom
demeanor were permissible because Allen chose to testify.
See United States v. Schuler, 813 F.2d 978, 981 n.3 (9th Cir.
1987) (“When a defendant chooses to testify, a jury must nec-
essarily consider the credibility of the defendant. In this cir-
cumstance, courtroom demeanor has been allowed as one
factor to be taken into consideration.”).

The prosecutor’s description of what Allen’s victims would
say from beyond the grave did not deny Allen due process
because it was intended to summarize the evidence presented.
See Drayden v. White, 232 F.3d 704, 713 (9th Cir. 2000)
(holding that prosecutor’s creation of a fictitious character
based on the dead victim and delivering closing argument in
the voice of that character is not a denial of due process
because his statements were supported by the evidence and
reasonable inferences therefrom).

Finally, however, the prosecutor’s suggestion that Allen
and his counsel conspired to retaliate against witness Joseph
 ALLEN v. WOODFORD 971
Rainier was misconduct. However, given the trial court’s
instruction that statements by counsel were not evidence, and
given the weight of the evidence against him, the prosecutor’s
comments did not deprive Allen of a fair trial.

5. Ineffective Assistance of Counsel in the Guilt Phase

Allen’s claims of ineffective assistance of counsel fail
either because counsel did not act deficiently or because
counsel’s actions did not prejudice him. Two requirements
must be met to establish a claim of ineffective assistance of
counsel. First, “the defendant must show that counsel’s per-
formance was deficient. This requires showing that counsel
made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. The proper inquiry under this
prong is whether counsel’s performance was “reasonable[ ]
under prevailing professional norms.” Id. at 688. However,
“the court should recognize that counsel is strongly presumed
to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judg-
ment.” Id. at 690. Second, “the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. at
687. “An error by counsel, even if professionally unreason-
able, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at
691. Therefore, “[t]he defendant must show that there is a rea-
sonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to under-
mine confidence in the outcome.” Id. at 694.

a. Failure to Seek Second Counsel

[8] Although use of second counsel in defending capital
cases is now recommended by the American Bar Association,
972 ALLEN v. WOODFORD
this recommendation did not go into effect until 1985. ABA
Standards for Criminal Justice 5-6.1 (3d ed. 1992). Thus, use
of second counsel was not the prevailing standard at the time
of Allen’s trial in 1982. Moreover, “[t]rial counsel cannot be
said to be constitutionally ineffective for deciding not to bring
in co-counsel, unless there is some reason . . . why the first
lawyer is unable to provide adequate representation.” Pitson-
barger v. Gramley, 141 F.3d 728, 738 (7th Cir. 1998). The
record does not demonstrate that counsel was or should have
been aware at the outset that he could not try this capital case
on his own. While it might have been wise to seek second
counsel, his failure to do so did not constitute deficient perfor-
mance.

b. Opening Statement

[9] Counsel’s opening statement contained promises of the
production of certain evidence and witnesses ultimately left
unfulfilled at trial, and opened with a recitation of Allen’s
“Hit Man” poem:

I am a contract man, some people say,
Dusting off people for those who pay,
Waiting in a room to get a call,
Knowing when it comes someone will fall.
Some people say I’m cold and mean,
Wasting someone I’ve never seen.
But filling a contract comes real high,
I give no thought for who will die.
I travel a lot, always alone,
Not knowing the feeling of having a home.
Of all the people I’ve blown away,
I’ve never heard one of them pray.
I know one day the time will come,
I’ll be blown away by a contract’s gun.

Counsel’s decision to introduce Allen’s “Hit Man” poem dur-
ing the opening statement was a strategic decision, intended
 ALLEN v. WOODFORD 973
to preempt the State from obtaining the most damaging use of
a poem that would inevitably be introduced. Because coun-
sel’s strategic choice is presumed sound, counsel’s perfor-
mance was not deficient. See Strickland, 466 U.S. at 689.
Moreover, even if counsel’s conduct was arguably deficient,
in light of the overwhelming evidence of guilt, Allen cannot
establish prejudice.

c. Failure to Impeach Prosecution Witnesses

Nor was the impeachment of Kenneth and Brady deficient
or prejudicial. With respect to Brady, counsel elicited a host
of impeachment evidence, including Brady’s drug and alcohol
use, memory loss, cooperation with law enforcement, and dis-
crepancies between his trial testimony and his previous state-
ments. Counsel similarly introduced evidence of Kenneth’s
drug use and conflicting stories to the police about the triple-
murder, as well as testimony contradicting Kenneth’s claim
that he never announced an intention to kill the witnesses
against his father. Not only was counsel’s impeachment of
Brady and Kenneth adequate, but any failure to elicit addi-
tional evidence was inconsequential, especially in light of the
evidence of guilt.

d. Failure to Call Witnesses

[10] Counsel’s decision not to call inmate Michael Brooks,
several prison employees, Barbo, and Hamilton as witnesses
was a strategic decision, not deficient performance as Allen
asserts. “A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight.” Strickland, 466 U.S. at 689. Moreover, Allen must
“overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Id. (internal quotation marks omitted). Brooks and the prison
employees would have testified that Allen was a loner and
was not generally seen with Brady and Hamilton. Such testi-
mony, however, was belied by the testimony of Kenneth,
974 ALLEN v. WOODFORD
Brady, and Rainier, as well as by Allen’s own letters referring
to Hamilton as his “good dog.” Barbo would simply have tes-
tified that she was unaware of Allen’s involvement, which
would have been little assistance to the defense. Further, the
statements given by Hamilton, which Allen contends should
have been admitted, actually implicate Allen. Therefore,
Allen has not overcome the presumption that counsel’s trial
strategy was sound. Id.

e. Failure to Introduce Other Exonerating Evidence

Similarly, counsel’s decision against introducing evidence
suggesting that the Fran’s Market triple-murder resulted from
a botched robbery attempt was a strategic decision, not defi-
cient performance as Allen suggests. Doing so could not have
effectively countered the evidence demonstrating that the
murders were planned. Although emphasis on shifting the
blame from Allen to Kenneth and Kathy may have been wise,
counsel’s strategic decision not to do so is at least presumed
sound, Strickland, 466 U.S. at 689, and Allen has not over-
come that presumption.

f. Allen’s Testimony and Closing Argument

[11] We reject Allen’s claim that counsel’s decision to put
Allen on the stand was deficient. Given the overwhelming
evidence of guilt introduced by the State, counsel may have
reasonably believed that placing Allen on the stand was the
only way to potentially rebut much of this evidence. Allen
adamantly testified that he was not part of any conspiracy to
commit murder. This testimony could come from no one but
Allen. Moreover, at the time, counsel could not have pre-
dicted just how damaging placing Allen on the stand would
be. Thus, counsel’s strategic choice is presumed sound. Str-
ickland, 466 U.S. at 689.

Allen cites Johnson v. Baldwin, 114 F.3d 835, 838 (9th Cir.
1997), for the proposition that counsel erred in placing him on
 ALLEN v. WOODFORD 975
the stand. In Johnson, we determined that counsel should
have prevented the defendant’s “incredibly lame” testimony
by keeping him off the stand. Id. Johnson is inapposite, how-
ever, because there, the defense would likely have secured a
not-guilty verdict if only the defendant had not taken the stand
and obviously lied. Allen would not have enjoyed a similar
security in not testifying. In addition, while Allen’s counsel
was not as artful as he could have been in eliciting Allen’s
testimony, his performance was not unreasonable. Finally,
none of Allen’s overstated complaints about his counsel’s
closing statement, such as that counsel “hardly referred to
[Allen’s] testimony and never argued its truth,” undermines
our confidence in the jury’s guilty verdict.

IV. Penalty-Phase Claims

A. Ineffective Assistance of Counsel in the Penalty Phase

[12] A defendant “ha[s] a right — indeed, a constitutionally
protected right — to provide the jury with . . . mitigating evi-
dence.” Williams v. Taylor, 529 U.S. 362, 393 (2000). We
have explained that, “[t]o perform effectively in the penalty
phase of a capital case, counsel must conduct sufficient inves-
tigation and engage in sufficient preparation to be able to
‘present[ ] and explain[ ] the significance of all the available
[mitigating] evidence.’ ” Mayfield, 270 F.3d at 927 (quoting
Williams, 529 U.S. at 399). Defense counsel’s use of mitiga-
tion evidence to complete, deepen, or contextualize the pic-
ture of the defendant presented by the prosecution can be
crucial to persuading jurors that the life of a capital defendant
is worth saving. See Wiggins v. Smith, 123 S. Ct. 2527, 2542-
44 (2003); Alex Kotlowitz, In the Face of Death, N.Y. Times,
July 6, 2003, at 32-38, 46, 49 (attributing in part the decrease
in imposition of the death penalty to defense attorneys’
increasing skill and resourcefulness in presenting mitigation
evidence).

We must assess whether the decision of Allen’s counsel not
to investigate or present certain mitigating evidence was “the
976 ALLEN v. WOODFORD
result of reasonable professional judgment,” Strickland, 466
U.S. at 690, in light of all of the circumstances, “applying a
heavy measure of deference to counsel’s judgments,” Silva,
279 F.3d at 836. If we determine that counsel’s performance
was deficient, Allen still “bears the highly demanding and
heavy burden [of] establishing actual prejudice.” Williams,
529 U.S. at 394 (internal quotation marks omitted).

1. Deficient performance

Counsel’s untimely, hasty, and incomplete investigation of
potential mitigation evidence for the penalty phase fell outside
the “range of reasonable professional assistance.” Strickland,
466 U.S. at 689.

The Supreme Court recently emphasized the importance of
investigating mitigation evidence, holding that counsel erred
by inadequately investigating signs of a defendant’s very trou-
bled childhood. Wiggins, 123 S. Ct. at 2536-38. The Wiggins
Court noted relevant ABA Guidelines, which provide that
investigations into mitigating evidence “should comprise
efforts to discover all reasonably available mitigating evi-
dence and evidence to rebut any aggravating evidence that
may be introduced by the prosecutor.” Id. at 2537 (quoting
ABA Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989)
(emphasis added)). The Court emphasized that an investiga-
tion into potential mitigating evidence should be thorough:

In assessing the reasonableness of an attorney’s
investigation . . . a court must consider not only the
quantum of evidence already known to counsel, but
also whether the known evidence would lead a rea-
sonable attorney to investigate further. . . . Strickland
does not establish that a cursory investigation auto-
matically justifies a tactical decision with respect to
sentencing strategy.
 ALLEN v. WOODFORD 977
Id. at 2538.

[13] The failure to timely prepare a penalty-phase mitiga-
tion case is also error. In Williams, the Supreme Court found
constitutional error where counsel waited until one week
before trial to prepare for the penalty phase, thus failing to
adequately investigate and put on mitigating evidence. 529
U.S. at 395; see also Silva, 279 F.3d at 841. In addition, legal
experts agree that preparation for the sentencing phase of a
capital case should begin early and even inform preparation
for a trial’s guilt phase:

Counsel’s obligation to discover and appropriately
present all potentially beneficial mitigating evidence
at the penalty phase should influence everything the
attorney does before and during trial . . . .

***

The timing of this investigation is critical. If the
life investigation awaits the guilt verdict, it will be
too late. Although a continuance should be requested
and may be granted between the guilt and penalty
phases of a trial, it is likely to be too brief to afford
defense counsel the opportunity to conduct a sub-
stantial investigation.

Gary Goodpaster, The Trial for Life: Effective Assistance of
Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 320,
324 (1983) (footnote omitted). An expert testifying for Allen
explained the lengthy process of preparing a mitigation case:

[I]t is necessary to identify and interview the defen-
dant’s family members as well as past and present
friends, fellow workers, etc., in order to adequately
prepare for a capital trial. It is also necessary to
obtain records, such as school records, employment
978 ALLEN v. WOODFORD
records and medical records that may result in identi-
fying mitigation themes and mitigation witnesses.

Another time-consuming aspect of penalty phase
preparation is obtaining the cooperation of mitiga-
tion witnesses. For many reasons, mitigation wit-
nesses are frequently reluctant to come to court.
With time and multiple contacts, their reluctance can
be overcome as they understand the role that they
would play in the penalty phase of the trial and the
significance of their testimony.

Allen’s trial counsel failed to adequately investigate, pre-
pare, or present available mitigating evidence during the
trial’s penalty phase. Trial counsel admitted at the habeas evi-
dentiary hearing that he did not specifically prepare for the
sentencing phase until after the guilt phase had concluded.
This left counsel one week in which to prepare the witnesses
and evidence necessary to persuade the jury to spare Allen’s
life. Counsel also acknowledged that he failed to request a
continuance for further investigation. In addition, while Allen
provided his trial counsel a list of 26 potential mitigation wit-
nesses for the penalty phase, and Fresno probation reports
also listed potential witnesses, counsel and his investigator,
both inexperienced in handling capital cases, spoke to just a
few of the suggested witnesses.

Of the witnesses suggested by Allen and by the Fresno pro-
bation reports, counsel recalled contacting only four in prepa-
ration for the penalty phase. Telephone records and trial notes
indicate that he spoke with five additional potential witnesses.
Trial counsel testified at Allen’s habeas evidentiary hearing
that most people he contacted were unwilling to testify; how-
ever, he admitted that he made fairly quick judgments about
these witnesses’ attitudes and failed to discuss with them the
importance of mitigation testimony in the penalty phase.
While counsel may have made a sound decision not to call
Allen’s former wife, Helen Sevier, during the guilt phase, he
 ALLEN v. WOODFORD 979
admitted that he could not recall whether he considered using
her as a witness in the penalty phase; nor could he recall if he
had explored Allen’s relationship with Sevier’s daughter,
Tammy.2 Trial counsel also chose not to call Allen’s thirteen-
year-old granddaughter, Paula, as a mitigation witness,
because the jury “would expect a grandchild to have nothing
but good things to say about a grandparent.”

[14] In his habeas evidentiary hearing, Allen produced
many family members, friends, and former associates who
affirmed that they would have testified as mitigation wit-
nesses if Allen’s counsel had asked them or if he had
explained the importance of their testimony. Trial counsel
failed to do so even though then-prevailing professional
norms required such investigation. Trial counsel’s failure to
prepare for the sentencing phase until a week before that
phase began, and his resulting failure to thoroughly investi-
gate and present Allen’s mitigation case, was constitutionally
deficient.

2. Prejudice

A finding of error is not enough, however, to justify a grant
of habeas relief. Allen must also demonstrate that his coun-
sel’s performance prejudiced him. We conclude that the evi-
dence in mitigation, coupled with the potential mitigating
evidence produced during these proceedings, is insufficient to
outweigh the overwhelming evidence in aggravation.

During the evidentiary hearing, Allen proffered numerous
witnesses. However, most had either lost touch with him long
2
The parties stipulated before the district court that counsel made a rea-
sonable tactical decision not to call Darlene Hope Allen, Allen’s second
and former wife. In addition, the district court correctly disregarded the
failure to call Darlene, Don Stockbridge, and Kim Radisch, because Allen
failed to make a showing that they would have testified if counsel had pur-
sued them as witnesses.
980 ALLEN v. WOODFORD
before his crimes or lacked knowledge of Allen’s criminal
convictions and admissions. Allen’s brother Glen testified
that, if asked, he would have told the sentencing jury about
the poor conditions in which his family lived as Allen grew
up, Allen’s hard work as a teenager on California farms, the
loss of a very close sister as a child, and Allen’s service as a
preacher. Glen, however, only saw Allen once between 1963
and his imprisonment for the murder of Mary Sue Kitts in San
Quentin and admitted that he had “slacked off” in writing to
Allen. Moreover, he was unfamiliar with the facts underlying
Allen’s current murder and conspiracy charges.

Gene Tassey would have testified that Allen was a good
supervisor, husband, and parent while the two worked
together at Sunland Olive Co. in the 1950s; however, Tassey
admitted that he had only limited contact with Allen after
1959. Similarly, Nadine Lemons, whose father, Donald Black,
worked with Allen at Sunland Olive Co., would have testified
to Allen’s friendliness and generosity to her family; however,
Nadine also saw Allen only off and on after 1959. As of the
time of the evidentiary hearing, she was unaware of Allen’s
confessions to serious crimes. Nadine’s husband, Lonnie,
would have testified similarly to Nadine, but also lacked close
contact with or recent knowledge of Allen.

Lonnie Vaughn, brother of Allen’s ex-wife Helen Sevier,
would have testified before the jury that he knew Allen to be
a hard worker and involved in the church; however, Vaughn
lost contact with Allen in 1957, long before his criminal life
began. Vaughn’s wife, Della Mae, would have testified to her
knowledge of Allen as a pleasant, hard-working person who
had served as a church deacon; however, she lost touch with
Allen when her husband did. The Vaughns’ son, Steve, had
more recent interactions with Allen and could have testified
to Allen’s special relationship with Sevier’s daughter,
Tammy, and with Sevier’s grandmother, Bonnie Nola. Steve
called Allen “naturally likeable” and stated that he and his
children — who had visited with Allen recently while he was
 ALLEN v. WOODFORD 981
in prison — would be affected if Allen was executed. Still,
Steve had very limited interaction with Allen between 1960
and 1977, and he was unaware that Allen had admitted to
helping dispose of Mary Sue Kitts’s body.

Betty Boriak, Sevier’s niece who had lived with the family
for a few months as a child and babysat Kenneth and Roger
for several years, would have described Allen’s and Sevier’s
family as close-knit; she stated that she loved Allen and
would be hurt if he was executed. Boriak, however, lost con-
tact with Allen in 1959 or 1960, and did not reconnect until
1977, when the two began exchanging letters. Toni Omstead,
whose parents were Allen’s landlords for a time, would have
testified about instances in which Allen had been generous
and helpful to Omstead’s family; she believed that he had
been a warm, friendly, and courteous person. Omstead, how-
ever, only knew Allen between 1964 and 1970, and she was
unaware that Allen had admitted to committing robberies and
to disposing of Kitts’s body.

Katherine Proctor, the mother of Allen’s daughter-in-law
Kathy, would have told the sentencing jury that Allen was a
friendly, kind, and considerate man and a devoted and gener-
ous grandfather. She would have testified that Allen wel-
comed her daughter Kathy into his family, and that she
confided in Allen because he was an easy person to talk to.
She also would have recounted a specific incident in which
Allen rushed to the hospital with concern when one of his
granddaughters had an asthma attack. Proctor did not know,
however, that Allen had admitted committing armed robberies
and disposing of Kitts’s body, or that Allen’s defense in his
most recent murder and conspiracy trial was to blame Ken-
neth and Kathy for committing the crimes.

Allen’s oldest granddaughter Paula also would have pro-
vided Allen with humanizing mitigation evidence during the
sentencing phase if she had been asked. Paula, who was eight
years old when Allen was arrested in 1977 and thirteen at the
982 ALLEN v. WOODFORD
time of Allen’s 1982 trial, would have testified that Allen was
very affectionate and generous to her. Paula testified, “I know
what kind of person [Allen] is,” and explained that Allen had
“[taken] the fall for something he didn’t do.” Paula did not
know, however, that Allen had admitted committing armed
robberies and disposing of Kitts’s body, or that Allen’s
defense against the 1982 murder and conspiracy charge was
that Paula’s parents had committed the crimes.

Connie Seidel, who knew Allen as her husband’s employer,
would have testified at Allen’s sentencing trial that Allen was
very generous and cared about his employees and their fami-
lies’ well-being. Seidel’s knowledge of Allen was also lim-
ited, however, as she only knew him between 1971 and 1976,
and she did not know that Allen had admitted committing rob-
beries and disposing of Kitts’s body, or that he had been con-
victed of killing Josephine Rocha and Doug White.

A more promising mitigation witness lay in family friend
Chris Sund who, along with her now deceased husband, grew
to know Allen through horse shows, visits to the Appleton
Ranch (where Allen was once employed), and Allen’s visits
to the Sunds’ ranch. Trial counsel did ask Sund to testify in
mitigation, but Sund declined at the time.3 She could have tes-
tified that Allen was particularly helpful to the Sunds when
Chris’s husband became ill, taking care of the Sunds’ horses
and donating blood. Chris Sund last saw Allen in 1975 or
1976, and they continue to correspond occasionally. Sund
knew about much of Allen’s criminal background, distin-
guishing her from most of the other proffered mitigation wit-
nesses; she insisted, however, that this criminal background
was inconsistent with the person she knew Allen to be. Sund
explained her failure to testify at the time of trial, saying that
her husband had been very ill and that it would have been
3
Thus, we include this most favorable evidence in the total picture of
potential mitigation, but do not find trial counsel deficient for having
failed to present Sund.
 ALLEN v. WOODFORD 983
“very difficult” to leave him for any period of time. Sund’s
daughter, Maida Lee, reiterated that her mother would have
testified for Allen in 1982 if she had understood the impor-
tance of the testimony. Maida Lee could have testified that
she believed Allen to be a gentle and kind-spirited man who
enjoyed being around children. Maida Lee lost contact with
Allen a couple of years before the Kitts murder, though, and
did not know that Allen had confessed to committing rob-
beries and disposing of Kitts’s body.

Allen has also suggested that Sevier and her daughter,
Tammy, could have served as useful mitigation witnesses if
counsel had investigated that possibility. Indeed, Sevier testi-
fied that she, Kenneth, and Roger cared for Allen and would
not want to see him put to death. Tammy could have testified
that Allen was like a father to her after her biological father
left. However, Department of Justice special agent Ken
O’Farrell would have cast doubt on Sevier’s credibility by
testifying that Sevier complained of receiving a threatening
letter from Allen after their divorce and that Sevier blamed
Allen for her sons’ criminal activities.

The other mitigation witnesses proffered by Allen would
not have proved helpful given their own involvement in
Allen’s criminal enterprise. For example, Roger Allen would
have described Allen’s love as a father, but would also have
been asked about his involvement in his father’s criminal
schemes. In addition, Roger testified that Allen had lied to
him his entire life and claimed not to know that Allen admit-
ted disposing of Kitts’s (Roger’s former live-in girlfriend’s)
body.
ALLEN v. WOODFORD 985
Volume 2 of 2
986 ALLEN v. WOODFORD
Donna Allen’s testimony about Allen’s positive qualities as
a father-in-law and grandfather would also have been
impeachable. Donna claimed to know nothing of Allen’s neg-
ative side or his criminal life; however, Ben Meyer’s girl-
friend, Serise Zinich, was prepared to testify that Donna knew
about Allen’s commission of a K-Mart burglary with Meyer
as it occurred. In addition, police officer Glen Upchurch
would have testified that William Cross reported Donna’s use
in his store of coins stolen by Allen and his associates.

Similarly, the testimony of James Walker about his high
esteem for Allen as an employer in the security business could
have been impeached by testimony that Walker and Kenneth
robbed a Pardini’s Sunnyside together in 1970 or 1971.

[15] To establish prejudice, Allen “must show ‘that there is
a reasonable probability that but for counsel’s unprofessional
errors, the result . . . would have been different.’ ” Williams,
529 U.S. at 394 (quoting Strickland, 466 U.S. at 694). A
“ ‘reasonable probability,’ ” in turn, is “ ‘a probability suffi-
cient to undermine confidence in the outcome.’ ” Id. (quoting
Strickland, 466 U.S. at 694). As explained by the Supreme
Court in Strickland:

When a defendant challenges a death sentence such
as the one at issue in this case, the question is
whether there is a reasonable probability that, absent
the errors, the sentencer — including an appellate
court, to the extent it independently reweighs the
evidence — would have concluded that the balance
of aggravating and mitigating circumstances did not
warrant death.

Strickland, 466 U.S. at 695. We thus agree with the district
court that the question before us is “whether knowledge that
[Allen] could be pleasant would have been enough that even
one juror would have weighed it more heavily than the moun-
tain of aggravating evidence.” Like the district court before
 ALLEN v. WOODFORD 987
us, we find that potential mitigation evidence that amounted
to testimony that Allen could be pleasant is simply insuffi-
cient to outweigh all of the aggravating evidence. Accord-
ingly, while counsel erred in failing to investigate and present
the potential mitigation testimony of many family members,
friends, and associates of Allen’s, we cannot conclude that
there is a reasonable probability, had trial counsel presented
the potential mitigation evidence developed during habeas,
that the jury would have weighed the evidence in favor of a
life sentence.

First and foremost, the jury had just convicted Allen of
murdering three people and conspiring to murder four others
while he was already serving a life sentence for yet another
murder. This raw fact is not outweighed by the available miti-
gating evidence because that evidence is entirely bereft of
explanatory or exculpatory attributes, which are at the core of
our belief in the importance of mitigation evidence:

Evidence regarding social background and mental
health is significant, as there is a “belief, long held
by this society, that defendants who commit criminal
acts that are attributable to a disadvantaged back-
ground or to emotional and mental problems, may be
less culpable than defendants who have no such
excuse.”

Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir.) (quoting
Boyde, 494 U.S. at 382), cert. denied, 124 S.Ct. 49 (2003). In
Douglas, the mitigation evidence presented was minimal.
Two witnesses testified that Douglas had an aversion to the
sight of blood and several testified as to his non-violent
nature. Id. at 1087. A very generalized sociological history of
the defendant was also introduced. Id. However, the jury did
not hear information about the defendant’s abandonment as a
child, having an abusive alcoholic foster father who locked
him in the closet for hours at a time, scavenging for food,
being beaten and gang-raped as a young man in a Florida jail,
988 ALLEN v. WOODFORD
and possible mental health problems. Id. at 1088. We held
that “[t]he available mitigating evidence that could have been
introduced in Douglas’s trial was precisely the type of evi-
dence that we [had] found critical for a jury to consider when
deciding whether to impose a death sentence.” Id. at 1090.

Similarly, in Silva, where the defendant stood convicted of
abduction, robbery, and murder, trial counsel’s failure to pre-
sent significant evidence regarding the defendant’s abusive
childhood, mental illnesses, organic brain disorders, and sub-
stance abuse “was profoundly prejudicial.” 279 F.3d at 847.
We reasoned that trial counsel’s “failure to investigate Silva’s
background and to prepare evidence relating to his family his-
tory, mental health, and substance abuse problems resulted in
an egregious failure to uncover and present a raft of poten-
tially compelling mitigating evidence.” Id. at 850.

The Supreme Court most recently addressed this issue in
Wiggins, finding:

The mitigating evidence counsel failed to discover
and present in this case is powerful. . . . Wiggins
experienced severe privation and abuse in the first
six years of his life while in the custody of his alco-
holic, absentee mother. He suffered physical tor-
ment, sexual molestation, and repeated rape during
his subsequent years in foster care. The time Wig-
gins spent homeless, along with his diminished men-
tal capacities, further augment his mitigation case.
Petitioner thus has the kind of troubled history we
have declared relevant to assessing a defendant’s
moral culpability.

Wiggins, 123 S. Ct. at 2542. The Court concluded that, “had
the jury been confronted with this considerable mitigating evi-
dence, there is a reasonable probability that it would have
returned with a different sentence.” Id. at 2543.
 ALLEN v. WOODFORD 989
[16] We have rarely granted habeas relief based solely
upon humanizing, rather than explanatory, mitigation evi-
dence in the face of extensive aggravating circumstances. In
Mak v. Blodgett, 970 F.2d 614, 619 (9th Cir. 1992) (per
curiam), where the defendant had been convicted of partici-
pating in the murders of thirteen people, we did emphasize the
role that such evidence could play: “Mak’s defense counsel
never placed Mak in the community nor portrayed Mak as a
human being who was a devoted son with family members
who loved him.” While we ultimately granted Mak’s petition
for habeas relief, we never determined whether the prejudice
arising from counsel’s ineffective assistance was sufficient to
grant relief. Rather, we relied on a cumulative-error analysis
that included the erroneous exclusion of highly exculpatory
evidence that implicated a third party in the murder and a jury
instruction that misstated the applicable sentencing law. Id. at
622.

In Mayfield, we placed unique significance on humanizing
mitigation evidence. Mayfield killed a woman and her son for
swearing out an auto theft complaint against him, and then
killed another man who witnessed the event. Mayfield, 270
F.3d at 918-19. Although “[t]he aggravating evidence against
Mayfield was strong,” and counsel had already solicited testi-
mony from a psychiatrist about Mayfield’s childhood diabe-
tes, drug use, and psychological and social problems, we
found counsel prejudicially ineffective for failing to present
the additional available mitigation evidence. Id. at 929-32.
Much of the potential mitigating testimony would have
emphasized that Mayfield was a good, protective brother, a
generous nephew, and not a violent person. Id. at 932. May-
field’s friends and family would have testified that they loved
Mayfield and asked the jury to spare his life. Most, if not all,
of the witnesses offered by Mayfield testified about their con-
temporaneous knowledge of him, and seemed to know about
the darker side of his personality and life. Friends and siblings
understood that Mayfield’s years of drug and alcohol abuse,
and his poorly controlled diabetes, had changed him. Id. at
990 ALLEN v. WOODFORD
931. Other factors played into our assessment of ineffective
assistance as well, however, such as counsel’s failure to pre-
sent experts in endocrinology and toxicology to explain the
chemical impact of Mayfield’s illness and drug abuse. Id. at
932. We concluded:

In light of the quantity and quality of the mitigat-
ing evidence [defense counsel] failed to present at
trial, the duration of the jury’s deliberations, and the
jury’s communication to the trial judge, we are not
confident that, with the additional evidence pre-
sented at the evidentiary hearing, a unanimous jury
would still have returned a sentence of death. If the
jury had considered the testimony of experts in endo-
crinology and toxicology, or of friends and family
members relating additional humanizing stories,
there is a “reasonable probability that the omitted
evidence would have changed the conclusion that the
aggravating circumstances outweighed the mitigat-
ing circumstances and, hence, the sentence
imposed.”

Id. (footnote omitted) (quoting Strickland, 466 U.S. at 700).

[17] By contrast, the mitigation evidence proffered by
Allen, which consisted primarily of testimony that at some
points in his life Allen had been nice to some people and that
some people cared for him, is not of the same “quantity and
quality” as that which supported our decision in Mayfield, and
could not have “humanized” him during the time frame of the
murder conspiracy at issue. The nature and quality of Allen’s
proffered mitigation testimony also removes this case from
the realm of evidence which was found potentially persuasive
to a jury in Douglas, Silva and Wiggins. None of the testi-
mony is exculpatory, nor does it diminish Allen’s culpability
for any of his crimes in the spree which the evidence before
the jury showed began in the 1970s.4 None of the testimony
4
Allen himself has indicated that his life of crime began much earlier.
 ALLEN v. WOODFORD 991
portrays a person whose moral sense was warped by abuse,
drugs, mental incapacity, or disease or who acted out of pas-
sion, anger or other motive unlikely to reoccur. Moreover,
while Allen’s proffered witnesses could have helped to
humanize him somewhat, as a rule their knowledge of Allen
was neither deep nor contemporaneous with his crimes. Those
potential witnesses who knew Allen best were highly
impeachable due to their involvement at his behest in his
criminal activities.

Allen also points out that we recently granted habeas relief
where the jury had been instructed not to consider “significant
evidence related to [the defendant’s] conduct during the
period of his prior . . . incarceration and to his ability to con-
form his behavior to societal norms should he be confined
within a structured prison environment,” and thus was not
allowed to consider “evidence . . . that if granted life without
parole, [the defendant] would adapt well to prison life, would
make a positive contribution to the welfare of others, and
would not pose a future danger to the guards or the other
inmates.” Belmontes v. Woodford, 350 F.3d 861, 901 (9th Cir.
2003). Allen contends that this holding demonstrates the
importance of non-exculpatory mitigation evidence such as
that which his counsel failed to offer at trial. Belmontes is dis-
tinguishable, however, because the defendant there proffered
meaningful evidence demonstrating his high likelihood of
behaving well in prison, as well as evidence of a difficult
childhood, in the absence of any strong aggravating factors:

[W]e are convinced that the instructional error in this
case, which prevented the jury from considering and
giving effect to Belmontes’ most important mitiga-
tion evidence, had a substantial and injurious effect
on the jury’s verdict. At the penalty phase of this
trial the aggravating evidence was not strong. . . .
The prosecutor candidly told the jury that there was
not a lot in the way of aggravating evidence. He
asked the jury to return a death sentence because of
992 ALLEN v. WOODFORD
the circumstances of the crime itself. Yet the crime,
though shocking and deplorable, was in essence a
robbery gone wrong. The murder, was not pre-
planned, nor did it involve kidnapping, rape, torture,
multiple victims, or any of the other especially hei-
nous elements that usually are present when a jury
votes for the ultimate penalty. In short, the . . . mur-
der was of the kind that generally does not result in
a death penalty.

Id. at 906-07.

Here, the evidence in aggravation was overwhelming.
Although there was evidence that Allen was kind at times to
some people, he was also, at least with respect to some prof-
fered witnesses, simultaneously controlling and calculated in
organizing his crime family and robbing and murdering multi-
ple victims. In Wiggins, the Supreme Court explained that,
“[i]n assessing prejudice, we reweigh the evidence in aggra-
vation against the totality of available mitigating evidence.”
123 S. Ct. at 2542. We have denied habeas claims of ineffec-
tive assistance of counsel where aggravating factors were
extensive. In Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.
1987), where the defendant sought out, beat, strangled, and
killed a woman who had testified against him, and then cut
the throats of her daughter and another witness, we held that
such aggravating circumstances outweighed the potential mit-
igation evidence of the defendant’s background, childhood,
and family relationships, even assuming that such mitigation
testimony did not open the door to rebuttal evidence. Id. at
1464. Similarly, in Gerlaugh v. Stewart, 129 F.3d 1027 (9th
Cir. 1997), where the defendant was a probationer who com-
mitted a savage robbery and murder intended in part to “save
himself from prison,” we found that the defendant was not
prejudiced by his counsels’ failure to introduce evidence that
he had “been kind to his elders, to dogs, and to rodents.” Id.
at 1042. In Woodford v. Visciotti, 537 U.S. 19 (2002) (per
curiam), trial counsel failed to present evidence of Visciotti’s
 ALLEN v. WOODFORD 993
troubled family background, which included “his being
berated, being markedly lacking in self-esteem and depressed,
having been born with club feet, having feelings of inade-
quacy, incompetence, inferiority, and the like, moving 20
times while he was growing up, and possibly suffering [from]
a seizure disorder.” Id. at 26 (internal quotation marks omit-
ted). The United States Supreme Court found it not unreason-
able for the California Supreme Court to hold that the
circumstances of the crime, “a cold-blooded execution-style
killing of one victim and attempted execution-style killing of
another, both during the course of a preplanned armed rob-
bery,” coupled with the aggravating evidence of prior
offenses, “the knifing of one man, and the stabbing of a preg-
nant woman as she lay in bed trying to protect her unborn
baby,” were so severe that Visciotti suffered no prejudice
from trial counsel’s inadequacy. Id.

After weighing the total potential mitigating evidence
against the evidence in aggravation, we are compelled to con-
clude that every juror would have reached only one result.
Allen had a long history of orchestrating and committing vio-
lent robberies and burglaries. He masterminded eight armed
robberies; among his victims were grocery clerk Lee
McBride, who was shot and sustained permanent damage to
his nervous system, and K-Mart employee John Attebery,
who was permanently disabled from being shot in the chest.
Next, Allen was convicted of directing the murder of Mary
Sue Kitts, his own son’s live-in girlfriend. This murder was
motivated by Allen’s oft-spoken hatred for “rats.” Upon his
conviction for conspiracy and the murder of Mary Sue Kitts,
Allen plotted from prison the murder of those who had testi-
fied to put him there. Allen demonstrated both a lasting hatred
for those who had “ratted” him out and an ability to reach
beyond prison walls in seeking his revenge. By conspiring
and orchestrating the murders of the witnesses against him,
Allen destroyed several lives. Moreover, by attacking the wit-
nesses against him, Allen struck the greatest blow possible
upon our criminal justice system. Meanwhile, Allen has
994 ALLEN v. WOODFORD
expressed no remorse for the crimes that he committed. Given
the nature of Allen’s crimes, sentencing him to another life
term would achieve none of the traditional purposes underly-
ing punishment: incapacitation, deterrence, retribution, or
rehabilitation. See Ewing v. California, 123 S. Ct. 1179, 1187
(2003). The rationale for incapacitation is to allow society to
“protect itself from persons deemed dangerous because of
their past criminal history.” 1 W. LaFave & A. Scott, Substan-
tive Criminal Law 38 § 1.5 (2003). Incapacitation is thus used
to justify execution “for those offenders believed to be
beyond rehabilitation.” Id. By committing a capital crime
while having already been maximally punished and while
behind walls thought to protect society, Allen has proven that
he is beyond rehabilitation and that he will continue to pose
a threat to society.

The Supreme Court deems defendants who have committed
murder while serving a life term in prison unique among capi-
tal defendants. In Lockett v. Ohio, 438 U.S. 586 (1978), the
Supreme Court “express[ed] no opinion as to whether the
need to deter certain kinds of homicide would justify a man-
datory death sentence as, for example, when a prisoner — or
escapee — under a life sentence is found guilty of murder.”
Id. at 605 n.11 (emphasis added). The Court resolved its
ambivalence in favor of such defendants in Sumner v. Shu-
man, 483 U.S. 66 (1987); however, that decision was prem-
ised on the fact that a capital murder committed in prison
could involve a variety of circumstances, reflecting various
levels of culpability. “Just as the level of an offender’s
involvement in a routine crime varies, so too can the level of
involvement of an inmate in a violent prison incident.” Id. at
79. Thus, a life prisoner such as Shuman could conceivably
commit a capital crime arising out of a violent prison confron-
tation, id., or, as here, the crime could arise out of calculation
and manipulation. The especially aggravating circumstances
of Allen’s triple-murder and conspiracy are those for which
the Supreme Court envisions the harshest penalty.
 ALLEN v. WOODFORD 995
[18] Because Allen orchestrated the brutal murder of wit-
nesses while already serving a life term in prison, expressed
no remorse for any of his crimes, and supports his claim with
only the testimony of witnesses lacking contemporaneous or
complete knowledge of him, we hold that the aggravating fac-
tors surrounding Allen’s commission of triple-murder and
conspiracy outweigh the total available mitigation evidence.
Thus, although Allen’s counsel was deficient in failing to
thoroughly investigate and present mitigation evidence in the
penalty phase of Allen’s trial, that deficiency does not under-
mine our confidence in the jury’s verdict. We do not hold that
humanizing, non-exculpatory evidence can never be enough
to establish prejudice. Rather, we simply hold that the quality
and quantity of the particular evidence offered by Allen, in
light of the heinous nature of his crimes, does not establish
prejudice.

B. The Jury’s Sentencing Power

[19] Allen contends that the trial court’s sentencing instruc-
tion, combined with the prosecutor’s closing statement, mis-
led the jury as to its sentencing power and arbitrarily denied
him an individualized sentencing determination. We disagree.

The trial court issued the following standard instruction:

After having heard all of the evidence, and after
having heard and considered the arguments of coun-
sel, you shall consider, take into account and be
guided by the applicable factors of aggravating and
mitigating circumstances upon which you have been
instructed.

If you conclude that the aggravating circum-
stances outweigh the mitigating circumstances, you
shall impose a sentence of death. However, if you
determine that the mitigating circumstances out-
weigh the aggravating circumstances, you shall
996 ALLEN v. WOODFORD
impose a sentence of confinement in the State prison
for life without the possibility of parole.

CALJIC No. 8.84.2.

Allen acknowledges that any “claim that the ‘shall impose’
language of CALJIC 8.84.2 unconstitutionally prevents ‘indi-
vidualized assessment’ by the jury is . . . without merit.”
Boyde, 494 U.S. at 377; see also Blystone v. Pennsylvania,
494 U.S. 299, 306-07 (1990). He argues, however, that the
jury instruction was rendered unconstitutional by the prosecu-
tor’s closing argument emphasis of the mandatory nature of
the instruction. The Boyde Court acknowledged that prosecu-
torial argument could “have a decisive effect on the jury,” 494
U.S. at 384; however, the Court also noted that “prosecutorial
misrepresentations . . . are not to be judged as having the
same force as an instruction from the court,” and that “argu-
ments of counsel, like the instructions of the court, must be
judged in the context in which they are made,” id. at 384-85.

Allen objects in particular to the following argument of the
prosecutor:

If you conclude that the aggravating evidence out-
weighs the mitigating evidence, you shall return a
death sentence. Shall; not may, not might, not
maybe. It is very explicit. If the aggravating evi-
dence outweighs the mitigating evidence, you shall
return a verdict of death.

When considered in context, however, there is no reasonable
likelihood that the prosecutor’s statements rendered the jury’s
consideration of the trial court instruction unconstitutional.
See id. at 383. Indeed, the prosecutor spent much of his clos-
ing argument discussing both the aggravating and the mitigat-
ing evidence, specifically asking the jury to think about how
such evidence should be weighed. The California Supreme
Court’s findings that “the prosecutor not once suggested the
 ALLEN v. WOODFORD 997
weighing process was a mechanical function” and “did noth-
ing to mislead the jury about its weighing discretion” are sup-
ported by the record. As the prosecutor did not mislead the
jury regarding its discretion, Allen was denied neither a fed-
eral right nor a state-created liberty interest.

C. The Trial Court’s Inflation of Special Circumstances
Findings

[20] We agree with the district court that the trial court’s
error in counting the special circumstances was harmless. In
California, a finding of even one special circumstance quali-
fies a defendant for the death penalty, and special circum-
stances are considered in the penalty phase as aggravating
factors. Cal. Penal Code §§ 190.2, 190.3. Here the jury prop-
erly found three categories of special circumstances going
into the penalty phase: multiple murder, witness killing, and
prior murder conviction. However, the jury found six
multiple-murder special circumstances (applying two counts
of multiple murder to each of the three murders of which
Allen was convicted); two witness-killing special circum-
stances (by relying on two different witness-killing theories);
and three prior-murder special circumstances (applying one
prior-murder count to each of the three murder convictions).
The jury thus technically considered eleven special circum-
stances rather than three.

No one disputes that the trial court erred. This error, how-
ever, did not substantially and injuriously affect the jury’s
verdict. Brecht, 507 U.S. at 629. Allen’s actual conduct was
never inflated; the jury had before it all the relevant facts from
which any one special circumstance, supporting the death
penalty, could be formed. The jury’s weighing of aggravating
and mitigating factors in California “is ‘a mental balancing
process,’ but not one that involves a ‘mechanical counting of
factors’ on either side of some imaginary scale, or ‘the arbi-
trary assignment of “weights’ ” to any factor.” People v. Baci-
galupo, 6 Cal. 4th 457 (1993) (quoting People v. Brown, 40
998 ALLEN v. WOODFORD
Cal. 3d 512, 541 (1985)). Instead “the special circumstances
serve to “ ‘guide’ ” and “ ‘channel’ ” jury discretion ‘by
strictly confining the class of offenders eligible for the death
penalty.’ ” Id. at 467 (quoting Brown, 40 Cal. 3d at 539-40).
And the section 190.3 aggravating factors serve to “ ‘direct
the sentencer’s attention to specific, provable, and commonly
understandable facts about the defendant and the capital crime
that might bear on [the defendant’s] moral culpability.’ ” Id.
at 476 (quoting People v. Tuilaepa, 4 Cal. 4th 569, 595 (1992)).5

Moreover, we agree with the California Supreme Court’s
harmless-error analysis, which reflects the prosecutor’s rela-
tive inattention to the special circumstances considered as
aggravating factors:

In view of the fact that . . . we are confident the jury
understood the scope of its sentencing role, and that
it knew of its exclusive discretion to determine
whether death is appropriate in this case — and in
the face of the People’s overwhelming penalty evi-
dence, and the comparatively slight emphasis put on
the special circumstances as aggravating factors and
concomitant major emphasis on defendant’s present
and former convictions and uncharged crimes as
aggravating factors - it cannot be said there is any
reasonable possibility the complained-of error
affected the penalty verdict.

Allen, 42 Cal. 3d at 1282-83; see also Williams v. Calderon,
52 F.3d 1465, 1480 (9th Cir. 1995) (state court found errone-
ous charging of six multiple-murder special circumstances
rather than one to be harmless); Bonin v. Calderon, 59 F.3d
5
The State contends that several of Allen’s claims, including this one,
are barred by Teague v. Lane’s rule of non-retroactivity. See 489 U.S. 288
(1989). We reject the State’s Teague-related arguments, except as they
relate to Allen’s claim that the trial court should have conferred immunity
upon certain guilt phase witnesses. See supra p. 968.
 ALLEN v. WOODFORD 999
815, 849 (9th Cir. 1995) (state court found erroneous charging
of fourteen multiple-murder circumstances rather than one to
be harmless). We agree with the state court’s finding of harm-
lessness, and affirm the district court’s denial of relief.

D. The Double- and Triple-Counting of Allen’s Prior
Crimes as Aggravating Factors

Allen contends that the aggravating factors presented to the
jury permitted the jury to double- and triple-count his prior
crimes and thus undermined the jury’s death verdict. We hold
that the error was harmless.

Allen asserts that the presentation of the following factors
allowed for the inappropriate double- and triple-counting:

[(a) T]he existence of any special circumstances
admitted or thought to be true, [(b)] the presence or
absence of criminal activity by the defendant which
involved the use or attempted use of force or vio-
lence, [and (c)] the presence or absence of any fel-
ony conviction.

The State contends that the jury’s consideration of these fac-
tors could not have been improper because each deals with a
different attribute of Allen’s present crimes and previous
criminal activity. According to the State, “[n]one of these fac-
tors necessarily subsume[s] each other.”

Considered individually, aggravating factors (a), (b), and
(c) are each valid. The Supreme Court upheld the validity of
factors (a) and (b) in Tuilaepa v. California, 512 U.S. 967
(1994), concluding that factor (a) concerned the circum-
stances of the immediate crime being punished and factor (b)
addressed “the defendant’s prior criminal activity.” Id. at 976.
The Court also “[r]el[ied] on the basic principle that a factor
is not unconstitutional if it has some ‘common-sense core of
meaning . . . that criminal juries should be capable of under-
1000 ALLEN v. WOODFORD
standing.’ ” Id. at 973 (quoting Jurek v. Texas, 428 U.S. 262,
279 (1976)).

Here, however, the trial court’s instructions and the prose-
cutor’s argument together encouraged the jury to consider
Allen’s prior criminal activities under all of the above three
factors. These aggravating factors were thus effectively sub-
sumed within each other. As expressed by the Tenth Circuit
in United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996):

Such double counting of aggravating factors,
especially under a weighing scheme, has a tendency
to skew the weighing process and creates the risk
that the death sentence will be imposed arbitrarily
and thus, unconstitutionally. . . . [W]hen the same
aggravating factor is counted twice, the defendant is
essentially condemned twice for the same culpable
act, which is inherently unfair.

Id. at 1111 (internal quotation marks omitted).

The State misplaces reliance on Jones v. United States, 527
U.S. 373 (1999), and United States v. Luna-Herrera, 149 F.3d
1054 (9th Cir. 1998). Jones is distinguishable because “the
factors as a whole [in that case] were not duplicative.” 527
U.S. at 399. There, one factor asked whether the victim was
especially vulnerable to the petitioner’s attack, and the other
contemplated the victim’s personal traits and the effect of the
crime on her family. Id. at 400. Luna-Herrera involved a
completely different sentencing context altogether. There, we
held that the aggravated felony serving as a basis for the
increase in a defendant’s base offense level could also be used
in calculating that defendant’s criminal history score, and that
the prior felony conviction forming part of the basis for the
defendant’s deportation was not “relevant conduct” with
respect to the instant conviction for purposes of applying the
sentencing guidelines. Luna-Herrera, 149 F.3d at 1055-56.
 ALLEN v. WOODFORD 1001
Moreover, we suggested the impropriety of overlapping
aggravating factors in Bonin, 59 F.3d at 848. There, we
rejected the petitioner’s double-counting claim, concluding it
had been foreclosed by Tuilaepa’s upholding of aggravating
factors (a) and (b). Id. Our decision in Bonin, however, pre-
supposed that “paragraph (a) obviously refers to the crimes
for which the defendant has been convicted [and] paragraph
(b) is intended to refer to crimes for which the defendant has
not been convicted.” Id. Such is not the case here, where the
jury was encouraged to consider Allen’s prior crimes under
factors (a), (b), and (c).

[21] Because “California is . . . a ‘weighing’ state,” Silva,
279 F.3d at 829 n.1, we review the improper double-counting
of aggravating factors under a “constitutional harmless-error
analysis . . . .” Hoffman v. Arave, 236 F.3d 523, 541 (9th Cir.
2001). We conclude that the error here was harmless. As
noted by the district court, there is no support in the record
“for the assumption that the jury mechanically doubled the
weight of the prior felonies or tripled the weight of the Kitts
murder because it fit under more than one factor.” Although
the prosecutor did ask the jury to consider Allen’s prior
crimes under multiple aggravating factors, he did not ask the
jury to merely add up those factors; instead, he emphasized
different ways that the jury could consider and quantify them.
In addition, the severity and sheer number of Allen’s prior
crimes convince us that the jury’s consideration of the crimes
just once in the weighing of aggravating and mitigating fac-
tors would have yielded the same verdict. The double- and
triple-counting error is thus harmless.6
6
As noted by the district court, because the state court did not perform
a harmless error analysis of this claim, it is unclear whether the Brecht
“substantial and injurious effect” standard or the state “harmless beyond
a reasonable doubt” standard applies. See Chapman v. California, 386
U.S. 18 (1967). The Circuits are split on this issue, and neither we nor the
Supreme Court has directly addressed it; however, both this Court and the
Supreme Court have applied the Brecht standard without consideration of
1002 ALLEN v. WOODFORD
E. Preclusion of Testimony Regarding Allen’s
Conforming Conduct in County Jail

[22] Allen contends that the trial court’s preclusion of cer-
tain testimony by correctional officer Delma Graves deprived
him of his right to “place before the sentencer relevant evi-
dence in mitigation of punishment.” Skipper v. South Caro-
lina, 476 U.S. 1, 4 (1986). Although the trial court likely erred
in this regard, such error was harmless.

The trial court sustained the prosecutor’s relevance objec-
tion to defense counsel’s question asking whether Allen had
caused trouble, other than the attack on Glenn Bell, while
incarcerated in the Fresno County Jail. In Skipper, where the
trial court excluded from the sentencing hearing testimony
about the petitioner’s good behavior for the more than seven
months he spent in jail awaiting trial, the Supreme Court con-
cluded that “[t]he exclusion by the state trial court of relevant
mitigating evidence impeded the sentencing jury’s ability to
carry out its task of considering all relevant facts of the char-
acter and record of the individual offender” and that “[t]he
resulting death sentence [could not] stand.” Id. at 8; see also
Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987) (“We
think it could not be clearer that the advisory jury was
instructed not to consider, and the sentencing judge refused to
consider, evidence of nonstatutory mitigating circumstances,
and that the proceedings therefore did not comport with the
requirements of Skipper.”).

The State’s citation to Pizzuto v. Arave, 280 F.3d 949 (9th
Cir. 2002), is inapposite. In Pizzuto, the mitigating evidence

the extent of state court review. See O’Neal v. McAninch, 513 U.S. 432
(1995); Rice v. Wood, 77 F.3d 1138, 1144 (9th Cir. 1996) (en banc); Wil-
liams, 52 F.3d at 1476; Hegler v. Borg, 50 F.3d 1472, 1474, 1478 (9th Cir.
1995); Lee v. Marshall, 42 F.3d 1296 (9th Cir. 1994) (per curiam); Chris-
tian v. Rhode, 41 F.3d 461 (9th Cir. 1994). We need not reach this issue,
however, because here the error is harmless under either standard.
 ALLEN v. WOODFORD 1003
included information not only about Pizzuto’s good job per-
formance, but also about his “major misconducts.” Id. at 966.
Counsel thus decided not to proffer that evidence. Id. at 967.
Here, Graves had already testified as to Allen’s misconduct;
as far as the record demonstrates, Graves’s further testimony
would have offered no new negative information.

The testimony that Allen’s counsel sought to elicit from
Graves would not, however, have made a substantial showing
of Allen’s good behavior. Graves’s testimony would not have
overcome the many aggravating factors in this case; indeed,
Graves had just testified about Allen’s organization of the
assault on Bell. Moreover, Allen had been found guilty of
orchestrating the murder of witnesses from prison. Under
either the Chapman or the Brecht standard, the trial court’s
error was harmless.

F. Use of CALJIC Instruction No. 2.11.5

[23] Given the totality of the trial court’s instructions to the
jury, the trial court’s instruction not to consider the prosecu-
tion status of others involved in Allen’s aggravation crimes
was not constitutional error.

Pursuant to CALJIC No. 2.11.5, the trial court instructed
the sentencing jury:

There has been evidence in this case indicating
that a person, other than the defendant, was or may
have been involved in the crimes of which the defen-
dant is now alleged to have committed.

You must not discuss or give any consideration as
to why the other person is not being prosecuted or
whether he has been or will be prosecuted.

In light of the Use Note to CALJIC No. 2.11.5, which reads
“[t]his instruction is not to be used if the other person is a wit-
1004 ALLEN v. WOODFORD
ness for either the prosecution or defense,” the trial court was
mistaken in using the instruction in the penalty phase; how-
ever, that mistake did not rise to the level of constitutional
error.

“When considering an allegedly erroneous jury instruction
in a habeas proceeding, an appellate court first considers
whether the error in the challenged instruction, if any,
amounted to ‘constitutional error.’ ” Morris v. Woodford, 273
F.3d 826, 833 (9th Cir. 2001) (quoting Calderon v. Coleman,
525 U.S. 141, 147 (1998)). To determine constitutional error,

an appellate court asks whether there is a reasonable
likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration
of constitutionally relevant evidence. That inquiry
also can be described as having two parts: (1)
whether there is a reasonable likelihood that the jury
understood an assertedly ambiguous instruction to
mean what the defendant suggests it means; and (2)
if so, whether the instruction, so understood, was
unconstitutional as applied to the defendant.

Id. (citation and internal quotation marks omitted).

Allen fails to get past the first hurdle. The trial court issued
several other instructions which made it clear that the jury
was to consider the motivation of the several witnesses
against Allen. These instructions addressed witness bias,
accomplice testimony, and the fact that the jury must consider
the court’s instructions as a whole. See id. at 834 (“A single
instruction is not viewed in isolation, but in the context of the
overall charge.” (internal quotation marks omitted)). Given
the totality of the trial court’s instructions, the jury could not
reasonably have understood the instruction at issue to forbid
it from considering witnesses’ motivation and bias.
 ALLEN v. WOODFORD 1005
G. The Prosecutor’s Closing Argument

[24] Allen contends that several instances of prosecutorial
misconduct during closing argument “so infected the trial
with unfairness as to make the resulting [judgment for death]
a denial of due process.” See Darden, 477 U.S. at 181 (inter-
nal quotation marks omitted). We hold that any prosecutorial
misconduct in these circumstances was harmless.7

1. Commentary on Allen’s Demeanor

After describing Allen as the mastermind behind all the
charged crimes, the prosecutor stated, “[h]e is not listening to
any of this, of course.” It is unclear whether this commentary
on Allen’s demeanor during the trial’s sentencing phase was
improper. Comments on a non-testifying defendant’s demea-
nor are inappropriate during the guilt phase because character
is not at issue. Schuler, 813 F.2d at 980-81; People v. Heish-
man, 45 Cal. 3d 147, 197 (1988). Commentary upon demea-
nor may be appropriate in the penalty phase, however, where
the defendant’s credibility is at issue. Id. at 197
(“[P]rosecutor’s references to defendant’s facial demeanor . . .
made at a penalty trial in which defendant had placed his own
character in issue as a mitigating factor . . . [were] proper
. . . .”).

Even assuming that this comment amounted to misconduct,
however, an issue we need not decide, any error was insignifi-
cant in relation to the whole of the sentencing phase and the
prosecutor’s closing argument; nor was it particularly inflam-
7
The State contends that the district court should not have addressed
prosecutorial misconduct because Allen’s counsel did not object at trial.
While this is generally true, the district court correctly noted that federal
courts usually disregard a state procedural default if the state court
chooses to do so. As the California Supreme Court denied Allen’s pro-
secutorial misconduct claim on the merits, the district court was not barred
from considering it. See Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir.
1992).
1006 ALLEN v. WOODFORD
matory. The comment was not sufficiently prejudicial to sup-
port our finding a due process violation. See Darden, 477 U.S.
at 181; Donnelly, 416 U.S. at 639.

2. Implication that Allen and Counsel Conspired to
Retaliate Against Witnesses

During his closing argument, the prosecutor implied that
defense counsel’s questioning of witnesses was meant to
secure information that would be used to identify and retaliate
against those witnesses later. The implicating comment was
improper; a prosecutor “may not make comments calculated
to arouse the passions or prejudices of the jury.” United States
v. Leon-Reyes, 177 F.3d 816, 822 (9th Cir. 1999); see also
United States v. Koon, 34 F.3d 1416, 1443 (9th Cir. 1994) (“A
prosecutor may not urge jurors to convict a criminal defen-
dant in order to protect community values, preserve civil
order, or deter future law breaking.”), aff’d in part and rev’d
in part on other grounds, 518 U.S. 81 (1996). However, in
view of the overwhelming evidence of Allen’s guilt and the
trial court’s instruction that the statements of counsel were not
evidence, the prosecutor’s comment was not so prejudicial as
to render Allen’s sentencing trial fundamentally unfair. Dar-
den, 477 U.S. at 181.

3. Improper Characterizations of Allen

We agree with Allen that the prosecutor’s comparison of
him to Adolf Hitler was improper.8 Again, however, this ref-
erence did not render the penalty phase unfair. The reference
to Hitler was pure argument. Moreover, the trial court admon-
ished the jury not to consider such statements as evidence. As
explained in United States v. North, 910 F.2d 843 (D.C. Cir.)
(per curiam), withdrawn in part on other grounds, 920 F.2d
940 (D.C. Cir. 1990) (per curiam), “[t]o suspect that the refer-
8
We disagree that the comparison of Allen to an organized crime “god-
father” was improper, given his own description of himself at trial.
 ALLEN v. WOODFORD 1007
ence to Hitler swayed the jury on a close and critical issue
would underestimate the common sense that we properly attri-
bute to the jury.” Id. at 895.

4. Focus on the Victims and Family Impact

While portions of the prosecutor’s argument about the vic-
tims and their families were emotional, these references were
not improperly inflammatory. Even if the prosecutor’s com-
mentary were evidence, which it was not, the Supreme Court
explained in Payne v. Tennessee, 501 U.S. 808, 823-25
(1991), that there is no per se Eighth Amendment bar to vic-
tim impact evidence: “In the majority of cases, and in this
case, victim impact evidence serves entirely legitimate pur-
poses.” Id. at 825. We reiterated in Gretzler v. Stewart, 112
F.3d 992, 1009 (9th Cir. 1997), that “[e]vidence about a vic-
tim’s characteristics and the impact of the murder on the vic-
tim’s family is relevant and admissible at a death penalty
sentencing proceeding. Admission of such evidence will only
be deemed unconstitutional if it is so unduly prejudicial that
it renders the sentence fundamentally unfair.” (Citation omit-
ted); cf. Fields v. Woodford, 281 F.3d 963, 978-79 (9th Cir.)
(disapproving of victim impact evidence but refraining from
reversing the jury verdict where the evidence was not prejudi-
cial), amended on other grounds, 315 F.3d 1062 (9th Cir.
2002); People v. Miranda (In re Miranda), 44 Cal. 3d 57, 113
(1987). Here, the prosecutor’s statements about the victims
and their families did not render the sentencing phase funda-
mentally unfair.

5. Statements Regarding the Jury’s Responsibility

The prosecutor’s argument did not unacceptably diminish
the responsibility of the jury in sentencing Allen. The
Supreme Court narrowly defined such error in Romano v.
Oklahoma, 512 U.S. 1 (1994), as

relevant only to certain types of comment — those
that mislead the jury as to its role in the sentencing
1008 ALLEN v. WOODFORD
process in a way that allows the jury to feel less
responsible than it should for the sentencing deci-
sion. Thus, ‘[t]o establish [such a] violation, a defen-
dant necessarily must show that the remarks to the
jury improperly described the role assigned to the
jury by local law.’

Id. at 9 (citation and internal quotation marks omitted). The
prosecutor here did not improperly describe the jury’s role.
Rather, he seemed to counter defense counsel’s suggestion
that the jury would be committing a moral wrong by sentenc-
ing Allen to death. The prosecutor’s argument that Allen was
ultimately responsible for his actions and that the jury must
follow the law were not inappropriate and provide no basis for
relief.

H. The Trial Court’s Conversion of Inapplicable
Mitigation Factors into Aggravating Factors

[25] The trial court’s improper finding of aggravating fac-
tors in reviewing the jury’s verdict was also harmless error.
California law directs the trial judge to automatically and
independently review a jury’s sentencing verdict to determine
whether it is contrary to the law or to the evidence presented.
Cal. Penal Code § 190.4(e). In conducting this review, the
trial court converted each of the following factors into aggra-
vating factors:

Factor (d) — Whether or not the offense was com-
mitted while the defendant was under the influence
of extreme mental or emotional disturbance;

Factor (e) — Whether or not the victim was a partic-
ipant in the defendant’s homicidal conduct or con-
sented to the homicidal act;

Factor (f) — Whether or not the offense was com-
mitted under circumstances which the defendant rea-
 ALLEN v. WOODFORD 1009
sonably believed to be a moral justification or
extenuation for his conduct;

Factor (g) — Whether or not the defendant acted
under extreme duress or under the substantial domi-
nation of another person;

Factor (i) — The age of the defendant at the time of
the crime;

Factor (j) — Whether or not the defendant was an
accomplice to the offense and his participation in the
commission of the offense is relatively minor; and

Factor (k) — Any other circumstance which extenu-
ates the gravity of the crime even though it is not a
legal excuse for the crime.

The trial court expressly concluded that the mitigating cir-
cumstances addressed in the above factors did not apply to
Allen’s case and converted each to an aggravating factor. As
reasoned by the California Supreme Court, however, the
absence of mitigating circumstances under these factors
should not be considered aggravating:

“[A]ggravation” is by definition a circumstance
above and beyond the essential constituents of a
crime which increases its guilt or enormity or adds
to its injurious consequences. Mitigating circum-
stances, on the other hand, are ones which although
not constituting an excuse for or justification of the
crime, may be considered as extenuating or reducing
the degree of moral culpability. Thus, the absence of
mitigation would not automatically render the crime
more offensive than any other murder of the same
general character.

Several of the statutory mitigating factors are par-
ticularly unlikely to be present in a given case. (See,
1010 ALLEN v. WOODFORD
especially, § 190.3, subds. (e) and (f) . . . .) To per-
mit consideration of the absence of these factors as
aggravating circumstances would make these aggra-
vating circumstances automatically applicable to
most murders.

People v. Davenport, 41 Cal. 3d 247, 289 (1985) (internal
citations omitted). While courts have expressly held that fac-
tor (i) regarding age can serve as either an aggravating or mit-
igating circumstance, Tuilaepa, 512 U.S. at 977; Bonin, 59
F.3d at 848, the trial court erred in applying the remainder of
the above factors as aggravators even though the absence of
the specified mitigating circumstances did not render Allen’s
crime more offensive than other crimes of the same nature.

This error, however, does not undermine our confidence in
the jury’s verdict. The trial court’s review merely ensured that
the jury’s death verdict was not contrary to the weight of the
evidence. Even without these factors, extensive aggravating
evidence supported the jury’s verdict. Due to the limited
nature of the trial court’s query, see People v. Lang, 49 Cal.
3d 991, 1045 (1989), and the existence of many valid aggra-
vating factors, this error was not prejudicial.

I. The Trial Court’s Consideration of Presentence Reports
in its Modification Decision

Although the trial court erred as a matter of state law by
considering in its review of the jury’s verdict presentence
reports that had not been considered by the jury, that error
neither prejudiced Allen nor denied him his Eighth Amend-
ment or due process rights.

While California Penal Code § 190.4 limits the trial court
to review of the evidence before the jury in its automatic con-
sideration of whether to modify the verdict, the trial court
here requested and reviewed presentence reports prepared by
the probation officer. These reports contained evidence, such
 ALLEN v. WOODFORD 1011
as letters from the victims’ families and a recommendation of
death by the probation officer, that the jury had never consid-
ered.

The record demonstrates, however, that the trial court’s
error was harmless. In its decision on reconsideration of the
jury’s verdict, the trial court explained its analysis as to each
of the § 190.3 factors and only once referred to information
found in the presentence report and not elsewhere in the evi-
dence considered by the jury. That one instance concerned the
presentence report’s determination that Allen was born on
June 16, 1930. We affirm the district court’s reasoning that
“[t]he evidence of [Allen’s] age can hardly be considered
prejudicial to [him] and was, in any event, generally before
the jury.”

J. Lack of Interproportionality Review

[26] We find no merit in Allen’s claim that the State’s lack
of “intercase proportionality review” violated his due process
and equal protection rights.

Allen’s claim is premised on California’s requirement that
the Board of Prison Terms review every sentence imposed
under the Determinate Sentencing Law to ascertain its propor-
tionality with other sentences, and the lack of a comparable
requirement in the capital sentencing scheme. Allen’s due
process argument is foreclosed by the Supreme Court’s hold-
ing in Pulley v. Harris, 465 U.S. 37, 43-46 (1984), that nei-
ther the Eighth Amendment nor due process requires
comparative proportionality review in imposing the death
penalty. The California Supreme Court has agreed that “nei-
ther the federal nor the state Constitution compels compara-
tive sentence review.” People v. Sanders, 51 Cal. 3d 471, 529
(1990); see also Lang, 49 Cal. 3d at 1045. To the extent that
Allen’s equal protection claim survives the above holdings,
we agree with the California Supreme Court that defendants
sentenced under the Determinate Sentencing Law are not sim-
1012 ALLEN v. WOODFORD
ilarly situated to defendants sentenced in the capital system.
See Allen, 42 Cal. 3d at 1286-88. We thus reject this claim as
a basis for habeas relief.

V. Cumulative Error

[27] Allen argues that when considered cumulatively, the
errors committed by the trial court, prosecutor, and defense
counsel in both the guilt and penalty proceedings prejudiced
him sufficiently to undermine confidence in the jury’s ver-
dicts. See Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir.
2002), cert. denied, 123 S.Ct. 2637 (2003); Mak, 970 F.2d at
622. Even considered cumulatively, though, these errors are
not sufficiently prejudicial to overcome the overwhelming
evidence, derived from numerous sources, of Allen’s guilt, or
the uniquely aggravating circumstances surrounding Allen’s
crimes.

VI. Conclusion

Evidence of Allen’s guilt is overwhelming. Given the
nature of his crimes, sentencing him to another life term
would achieve none of the traditional purposes underlying
punishment. Allen continues to pose a threat to society,
indeed to those very persons who testified against him in the
Fran’s Market triple-murder trial here at issue, and has proven
that he is beyond rehabilitation. He has shown himself more
than capable of arranging murders from behind bars. If the
death penalty is to serve any purpose at all, it is to prevent the
very sort of murderous conduct for which Allen was con-
victed. Therefore, we affirm the district court’s denial of
Allen’s petition for a writ of habeas corpus.

AFFIRMED.