Belmontes v. Brown

Volume 1 of 2

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FERNANDO BELMONTES, JR., 
Petitioner-Appellant,
No. 01-99018
v.
ROBERT L. AYERS, JR., Warden for  D.C. No.
CV-89-00736-DFL
the California State Prison at San
OPINION
Quentin,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding

Argued and Submitted
May 15, 2007—San Francisco, California

Filed June 13, 2008

Before: Stephen Reinhardt, Diarmuid F. O’Scannlain, and
Richard A. Paez, Circuit Judges.

Opinion by Judge Reinhardt;
Dissent by Judge O’Scannlain

6733
6738 BELMONTES v. AYERS

COUNSEL

Eric Multhaup, Mill Valley, California, and Christopher H.
Wing, Sacramento, California, for the petitioner-appellant.

Edmund G. Brown, Jr., Attorney General for the State of Cali-
fornia, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Senior Assistant Attorney General, Eric L.
Christoffersen, Deputy Attorney General, and Mark A. John-
son, Deputy Attorney General, Sacramento, California, for the
respondent-appellee.

OPINION

REINHARDT, Circuit Judge:

Once again we are presented with a case in which an indi-
vidual sentenced to death received inadequate representation
by his counsel at the penalty phase of his trial. Here, the ques-
tion is only whether counsel’s deficient performance was prej-
udicial. There can be little doubt that it was.
 BELMONTES v. AYERS 6739
Fernando Belmontes, Jr. was convicted of first degree mur-
der and sentenced to death in California state court in 1982.
After his conviction and sentence were affirmed by the Cali-
fornia courts on direct appeal and in state post-conviction pro-
ceedings, Belmontes filed a petition for writ of habeas corpus
in the district court, seeking to set aside both his conviction
and sentence. In 2000, the district court found that counsel’s
representation during the penalty phase was deficient, but that
his deficient performance did not prejudice Belmontes. In
2001, the court denied the petition in its entirety. Belmontes
appealed. In 2003, we affirmed the denial of relief with
respect to Belmontes’s guilt-phase claims, but reversed the
denial of penalty-phase relief on the ground that the jury was
improperly instructed as to the mitigating evidence it was
required to consider. Belmontes v. Woodford, 350 F.3d 861
(9th Cir. 2003) (“Belmontes I”). In 2005, the Supreme Court
vacated our judgment and remanded for reconsideration in
light of Brown v. Payton, 544 U.S. 133 (2005). Brown v. Bel-
montes, 544 U.S. 945 (2005). We again granted penalty-phase
relief because, unlike in Payton, Belmontes’s petition was not
subject to the strict requirements of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). Belmontes v.
Brown, 414 F.3d 1094 (9th Cir. 2005) (“Belmontes II”). In
2006, the Supreme Court again granted certiorari and by a
five to four vote reversed our decision with respect to instruc-
tional error, this time on the merits. Ayers v. Belmontes, ___
U.S. ___, 127 S. Ct. 469 (2006). The Court then remanded,
leaving us with the task of resolving Belmontes’s remaining
penalty-phase claims, primarily ineffective assistance of
counsel.

Belmontes’s remaining claims are as follows: (1) that he
received ineffective assistance of counsel during the penalty
phase of his trial; (2) that he was deprived of due process
when the district court denied his request for an evidentiary
hearing on his first claim; and (3) that he was deprived of due
process and a fair penalty phase trial, and subjected to cruel
and unusual punishment, by (a) the admission of evidence of
6740 BELMONTES v. AYERS
his prior acts of misconduct, (b) the trial court’s response to
questions from the jury about the consequences of their fail-
ure to agree on a unanimous verdict with respect to the pen-
alty, and (c) the trial court’s pre-judgment of Belmontes’s
motion to reduce his sentence. Because we conclude that Bel-
montes’s counsel not only provided deficient representation at
the penalty phase of his trial but that Belmontes was preju-
diced by that deficient performance, we reverse and remand
for issuance of a writ of habeas corpus and, if the State so
elects, a new death penalty proceeding.1

I. FACTUAL AND PROCEDURAL BACKGROUND

In our two prior opinions in this case, we summarized the
facts and history that related to the issues before us. See Bel-
montes II, 414 F.3d at 1102-11; Belmontes I, 350 F.3d at 869
78 This is the first time that we have addressed the claim of
penalty-phase ineffective assistance of counsel. Thus, we
again recite the history and facts of this case, but this time
with an emphasis on those facts that are relevant to the inef-
fective assistance of counsel claim, including facts that were
determined during post-conviction proceedings and did not
appear in our earlier opinions.

A. The Crime, Investigation, and Guilt Phase of
Belmontes’s trial

On the morning of Sunday, March 15, 1981, nineteen-year-
old Steacy McConnell telephoned her parents and told them
that she was afraid because several people, including Bel-
montes’s eventual codefendant Domingo Vasquez, had threat-
1
Under California law, a sentencing jury in a death penalty case has
only two choices: life without the possibility of parole or death. See Cal.
Penal Code § 190.2 (West 1978). If, following a reversal of the capital
sentence, the State chooses not to institute further proceedings with
respect to the death penalty, Belmontes will automatically receive a sen-
tence of life without the possibility of parole.
 BELMONTES v. AYERS 6741
ened her. When McConnell’s parents arrived at her residence
in Victor, California several hours later, they found her lying
unconscious in a pool of blood. She died shortly thereafter
from cerebral hemorrhaging caused by fifteen to twenty blows
to her head with an iron bar. Her house was ransacked and her
stereo was missing.

On the Tuesday preceding the murder, several people,
including Vasquez and another codefendant, Robert “Bobby”
Bolanos, partied at McConnell’s house. Although Bolanos left
the residence early Wednesday morning, the party continued
until Friday, when Vasquez stole a quantity of “black
beauties”—amphetamine pills—from McConnell. Upon dis-
covering the theft, McConnell threw Vasquez and his friends
out of the house. The group subsequently discussed their dis-
like of McConnell.

The police investigation of the individuals who had been
present at the party led the officers to interrogate Vasquez and
Bolanos. Bolanos eventually admitted that he had been
involved in the events that led to McConnell’s death, and
identified Vasquez and Belmontes as his coadventurers. Bel-
montes, who was nineteen at the time, had not been at the
party, but had visited Bolanos over the weekend of the mur-
der.

Belmontes, Bolanos, and Vasquez were each charged with
first degree murder and special circumstances. However,
Bolanos soon arranged a deal with the prosecution in which
he agreed to testify against Vasquez and Belmontes in
exchange for a guilty plea to second degree burglary and
immunity on the murder charge. At Vasquez’s preliminary
hearing, Bolanos named Belmontes as the main assailant.
After the preliminary hearing, the trial judge dismissed the
special circumstances charge against Vasquez, who pled
guilty to second degree murder. That left Belmontes, who
alone proceeded to trial.
6742 BELMONTES v. AYERS
Bolanos was the State’s principal witness. He testified that
on the morning of Sunday, March 15, he and Belmontes drove
to Vasquez’s residence to hang out. When they arrived,
Vasquez was on the phone with McConnell. When Vasquez
hung up, he informed them that McConnell would not be
home during the latter part of the day. The three were short
of cash, and they agreed to burglarize McConnell’s residence,
steal her stereo, and “clean house.” According to Bolanos, as
the men departed Vasquez’s house through the kitchen, Bel-
montes grabbed from the counter an iron dumb-bell bar that
Vasquez’s wife used for rolling tortillas.

Bolanos told the jury that the three men then drove to
McConnell’s in Bolanos’s car and parked a short distance
from the house where Belmontes stated that he would
approach the house alone, on foot, carrying the metal bar in
case he needed to force entry. Bolanos further testified that
Belmontes said that he would gather McConnell’s valuables
and place them near the door to facilitate a quick getaway,
and that Bolanos and Vasquez should wait for about five min-
utes and then bring the car around to McConnell’s house.

Bolanos next testified that Belmontes walked to McCon-
nell’s residence, and, after about five minutes, Bolanos and
Vasquez drove up and backed into McConnell’s driveway.
Bolanos heard repeated knocking or banging noises coming
from within the house. Vasquez walked to the front door to
assist Belmontes. Shortly thereafter, Belmontes and Vasquez
emerged from the back door of the house carrying stereo com-
ponents. Belmontes was sprinkled with blood and Vasquez
“looked like he had seen a ghost.” According to Bolanos, Bel-
montes stated that he had had to “take out a witness” because
McConnell had been home, and explained that when McCon-
nell heard Vasquez and Bolanos drive up, she looked away
from him and he seized the opportunity to hit her with the bar.

Bolanos finally testified that, after leaving McConnell’s
house, the three drove to the nearby city of Galt, where they
 BELMONTES v. AYERS 6743
intended to fence the stereo. En route, Belmontes threw the
bar out of the car window as they crossed a bridge. The trio
eventually sold the stereo for $100.

Detective Holman, the lead investigator on the case, testi-
fied that Belmontes furnished three tape-recorded statements
shortly after his arrest. In the first statement, he denied any
involvement in the crime. In the second, he admitted the bur-
glary but denied hitting McConnell. In the third, he admitted
hitting McConnell, but insisted that he hit her only once, and
then only at Vasquez’s direction. He stated that the single
blow he delivered caused McConnell to fall down, at which
point he dropped the bar and began searching the house for
valuables, leaving Vasquez alone with McConnell. Belmontes
asserted that he did not pay attention to Vasquez’s actions
during this period and did not witness the fifteen to twenty
fatal blows to the head that McConnell suffered. Holman also
testified that a small drop of blood found on the tongue of one
of Belmontes’s shoes tested as “type O”—McConnell’s blood
type.

Dr. Maduros, the pathologist who performed the autopsy on
McConnell, testified that she died from cerebral hemorrhag-
ing caused by fifteen to twenty blows to the back left portion
of her skull. She had a separate contusion on her right temple,
which was caused by a single blow of lesser force that did not
lacerate the skin. However, he informed the jury that this
blow alone would not have caused death and, if it had been
the first, it would likely not have caused unconsciousness.
Injuries to McConnell’s arms, hands, legs, and feet evidenced
a struggle.

Belmontes testified in his own defense. He insisted that,
while he was searching the back part of the house for some-
thing to take, Vasquez struck the fatal blows. Belmontes
stated that prior to the murder, he and Bolanos had gone over
to Vasquez’s house, and that when Vasquez mentioned that
McConnell would not be home, they decided to steal her ste-
6744 BELMONTES v. AYERS
reo. Although they expected McConnell to be away, the plan
was that Belmontes would go to the door in case she turned
out to be home; they thought that because of the confrontation
between Vasquez and McConnell at her party a few days ear-
lier, she would become angry and suspicious if she saw
Vasquez or Bolanos at her door. Although Belmontes had met
McConnell a few times in the past, she did not know that he
was a friend of Vasquez and Bolanos.

Belmontes stated that it was not he who took the metal bar
from Vasquez’s house but that while they were all in the car,
Vasquez gave it to him to use to break a window, and he then
concealed it in his sleeve. Vasquez and Bolanos stayed in the
car while Belmontes walked to McConnell’s front door.
According to Belmontes, he knocked at McConnell’s door
and, to his surprise, she answered. As soon as he found out
that she was home, he abandoned his intent to burglarize her
residence. He told her that he had been hitchhiking and had
stopped by because it was raining. McConnell invited him in.
She noticed a bulge in his sleeve and asked what it was. He
showed her the bar and explained that he had it because he
was hitchhiking.

Belmontes further testified that five minutes after he
entered the house, Bolanos and Vasquez pulled into the drive-
way. McConnell started walking toward the front door. Bel-
montes followed behind her and was placing the bar back up
his sleeve when Vasquez knocked on the door. Vasquez
pushed the door open, saw McConnell, and ordered Bel-
montes to “hit her.” Belmontes followed Vasquez’s directive
and struck McConnell once on the side of the head with the
bar. She fell to the floor. Belmontes dropped the bar, ran to
the back bedroom, searched that room and the kitchen, and
returned to the living room. Upon returning to the front of the
house, he observed Vasquez standing over McConnell and
holding the metal bar. He did not see or hear Vasquez hit
McConnell. He could not explain the presence of defensive
bruises and contusions on McConnell’s hands, arms, and feet.
 BELMONTES v. AYERS 6745
The rest of Belmontes’s testimony was, with a few excep-
tions, consistent with Bolanos’s. According to Belmontes, it
was Vasquez who handed him the steel bar after they left
McConnell’s, and it was Vasquez (not Belmontes) who stated
that he had had to take out a witness. Otherwise, his testimony
was as follows. Belmontes and Vasquez gathered the stereo
components and exited from McConnell’s back door. They
loaded the stereo components into the trunk. Vasquez got in
the back seat, Belmontes rode shotgun, and Bolanos drove.
Belmontes wiped blood off the bar and set it down on the
floorboard. It was not his idea to throw the bar out the win-
dow into the river, but Bolanos and Vasquez told him to do
so, and he complied. He concluded his testimony by stating
they then sold the stereo for $100, divided the money, bought
some beer, and drove to the home of an acquaintance.

After three hours of deliberation, the jury convicted Bel-
montes of first degree murder with special circumstances. It
also made special findings that Belmontes was the actual
killer, and that he had the specific intent that death occur.

B. The Penalty Phase

1. Aggravating Evidence

At the penalty phase, the prosecution introduced minimal
aggravating evidence, the sum total of which consumed only
24 pages of the double-spaced transcript.

The detective who oversaw the investigation of the crime
authenticated two autopsy photographs depicting McCon-
nell’s wounds. This was the only evidence relating to the cir-
cumstances of the crime that the State introduced at the
penalty phase.

William Cartwright, manager of a motel in Ontario, Cali-
fornia, testified to an incident in early 1979 in which an indi-
vidual named Rudy met Belmontes at a motel and attempted
6746 BELMONTES v. AYERS
to sell him a .32 caliber automatic handgun that he had
acquired in a burglary. Belmontes reportedly examined the
weapon, cocked it, pointed it at Rudy and said, “I’ve got it
now. Why buy it?” Rudy left the premises and Belmontes
retained the weapon.

Steven Cartwright (the record does not disclose any rela-
tionship with William) testified that he had a conversation
with Belmontes in February 1979 in which Belmontes alluded
to the fact that some people were upset with him. As Bel-
montes talked, he indicated that he had a gun in his belt by
slapping his side, and he stated that he was not concerned
because he had all the protection he needed.

Ron Cutler, a California Youth Authority (“CYA”) coun-
selor, testified that he once observed Belmontes swinging a
chair as if he were about to hit another ward, but Cutler was
able to intervene before a fight ensued. On cross-examination,
he admitted that Belmontes was significantly smaller than the
other youth.

Barbara Murillo, Belmontes’s former girlfriend, testified
about a domestic violence incident that occurred when she
asked Belmontes to move out of their shared apartment and
to give her his keys to the apartment before leaving. Although
Belmontes was willing to leave, he was unwilling to give her
the keys because his belongings were still in the apartment.
When he tried to leave without giving Murillo the keys, she
attempted to restrain him by grabbing his jacket, tearing off
the buttons in the process. During the ensuing fight, Murillo,
who was four months pregnant with Belmontes’s second
child, grabbed a “file” for protection and attempted to phone
the police. Belmontes cut the telephone cord with his knife.
He then pushed her, hit her on the head, and tried to choke
her. At some point during the altercation, he also caused her
to drop their infant daughter. The pair were eventually sepa-
rated by several friends who were present at the time. A
 BELMONTES v. AYERS 6747
neighbor summoned the police, who arrived as Belmontes
was leaving the premises.

Finally, the prosecution and defense stipulated to the fact
that Belmontes entered a plea of no contest in April 1979 to
a charge of being an accessory after the fact to voluntary man-
slaughter. The court refused to allow the prosecutor to intro-
duce evidence indicating that Belmontes had actually
murdered the victim, Jerry Howard. Specifically, the court
ruled that

we have the crime of accessory after the fact to vol-
untary manslaughter to which the defendant has
entered a plea of no contest to which thereafter he
was found guilty by the Court pursuant to the plea of
no contest. That matter has been adjudicated. It is res
judicata with reference to any fact that — or conduct
that occurred during the course of the voluntary
manslaughter. . . . [The] Court will allow the prose-
cution to present testimony and evidence that [Bel-
montes] entered a plea of no contest to being
accessory after the fact to voluntary manslaughter.
The Court will not allow testimony with reference to
whether or not the defendant did in fact do the shoot-
ing as alleged, the matter having been adjudicated.

Consequently, the jury was never informed of any of the
details of Howard’s death or of Belmontes’s alleged role in it.2
2
On this appeal, the State does not challenge the propriety of the trial
court’s exclusion of this evidence. Rather, it argues that if Belmontes’s
counsel had attempted to offer expert testimony as to Belmontes’s ability
to conform his conduct to societal standards in a structured environment,
the evidence as to his role in the Howard killing would be admissible by
way of cross-examination. See infra at section II.B.2.c.
6748 BELMONTES v. AYERS
2. Mitigating Evidence

The presentation of mitigating evidence by Belmontes’s
trial counsel, John Schick, was also limited in scope. This evi-
dence primarily provided the jury with a cursory presentation
of some of Belmontes’s family history and his conversion to
Christianity while incarcerated at a Youth Authority facility,
and provided some information regarding his conduct during
that incarceration.

Belmontes’s maternal grandfather, Michael Salvaggio, tes-
tified about his daughter’s unhappy marriage to Belmontes’s
father. Salvaggio stated that his daughter was sixteen when
she ran away from home and married Belmontes’s father, who
was unemployed, refused to support his family, drank to
excess, and beat her. He also stated that the Belmontes family
did not have a stable place to live for extended periods of
time. He lamented the fact that his Italian-American daughter
had married a man of Mexican descent. Salvaggio said that he
was “very close” with Belmontes until he was about thirteen,
but thereafter had little contact with him. Salvaggio did state,
however, that when Belmontes was sixteen and his grand-
mother lay dying in the hospital, he visited her every day. He
also attended her funeral. Salvaggio further testified that he
believed Belmontes was “a victim of circumstance.”

Carol Belmontes confirmed that her marriage to Bel-
montes’s father was unhappy and tumultuous. Fernando Bel-
montes, Sr., was a violent alcoholic who “wouldn’t ever
work” and who regularly beat her, breaking her arm on one
occasion and stabbing her on another. Belmontes was ten
years old when the marriage broke up. Mrs. Belmontes remar-
ried, but her second marriage ended five years later, when
Belmontes was about fifteen. From that age on, Belmontes
was difficult to control. He had not lived with his mother
since he was committed to the CYA two years before McCon-
nell’s murder. He had a younger brother and sister, with
 BELMONTES v. AYERS 6749
whom he was “very close.” Mrs. Belmontes’s testimony
ended with the following exchange:

Q. How would you view your relationship with
your son Fern[ando]?

A. My relationship?

Q. Um-hmm (affirmative).

A. Same as it’s always been.

Q. What kind of qualities can you recommend to
this jury as they consider his fa[te]?

A. I don’t believe he should go to the gas chamber.

Q. Just because you’re his mother?

A. No. I don’t believe he did it.

Q. Are you aware of the facts of this case?

A. (Affirmative nod)

I know my son.

Mr. Schick: I have no more questions.

Robert Martinez, a close friend of Belmontes’s since his
early teens, testified that he and Belmontes spent a great deal
of time together, usually working on Martinez’s low-rider car.
Belmontes served as best man at Martinez’s wedding and was
someone he could turn to for advice and support when he
argued with his wife. Martinez also testified that he felt Bel-
montes was not a violent person. However, with defense
counsel’s consent, this testimony was struck following an
objection from the prosecutor, who argued that if the evidence
6750 BELMONTES v. AYERS
was admitted, the prosecution should be allowed to impeach
Martinez with evidence regarding the Jerry Howard killing.

Belmontes again testified on his own behalf. He recounted
that he had a poor relationship with his father, who often
came home drunk and hit his mother. He did not like school
and stopped attending in the ninth grade (some records indi-
cate it was the tenth grade). He wanted to get a job so that he
could help his mother pay the bills. Although he described his
youth as “pretty hard,” he twice stressed that he did not want
to “use it as a crutch.”

With respect to his time at the CYA, Belmontes testified
that he was in the custody of the Youth Authority from early
1979 until November 1980, four months prior to the crime.
While at the CYA, he was employed on the fire crew at the
Pine Grove Camp for one year, during which time he worked
his way up from last man to number two man, a position of
leadership and responsibility. Belmontes also testified that
during his incarceration he became involved in the M-2 Chris-
tian sponsorship program, a program that matched a local
church-going family with a ward. As part of the program, a
ward would be permitted to leave the CYA facility to visit
with the family at specified times each week. Belmontes
admitted that he initially entered the M-2 program in order to
spend time outside of the camp, but after his favorable experi-
ences with his M-2 family, the Haros, he gradually became
curious about their Christian faith and embraced it.

Belmontes further testified that after he was paroled from
the Youth Authority he stayed at a halfway house in Oakland
for two weeks, then went to Southern California for a short
period, and finally returned to the Lodi area to take a job with
the forest service. He testified that he moved to Lodi in part
so that he could be close to the Haros. However, outside of
the Youth Authority he had trouble maintaining his religious
commitment and “started going back to [his] old ways,” in
part due to “pressure on the streets.” At the time of trial, he
 BELMONTES v. AYERS 6751
had not abandoned his religious beliefs entirely but felt that
he was no longer “dedicated one hundred percent” to his reli-
gious commitment.

When asked about whether he would be able to contribute
to society if sentenced to life in prison rather than death, he
stated that he “didn’t know.” When asked what he would do
with the next 50 to 60 years of his life if he were sentenced
to life in prison, he said that “it is hard to say. Ain’t too many
opportunities in there, too many things you can do except try
to stay alive. I don’t know. Just try to stay alive.” He was then
asked whether he would be prepared to contribute to society
in any way that he could if sentenced to life in prison, to
which he responded, “[i]f the opportunity is there, yes.”

The Reverend Dale Barrett, chaplain at the Youth Authori-
ty’s Pine Grove Facility, testified that he knew Belmontes
from his participation in the M-2 Christian sponsorship pro-
gram. Barrett explained that Belmontes was matched with
Beverly and Fred Haro and participated in the program for
about a year. In addition, Belmontes was baptized during his
stay in the CYA. Only a small percentage of program partici-
pants who made a serious commitment to Christianity were
baptized. Barrett felt that, unlike the many wards who stayed
in the program only to get out of camp and elicit favors from
the sponsoring families, Belmontes had not “conned” them.
When asked about whether he thought Belmontes should be
sentenced to death, Barrett testified that, although he person-
ally believed in the death penalty, he did not think Belmontes
deserved to die because he thought premeditation was “a
debatable point,” and thought Belmontes was a “salvageable”
person with “a lot of extenuating circumstances in his life.”
Barrett was of the view that Belmontes’s involvement in
“some of the situations in which he found himself”—e.g.
McConnell’s murder—was attributable to “the enormity of
the peer pressure and the kind of sociological circumstances
that were part of his life.” When asked whether he thought
6752 BELMONTES v. AYERS
that Belmontes would be able to contribute something if sen-
tenced to life in prison without parole, he stated that he would

like to think so, based upon the tremendous success
that is being realized by a number of people being
involved in prison ministries. I’d like to feel that we
are having a great deal of success. Perhaps someone
could say with regard to Fern[ando], “Do you feel
you’re a failure?” Obviously, this is not the result we
would like to see. About 80 percent of our young
men in the program do well, stay out of trouble. The
rate of recidivism has been greatly affected by the
M-2 programming. I like to think we make a contri-
bution to their lives and sense of well-being and self-
image, and prison ministries can continue to contrib-
ute that to the lives of young men who have failed.

When asked whether he would be involved in prison ministry
with Belmontes if he were granted life in prison, Barrett said
that he would, “if the issue of proximity would be resolvable.
If not, I would be anxious to direct others to him geographi-
cally on the basis of my associations.”

Don Miller, assistant chaplain at the Youth Authority’s
Preston Facility and the Northern California Director of the
M-2 program, testified that he helped place Belmontes in a
halfway house in Oakland upon his release from the CYA.
Miller stated that, at the time, he felt “a little bit doubtful”
about whether Belmontes should have been released from the
facility because, in Miller’s view, he needed a little bit more
instruction regarding “[a]ccepting authority and being able to
adjust to the community outside.” Miller testified that, after
being released from the CYA, Belmontes stayed at the half-
way house for only two weeks before moving to the Lodi area
to take a job with the forest service. During those two weeks,
however, Belmontes returned to Preston on a few occasions
to speak to wards about what life was like “on the outside.”
Miller described Belmontes, and his message, as well-
 BELMONTES v. AYERS 6753
received by the CYA wards, and he believed that if Bel-
montes were committed to prison for life, he would be good
at counseling other prisoners not to make the same mistakes
that he had. Miller was enthusiastic about working with Bel-
montes in this capacity and stated that Belmontes “definitely
would be used in the prison system for this kind of activity”
because he related well to other prisoners, especially those
who shared his ethnic background.

Darlene Martinez, a born-again Christian and the wife of
Belmontes’s friend Robert Martinez, testified that she had
known Belmontes for six or seven years and considered him
a close friend. Darlene recounted that when Belmontes visited
them after his release from the Youth Authority, he told her
that he, too, was a born-again Christian. He also mentioned
his disputatious relationship with his girlfriend, Murillo, and
stated that he was planning to move in with her. During the
conversation, Belmontes expressed concern that Murillo was
not a Christian, and he worried that he would be unable to
maintain his Christian faith on his own.

Beverly and Fred Haro, Belmontes’s M-2 sponsors and
members of Reverend Barrett’s church, testified that Bel-
montes spent Wednesday evenings and weekends with them
for almost a year. They felt that they had a good relationship
with Belmontes, who attended church with them. They treated
him like their own son, and he opened up to them and was a
good influence on their own teenage son. They saw him sev-
eral times after his release from the CYA. Fred Haro stated
that he had “compassion as a son” for Belmontes and that
Belmontes had been genuine in his commitment to the M-2
program and his affection for his sponsors. He also stated that,
although he was “strongly for the death penalty,” he believed
Belmontes was innocent and that, because he was innocent,
he did not deserve to die.

3. Closing Arguments

During closing arguments, the prosecutor described the evi-
dence introduced in aggravation—that Belmontes had once
6754 BELMONTES v. AYERS
swung a chair at another CYA ward, had been involved in the
domestic violence incident with Murillo, had taken a gun
from a person who offered to sell it to him, had once told
someone that he was carrying a gun, had been convicted of
being an accessory after the fact to voluntary manslaughter,
and had murdered McConnell in a calculated manner. Turning
to the mitigating evidence, the prosecutor stated that Bel-
montes’s age was a factor that “goes both ways,” that his reli-
gious beliefs did not really extenuate the gravity of the crime,
and that “the evidence upon which [Belmontes’s] religious
experience rests is somewhat shaky.” Moreover, he noted that
Fred Haro’s and Reverend Barrett’s favorable assessments of
Belmontes’s character and capacity to do well in prison were
not entirely credible because neither witness thought Bel-
montes could commit the crime the jury “knew” he commit-
ted, and thus that these witnesses did not truly know
Belmontes. The prosecutor further argued that there was no
lingering doubt regarding Belmontes’s guilt, and stated that
Belmontes had shown no remorse regarding McConnell’s
murder. He then stated that the evidence in mitigation and in
aggravation were a “wash” or a “draw” until one considered
the circumstances of the crime; taking that factor into account,
the appropriate penalty was, in the view of the prosecutor,
death.

After the prosecutor’s closing statement, the court permit-
ted Belmontes to address the jury personally. He began by
stating that, although his childhood was not “a very good
childhood,” he did not want to use it as a crutch. He further
stated that, after spending time with the Haros and seeing how
they lived,

I wanted to be like that, I wanted to change my life
and see how it was. I tried. Like I said, it’s a lot eas-
ier to do while you’re in jail because you have a lot
less pressures. When I did get out . . . I guess I
couldn’t deal with the pressures out there. Like I say,
it’s a lot different.
 BELMONTES v. AYERS 6755
Turning to his religious beliefs, he stated that he was

not coming here and saying right now that I’m a full-
fledged Christian or a born-again. I was born again
and I still feel the same way, but I’m not using that
as a crutch, also. But it is something that I tried and
I really believe in.

As for the verdict right here that you’re going to
deliberate on right now, I myself would like to keep
my life and not really lose it in the gas chamber.

[The prosecutor] has stated that he does not feel I
have remorse. [He] does not know. . . . [He] was not
there that day.

With respect to the crime, Belmontes stated that the prosecu-
tor

has told you that I’m the actual killer. He does not
know. He wasn’t there. He’s only going on what he
thinks happened that day . . .

He says I can’t put my feet in [McConnell’s]
shoes. It’s true, I can’t. I didn’t go through it. I
wasn’t the one who was actually killed. But he
hasn’t had to sit and think about actually getting put
in the gas chamber or life without imprisonment
[sic]. I’m not saying I didn’t do it or wasn’t guilty.
Like I said, I was involved to a certain extent. I have
to pay for what’s happening — what happened, and
I can deal with that. You know, there’s only two
choices right now, life without the possibility or the
death penalty. Both of them ain’t really — isn’t
really any good. There’s always the possibility that
while you are living with life without the possibility
that you will die in there. You can’t really say.
Things happen.
6756 BELMONTES v. AYERS
But there is an opportunity to achieve goals and
try to better yourself. . . . I myself would really like
to have my life and try to improve myself.

[The prosecutor] has said that I stood up there and
hit [McConnell] once and then hit her again. . . .
Again, he wasn’t there. He doesn’t know that I actu-
ally hit her the 20 times like he says I was. This is
his belief. . . . He doesn’t know me. . . . I just ask
that you think about this a lot and give it a lot of
thought as to the verdict on this penalty phase.
That’s it. Thank you.

After Belmontes made this statement, his counsel, John
Schick, argued first that, notwithstanding the jury’s earlier
verdict, there was no evidence that the murder was premedi-
tated. Next, he stated that, although he did not want to suggest
that “the presence of religion in itself is a totally mitigating
factor[,]” religion plays a “very, very vital function . . . in
anybody’s life.” With respect to Belmontes’s childhood,
Schick said only that

while Mr. Belmontes has told you he is not going to
use a crutch for [sic] what happened in the first part
of his life, I’d like to suggest to you until he got to
know Beverly and Fred Haro, . . . he didn’t really
know, he didn’t really have the sense of values that
a human being, a young man about to embark upon
adulthood should have. And that is what his experi-
ence with Reverend Barrett and Beverly and Fred
Haro in the time he was there in their home while he
was in the California Youth Authority meant.

He went on to state that

what I hope the evidence suggests to you is Fer-
nando Belmontes cannot make it on the outside. I
think it is pretty clear from the experience that he
 BELMONTES v. AYERS 6757
had inside, the kind of development he undertook,
the kind of experiences he had with the Haros as
compared with his being placed out on his own. . . .
Again, we are not saying this is an excuse, but you
have to understand the problems that people have in
dealing with their lives.

Although Schick argued that Belmontes could not make it “on
the outside,” he did not argue that he could or would make it
“on the inside.” Schick then proceeded to the dominant theme
of his closing argument:

Punishment is one of two choices. Consider, if
you will, a young man who is 21 years old, Mr. Bel-
montes. . . . [L]ets assume he has 50 to 55 years left
of his life. . . . [A] sentence of life without possibility
of parole means that for everyday, 24 hours a day,
seven days a week, 365 days a year he will be with-
out that most precious commodity that we have,
freedom. You will punish him far greater and for a
far more significant impact upon his life by sending
him to prison for the rest of his life.

You’ve probably heard about people in a position
of being on death row asking for execution. You all
remember the Gary Gillmore charade a few years
ago, prisoner in Utah who wanted to be killed. There
are some people who feel that way because they
can’t deal with it. It is easier to die than face that
possibility. It is easier to die than face the possibility
of never, ever having your freedom. If you want to
impose, and I think you need to impose punishment.
This young man needs to be punished. I’m not going
to tell you that isn’t a truth. But if you want to
impose a punishment upon him that has meaning,
that has teeth to it, send him to prison for the rest of
his life, however long that may be. . . . I’m only try-
ing to suggest something because it’s difficult for
6758 BELMONTES v. AYERS
any of us to conceive of such a harsh penalty as life
in prison without ever being released.

And it is harsh. You remember during voir dire
you were asked to compare these two penalties. I
think it was constantly referred to as life without the
possibility as being the more lenient of the two pen-
alties. Well, to the extent that [the prosecutor]
believes Mr. Belmontes should die, I suppose it is
lenient.

Schick also asked the jury to think about why, as a society,

we decide to kill people. We justify it in war. Cer-
tainly nobody has quarrels with that. . . .

But how do we feel? How do we justify it? How
do we justify taking another of God’s creatures by
killing them? We dehumanize the other people. Look
at the Vietnamese war. We weren’t fighting the Viet-
namese. We were fighting Gooks. Look at the Japa-
nese war, we called them Wops and Japs. World
War I we fought the Huns. We made it possible in
our mind to dehumanize these people so we could go
out and kill them and not feel guilty about it.

That is exactly what we must do and what you are
being asked to do in evaluating the life of Fernando
Belmontes. You are being asked to look at him and
say to yourself, this man is not a human being. . . .
You must be able to do that, to go through that pro-
cess of dehumanizing him in order to kill him. And
ladies in gentleman, that is exactly what the evidence
I produced at this penalty trial has shown. . . . [H]e
has not been proven to be dehuman [sic].

At no point did Schick mention any of the traumatic experi-
ences that Belmontes underwent during his childhood or his
 BELMONTES v. AYERS 6759
youth.3 As a result, he failed to explain to the jury how those
experiences affected Belmontes; what the relationship was
between the tragic events and Belmontes’s subsequent crimi-
nal conduct; and why the jury should consider those circum-
stances in determining whether Belmontes was an individual
who should be put to death or whose life should be spared.

4. The Jury’s Penalty Deliberations and Verdict

The jury deliberated for a day and a half before reaching a
verdict. On the first day, after several hours of deliberations,
the jury sent the judge a note asking, “What happens if we
cannot reach a verdict?” and “Can the majority rule on life
imprisonment?” The jury was brought back into the court-
room, and the judge reread a portion of the jury instructions,
emphasizing that “all 12 jurors must agree, if you can.”
Thereafter, the following exchange occurred:

JUROR HAILSTONE: If we can’t, Judge, what
happens?

THE COURT: I can’t tell you that.
3
The dissent takes issue with this statement and notes that we “fail[ ] to
give proper emphasis to the fact that several witnesses testified about
those issues.” Dis. Op. at 6828. It is not we who failed to emphasize this
testimony; it is Schick. In fact, he never even mentioned it in his closing
argument. Schick wasted his only opportunity to remind the jury of the
insubstantial and inadequate mitigating testimony that he did manage to
present and to explain to them why that evidence should persuade them
to spare Belmontes’s life. Our cases make clear that in addition to present-
ing witnesses to testify about mitigating circumstances, defense counsel
must also explain the significance of the mitigating testimony in his clos-
ing statement. See Mayfield v. Woodford, 270 F.3d 915, 928 (9th Cir.
2001) (en banc) (finding deficient performance in part because counsel
“failed to explain to the jury the significance of the mitigating evidence
. . . during his closing argument”). For further discussion of this issue, see
supra at section II.B.2.a.
6760 BELMONTES v. AYERS
JUROR WILSON: That is what we wanted to
know.

THE COURT: Okay. I know what will
happen, but I can’t tell you
what will happen.

MR. SCHICK: Maybe we should inquire
whether the jury could
reach a verdict.

THE COURT: Do you think, Mr. Norton,
you will be able to make a
decision in this matter?

JUROR HAILSTONE: Not the way it is going.

JUROR NORTON: That is tough, yes.

THE COURT: Do you think if I allow you
to continue to discuss the
matter and for you to go
over the instructions again
with one another, that the
possibility of making a
decision is there?

JUROR NORTON: I believe there is a possibil-
ity.

After this exchange, the jury continued its deliberations. A lit-
tle more than a day later, the jury reached a verdict and sen-
tenced Belmontes to death. After the verdict, the judge sent a
letter to the jurors thanking them for their service and telling
them that their “decision is acceptable and shall be followed.”
Subsequently, he imposed the judgment and sentence of
death.
 BELMONTES v. AYERS 6761
C. State Appeals and Federal Habeas Review

The California Supreme Court affirmed Belmontes’s con-
viction and sentence in 1988, People v. Belmontes, 755 P.2d
310 (Cal. 1988), and the U.S. Supreme Court denied certiorari
in 1989. Belmontes v. California, 488 U.S. 1034 (1989). Bel-
montes then filed a petition for writ of habeas corpus in the
United States District Court for the Eastern District of Cali-
fornia, which the court held in abeyance while Belmontes
exhausted additional claims before the California Supreme
Court.

In 1993, after the California Supreme Court summarily dis-
missed Belmontes’s petition, denying him an evidentiary
hearing on any of his claims, proceedings on the federal writ
resumed before a magistrate judge. In 1996, the magistrate
judge denied Belmontes’s request for an evidentiary hearing
on various claims, but granted his motion to expand the
record to include depositions, declarations, and other docu-
ments submitted by the parties. The magistrate judge and the
district judge thereafter considered all of this material when
making their rulings.

The deposition testimony, declarations, and other evidence
submitted by the parties revealed critical omissions in
Schick’s mitigation investigation and in his preparation for
the penalty phase. These submissions also demonstrated that
there was a substantial amount of additional mitigating evi-
dence that could and should have been investigated, devel-
oped, and presented at the penalty phase of Belmontes’s trial.
Finally, the evidence and the record also revealed that counsel
failed to properly prepare the witnesses for the penalty phase
hearing and failed to explain to the jury the relevance of the
meager evidence he did present.

At the habeas proceeding, Belmontes presented the testi-
mony of two experts on ineffective assistance of counsel who
opined that Schick had not prepared for the penalty phase in
6762 BELMONTES v. AYERS
a reasonably competent manner. The first expert, James Lar-
sen, is the former deputy public defender who represented
Belmontes’s codefendant, Domingo Vasquez, for whom he
negotiated a plea to second degree murder. At the time of Bel-
montes’s trial in 1982, Larsen was one of the most experi-
enced criminal defense attorneys in San Joaquin County, the
county in which Belmontes was tried. Belmontes’s second
expert, Ephraim Margolin, is the former president of the
National Association of Criminal Defense Lawyers, was the
founding president of California Attorneys for Criminal Jus-
tice, and was a lecturer at Boalt Hall School of Law, Santa
Clara Law School, and Hastings Law School for many years.
At the time of his deposition testimony, Margolin had tried
numerous murder cases and had represented scores of crimi-
nal defendants on appeal in jurisdictions across the country.
He had also served as an expert with respect to the compe-
tency of trial counsel in numerous capital habeas proceedings.

In his deposition, Larsen testified that a reasonably compe-
tent trial attorney representing a capital defendant in San Joa-
quin County in 1982 would have known that he had a duty to
conduct a thorough investigation of all potentially mitigating
factors, including the defendant’s background and mental
state. When asked about the basis of that opinion, Larsen
stated that his opinion was based upon the California and U.S.
Supreme Court cases establishing the standards for competent
representation in capital cases, as well as the American Bar
Association standards regarding the duty of defense counsel,
that were in existence prior to 1982.

Margolin likewise testified that any reasonably competent
attorney representing a capital defendant in California in 1982
would have known that investigating both the positive and
negative aspects of a defendant’s mental state was essential.
Such a lawyer would likewise have known that he had a duty
to obtain information about the defendant’s childhood, per-
sonality, history of medical and mental health problems, and
to gather all school and medical records. When put on notice
 BELMONTES v. AYERS 6763
that the defendant might be a drug user, such a lawyer would
also have known that he had a duty to investigate the extent
of the defendant’s drug use and its effect on his behavior.

With respect to whether Schick’s mitigation investigation
had been performed in a constitutionally adequate manner,
Larsen testified that, in his view, Schick had “not act[ed] as
a reasonably competent attorney” in conducting his penalty-
phase investigation because he failed to investigate potential
mitigating evidence related to various mitigating factors set
forth in California’s death penalty statute, most notably evi-
dence related to Belmontes’s mental state. Specifically, Lar-
sen noted that there was information in the pre-trial report
prepared by psychiatrist Dr. Cavanaugh, the reports prepared
by Schick’s investigators, and Belmontes’s CYA file that
would have led a reasonably competent attorney to conduct
further investigation with respect to Belmontes’s background
and mental state.

Margolin likewise testified that, in his view, Schick did not
act in a competent manner in preparing for the penalty phase
of Belmontes’s trial. Specifically, he testified that Schick per-
formed incompetently in

fail[ing] to investigate leads which should have been
obvious to him.

Where he did attempt to present evidence, he pre-
sented it in a way which did not link it to anything
that would have been meaningful to the jury. He did
not have a coherent notion of why he [was] present-
ing what he [presented]. . . .

[H]e did not prepare the witnesses for the testi-
mony which he was eliciting, and I think that he . . .
infected the whole [penalty] proceeding . . . with
incompetency.
6764 BELMONTES v. AYERS
1. Schick’s Mitigation Investigation and Penalty-Phase
Preparations

The evidence at the habeas hearing revealed that a month
or two before trial, Schick had an investigator, Jim Ber-
wanger, contact several potential penalty-phase witnesses,
including a few of Belmontes’s friends and family members,
the Haros, and a few CYA staff members. After Berwanger
met with these potential witnesses, he prepared three brief
reports. Schick obtained Belmontes’s CYA file and met once
with Assistant Chaplain Don Miller. Berwanger’s reports and
Belmontes’s CYA file constitute the sum total of the reports
that were prepared and the documents that were gathered in
preparation for the penalty phase. Based on this investigation,
Schick decided that his goals with respect to the penalty phase
would be to (1) humanize Belmontes, (2) show that he would
not be a difficult prisoner and could form good relationships
with people, (3) provide the jury with information about his
background, and (4) raise lingering doubt about whether Bel-
montes was the actual killer.

Although Schick hired a psychiatrist, Dr. Cavanaugh, to
evaluate Belmontes’s mental state for purposes of the guilt
phase, he did not ask Cavanaugh to comment on any issues
relevant to the penalty phase, and did not consult any psychol-
ogists or psychiatrists with respect to any possible mental
defect, impairment, or condition that might be relevant to sen-
tencing as opposed to guilt. Specifically, he did not ask any
expert to evaluate the effect on Belmontes of the mitigating
evidence regarding his troubled childhood or his mental con-
dition. Schick repeatedly testified that he had no strategic rea-
son for failing to consult with Dr. Cavanaugh or any other
psychiatrist or psychologist about the import of such mitigat-
ing evidence or its relationship to Belmontes’s subsequent
behavior. Indeed, even when the State’s attorney asked Schick
questions designed to encourage him to state that he had a tac-
tical reason for this failure, Schick testified that his decision
not to conduct such an investigation was not motivated by
 BELMONTES v. AYERS 6765
fear of opening the door to damaging rebuttal evidence or any
other rationale. Schick gave the following account of his men-
tal processes regarding his failure to conduct an investigation
or to present such evidence:

I can’t remember going through a conscious pro-
cess and saying, “Should I develop [mental state mit-
igation evidence]?” And, “Therefore for the such-
and-such tactical reason I’m not going to do it.” It
just wasn’t something I was focused on. . . . I can’t
recall going through the process of saying to myself,
“Should I put on a psychiatrist at this stage?”

And I can’t tell you as I sit here today that there
was some tactical decision. . . .

I can’t recall going through any processes like
that. We had interviewed and focused our penalty
investigation on personal background witnesses that
were called and made reference to, and that’s where
I put my emphasis in the penalty presentation.

What I’m trying to say is that I don’t think I cog-
nitively went through and rejected it for any reason.

In addition to failing to consult a psychologist or psychia-
trist, Schick failed to pursue a host of leads, many of which
would have led to the discovery of additional mitigating evi-
dence and would have humanized Belmontes.

Although Schick was aware, through Belmontes’s CYA file
and other sources, that Belmontes had suffered from rheu-
matic fever and other illnesses as an adolescent, and knew
that these illnesses had been markedly debilitating and that
Belmontes had been repeatedly hospitalized as a result,
Schick never requested or obtained Belmontes’s medical or
hospital records.
6766 BELMONTES v. AYERS
Schick also knew that Belmontes had a history of serious
drug abuse, yet he did not investigate whether mitigating evi-
dence related to Belmontes’s drug use should be presented at
the penalty phase.

Belmontes’s CYA file also put Schick on notice that Bel-
montes had dropped out of school in the tenth grade and sug-
gested that he had experienced some difficulties there, yet
Schick did not obtain any of Belmontes’s school records, nor
did he contact any of Belmontes’s former teachers.

Yet another document in Belmontes’s CYA file noted the
fact that Belmontes had been involved “in the Cadets, scouts
and little league and also involved in school organized groups
and athletics.” Schick did not investigate Belmontes’s
involvement in any of these activities, nor did he obtain or
present to the jury any information about any other aspects of
Belmontes’s childhood that might further humanize him or
show that he possessed a number of positive attributes.

Belmontes’s CYA file also made clear that Dr. Alayne
Yates had performed psychological testing on Belmontes dur-
ing his time in the Youth Authority, the results of which were
easily obtainable. Another document in the file suggested that
Belmontes might be suffering from depression. Despite his
awareness of the psychological testing and the possibility that
Belmontes suffered from depression, Schick did not obtain a
copy of the results of the CYA psychological testing, did not
discuss Dr. Yates’s evaluation of Belmontes with her or with
any other psychiatrist or psychologist, and, as noted above,
did not seek an independent evaluation of Belmontes’s mental
health or personality traits for purposes of the penalty phase.
As Schick testified, he simply did not think about exploring
these matters in connection with his penalty phase defense.

With respect to Belmontes’s temperament and adjustment
to the CYA, the file contained numerous references to the fact
that Belmontes possessed positive qualities. In one report, for
 BELMONTES v. AYERS 6767
example, a CYA staff member described Belmontes as some-
one who “relates to all ethnic groups,” is non-delinquent, and
is passive rather than aggressive, exploitive, or assaultive. In
another, a CYA staff person noted that, even after being pres-
sured by other Chicano wards to retaliate against a ward who
had stolen his personal belongings, Belmontes refused to
engage in violence and instead asked CYA officials to trans-
fer him to another facility where he would not face such pres-
sures. Notwithstanding these leads, Schick did not seek to
obtain any additional information about the incidents of posi-
tive conduct described above, nor did he discuss with any
psychologist or psychiatrist or other expert Belmontes’s pros-
pects for positive institutional adjustment.

In addition to failing to investigate numerous leads, Schick
did little to prepare the witnesses he called to testify. With
respect to what had been done in order to prepare Belmontes
to make a statement to the jury at the close of the penalty
phase, for example, Schick testified that he and Belmontes
“probably talked about it a little bit. . . . I’m sure he talked a
little bit about what he was going to say, and I may have
offered advice to him.” If he did offer Belmontes advice, it
was not very good advice. In Belmontes’s penalty phase testi-
mony, he second-guessed the jury’s verdict, he showed little
remorse, he could not articulate any concrete way in which he
would contribute to society if he were sentenced to life in
prison, and he did not explain any of the mitigating evidence
or offer the jury any reasons why they should spare his life.
All in all, the testimony makes plain that Schick failed to ade-
quately and effectively prepare Belmontes for this crucial por-
tion of the trial.

2. Additional Mitigating Evidence That Should Have Been
Presented to the Jury

Belmontes’s habeas counsel’s investigation revealed that
there was a large quantity of mitigating evidence related to
Belmontes’s background and mental state that was never
6768 BELMONTES v. AYERS
uncovered or presented to the jury on account of Schick’s fail-
ure to investigate, to follow up on various leads, and to have
a psychologist or psychiatrist evaluate Belmontes for pur-
poses of the penalty phase.

With respect to Belmontes’s childhood and adolescence,
habeas counsel’s investigation revealed that, in addition to
growing up in a poverty-stricken family in which his father,
a profound alcoholic, beat his mother severely and regularly,
Belmontes dealt with a host of other traumas. When he was
five years old, for example, his 10-month-old sister died of a
brain tumor. After her death, Belmontes exhibited symptoms
of depression and repeatedly visited the cemetery where she
had been buried. In addition to dealing with his father’s alco-
holism, Belmontes also suffered as a result of his maternal
grandmother’s alcoholism and prescription drug addiction,
which, in combination with her manipulative and controlling
behavior, caused constant strife within both his immediate
and extended family.

In spite of the adversity he experienced, Belmontes was a
kind, responsible and likeable child with a very pleasant
demeanor. He was a loving and protective older brother to his
two younger siblings, and was kind and respectful toward his
maternal grandparents notwithstanding the fact that they dis-
approved of him on account of his mixed racial background.
He participated in Little League, the Navy Cadets, team
sports, and had a paper route. In his early years, he kept up
in school, made friends easily, and got along with his teach-
ers.

At age 14, however, Belmontes was beset by rheumatic
fever, a condition for which he was repeatedly hospitalized.
The disease was significantly debilitating and required him to
stop attending school and to terminate his involvement in
sports and other social activities. As a result, he was isolated
from his peers and unable to pursue the means through which
he had formerly escaped his traumatic home life. He was also
 BELMONTES v. AYERS 6769
repeatedly told that, as a result of this condition, he would
likely not live past 21 years of age.4 He became depressed,
withdrawn, and lost some of the positive personality traits that
seemed to be developing during his early years.

Shortly thereafter, his mother and stepfather divorced. As
a result, the family was forced to move into a cheap motel in
which Belmontes and four family members lived in “a really
small, one-room shack.” During this time, their lives were dis-
rupted and unstable. His mother’s behavior became erratic.
She engaged in casual sexual relations with a number of men,
and frequently brought the men back to the motel room in
which the family lived.

By the time he was a teen, Belmontes had started using
drugs on a regular basis. Around the time of McConnell’s
murder, he was regularly using marijuana, heroin, LSD, and
PCP.5
4
The dissent argues that Belmontes’s illness was not severe. Dis. Op. at
6829. Regardless of whether or not the disease was actually life-
threatening, Belmontes’s doctors and family behaved as though it were.
The social isolation and physical limitations that they imposed on Bel-
montes, whether or not they were necessary, caused him to suffer signifi-
cant negative psychological effects. Additionally, Belmontes’s belief that
he would die young had a profound psychological effect on him, regard-
less of whether it was medically accurate. The dissent quotes Dr. Yates’s
testimony that although Belmontes’s mother expected Belmontes to die
young, Belmontes never believed that he would. Dis. Op. at 6836. How-
ever, according to Barbara Murillo, Belmontes’s girlfriend and the mother
of his children, Belmontes did believe that he would die by the age of 21,
causing him to take risks that he would not have taken if he believed that
he had a future. Murillo even testified that when she yelled at Belmontes,
he would reply, “You won’t have to put up with me because I won’t be
around long.”
5
The dissent’s claim that Barbara Murillo testified that Belmontes did
not do drugs because it was bad for his illness is puzzling. Dis. Op at 6836
n.20. According to her declaration, when they first started dating, Bel-
montes did not do drugs or alcohol when they went out. Murillo also stated
that Belmontes’s mother did not approve of his drug use because she
believed it was bad for his illness. Moreover, Murillo’s declaration con-
tains multiple references to Belmontes’s drug use, including his use of her-
oin.
6770 BELMONTES v. AYERS
In addition to discovering the evidence described above,
habeas counsel’s investigation made plain that Schick should
have utilized the testimony of a psychologist or psychiatrist to
explain to the jury effectively the impact on his conduct and
on his mental health of the multitude of traumas Belmontes
experienced as a child and adolescent. Specifically, such an
expert could have explained to the jury the psychological
impact on Belmontes of his father’s severe alcoholism; of wit-
nessing severe domestic violence between his parents; of his
family’s poverty; of observing his mother’s profligate sexual
activity; of being severely ill during a critical stage in his
social development and his removal from the normal experi-
ences of teenage life, including social interaction with his
peers; of his symptoms of depression and the repeated predic-
tions that he would die before he reached adulthood; and
finally, of his history of substance abuse. Such an expert also
could have explained the extent to which these problems
caused or contributed to Belmontes’s general behavior and to
his involvement in McConnell’s murder.

The deposition testimony of Dr. James Missett, which Bel-
montes submitted to the district court, reveals the extent to
which such an expert could have explained the significance of
the difficulties that Belmontes experienced, in addition to
explaining the significance of the positive aspects of his early
development. Specifically, Dr. Missett testified that, prior to
the onset of rheumatic fever, Belmontes was functioning in an
exemplary manner vis-a-vis children who faced similar priva-
tion and trauma during their formative years, a fact that sug-
gests Belmontes possesses positive and conforming core
personality traits. However, the combination of the traumas he
experienced early on in life and his struggle with rheumatic
fever caused him to “los[e] ground in comparison with his
peers [both] academically [and] socially” and “intensified
[his] sense of himself as defective, something from which he
never recovered.” According to Dr. Missett, this in turn led to
Belmontes’s substance abuse problems and his eventual
involvement in criminal activity. With respect to the evidence
 BELMONTES v. AYERS 6771
regarding Belmontes’s background that was offered at the
penalty phase, Dr. Missett stated that

the critical thing to me . . . was that there was no ref-
erence whatsoever in the penalty phase testimony to
the linkage that exists between these various fac-
tors[,] . . . to the way in which the behavior at one
point in time could be related to the experience that
Mr. Belmontes had earlier in life, or to the way that
the various biological, social, and environmental,
educational, and other factors interrelated in Mr.
Belmontes’[s] life and could be focused as of the
time either of the killing of Ms. McConnell or at the
time of his trial and sentencing.

In other words, conspicuously missing from the penalty phase
of Belmontes’s trial was the testimony of an expert who could
make connections between the various themes in the mitiga-
tion case and explain to the jury how they could have contrib-
uted to Belmontes’s involvement in criminal activity.

With respect to Belmontes’s experience as a ward at the
CYA, habeas counsel uncovered and presented to the district
court considerable additional evidence that could have been
presented to the jury. As noted above, there were many refer-
ences to Belmontes’s positive conduct in the CYA contained
in his file, including his refusal to engage in gang violence.
Other documents in the file stated that Belmontes relates well
to others, is passive, follows directions, and likes working
with young people. Dr. Yates could have testified that she
diagnosed him as a conformist, not a manipulator. Although
there were also negative aspects to Belmontes’s time in the
CYA that were noted in the file—namely that Belmontes
struggled to adjust when transferred from one institution to
another, and that he had, at one point, been involved in the
formation of a Chicano clique—the file revealed that his con-
duct was, on the whole, quite positive.
6772 BELMONTES v. AYERS
On an entirely separate point, Schick could have obtained
evidence from Dr. Yates regarding Belmontes’s prospects for
positive institutional adjustment. Similarly, he could have
obtained evidence in that regard from an expert witness such
as Gerald Enomoto, the former Director of the California
Department of Corrections and current United States Marshal
for the Eastern District of California. Enomoto could have tes-
tified that Belmontes adjusted well to the structured environ-
ment of the CYA and was likely to be able to conform his
conduct to societal norms if confined in a state prison.
Although the State focused on several negative reports in Bel-
montes’s CYA file, Enomoto told the district court that the
reports in the file showed a clear trend of improvement, with
trouble at the beginning but very positive conduct once Bel-
montes had the opportunity to acclimate to the facility. Eno-
moto found the fact that Belmontes had refused to engage in
gang violence to be extremely significant and very positive.6

* * *

The parties filed cross motions for summary judgment. In
2000, after several years of inaction, the district judge with-
drew his referral of the matter from the magistrate judge,
heard oral argument on the ineffective assistance of counsel
claim and subsequently ruled that counsel had been deficient
but that Belmontes did not suffer prejudice as a result. The
district judge’s decision was based on the written evidence
submitted by the parties, in accordance with the magistrate
judge’s previous ruling denying Belmontes’s request for an
evidentiary hearing with live witnesses. In so ruling, the court
noted that “[t]he record here shows that trial counsel pursued
no investigation whatsoever into Belmontes’ mental state for
the penalty phase. Schick acknowledged that after consulting
Dr. Cavanaugh on competency, insanity, and diminished
capacity, he had no further contact with Dr. Cavanaugh, or
6
Whether the evidence regarding institutional adjustment should have
been adduced is a matter we discuss separately. See section II.B.2.c.
 BELMONTES v. AYERS 6773
with any other psychiatrist in relation to the penalty phase.”
On that basis, the court held that “[c]ounsel’s failure to inves-
tigate mental state evidence for presentation at the penalty
phase, even where such evidence is unhelpful at the guilt
phase, is not reasonable under Ninth Circuit precedent.”

With respect to prejudice, however, the district court held
that “Schick introduced testimony as to most of the factual
matters” that Belmontes argues should have been introduced,
and that Belmontes “provides no reason to believe that the
jury needed professional help, beyond defense counsel’s argu-
ment, to understand evidence of petitioner’s difficult child-
hood or prospects for institutional adjustment.”7 (emphasis
added). The court then referred Belmontes’s six remaining
claims, which had not yet been briefed, to the magistrate
judge. In January of 2001, the magistrate judge recommended
denying relief with respect to the outstanding claims, and in
May 2001, the district court adopted the magistrate’s findings
and recommendations, denied the petition, and entered judg-
ment against Belmontes.

Belmontes appealed. The subsequent history of this case is
set forth above. We must now resolve Belmontes’s ineffective
assistance of counsel claim, and a few related claims that we
have not previously resolved.

II. DISCUSSION

A. Standard of Review

Belmontes’s federal habeas petition was filed prior to the
enactment of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), and thus, pre-AEDPA standards
7
As noted above contrary to the district court’s statement, defense coun-
sel, in his closing argument made no mention of the pertinent evidence
and did not attempt to explain the relevance of such evidence to Bel-
montes’s personality and future conduct.
6774 BELMONTES v. AYERS
apply to his claims. Douglas v. Woodford, 316 F.3d 1079,
1085 (9th Cir. 2003). This court reviews a district court’s
decision to deny habeas relief de novo. Raley v. Ylst, 470 F.3d
792, 799 (9th Cir. 2006). “Under pre-AEDPA law, we con-
sider a claim alleging ineffective assistance of counsel as a
mixed question of law and fact that we review de novo.” Sum-
merlin v. Schriro, 427 F.3d 623, 628 (9th Cir. 2005) (en banc)
(citing Rios v. Rocha, 299 F.3d 796, 799 n.4 (9th Cir. 2002)).
“We review for clear error, however, the district court’s find-
ings of fact.” Frierson v. Woodford, 463 F.3d 982, 988 (9th
Cir. 2006). Finally, “[b]ecause this is a pre-AEDPA case, we
do not review the state court’s legal conclusions to determine
whether they are ‘objectively unreasonable;’ rather, we ‘sim-
ply resolve the legal issue on the merits, under the ordinary
rules.’ ” Summerlin, 427 F.3d at 628 (quoting Belmontes II,
414 F.3d at 1101, rev’d on other grounds, Ayers v. Belmontes,
___ U.S. ___, 127 S.Ct. 469).

B. Penalty Phase Ineffective Assistance of Counsel

1. Procedural Default

[1] The State argues that Belmontes’s ineffective assistance
of counsel claim is procedurally defaulted because Belmontes
“never presented or developed the factual bases of . . . [this]
claim[ ] to the state courts” and because the habeas petition in
which he raised this claim before the California courts was
untimely. These arguments fail for several reasons. First, Bel-
montes did present the factual basis for his federal claim to
the California courts. In rejecting this argument, the district
court correctly observed that the State overlooks critical pas-
sages from Belmontes’s filings before the California courts.
Specifically, the district court noted that

[i]n support of the merits of his ineffective assistance
of counsel claim, [Belmontes’s] verified reply [filed
with the California Supreme Court] states that “Trial
counsel acknowledges that he limited his mental
 BELMONTES v. AYERS 6775
state investigation to Dr. Cavanaugh’s interview, did
not conduct any comprehensive background investi-
gation regarding petitioner’s physical and mental
conditions during his upbringing, and did not follow
up the unresolved issues emanating from Dr. Cava-
naugh’s examination with psychological testing or
any other means.” Petitioner was unable to further
describe this claim in state court because the Califor-
nia Supreme Court denied his requests for funds to
conduct follow-up investigations and examinations.

Thus, petitioner’s state court claim referred to evi-
dence and potential evidence that now provides the
basis for his federal court claim.

[2] Second, because the California Supreme Court consid-
ered the merits of Belmontes’s claims, rejecting them “on the
merits as well as on procedural grounds,” we may reach the
merits as well. In Harris v. Reed, 489 U.S. 255 (1989), the
Supreme Court held that

procedural default precludes federal habeas review
. . . only if the last state court rendering a judgment
in the case rests its judgment on the procedural
default. . . . [P]rocedural default does not bar consid-
eration of a federal claim on either direct or habeas
review unless the last state court rendering a judg-
ment in the case “ ‘clearly and expressly’ ” states
that its judgment rests on a state procedural bar.

Id. at 262-63. Thus, where, as here, the state court did not
“clearly and expressly” rely solely upon procedural default in
rejecting a petitioner’s claim, this court may address the mer-
its of that claim.

Finally, even if the California Supreme Court had clearly
relied upon a rule of procedural default in rejecting Bel-
montes’s ineffective assistance of counsel claim—namely
6776 BELMONTES v. AYERS
California’s rule regarding untimely habeas petitions—we
would nonetheless reach the merits of that claim. We did not
recognize California’s procedural default rules regarding
untimeliness as independent and adequate state grounds for
rejecting a petitioner’s habeas claim until 1993, if not later,
see Karis v. Calderon, 283 F.3d 1117, 1132 n.8 (9th Cir.
2002); Morales v. Calderon, 85 F.3d 1387, 1393 (9th Cir.
1996), well after the California Supreme Court rejected Bel-
montes’s claim. Accordingly, we reject the State’s procedural
default argument and proceed to the merits of Belmontes’s
ineffective assistance of counsel claim.

2. Ineffective Assistance8

“The Sixth Amendment right to counsel in a criminal trial
includes ‘the right to the effective assistance of counsel.’ ”
Summerlin, 427 F.3d at 629 (quoting McMann v. Richardson,
397 U.S. 759, 771 n.14 (1970)). “This right extends to ‘all
critical stages of the criminal process,’ including capital sen-
tencing.” Id. (citations omitted).
8
Belmontes argues that his due process rights were violated when the
magistrate judge denied his motion for an evidentiary hearing on this
claim. We reject this argument for two reasons. First, Belmontes did not
timely object to the denial of his motion for an evidentiary hearing with
oral testimony. Indeed, he waited more than four years after the magistrate
judge’s ruling to raise such an objection with the district judge and did so
only after the judge had rejected his claim on the merits on the basis of
a fully developed record. Second, and more important, under 28 U.S.C.
§ 2246, “[o]n application for a writ of habeas corpus, evidence may be
taken orally or by deposition, or, in the discretion of the judge, by affida-
vit.” Although Belmontes was not afforded the opportunity to submit his
evidence in support of his ineffective assistance of counsel claim through
oral testimony, he was able to expand the record, see Rules Governing
§ 2254 Cases, Rule 7, and submit all of that evidence through deposition
testimony and other documentary evidence. Resolving the claim on the
basis of such evidence was, under the circumstances of this case, not an
abuse of discretion. Belmontes had a fair opportunity to develop the fac-
tual record in support of his claim before the district court. Thus, his con-
stitutional rights were not violated by the magistrate judge’s denial of his
motion for an evidentiary hearing based on oral testimony.
 BELMONTES v. AYERS 6777
In order to prevail on a claim of ineffective assistance of
counsel, a petitioner must show that his trial counsel’s perfor-
mance “fell below an objective standard of reasonableness”
and that “there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland v. Washington, 466 U.S. 668,
687-88, 694 (1984).

a. Deficient Performance9

Under Strickland, counsel’s competence is presumed. Thus,
Belmontes must rebut this presumption by demonstrating that
Schick’s performance was unreasonable under prevailing pro-
fessional norms and was not the product of sound trial strat-
egy. See id. at 688-89. Judicial scrutiny of counsel’s
performance is highly deferential, and thus we must evaluate
Schick’s conduct from his perspective at the time it occurred,
without the benefit of hindsight. Id. at 689. “[S]trategic
choices made after thorough investigation of [the relevant]
law and facts relevant to plausible options are virtually
unchallengeable.” Id. at 690. However,

strategic choices made after less than complete
investigation are reasonable precisely to the extent
that reasonable professional judgments support the
limitations on investigation. In other words, counsel
has a duty to make reasonable investigations or to
make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness
case, a particular decision not to investigate must be
9
The district court held that Schick’s performance was deficient and the
dissent does not dispute this holding. Instead, our colleague argues that
Belmontes was not prejudiced by Schick’s performance. His dissent notes
that courts need not determine whether counsel’s performance was defi-
cient before deciding whether it prejudiced the defendant. Dis. Op. at
6819. We agree and because all of the dissent’s arguments pertain to the
prejudice section of the ineffective assistance of counsel analysis, we will
address them in that section of the opinion.
6778 BELMONTES v. AYERS
directly assessed for reasonableness in all the cir-
cumstances . . . .

Id. at 690-91; see also Wiggins v. Smith, 539 U.S. 510, 521
(2003) (quoting Strickland, 466 U.S. at 690-91). Similarly, a
decision not to present a particular defense or not to offer par-
ticular mitigating evidence is unreasonable unless counsel has
explored the issue sufficiently to discover the facts that might
be relevant to his making an informed decision. Wiggins, 539
U.S. at 522-23; Stankewitz v. Woodford, 365 F.3d 706, 719
(9th Cir. 2004).

Although the Supreme Court has “declined to articulate
specific guidelines for appropriate attorney conduct and
instead ha[s] emphasized that ‘the proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms,’ ” Wiggins, 539 U.S. at 521 (quoting Str-
ickland, 466 U.S. at 688), “general principles have emerged
regarding the duties of criminal defense attorneys that inform
our view as to the ‘objective standard of reasonableness’ by
which we assess attorney performance, particularly with
respect to the duty to investigate,” Summerlin, 427 F.3d at
629.

[3] Specifically, we have held that “ ‘[t]o perform effec-
tively . . . counsel must conduct sufficient investigation and
engage in sufficient preparation to be able to ‘present[ ] and
explain[ ] the significance of all the available [mitigating] evi-
dence.’ ” Allen v. Woodford, 395 F.3d 979, 1000 (9th Cir.
2005) (citing Mayfield v. Woodford, 270 F.3d 915, 927 (9th
Cir. 2001) (en banc)); see also Summerlin, 427 F.3d at 630.
Indeed, “ ‘it is imperative that all relevant mitigating informa-
tion be unearthed for consideration at the capital sentencing
phase.’ ” Wallace v. Stewart, 184 F.3d 1112, 1117 (9th Cir.
1999) (quoting Caro, 165 F.3d 1223, 1227 (9th Cir. 1999)).

[4] Accordingly, attorneys representing defendants in capi-
tal sentencing proceedings have “an ‘obligation to conduct a
 BELMONTES v. AYERS 6779
thorough investigation of [the defendant’s] background.’ ”
Mayfield, 270 F.3d at 927. They also have a “ ‘duty to investi-
gate and present mitigating evidence of mental impairment’
. . . [,] [which] includes examination of mental health
records.” Summerlin, 427 F.3d at 630 (quoting Bean v. Calde-
ron, 163 F.3d 1073, 1080 (9th Cir. 1998) and citing Deutscher
v. Whitley, 884 F.2d 1152, 1161 (9th Cir. 1989)); see also
Caro v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002). Fur-
thermore, “counsel has an affirmative duty to provide mental
health experts with information needed to develop an accurate
profile of the defendant’s mental health.” Caro v. Woodford,
280 F.3d at 1254. “The defendant’s history of drug and alco-
hol abuse should also be investigated.” Summerlin, 427 F.3d
at 630 (citing Jennings v. Woodford, 290 F.3d 1006, 1016-17
(9th Cir. 2002)).

[5] Moreover, “when ‘tantalizing indications in the record’
suggest that certain mitigating evidence may be available,
those leads must be pursued.” Lambright v. Schriro, 490 F.3d
1103, 1117 (9th Cir. 2007) (quoting Stankewitz, 365 F.3d at
719-20); see also Stankewitz, 365 F.3d at 754-55 (finding
ineffective assistance where counsel failed to thoroughly
investigate the defendant’s childhood, history of drug abuse,
and mental health problems notwithstanding the fact that he
was on notice that such an investigation might yield mitigat-
ing evidence); Summerlin, 427 F.3d at 632 (finding ineffec-
tive assistance in a case in which counsel failed to obtain
readily available evidence concerning possible mental state
mitigation where his client’s prior attorney told him there
were indications that the defendant was mentally ill); May-
field, 270 F.3d at 928 (finding ineffective assistance where
counsel did not consult the appropriate medical experts or col-
lect relevant records after “his investigator’s limited efforts
revealed evidence of diabetes and substance abuse,” and
failed to explain to the jury the relevance of the evidence that
was presented).

In Douglas, for example, we held that petitioner’s trial
counsel had been ineffective because he failed to adequately
6780 BELMONTES v. AYERS
investigate and present evidence related to Douglas’s trau-
matic childhood, positive attributes, and mental health prob-
lems, and failed to adequately prepare several lay witnesses
for their testimony at the penalty phase of Douglas’s capital
trial. 316 F.3d at 1088-89. Douglas was convicted of sexually
assaulting, torturing, and brutally murdering two teenage
girls, and the State sought the death penalty. Id. at 1084. At
the penalty phase of his trial, Douglas’s counsel presented the
testimony of Douglas’s wife, his son, a friend, and a neighbor.
Id. at 1084. Two of these witnesses

testified that Douglas had an aversion to the sight of
blood and several testified as to his nonviolent
nature, in an apparent attempt to focus on “lingering
doubt” of whether [a cooperating witness’s] story
was completely true. . . . [Douglas’s] family mem-
bers testified in very general terms that Douglas had
been orphaned and had a difficult childhood, running
away from home at fifteen to join the Marines. They
also indicated that Douglas was very poor growing
up. . . .

Id. at 1087. Evidence presented to the district court at the evi-
dentiary hearing on Douglas’s ineffective assistance of coun-
sel claim demonstrated that, although trial counsel was “on
notice that Douglas had a particularly difficult childhood, . . .
[he made] no attempt to contact persons who might have had
more detailed information about Douglas’s past.” Id. at 1088.
Even though counsel “knew that Douglas had spent a great
deal of time locked in a closet [as a child], a factor which con-
tributed to his severe claustrophobia, [counsel] did not elicit
any testimony regarding this fact from Douglas’s family.” Id.
Moreover, although it was “easy to ascertain that Douglas’s
line of work exposed him to toxic solvents, . . . [counsel] did
not investigate the effects of this exposure or inform the men-
tal health experts who [he hired to evaluate] Douglas of this
fact.” Id. at 1088-89. Finally, counsel “spent virtually no time
preparing [his] witnesses for their testimony at the penalty
 BELMONTES v. AYERS 6781
phase.” Id. at 1087. His failure to do so “meant that the testi-
mony that was introduced was less than compelling.” Id. at
1088.

Assessing counsel’s mitigation investigation and prepara-
tion for the penalty phase under the standards set forth above,
this court concluded that

although [counsel] did perform some investigation,
it was constitutionally inadequate. The information
[counsel] did obtain about Douglas’s troubled child-
hood revealed the need to dig deeper, and he did not
adequately prepare the witnesses in order to present
the material he did gather to the jury in a sufficiently
detailed and sympathetic manner. We therefore con-
clude that [counsel’s] investigation and presentation
of social history at the penalty phase was deficient.

Id. at 1089.

The facts of the case at hand and those in Douglas are quite
similar.10 Here, as in Douglas, Schick failed to consult with
experts and adequately investigate obvious leads in the record
that would have led him to mitigating evidence about Bel-
montes’s mental state, humanizing evidence about his trau-
matic childhood, and positive character evidence. Also as in
Douglas, Schick failed to prepare lay witnesses to effectively
present character evidence about Belmontes that would
inform the jury of his positive qualities. Finally, as in
Douglas, Schick failed to present expert witnesses who could
testify about Belmontes’s mental state and explain the signifi-
cance of the mitigating evidence to the jury. Each of these
failures were unreasonable under professional norms and
independently constitute deficient performance.
10
The dissent attempts to distinguish the two cases, but its analysis is
limited to the issue of prejudice. Dis. Op. at 6838-39. In this section, how-
ever, we consider only the issue of deficient performance and the dissent
does not dispute our analysis. We discuss prejudice below.
6782 BELMONTES v. AYERS
First, Schick failed to consult experts and otherwise ade-
quately investigate mitigating evidence for the penalty phase,
notwithstanding the fact that he knew such evidence poten-
tially existed. Although Schick hired a mental health expert,
Dr. Cavanaugh, to evaluate Belmontes for purposes of the
guilt phase, he did not, as the district court found, ask Dr.
Cavanaugh to comment on any issues relevant to the penalty
phase, and did not consult any other psychologist or psychia-
trist with respect to the relevance of, or need for further devel-
opment of the mitigating evidence regarding Belmontes’s
troubled childhood or mental state. Obtaining competency
evaluations from mental health experts for guilt phase pur-
poses does not discharge counsel’s duty to consult such
experts for the penalty phase because the considerations
involved are very different in the two phases. See Summerlin,
427 F.3d at 642. This failure to consult a psychologist or psy-
chiatrist about the significance of the mitigating evidence
would have been unreasonable in any capital case, but was
particularly unreasonable here, given the information Schick
had at the time he made this decision.

First, Dr. Cavanaugh’s report indicated a “lack of early
markers” of anti-social personality disorder. Had Schick both-
ered to ask what this meant, he would have realized that this
finding would strongly support the argument that Belmontes’s
adverse experiences in his early teens changed his life and his
personality from that of a normal, well-behaved young man
to that of a disturbed, depressed, and drug addicted nineteen
year old, an argument that Schick failed to make, but one that,
if properly developed, might well have humanized Belmontes
and elicited the sympathy of members of the jury. Second,
Cavanaugh’s report mentioned that Belmontes had an exten-
sive history of substance abuse, and that his use of drugs and
alcohol negatively affected his impulse control. A reasonable
attorney presented with this information would have con-
sulted with Cavanaugh or another potential expert regarding
whether such a finding, though unhelpful at the guilt phase,
might be useful at the penalty phase either to explain how
 BELMONTES v. AYERS 6783
Belmontes’s harmful youthful experiences may have led to
his turning to substance abuse to help him cope with the
trauma in his life or to describe how those experiences when
coupled with the related substance abuse may have contrib-
uted to Belmontes’s criminal conduct.11

In addition to failing to consult a psychologist or psychia-
trist about the availability of mitigating evidence after reading
Cavanaugh’s report, Schick failed to pursue a host of other
obvious leads, many of which would have caused him to dis-
cover significant additional mitigating evidence. Although
Schick knew that Belmontes had participated in Cadets, Little
League, and team sports, and that he had been a well-behaved
and likeable child, Schick did not investigate whether evi-
dence could be presented regarding the positive attributes that
Belmontes possessed, evidence that might have humanized
him in the eyes of the jurors and given them an affirmative
reason to spare his life.

Schick was also aware that Belmontes had suffered from
rheumatic fever and other illnesses as an adolescent, and
knew that these illnesses had been markedly debilitating and
that he had been hospitalized many times, yet he neither
sought nor obtained Belmontes’s medical or hospital records,
nor did he uncover the easily obtainable evidence that Bel-
11
Contrary to the dissent’s suggestion, we do not hold that Schick could
have or should have presented an expert who would testify that substance
abuse led Belmontes to lose control of his impulses and murder McCon-
nell. Rather, we hold that Schick’s failure to investigate Belmontes’s men-
tal state and history of substance abuse constituted deficient performance.
The dissent confuses the failure to investigate evidence with the prejudice
that would follow from failing to introduce it. Here, we simply point out
Schick’s failure to fully investigate Belmontes’s mitigating circumstances.
We discuss below in the prejudice section the effect of Schick’s failure to
conduct the proper investigation and obtain the necessary witnesses. In
that section, we consider what a reasonably competent attorney would
have done with the witnesses and evidence that Schick should have uncov-
ered.
6784 BELMONTES v. AYERS
montes was told repeatedly that he should expect to die before
he reached the age of 21.

Schick knew that Belmontes had dropped out of school in
the tenth grade and that he struggled academically, yet Schick
did not obtain any of Belmontes’s school records or contact
any of Bemontes’s former teachers, and did no other investi-
gation of this issue. He did not, for example, seek to discover
whether Belmontes’s conduct in this regard was a result of
any of the traumatic events he had experienced. Further,
although Schick knew that Belmontes was abusing marijuana,
PCP, heroin, amphetamines, and LSD around the time of the
offense, he did not investigate whether mitigating evidence
related to Belmontes’s drug use existed or should be intro-
duced.

Schick also knew that psychological testing had been per-
formed on Belmontes by Dr. Yates during his time at the
CYA, the results of which were easily obtainable had Schick
requested these records. Despite this knowledge, Schick did
not obtain a copy of results of the psychological testing, did
not discuss Dr. Yates’s evaluation of Belmontes with her or
with any other psychiatrist or psychologist, and did not seek
an independent evaluation of Belmontes’s mental health or
personality traits for purposes of the penalty phase.

Alternatively, Schick was aware that Belmontes’s CYA file
contained numerous references to the those qualities that
made him a good candidate for positive institutional adjust-
ment. Notwithstanding the presence of multiple such leads,
Schick did not attempt to obtain any additional information
about the incidents of positive conduct described in the CYA
file, nor did he discuss with any psychologist or psychiatrist
or other potential expert Belmontes’s prospects for positive
institutional adjustment.

Schick’s failure to pursue these obvious leads, many of
which would have led to the discovery of compelling mitigat-
 BELMONTES v. AYERS 6785
ing evidence, was clearly unreasonable and fell below stan-
dards of professional competence extant in 1982. See
Lambright, 490 F.3d at 1119-20; Stankewitz, 365 F.3d at 719-
20; Douglas, 319 F.3d at 1098; Bean, 163 F.3d at 1080. This
is especially true given that Schick conceded that his failure
was not a result of any tactical or strategic decision on his part
and admitted that he simply had not thought of conducting the
most rudimentary of investigations regarding Belmontes’s
mental state.

In addition to failing to investigate adequately, Schick did
not effectively prepare the lay witnesses he called to testify.12
We do not mean to suggest, as the dissent implies, that Schick
should have coached the witnesses. However, he had a duty
to discuss with them the purpose of their testimony, reveal the
type of questions he planned to ask them on the stand, and
instruct them as to what kind of information the jury would
find helpful and what kind of testimony would not be rele-
vant. It is evident from the testimony given at the penalty
phase that Schick did not do this. Several of the witnesses
who knew Belmontes best and clearly could have provided
compelling mitigating evidence did not testify to a single pos-
itive quality he possessed. Instead, witness after witness told
the same jury that had just found Belmontes guilty of first
degree murder beyond a reasonable doubt, that Belmontes
should not receive the death penalty because he was innocent.13
12
Although Schick claimed it was his practice to interview witnesses
before their actual testimony, he could not specifically recall interviewing
the penalty phase witnesses in this case. There were only three entries in
Schick’s time log related to penalty phase witness preparation and those
time intervals were also spent completing other tasks, including trial prep-
aration, that likely took up the bulk of the minimal number of hours he
logged.
13
The dissent makes the untenable claim that the witnesses’ belief that
Belmontes was innocent had a mitigating effect on the jury. All of the wit-
nesses who testified that they believed he was innocent admitted, of their
own volition or at the prodding of the prosecution, that they were not
familiar with the facts of the case. (The only exception to this was Bel-
6786 BELMONTES v. AYERS
Most glaringly, Belmontes’s own mother did not offer a sin-
gle reason not to execute her son, although she obviously
could have done so had she been properly advised regarding
the purpose and nature of the inquiry.14 Belmontes was simi-
larly ill-prepared to testify and to address the jury at the close
of the penalty phase. As a result, he could not name a single
positive, productive thing he would do if given a life sentence,
asked the jury not to rely on the few unconnected pieces of
mitigating evidence that Schick somehow managed to adduce,15
and spent a majority of his closing statement telling the jury
that the prosecutor did not know whether he had murdered
McConnell because “he wasn’t there” and “he doesn’t know
me.”

Schick’s presentation of lay witness testimony at the pen-
alty phase failed to fulfill its purpose of humanizing Bel-
montes or providing the jury with any reason to spare his life.
Competent counsel would have met with the lay witnesses,
discussed their testimony, and elicited the relevant informa-
tion from them on the stand. Schick’s failure to prepare the
lay witnesses and effectively present their testimony consti-
tutes deficient performance. See Douglas, 316 F.3d at 1089.

montes’s mother, but it is not significant or surprising that a mother would
think her own son incapable of killing another human being). It is far more
likely that the jury would interpret the witnesses’ insistence on Bel-
montes’s innocence as evidence of their ignorance, or perhaps loyalty,
than, as the dissenting opinion suggests, as an indication that “Belmontes
was normally not a violent person.” Dis. Op. at 6841.
14
The dissent notes that Belmontes’s mother “told the jury that Bel-
montes had a close relationship with his sister.” Dis. Op. at 6840. This
trivial observation was the only positive attribute that Schick managed to
extract from the defendant’s own mother in the course of her otherwise
damaging testimony. Likewise, the rest of the positive testimony from
other witnesses that the dissent cites, Dis. Op. at 6840-41, was cursory and
overshadowed by the witnesses’ repeated and unhelpful insistence that
Belmontes was innocent.
15
In his address to the jury, Belmontes insisted that he did not want to
use his traumatic childhood experiences as a crutch.
 BELMONTES v. AYERS 6787
Additionally, Schick failed to call an expert witness who
could have synthesized the various elements of the informa-
tion about Belmontes and explained the factors that led to
Belmontes’s criminal activity. Such an expert could have
explained to the jury that Belmontes was a well-adjusted, like-
able child who showed great promise despite his family’s
instability and poverty. The death of his sister at an early age
and subsequent struggle with rheumatic fever, plus the social
isolation and depression that accompanied it, however, had
profound psychological and social effects on him. An expert
could have explained to the jury how such experiences could
have led an individual to abuse drugs and alcohol and become
involved in criminal activity.

The absence of such an expert was particularly damaging
given Schick’s failure to explain the significance of the miti-
gating evidence in his closing statement at the end of the pen-
alty phase. He did not, as noted earlier, even mention any of
the evidence that might have humanized Belmontes. He did
not refer to any of the traumatic events that helped shape Bel-
montes’s personality and were responsible for transforming
him from a peaceful, likeable child to the disturbed person
who murdered Steacy McConnell, and did not attempt to
explain the connection between the two. Nor of course did he
explain the relevance of the evidence relating to Belmontes’s
youth and childhood, including his serious illness, to the
jury’s task of determining whether Belmontes was deserving
of a life sentence rather than execution. Although Schick
stated in his deposition that one of his four themes at the pen-
alty phase was Belmontes’s capacity to adjust well to prison,
he failed to argue that such was the import of the testimony
of any of the witnesses he had called to testify. Cf. Mayfield,
270 F.3d at 928 (finding ineffective assistance in part based
on counsel’s “fail[ure] to explain to the jury the significance
of the mitigating evidence presented”). Instead he said only
that Belmontes was ill-equipped to make it outside of prison.
Perhaps as detrimental as these glaring omissions were the
arguments that Schick did make to the jury. Indeed, the main
6788 BELMONTES v. AYERS
thrust of his closing was the perverse argument that, if the
jurors really despised his client, they should sentence him to
life in prison rather than death because death would be the
more “lenient” punishment.

[6] In sum, the record makes plain that Schick’s presenta-
tion of evidence at the penalty phase did not take place after
“ ‘all relevant mitigation information [was] unearthed for con-
sideration,’ ” Douglas, 316 F.3d at 1088 (quoting Caro, 165
F.3d at 1227). Instead, Schick ignored “tantalizing indications
in the record . . . that ‘would [have] le[ ]d a reasonable attor-
ney to investigate further.’ ” Stankewitz, 365 F.3d at 720
(quoting Wiggins, 539 U.S. at 527). As a result, substantial
evidence in mitigation that might have humanized Belmontes
and affected the outcome of the penalty phase proceeding was
not provided to the jury. Compounding his failure to investi-
gate, Schick then failed to adequately prepare his witnesses to
testify with the result that their testimony was unhelpful and
possibly even damaging. Furthermore, he failed to present an
expert to explain the relevance of the available mitigating evi-
dence to the jury. Remarkably, he also failed to explain to the
jury in his closing argument the relevance of the small quan-
tum of mitigating evidence he did introduce, and failed to
make any of the critical humanizing arguments that might
influence a jury in the case of a nineteen-year-old youth.
Instead, he relied principally on the unsympathetic and not
very credible argument that a life sentence is harsher punish-
ment than execution. Cf. Douglas, 316 F.3d at 1088-89; May-
field, 270 F.3d at 928. Such representation falls far below that
which a reasonably competent attorney would provide in a
capital case. Accordingly, we affirm the district court’s hold-
ing that Schick’s representation at the penalty phase of Bel-
montes’s trial was deficient.
BELMONTES v. AYERS 6789
Volume 2 of 2
6790 BELMONTES v. AYERS
b. Prejudice

i. Legal framework

To establish prejudice, Belmontes must demonstrate that
there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. A reasonable
probability is one “ ‘sufficient to undermine confidence in the
outcome,’ ” but is “less than the preponderance more-likely-
than-not standard.” Summerlin, 427 F.3d at 640, 643 (quoting
and citing Strickland, 466 U.S. at 693-94). Accordingly, “[i]n
establishing prejudice under Strickland, it is not necessary for
the habeas petitioner to demonstrate that the newly presented
mitigation evidence would necessarily overcome the aggra-
vating circumstances.” Correll v. Ryan, 465 F.3d 1006, 1018
(9th Cir. 2006) (citing Williams v. Taylor, 529 U.S. 362, 398
(2000)); see also Rompilla v. Beard, 545 U.S. 374, 393 (2005)
(“[A]lthough we suppose it is possible that [the sentencer]
could have heard it all and still have decided on the death pen-
alty, that is not the test.”). Instead, in evaluating prejudice, we
must “compare the evidence that actually was presented to the
jury with the evidence that might have been presented had
counsel acted differently,” Bonin v. Calderon, 59 F.3d 815,
834 (9th Cir. 1995), and evaluate whether the difference
between what was presented and what could have been pre-
sented is sufficient to “undermine confidence in the outcome”
of the proceeding. Strickland, 466 U.S. at 694. Prejudice is
established if “there is a reasonable probability that at least
one juror would have struck a different balance” between life
and death. Wiggins, 539 U.S. at 537.

[7] Applying these standards, we have held that counsel’s
failure to investigate and present available evidence regarding
a capital defendant’s troubled childhood, physical illness,
mental state, and drug use is sufficient to undermine confi-
dence in the result of a sentencing proceeding, and thereby to
render counsel’s performance prejudicial. See, e.g., Douglas,
 BELMONTES v. AYERS 6791
316 F.3d at 1089; Mayfield, 270 F.3d at 932; Ainsworth v.
Woodford, 268 F.3d 868, 878 (9th Cir. 2001); Smith v. Stew-
art, 140 F.3d 1263, 1271 (9th Cir. 1998). We have likewise
found prejudice based on counsel’s failure to adequately pre-
pare and present the mitigating evidence that he introduces,
and to adequately explain to the jury the relevance of that mit-
igating evidence. See Lambright, 490 F.3d at 1122-23; Doug-
las, 316 F.3d at 1088-89; Mayfield, 270 F.3d at 928.

ii. Lay witnesses

[8] As a result of Schick’s deficient performance, the jury
never heard much of the available lay witness testimony about
significant mitigating circumstances of Belmontes’s life
including his difficult childhood, serious physical illness, drug
abuse, and positive attributes. Specifically, in addition to pre-
senting evidence demonstrating that Belmontes was born to a
teenage mother and grew up in a poverty-stricken family in
which his father, an alcoholic, beat his mother severely and
regularly, Schick could have introduced substantial additional
mitigating evidence. He could have established through the
testimony of lay witnesses that Belmontes had to deal with a
host of other traumas and adversity during his childhood and
adolescence. Such mitigating evidence serves to humanize the
defendant and is critical in the determination of whether a jury
should spare the defendant’s life. See Penry v. Lynaugh, 492
U.S. 302, 319 (1989) (holding that the purpose of mitigating
evidence is to ensure that the jury “treat[s] the defendant as
a ‘uniquely individual human bein[g]’ and has made a reliable
determination that death is the appropriate sentence” (quoting
Woodson v. North Carolina, 428 U.S. 280, 304 (1976)) over-
ruled on other grounds by Atkins v. Virginia, 536 U.S. 304
(2002)); Mak v. Blodgett, 970 F.2d 614, 619 (9th Cir. 1992)
(“The sentencing hearing is defense counsel’s chance to show
the jury that the defendant, despite the crime, is worth saving
as a human being.”).
6792 BELMONTES v. AYERS
Schick failed to call witnesses to testify that when Bel-
montes was five years old, his 10-month-old sister died of a
brain tumor. After her death, Belmontes exhibited symptoms
of depression and would repeatedly visit the cemetery where
his sister had been buried. Belmontes also suffered as a result
of his maternal grandmother’s alcoholism and prescription
drug addiction, which, in combination with her manipulative
and controlling behavior, caused constant strife within both
his immediate and extended family. Schick could also have
introduced testimony about Belmontes’s positive attributes
and strong character as a child in the face of adversity; he was
a kind, responsible, and likeable child who got along well
with his siblings, was respectful towards his grandparents
despite their disapproval of his mixed racial background, par-
ticipated in community activities, kept up in school and got
along with his teachers before his illness, and made friends easi-
ly.16

Other humanizing evidence that lay witnesses could have
presented includes Belmontes’s debilitating struggle with
rheumatic fever that left him isolated from his peers and
depressed and his family’s period of wholly inadequate living
conditions—a single room in a cheap motel where his mother
16
The dissent suggests that such positive testimony about Belmontes’s
character as a child would not be forthcoming and points to old reports in
which police and probation officers made negative comments about Bel-
montes in his late teens after he became involved in criminal conduct. Dis.
Op. at 6836 n.21. We first note that those officials came into contact with
Belmontes long after the psychological and social effects of his illness and
family trauma manifested themselves. The positive character evidence to
which we refer is the testimony of those who knew Belmontes as a child
and could speak to his promising character in the face of poverty and fam-
ily violence. Second, it is unlikely that police and probation officers would
be the best source for positive reports about an individual who came to
their attention after committing a crime—no matter how minor. In short,
it makes little sense to contend that negative evidence of Belmontes’s
character found in police interviews and probation officer reports some-
how undermines testimony about Belmontes’s strong character as a child
long before he became involved with the criminal justice system.
 BELMONTES v. AYERS 6793
frequently had sex with various men.17 Additionally, Schick
could have presented testimony about how these tragic cir-
cumstances led him to engage in regular drug use beginning
when he was in his early teens. By the time of McConnell’s
murder—indeed earlier than then—he was regularly using
17
The dissent attempts to downplay the severity of Belmontes’s illness,
family trauma, and living conditions. In response to overwhelming evi-
dence of an unstable and unhappy family life, the dissent attempts to show
that there were “positive aspects of Belmontes’s family relationships.”
Dis. Op. at 6832. The only “positive aspect” of his family life that the dis-
sent can actually point to, however, is the account given by Belmontes’s
surviving sister, who did not testify at trial, of the Sundays that the Bel-
montes children would spend with their father after their parents’ separa-
tion. Id. Despite the dissent’s characterization of her memory of these days
as “positive,” her testimony is neutral at best. The relevant portion of her
declaration states: “My father drank a lot and had a very strong personal-
ity. I was about five years old when my parents separated. My father came
to pick us up on Sundays, and he took us for rides or to our paternal grand-
mother’s house. We spent the whole day together, but we never did much
because he never had any money.”
The dissent also downplays the effect of Belmontes’s illness by quoting
Belmontes’s sister’s declaration in which she states that she did not “no-
tice or understand emotional changes in him” due to rheumatic fever. Dis.
Op. at 6833. Conveniently absent from the dissent is Belmontes’s sister’s
explanation of why she did not “notice or understand” the changes in
Belmontes—she was very young when he became ill. Belmontes’s sister’s
childhood recollection of her brother’s behavior after his bout with rheu-
matic fever, which she qualified with a reference to her young age, hardly
undermines the rest of the strong evidence in the record that the illness had
a profound effect on Belmontes.
Finally, the dissent claims that Belmontes did not stay at the motel very
often in an attempt to minimize the evidence about Belmontes’s wretched
living conditions. Dis. Op. at 6833. If anything, this statement casts Bel-
montes’s living situation in a more sympathetic light. The only place that
Belmontes could call home during his teenage years was one motel room
shared by five people so he was forced to sacrifice a stable home life and
find shelter in other places. Additionally, the record reflects that one rea-
son that Belmontes did not stay at the motel was that his own mother used
to lock him out of the room, probably while she was engaged in sexual
encounters with strangers.
6794 BELMONTES v. AYERS
marijuana, heroin, LSD, PCP and other drugs, to help cope
with the unpleasant circumstances of his life.18

Of all the available mitigating evidence described above,
the jury heard only that Belmontes’s father was a violent alco-
holic, that the family was poor, that Belmontes became a
born-again Christian while incarcerated, and that at the same
time he went from last man to number two man in the Pine
Grove fire brigade. The jury never heard testimony about the
traumas that Belmontes faced as a youth; it never heard that
he possessed many positive attributes, and it never heard that
he had struggled with substance abuse since his early teens.
In Mayfield, this court held that if the jury had heard the testi-
mony “of available friends and family members relating addi-
tional humanizing stories,” about the defendant’s good
character and the difficulties he faced as a youth, which
changed his personality and led him to substance abuse and
18
We do not suggest that Belmontes was under the influence of drugs
during the commission of the murder. Nor do we suggest, as the dissent
claims, that Schick should have presented expert mental state evidence
that Belmontes was less culpable for the McConnell killing because he
was under the influence of drugs when he killed her. Our point is only that
evidence of Belmontes’s drug use should have been presented to humanize
him by showing how the tragic circumstances he experienced while grow-
ing up adversely affected him. Just as Belmontes’s criminal activity was
a manifestation of the trauma he suffered during his difficult childhood,
so too was his drug use. For example, Murillo, Belmontes’s ex-girlfriend,
could have testified that Belmontes engaged in risky behavior such as drug
use out of hopelessness because he thought that he was going to die
young. The mitigating evidence need not have any connection whatsoever
to the crime in order to be relevant and humanizing. See Tennard v.
Dretke, 542 U.S. 274, 287-88 (2004); Smith v. Stewart, 140 F.3d 1263,
1271 (9th Cir. 1998). Although the district court held that if Belmontes
had attempted to present expert testimony that drugs influenced his behav-
ior at the time of the crime, the rebuttal evidence about Belmontes’s role
in the murder of another individual, Jerry Howard, would have been
admissible to prove that he was capable of committing murder when he
was sober, the district court did not hold that humanizing evidence about
Belmontes’s history of substance abuse before the crime would likewise
open the door to additional aggravating evidence.
 BELMONTES v. AYERS 6795
crime, “there is a reasonable probability that the omitted evi-
dence would have changed the conclusion.” 270 F.3d at 932
(quoting Strickland, 466 U.S. at 700) (internal quotation
marks omitted). Likewise, if the jury had considered the addi-
tional humanizing evidence that Schick could and should have
presented through lay witness testimony in this case, there is
a reasonable probability that the jury would have come to a
different conclusion about Belmontes’s sentence.

Accordingly, the district court’s conclusion that Belmontes
was not prejudiced by counsel’s performance because “Schick
introduced testimony as to most of the factual matters” that
Belmontes argues should have been presented is clearly erro-
neous; it is also inconsistent with our law. Indeed, as noted
above, the jury heard testimony as to only a few of the numer-
ous adverse experiences that Belmontes had suffered as a
youth, heard nothing about their effect on him, and heard
almost nothing about his positive attributes.

As we have often noted, the fact that a capital jury was
presented with a cursory or incomplete presentation of the
mitigating circumstances that should have been more thor-
oughly and fully presented does not obviate a finding of prej-
udice. See, e.g., Lambright, 490 F.3d at 1125-26 (finding
deficient performance and prejudice notwithstanding the fact
that some information about various mitigating factors was
before the sentencing court); Correll, 465 F.3d at 1015, n.5
(finding deficient performance and prejudice in spite of the
fact that “the bare facts of [petitioner]’s troubled past were . . .
presented to the court”); Stankewitz, 365 F.3d at 1090 (finding
deficient performance and prejudice when counsel presented
some mitigating evidence but “a more complete presentation,
including even a fraction of the details [defendant] now
alleges, could have made a difference”); Douglas, 316 F.3d at
1088 (finding deficient performance and prejudice where
counsel “introduce[d] some of [the petitioner’s] social history,
[but] did so in a cursory manner that was not particularly use-
ful or compelling”). To the contrary, only where counsel suf-
6796 BELMONTES v. AYERS
ficiently presents available mitigating evidence, or where he
has a reasonable strategic reason for not doing so, can we
have confidence in the outcome of a jury’s penalty delibera-
tions. Neither is the case here. If the jury had heard even a
portion of the available humanizing lay testimony, it is likely
that at least one juror would have chosen to spare Belmontes’s
life.

[9] In addition to being prejudiced by Schick’s failure to
present readily available and compelling mitigating evidence
through lay witness testimony, Belmontes was also prejudiced
by Schick’s failure to adequately prepare the witnesses who
offered the minimal evidence that he did introduce. As noted
above, Schick’s failure to prepare his lay witnesses resulted
in a conspicuous absence of testimony both about the difficul-
ties Belmontes encountered as a child and about his positive
qualities—even from witnesses who knew him best, including
his mother. Instead, the witnesses Schick produced insisted
that Belmontes was innocent to the same jury that had just
found him guilty of first degree murder beyond a reasonable
doubt. Similarly, because Belmontes was not adequately pre-
pared to address the jury, he could not name a single positive
or productive thing he would do in prison if given a life sen-
tence, and spent the majority of his closing statement telling
the jury that the prosecutor did not know whether he had mur-
dered McConnell because “he wasn’t there” and “he doesn’t
know me.” He also asked the jury to disregard the few miti-
gating pieces of evidence that Schick somehow managed to
introduce into evidence. At the habeas hearing, Mr. Larsen
and Mr. Margolin asserted that these sorts of blunders
severely undermined the force of the mitigating witnesses’
testimony, and may have even created a negative backlash
amongst the jurors. Specifically, they concluded that the fact
that several witnesses explicitly rejected the jury’s guilty ver-
dict may have antagonized it, and the fact that even Bel-
montes’s own family members could not speak to his
redeeming qualities may have led the jurors to believe that
there was nothing positive to say about him. Thus, Schick’s
 BELMONTES v. AYERS 6797
failure to adequately prepare Belmontes and the witnesses
appearing on his behalf resulted in testimony that was unhelp-
ful, and likely even harmful. This also undermines our confi-
dence in the outcome of the jury’s penalty deliberations.

Moreover, in the absence of expert testimony, it is espe-
cially important that counsel explain adequately to the jurors
the significance of the mitigating evidence in his closing argu-
ment. Indeed, this court has held that “[t]o perform effectively
in the penalty phase of a capital case, counsel must . . . engage
in sufficient preparation to be able to ‘present[ ] and
explain[ ] the significance of all the available mitigating evi-
dence.’ ” Allen, 395 F.3d at 1000 (citing Mayfield, 270 F.3d
at 927 (en banc)) (emphasis added). Schick did not explain
the mitigating evidence to the jury in his closing argument at
all. He did not even mention the relevant mitigating circum-
stances, let alone suggest any connection between the trau-
matic events that occurred in Belmontes’s childhood and his
later behavior. Without expert testimony to make that connec-
tion for the jurors, Schick had an even greater obligation to do
so himself. Defense counsel’s failure to give a thorough and
persuasive closing argument can prejudice the defendant,
especially when, as here, the closing argument is the only
opportunity for counsel to compensate for deficiencies in the
presentation of evidence. See Pizzuto v. Arave, 385 F.3d 1247,
1259-61 (9th Cir. 2004) (holding that counsel’s failure to
remind the jury of relevant evidence from the guilt phase in
his penalty phase closing arguments prejudiced the defen-
dant). Schick squandered his closing argument. Instead of
explaining why the jury should vote for a life sentence rather
than capital punishment, he argued that a life sentence consti-
tuted harsher punishment than the sentence of death. The dis-
trict court simply “misremembered” the facts or
misunderstood the law when it concluded that the jury did not
need professional help “beyond defense counsel’s argument”
to understand Belmontes’s mitigating evidence. There was no
such argument, notwithstanding counsel’s obligation to pre-
sent it.
6798 BELMONTES v. AYERS
[10] On the basis of Schick’s failure to prepare and present
available lay witness testimony humanizing Belmontes and
his failure to explain the significance of the little humanizing
evidence he actually presented to the jury, we conclude that
Belmontes was prejudiced by his counsel’s deficient perfor-
mance, that our confidence in the verdict is undermined and
that, accordingly, his death sentence must be set aside.

iii. Expert Witnesses

[11] In addition, although the failure here is not essential to
our conclusion, Belmontes argues and we agree that Schick
failed to provide the jury with expert testimony that would
have explained the significance of, and elaborated upon, both
the lay testimony that was presented and the lay testimony
that should have been presented. Specifically, in addition to
presenting the evidence described above, Schick should have
offered the testimony of a psychologist or psychiatrist in order
effectively to explain to the jury in day-to-day terms the prac-
tical impact on an individual of the kind of traumas that Bel-
montes experienced as a child and adolescent. Such an expert
could have explained to the jury the psychological impact on
a child of his father’s serious alcoholism, of witnessing severe
domestic violence between his parents, of his family’s pov-
erty, of his mother’s humiliating sexual performances, of
being severely ill during a critical stage in his social develop-
ment, of his depressive reactions to being told he would not
live past 21, and of his history of substance abuse. Such an
expert also could have explained the extent to which these
problems can cause or contribute to a change in individuals
that can lead to subsequent criminal conduct.

The deposition testimony of Dr. Missett, which Belmontes
submitted to the district court, reveals that expert testimony
likely would have provided an additional reason to conclude
that he received ineffective assistance of counsel. Dr. Missett
testified that, prior to the onset of rheumatic fever, Belmontes
was functioning well compared to children with similar histo-
 BELMONTES v. AYERS 6799
ries, a fact that suggests that Belmontes possesses positive and
conforming core personality traits. Dr. Missett further testi-
fied that, “had [Belmontes] been able to continue to capitalize
on [these] assets . . . the expectation is that would have had
a rather good prognosis for his life.” However, his rheumatic
fever and the resulting social isolation “intensified [his] sense
of himself as defective, something from which he never
recovered . . . after that.” According to Dr. Missett, this in
turn led to Belmontes’s depression, susceptibility to peer pres-
sure, substance abuse problems,19 and his eventual involve-
ment in criminal activity.

A lay juror is not trained to identify the specific psycholog-
ical and behavioral consequences of the traumas that Bel-
montes experienced. This is particularly true with respect to
the consequences of Belmontes’s bout with rheumatic fever
and his subsequent history of substance abuse. Accordingly,
expert testimony should have been presented with respect to
these issues. See Mayfield, 270 F.3d at 932 (finding prejudice
in part based on the fact that the jury did not have the oppor-
tunity to “consider[ ] the testimony of experts in endocrinol-
ogy and toxicology” who could have explained the impact of
the defendant’s struggle with diabetes and use of drugs);
Douglas, 316 F.3d at 1090 (finding prejudice in part based on
the fact that counsel’s argument that petitioner’s troubled past
19
The dissent agrees that evidence of Belmontes’s pattern of self-
medication through drug use following his illness and social isolation
would have elicited sympathy from the jury. Dis. Op. at 6830. The dissent
contends, however, that such testimony would open the door to rebuttal
evidence that Belmontes was actually a drug dealer. Id. However, the slim
evidence that the dissent references would not have undermined the jury’s
sympathy. According to the police report that the dissent cites, an infor-
mant approached the Ontario police and stated that he could get Bel-
montes to buy heroin for him. The police gave the informant $24 and
surveilled the transaction. The informant gave Belmontes the money and
Belmontes brought him to a residence where he knew that heroin could be
procured, purchased a small amount of heroin, and gave it to the infor-
mant. Although this transaction technically constituted a sale of drugs, it
hardly qualifies Belmontes as a drug dealer.
6800 BELMONTES v. AYERS
had “created a ‘demon’ within him lacked force without some
expert testimony to back it up.”); Caro, 280 F.3d at 1258
(finding prejudice in part based on the fact that “the jury was
not afforded the benefit of expert testimony explaining the
effects that Caro’s physiological defects would have on his
behavior”).

The jury never heard a credible expert like Dr. Missett tes-
tify about the impact on an individual of the kind of childhood
traumas that Belmontes suffered or explain that involvement
in criminal activity can sometimes be explained by the hard-
ships an individual experienced as a youth. Even if such testi-
mony would not have diminished Belmontes’s culpability as
a legal matter, it would have humanized him in the eyes of the
jurors and allowed them to view him as an individual deserv-
ing of sympathy and mercy. Thus, Belmontes was also preju-
diced as a result of Schick’s failure to present expert
testimony at the penalty phase, and such failure provides an
independent ground for setting aside the death penalty.20
20
The State does not assert on appeal that the type of expert testimony
discussed in this section would open the door to the aggravating evidence
of Belmontes’s prior alleged criminal conduct, specifically that Belmontes
committed an act of murder with regard to Jerry Howard. It argues only
that the expert testimony about Belmontes’s potential for institutional
adjustment could lead to the admission of such evidence. (We deal with
the separate issue of institutional adjustment in section II.B.2.c. infra.) The
dissent, unlike the State, argues, however, that evidence regarding How-
ard’s death would be admissible to test the basis for any expert opinion
regarding Belmontes, including testimony as to the effect of childhood
traumas upon future behaviors. Dis. Op. at 6823-24. We need not reach
that question, however, a) because the State does not raise it on appeal,
and b) because Schick’s failure to present mitigating evidence from lay
witnesses and to explain the relevance of such evidence to the jury pro-
vides a sufficient basis for reversal of his capital sentence. Even were we
to reach the question whether the calling of an expert regarding childhood
traumas and their effect would open the door to evidence regarding How-
ard, we would conclude that it would not. Obviously, the expert would
know about the instant murder, and thus understand the gravity of Bel-
montes’s criminal conduct. However, an expert’s opinion as to whether a
 BELMONTES v. AYERS 6801

set of circumstances during an individual’s period of emotional develop-
ment could lead to serious criminal conduct is in no way dependent on
whether the defendant committed one or two murders or even on whether
he committed any. The critical testimony from an expert is that as a matter
of psychological experience and knowledge, certain childhood traumas
can result in a person’s becoming likely to engage in subsequent criminal
conduct, not that they always do and not that they necessarily did in the
particular case before the jury. There would be no basis for suggesting that
such a professional opinion would be any different if the expert were
informed that Belmontes committed two murders rather than one.
Further, if the prosecutor had argued that he would be entitled to offer
into evidence his version of the Jerry Howard murder in connection with
the expert testimony that Schick intended to present, that argument would
most likely have been rejected by the court. Any decision to admit such
evidence would have been at the discretion of the trial judge, who had
found the Howard testimony generally inadmissible. Had there been any
doubt, Schick could have determined the answer in advance by means of
a motion in limine, and then decided whether or not to introduce the expert
testimony, which would not in any event have been essential to Bel-
montes’s defense had Schick presented sufficient lay testimony humaniz-
ing him.
The dissent also argues that a more effective mitigation presentation
would also have opened the door to evidence that Belmontes was involved
in a gang. The evidence of this alleged gang affiliation is slim at best. The
only relevant portion of the record that the dissent can cite is a CYA docu-
ment discussing an interview with detectives at the Ontario Police Depart-
ment in which they stated that there were “rumors” that Belmontes was in
the Black Angels gang. Also reported in that document but not mentioned
by the dissent, however, is Belmontes’s denial of any gang involvement
and his mother’s claim that Belmontes knew members of the Black Angels
gang because they lived in the area, but that he was not a member of the
gang. According to Belmontes’s childhood friend, Belmontes was part of
a “junior gang” loosely affiliated with the Black Angels, but this “gang’s”
activities did not amount to anything more than harmless pranks. As the
dissent acknowledges, Belmontes’s “gang affiliation” likely can be
explained by peer pressure combined with his sense of inferiority and
social isolation in his mostly white school, not by a criminal personality.
See Dis. Op. at 6831-32.
6802 BELMONTES v. AYERS
iv. Other relevant considerations

Other considerations also make plain that Belmontes was
prejudiced by Schick’s deficient performance. The jury was
required to weigh the aggravating evidence against the miti-
gating evidence and it could impose a sentence of death only
if the aggravating evidence outweighed the mitigating evi-
dence. The State conceded at oral argument that the evidence
in aggravation introduced at Belmontes’s trial was “scant.”21
This acknowledgment is consistent with our previous obser-
vation that the aggravating evidence presented by the prosecu-
tion was “minimal.” Belmontes II, 414 F.3d at 1106. The
district court also held that “the aggravating evidence actually
presented to the jury did not make this a clear-cut case for
application of the death penalty.” With such minimal aggra-
vating evidence, the presentation of more substantial mitigat-
ing evidence clearly could have tipped the balance and
changed the result of the jury’s penalty deliberations.

The dissent repeatedly quotes the California Supreme
Court’s characterization of the aggravating evidence in this
case as “overwhelming.”22 Dis. Op. at 6819, 6826, 6833.
21
The dissent accuses us of taking this word out of context and claims
that the State used the word “scant” to describe the aggravating factors
“other than the circumstances of the crime.” Dis. Op. at 6834. Our learned
colleague is not correct. In the thirty-fourth minute of oral argument, the
State declared that “we know here that the jury did in fact find death to
be an appropriate punishment based on the scant aggravation that they
were given here.” It did not distinguish between the circumstances of the
crime and the other aggravating evidence. Indeed, it went on to contrast
the totality of the “scant” aggravating evidence that the jury actually heard
with the aggravating evidence they would have heard if the evidence
about Belmontes’s involvement in the Jerry Howard murder had been
admitted. Of course the State argued that “the death penalty was appropri-
ate,” as the dissent claims, Dis. Op. at 6834, but that does not change the
fact that it characterized the aggravating evidence, including the circum-
stances of the crime, as “scant.”
22
The dissent’s quotation of the California Supreme Court’s decision is
slightly misleading. The court described the circumstances of the crime as
 BELMONTES v. AYERS 6803
Under the State’s own argument, however, the only conceiv-
ably significant aggravating factor is the circumstances of the
murder itself. While all murders are heinous to some degree,
Belmontes’s crime was not such as ordinarily leads to the
imposition of capital punishment, at least where there are sig-
nificant mitigating circumstances. The crime here did not
involve multiple victims, torture, sexual sadism, or needless
suffering on the part of the victim. When compared with the
murders in many of the cases in which we have held that the
defendant was prejudiced by his counsel’s failure to ade-
quately investigate and present mitigating evidence at the pen-
alty phase, the circumstances of the crime in this case can
hardly be characterized as “simply overwhelming.” See, e.g.,
Correll, 465 F.3d at 1015 (finding counsel’s failure to suffi-
ciently investigate and present mitigating evidence prejudi-
cial, even though the crime involved three murders and one
attempted murder); Ainsworth, 268 F.3d at 870-71, 878 (find-
ing such conduct by counsel prejudicial even though the
defendant shot a woman in the hip, raped her as she bled from
the gunshot wound, and confined her in her car, at times in the
trunk, for 24 hours until she bled to death); Wallace, 184 F.3d
at 1113, 1118 (9th Cir. 1999) (finding such conduct by coun-
sel could be prejudicial even though the defendant stalked and
killed two people and shot without killing two others the same
night); Bean, 163 F.3d at 1075-76, 1081, (finding such con-
duct by counsel prejudicial even though the defendant beat to
death one middle-aged and one elderly woman in order to rob

“overwhelming” when it was analyzing whether Belmontes was preju-
diced by the erroneous admission of aggravating evidence that on one
occasion he slapped his side to indicate that he was carrying a gun. People
v. Belmontes, 755 P.2d 310, 348 (Cal. 1988). Commission of a murder is
certainly “overwhelming” when compared to the incident described above,
but that does not mean that the circumstances of the murder that Bel-
montes committed were “overwhelming” when compared to the circum-
stances of other capital murders, if only those in which the imposition of
the death penalty has been reversed by this court for similar deficient per-
formance on the part of counsel. See text following note.
6804 BELMONTES v. AYERS
them); Hendricks v. Calderon, 70 F.3d 1032, 1035, 1045 (9th
Cir. 1995) (finding such conduct by counsel prejudicial even
though defendant was convicted of shooting two men who
paid him to have sex with them and, as the jury heard in
rebuttal testimony during the penalty phase, was never
charged with murdering three others).23 Thus, given the cir-
cumstances of Belmontes’s crime and the almost total absence
of any other evidence in aggravation, counsel’s failure to pro-
duce the significant additional mitigating evidence we have
set forth above was without question prejudicial.

The prejudicial nature of Schick’s deficient representation
becomes clear beyond any doubt when one considers the fact
that, even when presented with an incomplete, inadequate,
and uncompelling presentation of the potential mitigating evi-
dence, at least some members of the jury, perhaps a majority,
had serious doubts during the deliberations as to the correct
result. Specifically, the jury took a substantial amount of time
to deliberate, and asked questions in the midst of its delibera-
tions that suggested that some jurors were leaning toward a
verdict of life without the possibility of parole.24 Indeed, the
23
The circumstances of Belmontes’s crime certainly do not come close
to the heinous murders in Campbell v. Kincheloe, 829 F.2d 1453 (9th Cir.
1987), which the dissent claims is analogous to the present case and on
which it principally relies. Campbell forced a woman to engage in acts of
sodomy by holding a knife to the throat of her one-year-old daughter.
Campbell, 829 F.2d at 1456. He was convicted of first degree assault and
sodomy after his victim and her neighbor testified against him. Id. Years
later, when he was on work release, he returned to the victim’s home and
beat her, strangled her and slashed her throat and the throats of her daugh-
ter and the neighbor who testified against him. Id. All three bled to death.
Id. In contrast to the vengeful, premeditated, and sexually violent crimes
involving multiple victims at issue in Campbell, Belmontes’s crime
involved only one victim who was killed because she surprised Belmontes
and his confederates during a robbery.
24
The jury’s deliberations also call into question the dissent’s character-
ization of the aggravating evidence as “overwhelming.” If the jury had
found the evidence to be so “overwhelming,” surely the paltry mitigation
case that Schick presented would not have stood in the way of a swift
deliberation and imposition of a death sentence.
 BELMONTES v. AYERS 6805
jury’s question, “Can the majority rule on life imprisonment?”
suggests that at that point in the deliberation, a number of
jurors were leaning toward life imprisonment. (emphasis
added). Had counsel better prepared the witnesses to testify,
had the jury been presented with the additional mitigating evi-
dence that should have been introduced, and had the signifi-
cance of that evidence been explained to the jury, there is a
reasonable probability that at least some jurors, if not all,
would have been persuaded that life without the possibility of
parole, rather than death, was the appropriate penalty in this
case. Cf. Mayfield, 270 F.3d at 932 (finding prejudice in part
based on the fact that (1) the jury deliberated for approxi-
mately the same amount of time as Belmontes’s jury and (2)
it questioned the judge regarding unanimity in a similar way
to Belmontes’s jury). Given the facts regarding deficient per-
formance and the district court’s findings in that regard, the
nature of the jury’s question alone is sufficient to undermine
our confidence in the outcome.

On the whole, this case is remarkably similar to Mayfield.
As in Mayfield, there are two independent bases on which we
can find ineffective counsel at the penalty phase—the failure
to present sufficient mitigating evidence through lay testi-
mony and the failure to provide adequate expert testimony.
The evidence that counsel failed to introduce in Mayfield is
very similar to that which Belmontes’s counsel failed to intro-
duce. Additionally, the nature of the jury deliberations in
Mayfield, as in this case, undermine our confidence in the
penalty phase verdict.

In Mayfield, the only witness that counsel presented at the
penalty phase was Dr. Craig Rath. Id. at 928. Although we
noted that the mitigation evidence that was presented was
“substantial,” we held that there was additional evidence that
could and should have been offered to humanize Mayfield.
Mayfield struggled with diabetes as a child and when he was
seventeen his grandmother died, his mother moved the family,
and his diabetes-related hospitalizations increased. Id. at 931.
6806 BELMONTES v. AYERS
These “stressors” led him to abuse drugs and alcohol and
associate with the wrong crowd. According to the testimony
of his family and friends at the evidentiary hearing, Mayfield
was once a supportive, generous, cooperative person, but his
personality changed as a result of his substance abuse and
medical problems. Id. at 931-32. We held that if the jury
could have heard this humanizing testimony, there is a reason-
able probability that it would have come to a different conclu-
sion with respect to Mayfield’s sentence. Id. at 932. Like
Mayfield, Belmontes was a sweet, agreeable child, but his
medical problems, social isolation, and substance abuse
changed him and eventually led him into criminal activity.
Counsel’s failure to present lay witness testimony to this
effect prejudiced Belmontes just as it prejudiced Mayfield.

Another independent basis for our holding in Mayfield was
counsel’s failure to present expert testimony. At the evidenti-
ary hearing, an endocrinologist testified about the difficulties
that diabetics face monitoring and treating their illness as well
as the side effects that Mayfield suffered. Id. at 930. Addition-
ally, a psychiatrist testified about the psychological effects of
Mayfield’s difficult childhood and the increasing stress that
he faced that eventually led him to lose control of himself and
become involved in drugs and crime. Id. at 931. Finally, a
toxicologist testified about the effects of PCP—a drug that
Mayfield used regularly leading up to the crime. Id. We found
that if the jury had heard the testimony of these experts, it
might have decided to give Mayfield a life sentence rather
than the death penalty. Id. at 932. As in Mayfield, counsel in
this case could have presented expert testimony about the
effect of childhood traumas on an individual and the way that
those traumas can lead to subsequent substance abuse and
criminal behavior. As in Mayfield, Belmontes was prejudiced
by counsel’s failure to present such expert testimony.

Moreover, the nature of the jury deliberations in Mayfield
and in this case reveal the tenuousness of the verdicts. In
Mayfield, after deliberating for four hours, the jury sent a
 BELMONTES v. AYERS 6807
written question to the judge, which read, “Must all 12 jurors
agree for the sentence of life without parole?” Id. The judge
responded: “All jurors must agree if either verdict is reached.”
Id. The jury deliberated for an additional day before it reached
a verdict. Id. This is similar to the question that the jurors
posed to the judge in this case, although in the present case
the jurors asked “Can the majority rule on life imprison-
ment?” As in Mayfield, the jury’s question during delibera-
tions undermines our confidence in the verdict. Id.

Although the facts in Mayfield are very similar to those in
the present case, the case for a finding of prejudice in this
case is even more compelling. In Mayfield, we described the
aggravating evidence as “strong.” Here, it is, in our words
“minimal,” or as the State puts it, “scant.” In Mayfield, the
defendant committed premeditated double homicide, going to
the victim’s house for the sole purpose of confronting and
killing her and then killing a witness to the first murder as a
cover-up. Here, by contrast, Belmontes went to the victim’s
house with the intention of burglarizing her home in the belief
that no one was there rather than with the intent to kill.25 The
25
Indeed, the aggravating evidence in Mayfield was stronger than all of
the possible aggravating evidence that the State could have put on against
Belmontes, including the Jerry Howard murder. In Mayfield, there was
strong evidence that the murders were planned in advance, coolly carried
out, and motivated by vengeance. In the present case there was evidence
of advance planning of the robbery, but the murder happened unexpect-
edly after the victim surprised Belmontes and his confederates. Belmontes
had no advance motive to kill McConnell. Mayfield was convicted of kill-
ing two people. Belmontes was convicted of killing one person and
alleged to have killed a second in an unrelated incident. Mayfield commit-
ted his crime without confederates, whereas Belmontes’s culpability is
diminished by the presence and influence of his accomplices. Although we
hold that there was sufficient mitigating evidence that should have been
introduced that, standing alone, would warrant a finding of prejudice,
without the introduction of any evidence that could, under any theory,
plausible or implausible, serve to open the door to the introduction of the
Jerry Howard murder evidence, Mayfield would, like a number of other
cases cited supra in the text, compel a finding of prejudice even if the
Jerry Howard evidence were admitted.
6808 BELMONTES v. AYERS
other aggravating circumstances present in Mayfield—that the
defendant once carried and fired a gun at the home of one ex-
girlfriend, and that he had previously physically abused
another ex-girlfriend—are not significantly different than the
other aggravating circumstances present here. Additionally, in
Mayfield we found the mitigating evidence that counsel had
actually introduced to be “substantial.” Here, by contrast, the
mitigating evidence Schick presented at trial was insubstan-
tial. Accordingly, we conclude that Mayfield is controlling
and that under its reasoning, Belmontes is entitled to relief on
his ineffective assistance of counsel claim.

v. Summary

[12] Because the substantial mitigating evidence that coun-
sel failed to uncover and present to the jury would have been
highly beneficial to Belmontes, because counsel’s failure to
adequately prepare the witnesses who did testify rendered
their testimony of little value and sometimes counter-
productive, because counsel failed in his closing argument to
explain to the jury the pertinence of the minimal mitigating
evidence that was adduced and instead urged the jurors to
return a verdict of life in prison for the reason that it was a
harsher punishment than a death sentence, because the aggra-
vating evidence introduced at sentencing was “scant,” because
the circumstances of Belmontes’s crime (the only aggravating
factor the State even contends to be substantial) were far less
egregious than those in a number of cases in which we have
held that deficient performances by counsel prejudiced defen-
dants, because the evidence counsel failed to present would
have humanized Belmontes in the eyes of the jury, and
because the duration of the jury’s deliberations and the ques-
tions it asked the judge make plain that in the minds of at least
some of the jurors this was a close case in which their verdict
was uncertain during a portion of the deliberations, we con-
clude that Belmontes has established far more than is required
to “undermine[ ] . . . confidence in the outcome” of the pen-
alty phase verdict. See Strickland, 466 U.S. at 694. Accord-
 BELMONTES v. AYERS 6809
ingly, we hold that the district court erred in finding that
Belmontes was not prejudiced by counsel’s deficient perfor-
mance.

c. Additional Basis for Prejudice

Belmontes argues that there is an additional reason he was
prejudiced by Schick’s deficient performance: Schick’s fail-
ure to offer expert testimony with respect to Belmontes’s
prospects for institutional adjustment. Specifically, Belmontes
asserts that Schick could have introduced the testimony of Dr.
Yates, who would have testified that “in a situation of high
structure and reasonable support”—i.e. prison—Belmontes
“would be a low risk for violent behavior.” Belmontes also
asserts that Schick could have elicited similar, and perhaps
even more powerful testimony from a witness such as Gerald
Enomoto, the former Director of the California Department of
Corrections and current United States Marshal for the Eastern
District of California. Enomoto’s deposition states that he
would have testified that, despite the presence of some nega-
tive reports from CYA staff members, as a whole the reports
in Belmontes’s CYA file show a clear trend of improvement
and positive adjustment. Dr. Missett could also have testified
that, in his opinion, Belmontes “would have an extraordinarily
high likelihood of a good institutional and nonviolent adjust-
ment to a prison setting.”

It is to this point that the State’s brief is primarily
addressed. The State’s argument with respect to why the fail-
ure to offer this type of expert testimony was not prejudicial
is that, had Schick presented such evidence, he would have
opened the door for the prosecution to introduce evidence that
Belmontes actually committed a deliberate murder of Jerry
Howard rather than acted as an accessory after the fact to vol-
untary manslaughter. The State asserts that had the Howard
evidence been introduced, the aggravating factors would have
gone from “scant” to “overwhelming.” The State does not
contest the trial court’s ruling that the Howard evidence was
6810 BELMONTES v. AYERS
barred as a general matter (except for the bare fact of Bel-
montes’s conviction of “accessory after the fact” to voluntary
manslaughter), but argues only that it would be free to intro-
duce the full facts regarding his actual role in the crime in
connection with its cross-examination of any of the expert
witnesses who testified that he had a non-violent character. It
contends specifically that if any experts testified regarding
Belmontes’s favorable prospects for behaving in a non-violent
manner in a structured environment, the prosecution would
have had the right to attempt to show that Belmontes was
guilty of murdering Jerry Howard and was a more violent per-
son than the witnesses may have thought.26 Because we have
held above that a) Belmontes has demonstrated that he was
prejudiced by Schick’s deficient performance because of the
failure to call lay witnesses and that he is entitled to have his
sentence set aside on that basis alone and b) he is also entitled
to a reversal of his sentence because of his counsel’s failure
to call expert witnesses to testify as to the effect that the vari-
ous childhood traumas he experienced would have had upon
an otherwise normal child, we need not consider whether
expert testimony as to Belmontes’s ability to adjust to a struc-
tured environment would, in fact, have opened the door to the
Howard evidence. Nor need we consider what his counsel
might or might not have done with respect to the introduction
of such testimony had the trial judge indicated that such
would be his ruling.27
26
The dissent seems certain that the prosecution would have been able
to prove that Belmontes actually killed Howard. Dis. Op. at 6820. Addi-
tionally, after thoroughly describing the evidence that the prosecution
proffered, the dissent curiously declares that “Belmontes does not deny the
truth of this evidence.” Dis. Op. at 6820 Belmontes has had no occasion
to admit or deny the truth of this evidence because, despite the State’s
repeated attempts, the evidence was never held to be admissible.
27
We do not concede, as the dissent claims, that the additional evidence
of Belmontes’s violent past would have been admissible if Belmontes had
presented evidence of institutional adjustment. Dis. Op. at 6822. It is far
from clear that the trial judge would have issued any such ruling or that
if he had done so, Belmontes’s attorney would have proceeded to intro-
duce the additional evidence. See discussion at n.20 supra.
 BELMONTES v. AYERS 6811
We believe, however, that even if the Howard evidence
were admitted, Belmontes would still have been prejudiced by
Schick’s deficient representation at the penalty phase of his
trial. The aggravating evidence, even with the addition of evi-
dence that Belmontes murdered Howard, is not strong
enough, in light of the mitigating evidence that could have
been adduced, to rule out a sentence of life in prison. Many
of our cases in which capital petitioners claimed ineffective
assistance of counsel involved multiple murders and we nev-
ertheless found prejudice because of counsel’s failure to pre-
sent sufficient mitigating evidence. See, e.g., Correll, 465
F.3d at 1015 (involving three murders and one failed
attempted murder); Mayfield, 270 F.3d at 920-21, 932
(involving two murders and one attempted murder); Wallace,
184 F.3d at 1113, 1118 (involving two murders and two
attempted murders); Bean, 163 F.3d at 1075-76, 1081 (involv-
ing two murders); Hendricks, 70 F.3d at 1035, 1045 (9th Cir.
1995) (involving two murders and rebuttal evidence of three
additional murders). Had the jury heard the expert testimony
regarding the childhood traumas that turned Belmontes from
a good-natured child into a troubled, drug-using individual
engaged in criminal conduct, the humanizing evidence and
the explanation for his change in personality might well have
persuaded at least one juror to vote for life in prison whether
he had committed one murder or two. We have already held
that counsel’s deficient performance was prejudicial where
the jurors knew of only one murder: We cannot presume that
it would be rendered non-prejudicial simply because they
were informed of a second.

Our colleague devotes a substantial portion of his dissent to
the issue of the Howard murder evidence, as did the State on
appeal. However, because we base our decision on Schick’s
failure to effectively present humanizing lay witness testi-
mony, and it is undisputed that such testimony would not
open the door to the Howard murder evidence, the dissent’s
arguments are irrelevant to our holding. Moreover, the State
does not argue that the introduction of expert testimony
6812 BELMONTES v. AYERS
regarding the relationship between the traumas that Bel-
montes experienced as a child and his subsequent criminal
conduct would have opened the door to the introduction of
evidence regarding the Howard matter (and as we have
explained, it would not). Thus, the Howard evidence is irrele-
vant as well to our holding that the failure to introduce expert
testimony regarding the nature and effect of Belmontes’s
childhood traumas is separately and independently prejudi-
cial. Finally, we believe, although we need not so determine,
that even if counsel had decided to introduce evidence of Bel-
montes’s prospects for institutional adjustment in the face of
a court ruling that such evidence would allow the prosecution
to introduce the Howard murder evidence, the structured envi-
ronment evidence along with the other mitigating evidence
that counsel should have introduced, might well have per-
suaded at least one juror to vote in favor of life without
parole, notwithstanding the introduction of the Howard evi-
dence.

C. Evidence of Prior Criminal Misconduct

Belmontes argues that he “was deprived of due process by
the introduction of aggravating evidence at the penalty phase,
which suggested criminal activity, but which has never previ-
ously been adjudicated.” We have previously held that con-
sideration of unadjudicated criminal conduct for purposes of
sentencing does not violate defendant’s constitutional due
process rights. See United States v. Ibarra, 737 F.2d 825, 827
(9th Cir. 1984).

In his supplemental brief, Belmontes argues that he is now
entitled to relief under Cunningham v. California, ___ U.S.
___, 127 S.Ct. 856 (2007). This argument likewise fails. In
Cunningham, the Court held that a sentencing court may not
impose a sentence above the statutory maximum based on
facts that were not found by a jury or admitted by the defen-
dant. See id. at 860. Here, the maximum sentence authorized
by the jury’s guilt phase verdict was death.
 BELMONTES v. AYERS 6813
[13] We recognize that capital sentencing is unlike the
imposition of all other punishment, and the ordinary rules do
not always apply. Gregg v. Georgia, 428 U.S. 153, 188
(1976) (“[T]he penalty of death is different in kind from any
other punishment imposed under our system of criminal jus-
tice. Because of the uniqueness of the death penalty . . . it
[can]not be imposed under sentencing procedures that
create[ ] a substantial risk that it would be inflicted in an arbi-
trary and capricious manner.”). We need not decide, however,
whether the rule regarding the admission of unadjudicated
criminal conduct applies to capital cases because Belmontes
was not prejudiced by the State’s presentation of the compara-
tively minor occurrences at the penalty phase of his trial.
Accordingly, we affirm the district court’s denial of relief
with respect to this claim.

D. Failure to Instruct the Jury on the Consequences of
a Non-Unanimous Verdict

Several hours after the jury began its penalty deliberations,
it sent a note to the judge asking, “[w]hat happens if we can-
not reach a verdict?” and “[c]an the majority rule on life
imprisonment?” The court then reread to the jury the sentenc-
ing instructions it had previously given, which ended with the
following statement: “[I]n order to make a determination as to
the penalty, all 12 jurors must agree, if you can.” Thereafter,
the following exchange occurred:

JUROR HAILSTONE: If we can’t, Judge, what
happens?

THE COURT: I can’t tell you that.

JUROR WILSON: That is what we wanted to
know.

THE COURT: Okay. I know what will
happen, but I can’t tell you
what will happen.
6814 BELMONTES v. AYERS
[14] Belmontes claims that his due process rights and his
right to be free from cruel and unusual punishment were vio-
lated by the trial court’s refusal to instruct the jurors on the
consequences of a hung jury. Despite its intuitive appeal, this
argument fails in light of Jones v. United States, 527 U.S. 373
(1999), in which the Supreme Court held that “the Eighth
Amendment does not require that the jurors be instructed as
to the consequences of their failure to agree.” Id. at 381. The
Court’s rationale compels the conclusion that due process
likewise does not require the giving of such an instruction.
Accordingly, we hold that Belmontes’s constitutional rights
were not violated when the trial judge refused to instruct the
jury on the consequences of a failure to reach a unanimous
verdict with respect to the penalty. We therefore affirm the
district court’s denial of relief as to this claim.

E. The Trial Court’s Pre-Judgment of Belmontes’s
Motion to Reduce His Sentence

Under California law, when a jury returns a verdict of
death, the trial judge is required to re-weigh the aggravating
and mitigating evidence before imposing a judgment and sen-
tence. Cal. Penal Code § 190.4(e). Here, after the jury reached
its verdict with respect to penalty but prior to the hearing
mandated by § 190.4(e), the judge sent a letter to all of the
members of the jury thanking them for their service and tell-
ing them that their “decision is acceptable and shall be fol-
lowed.” Defense counsel objected to the letter on the basis
that it suggested that “the Court had made a decision [on the
§ 190.4(e) motion] prior to fully reviewing and hearing every-
thing that was going to be said.” The trial judge responded
that his statement in the letter to the jury was “not indicative
of the Court having made up its mind nor is it a statement that
would forbear any statements, evidence, testimony that would
be offered on behalf of Mr. Belmontes. I think the statement
was probably made for the therapeutic purpose more than a
legal purpose.” The California Supreme Court held that the
statement in the letter to the jury was “patently improper,” but
 BELMONTES v. AYERS 6815
concluded that the judge did thereafter re-weigh the evidence
and make an independent determination as to whether the
aggravating circumstances outweighed the mitigating circum-
stances as required under California law. Specifically, the
court held that

[c]onsidering the improper remark in the context of
the letter in which it was made, together with the
court’s credible explanation that it “was made for [a]
therapeutic purpose more than a legal purpose,” we
conclude defendant has not established that the trial
judge ultimately failed to make the “independent
determination” respecting the appropriateness of the
penalty verdict, as he was obliged to do under sec-
tion 190.4, subdivision (e).

As evidence, it cited the fact that the trial judge did not adopt
verbatim the prosecutor’s proposed findings of fact and con-
clusions of law.

The district court held that “the California Supreme Court’s
conclusion that the trial court did render the required impartial
judgment is entitled to deference as a factual finding,” pre-
sumably pursuant to the former version of 28 U.S.C.
§ 2254(d).

Belmontes argues that the California Supreme Court’s
determination that the trial judge did not prejudge the
§ 190.4(e) motion is not a factual finding entitled to defer-
ence, but rather a determination regarding a mixed question
of law and fact. We reject this argument. Whether or not the
judge had made up his mind prior to considering Belmontes’s
memorandum of points and authorities in support of his
§ 190.4(e) motion is not a mixed question, but is instead a
pure question of fact.

Belmontes also argues that the California Supreme Court’s
finding is not entitled to deference because the court “con-
6816 BELMONTES v. AYERS
ducted no hearing nor did it have a referee conduct any hear-
ing regarding the trial court’s conduct. Rather, the trial court
[sic] simply reviewed the statements made on the record by
the trial court after defense counsel complained about the let-
ter to jurors and reached a conclusion that even though the
trial court told jurors that their death sentence would be sus-
tained, the trial court did not really mean it.” (emphasis in
original).

[15] We agree with the California Supreme Court that the
trial judge’s assertion in the letter to the jury was exceedingly
improper. In addition, we are equally troubled by the judge’s
subsequent assertion that the statement in the letter did not in
fact reflect his true views—that it was intended simply as
juror therapy. A court’s representation to the jury should
always be truthful. Nevertheless, we hold that the district
court did not err in refusing to reverse the California Supreme
Court’s factual determination that, “[c]onsidering the
improper remark in the context of the letter in which it was
made, together with the court’s credible explanation that it
‘was made for [a] therapeutic purpose more than a legal pur-
pose,’ . . . [the] defendant has not established that the trial
judge ultimately failed to make the ‘independent determina-
tion’ respecting the appropriateness of the penalty verdict.”
Accordingly, we affirm the district court’s rejection of this
claim.

III. CONCLUSION

[16] We affirm the district court’s ruling that Belmontes
received deficient representation at the penalty phase of his
trial, but set aside its ruling that he suffered no prejudice as
a result. We hold that counsel’s failure to introduce adequate
lay witness testimony regarding Belmontes’s childhood expe-
riences and his failure to explain to the jury the consequences
of the minimal mitigating evidence he did introduce was prej-
udicial, especially in light of the scant aggravating evidence
and the uncertainty the jury indicated about the sentence it
 BELMONTES v. AYERS 6817
should impose. We also hold that counsel’s failure to intro-
duce expert witnesses to testify to the relationship of the type
of childhood traumas suffered by Belmontes to future crimi-
nal conduct, and thus to offer important mitigating expert tes-
timony was prejudicial and thus provides a separate and
independent basis for reversal, again especially in light of the
circumstances referred to above. Accordingly, we remand to
the district court with instructions to grant the petition for writ
of habeas corpus and to return the case to the San Joaquin
County Superior Court to reduce Belmontes’s sentence to life
without parole, unless the State pursues a new sentencing pro-
ceeding within a reasonable amount of time, as determined by
the district court.

REVERSED and REMANDED.

O’SCANNLAIN, Circuit Judge, dissenting:

[Fernando Belmontes] was convicted on extremely
strong evidence that he committed an intentional
murder of extraordinary brutality. He bludgeoned
McConnell to death with an iron dumbbell bar; the
force of the 15 to 20 some-odd blows leaving her
with gaping wounds and a cracked skull. Her defen-
sive wounds plainly evidenced a desperate struggle
for life at defendant’s hands. The murder occurred in
the course of a calculated plan to burglarize the vic-
tim’s home; to which defendant had gained entry on
false pretenses. After the murder, defendant and his
accomplices callously fenced the victim’s stereo
components for $100—purchasing beer with a por-
tion of the proceeds.

People v. Belmontes, 755 P.2d 310, 354 (Cal. 1988).
6818 BELMONTES v. AYERS
In the penalty phase of his trial in state court, the jury con-
sidered the circumstances of Belmontes’s crime and the other
aggravating evidence, balanced the evidence against the miti-
gating factors, and sentenced Belmontes to death.1 Unani-
mously affirming Belmontes’s conviction and sentence, the
California Supreme Court stated: “The properly admitted
aggravating evidence in this case—in particular, the circum-
stances of the crime—was simply overwhelming.”2 Id. at 809
(citation omitted and emphasis added).

Now our court orders grant of habeas, faulting the state
jury’s verdict on grounds of ineffective assistance of counsel.
Recharacterizing the aggravating evidence as “minimal,” the
majority claims that Belmontes was prejudiced by his coun-
sel’s failure to present certain available mitigating evidence to
counterbalance the aggravating evidence presented by the
state. Maj. Op. at 6745. The majority also concludes that Bel-
montes’s counsel failed to prepare adequately the penalty
phase witnesses. In order to discern prejudice, the majority
overstates the mitigating evidence, understates the properly
admitted aggravating evidence, and ignores the further aggra-
vating evidence that would have come in on rebuttal. With all
due respect, I must dissent.
1
California law requires the trier of fact to consider eleven factors in the
penalty phase, insofar as they are relevant: (a) the circumstances of the
crime, (b) the defendant’s use, attempted use, or threat of force, (c) the
defendant’s prior felony convictions, (d) the defendant’s extreme mental
or emotional disturbance, (e) the victim’s participation or consent, (f) the
defendant’s reasonable belief that his actions were morally justified or
extenuated, (g) the defendant’s extreme duress or substantial domination
by another person, (h) the defendant’s mental disease or defect, or the
effects of intoxication (i) the defendant’s age, (j) the defendant’s minor
role, and (k) “[a]ny other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime.” Cal. Penal Code
§ 190.3.
2
Appellate counsel for Belmontes, in contrast, considers the crime “ob-
jectively low on the scale of heinousness.”
 BELMONTES v. AYERS 6819
I

A

To prevail on an ineffective assistance of counsel claim, a
petitioner must demonstrate that his counsel’s performance
was both deficient and prejudicial. Strickland v. Washington,
466 U.S. 668, 693 (1984). “[A] court need not determine
whether counsel’s performance was deficient before examin-
ing the prejudice suffered by the defendant as a result of the
alleged deficiencies. . . . If it is easier to dispose of an ineffec-
tiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be fol-
lowed.” Id. at 697. Prejudice exists only if “there is a reason-
able probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at
694.

The majority concludes that Belmontes has shown both
deficiency and prejudice, but its analysis deprives the preju-
dice requirement of meaning. After holding the penalty-phase
performance of John Schick, Belmontes’s trial counsel, to be
deficient, the majority concludes that the missing mitigating
evidence would have had a reasonable probability of changing
the jury’s verdict. In recounting the aggravating evidence,
Maj. Op. at 6745-47, the majority fails to mention the circum-
stances of the crime—although the first factor California law
requires the jury to consider when setting the penalty, see Cal.
Penal Code § 190.3, supra note 1. Even worse, the majority
ignores the devastating aggravating evidence that would have
been admitted on rebuttal.

In particular, the prosecution would have shown that Bel-
montes had murdered Jerry Howard in 1979. Howard’s body
was found in a secluded, semi-rural area. He had been exe-
cuted with a bullet to the back of the head. A parole report
prepared for Belmontes on May 11, 1979, remarked that “the
method in which the murder was carried out indicate[d] plan-
6820 BELMONTES v. AYERS
ning, sophistication, and premeditation.” Witness testimony
offered strong evidence against Belmontes. However, “be-
cause of lack of cooperation on the part of the witnesses, [Bel-
montes] could not be tried for murder.”3 Still, the police could
prove that Belmontes possessed the gun used to kill Howard,
so Belmontes agreed to plead to a charge of accessory after
the fact to voluntary manslaughter. The police remained con-
vinced of his principal role.

Once shielded from prosecution by double jeopardy, Bel-
montes confessed to several persons that he had shot Howard.
While investigating Belmontes’s criminal history in prepara-
tion for the McConnell murder trial, both Schick and the dis-
trict attorney discovered that these persons, unlike the
witnesses in 1979, were willing to testify. They included Bel-
montes’s case worker at the California Youth Authority
(“CYA”), Charles Sapien, who told the district attorney in
1982 that Belmontes had confessed to shooting Howard.
Sapien recounted that Belmontes had denied the crime during
his incarceration at CYA, but had confided to Sapien upon his
release that he had “wasted that guy.”4 Another witness was
Steven Cartwright, who informed the district attorney that
Belmontes had confessed to him that he had killed Howard,
but that in 1979, Belmontes’s mother had begged him not to
testify. Another witness was Detective Jake Donaldson, a
longtime friend of the Belmontes family, who told Schick’s
investigator that the Howard killing “was definitely an execu-
tion type murder with [Belmontes] being the principal
involved.” Belmontes does not deny the truth of this evidence.
3
Police records revealed that two days after the crime the police had
received a call from an anonymous informant that Belmontes had stated:
“I shot that guy in the head.” Another anonymous call informed the police
that Belmontes had been seen with Howard just before Howard was killed.
Other witnesses contributed circumstantial evidence.
4
Sapien explained that Belmontes believed Sapien had aided him
obtaining parole, because Sapien had written and presented to the parole
board the final report before it granted Belmontes’s release.
 BELMONTES v. AYERS 6821
The prosecutor at Belmontes’s 1982 trial was ready to pre-
sent these witnesses and other evidence of Belmontes’s crimi-
nal history. However, the court granted Schick’s motion to
limit the extent of testimony to the crime of conviction: acces-
sory after the fact to voluntary manslaughter.

Both parties were aware, however, that the trial court might
admit the Howard evidence for other purposes, such as to
rebut or to impeach testimony of character witnesses for the
defense. See Cal. Evid. Code § 1102(b) (permitting the prose-
cution to use character evidence, including prior bad acts, “to
rebut evidence adduced by the defendant”). The trial tran-
script substantiates the risk cross-examination posed to the
defense. At one point, the defense attorney inadvertently elic-
ited testimony from Belmontes’s friend Robert Martinez that
Belmontes was not a violent person. Outside the hearing of
the jury, the prosecutor informed defense counsel and the
court that he intended “to cross-examine [Martinez] fully
about his knowledge of other violent actions done by Mr. Bel-
montes” unless the court struck the evidence from the record.
He noted that “counsel was well aware of all the witnesses I
have lined up to testify to [Belmontes’s violent past].”5 The
court agreed: “I’m going to have to allow him to go into the
whole background if we don’t do that.” (emphasis added).
Schick immediately acquiesced; the judge ordered Martinez’s
character testimony stricken from the record and admonished
the jury to disregard it. This incident leaves little doubt that
the court was ready to admit the Howard evidence for rebuttal
or impeachment.

When later deposed, Schick confirmed that the Howard
5
He stated that he would test the witness’s knowledge of the facts that
as a young man, Belmontes attempted to seize a police officer’s gun dur-
ing an arrest, that he carried a gun to school because he was having trouble
with schoolmates, that he was a member of the Black Angels gang in
Ontario, California, and that he murdered Jerry Howard. The record shows
that the prosecution had extensive files to back up these allegations.
6822 BELMONTES v. AYERS
evidence had given him “grave concerns” and that he had
structured his arguments and witnesses to avoid its admission.6
He told habeas counsel that the prosecution had intended to
call Detective Donaldson, who would have testified to the
“cold-blooded fashion” in which Howard had been killed.
When asked whether he believed such evidence would be
“devastating,” Schick said: “Certainly.”

But, Belmontes now argues that the trial court would not
have allowed the evidence because it was not relevant to
impeach expert testimony regarding Belmontes’s prospects
for nonviolence in an institution. Yet for a mental state expert
to determine whether Belmontes had a lesser proclivity
toward violence when supervised, she would have needed to
compare his behavior in both institutional and non-
institutional settings.

Moreover, the manner in which Belmontes killed Howard
would have been relevant to his institutional prospects
directly, insofar as it manifested aspects of his personality.
The defense supported its claim that Belmontes would be
nonviolent in prison with evidence that a well-respected psy-
chological test7 suggested that he had the personality of a
“conformer.” To rebut an expert’s interpretation of that test,
the prosecutor could have asked whether the expert was aware
that Belmontes had taken a leadership role in the murder of
Jerry Howard or had helped establish a Chicano gang while
incarcerated—acts that suggested an aggressive personality
and undermined the claim that he would be a conforming and
rule-abiding inmate.8
6
Schick stated that he “would have expected” the prosecutor to intro-
duce “[s]pecific facts of the case” to rebut expert testimony about Bel-
montes’s propensity for violence.
7
Both parties’ experts testified that they considered this test, the “Jes-
ness” test, a valuable one.
8
Dr. Yates testified that if she were to diagnose Belmontes based on the
evidence gathered for habeas purposes, she would deem him to have a
“socialized aggressive disorder,” based on “evidence of [his] social attach-
ments and “repetitive pattern of physical violence and thefts.”
 BELMONTES v. AYERS 6823
B

The majority bifurcates its analysis in an attempt to avoid
the minefield of Belmontes’s criminal history. While it con-
cedes that Belmontes’s violent acts, might be admissible if
Belmontes asserted a likelihood of nonviolent prison adjust-
ment, it declines to consider that issue on the ground that the
other mitigating evidence suffices to establish prejudice. This
approach simply leads the majority into a neighboring mine-
field: the circumstances of the Howard murder would have
been admissible to rebut the other mitigating evidence as well.9

The majority states that “Schick should have offered the
testimony of a psychologist or psychiatrist in order effectively
to explain to the jury in day-to-day terms the practical impact
on an individual of the kind of traumas that Belmontes experi-
enced as a child and adolescent.” Maj. Op. at 6823. Had
Schick done so, the prosecution could have cross-examined
such expert as to the basis for her opinion. California law pro-
vides that “a witness testifying as an expert may be cross-
examined to the same extent as any other witness and, in addi-
tion, may be fully cross-examined as to (1) his or her qualifi-
cations, (2) the subject to which his or her expert testimony
relates, and (3) the matter upon which his or her opinion is
based and the reasons for his or her opinion.” Cal. Evid.
Code § 721(a) (emphasis added). If Schick had placed on the
stand an expert to “explain[ ] the extent to which [Bel-
montes’s childhood] problems can cause or contribute to a
change in individuals that can lead to subsequent criminal
conduct,” Maj. Op. at 6823, the expert would have needed to
know the criminal conduct in which Belmontes had engaged.
The Howard murder evidence would have been admissible to
9
As Belmontes argued in his amended habeas petition before the district
court: “Moreover, and of paramount importance, the same mental state
evidence which mitigates his role in the offense itself would have pro-
vided a compelling presentation regarding future conduct if given a life
sentence rather than the death penalty.” (emphasis in original.)
6824 BELMONTES v. AYERS
show the basis for the expert’s opinion or to reveal the
expert’s failure to consider relevant acts in Belmontes’s his-
tory.

The Howard evidence would also have been relevant to
question expert testimony as to Belmontes’s mental state at
the time of McConnell’s murder. The majority asserts that
“[b]y the time of McConnell’s murder—indeed earlier than
then—[Belmontes] was regularly using marijuana, heroin,
LSD, PCP and other drugs.” The Howard evidence would
have been relevant to rebut any insinuation that the McCon-
nell murder was in any way affected by Belmontes’s drug use.10
Dr. Yates explained that an expert could have opined whether
Belmontes had “an antisocial personality disorder or simply
[was] a conformist individual who was under special stress at
the time.” If the expert had suggested that Belmontes lost con-
trol and awareness of his impulses due to drugs or alcohol, the
Howard evidence could have shown that Belmontes commit-
ted a similarly “cold-blooded” murder without such influ-
ences.
10
The majority states that it is not making a factual finding, inappropri-
ate at the appellate level, as to whether Belmontes was influenced by drug
use. Maj. Op. at 6794 n.18. Additionally, it states that “the district court
did not hold that humanizing evidence about Belmontes’s history of sub-
stance abuse before the crime would likewise open the door to additional
aggravating evidence.” Id. However, I am at a loss as to how Belmontes’s
drug use would be humanizing without some reference to its effect on his
commission of a cruel and brutal crime or his ability to adjust to prison
life without being a danger to others. Although the majority argues that the
drug use evidence is humanizing because it shows that he used drugs “to
help cope with the unpleasant circumstances of his life,” without some sort
of connection to the crime itself or a “major personality change,” compare
Smith v. Stewart, 140 F.3d 1263, 1271 (9th Cir. 1998), such mitigating
evidence is of little relevance, and perhaps not mitigating at all. See Maj.
Op. at 6770 (explaining that lack of expert testimony was significant
because there was no “expert who could make connections between vari-
ous themes in the mitigation case and explain to the jury how they could
have contributed to Belmontes’s involvement in criminal activity”
(emphasis added)).
 BELMONTES v. AYERS 6825
Therefore, far from leading to prejudice, the omission of
expert mental-state evidence saved Belmontes from devastat-
ing cross-examination evidence. As Schick explained:

[I]t bec[ame] apparent that the amount of evidence
the prosecution was trying to introduce in this pen-
alty trial, should we get there, was growing in leaps
of bounds [sic]. . . . [Belmontes’s prior convictions]
were somewhat small in my mind next to the other
factors, all of which related to this 1979 homicide of
Jerry Howard. Because, as I said, it was very clear
to me that what [the prosecutor] wanted to do was
retry that case, put all the evidence before the jury.

Schick noted that the prosecutor’s damaging evidence was
compounded

[by] the statement [Detective Donaldson] made to
[the defense investigator] that it was his . . . view
that Mr. Belmontes had done that killing in 1979 in
a cold-blooded fashion. And what [the prosecution]
wanted to do was explain that point of view . . . and
at the conclusion of it get up to the jury and say,
“Here is a man who has been convicted not once but
twice of murder.” That’s a whole different kettle of
fish. . . . getting back to your question, yes, I was
concerned. That was my concern.

C

Our precedent recognizes that counsel’s concern for open-
ing the door to rebuttal can defeat a claim of ineffective assis-
tance of counsel. In R. Campbell v. Kincheloe, 829 F.2d 1453
(9th Cir. 1987), counsel had presented no mitigating evidence,
yet we defended that omission:

The record shows that the state was prepared to pre-
sent a vast array of aggravating evidence in rebuttal,
6826 BELMONTES v. AYERS
including the forcible rape of Campbell’s ex-wife.
. . . Faced with the choice of limiting the state to a
relatively tame presentation of Campbell’s prior con-
victions, or potentially opening the door to devastat-
ing rebuttal evidence, Campbell’s counsel chose the
former route by electing not to present mitigating
evidence. In one of the attorney’s words,
“[p]resentation of those [mitigating] items in my
mind would bring forth a parade of horribles that in
my opinion would so far bury those factors in miti-
gation that any chance we had of saving his life
would have been lost.”

Id. at 1462 (emphasis added). We noted that the defendant,
like Belmontes,

concede[d] that some of his potential mitigating evi-
dence would have been met with strong rebuttal evi-
dence from the state, but he speculate[d] that
evidence of his “background, childhood and family
relationships,” and possibly evidence of his “child
abuse, upbringing and drug abuse,” could have been
presented without opening the door to rebuttal evi-
dence.

Id. Still, we found no prejudice: “Even if this is the case, we
agree with the district court that ‘given the overwhelming
aggravat[ing] factors,’ and ‘the heinous nature of the crime,’
there is no reasonable likelihood that the jury’s verdict would
have been different had the mitigating evidence been intro-
duced.” Id.

Here, as in Kincheloe, the state was prepared to present a
vast array of aggravating evidence in rebuttal, including Bel-
montes’s execution-style murder of Howard, his history of
drug dealing, his conflicts with police, and his participation in
gang activities. Even without that further aggravating evi-
 BELMONTES v. AYERS 6827
dence, the circumstances of the crime already were “simply
overwhelming.”

Furthermore, the majority’s attempt to avoid the issue of
rebuttal evidence requires it to also ignore mitigating evidence
that Belmontes himself deemed crucial: evidence that Bel-
montes would be non-violent in prison. As Belmontes stated
in his amended habeas petition in the district court:

Common sense tells us that a rational jury will be
extremely reluctant to award a life sentence if it
would be exploited as a license to assault or kill
again. In contrast, a life sentence becomes far more
palatable to a jury which can satisfy their primary
interest in removing the defendant from open society
with some certainty that he will not replicate violent
offenses in prison society.

In the face of the gruesome circumstances of the crime and
the already-admitted evidence of Belmontes’s prior violent
acts, the jury would not have had such certainty unless Schick
introduced evidence of his non-violent potential. Because he
was unable to do so without opening the door to devastating
rebuttal evidence, the omission of such evidence was not prej-
udicial.

II

A

The mitigating effect of the omitted evidence would not
have created a reasonable probability of altering the sentence.
First, one must distinguish between evidence that was already
presented, and evidence that was never admitted. The major-
ity intermingles the two, leaving the impression that Schick
omitted mitigating evidence that he in fact presented to the
jury. For example, Schick presented numerous penalty phase
witnesses to “humanize” Belmontes and to show that, despite
6828 BELMONTES v. AYERS
a difficult background, Belmontes could relate to others.11 He
called to the stand Belmontes’s mother, grandfather, his
friends Darlene and Robert Martinez, Rev. Dale Barrett
(chaplain at CYA Pine Grove Facility), the Haros (members
of Rev. Barrett’s church), and Don Miller (assistant chaplain
at the CYA Preston Facility).

The majority considers the testimony of these witnesses to
be of little value compared to the testimony that Schick could
have presented. In particular, the majority objects that “[a]t no
point did Schick mention any of the traumatic experiences
that Belmontes underwent during his childhood or his youth,”
thereby “fail[ing] to explain to the jury how those experiences
affected Belmontes; what the relationship was between the
tragic events and Belmontes’s subsequent criminal conduct;
and why the jury should consider those circumstances in
determining whether Belmontes was an individual who
should be put to death or whose life should be spared.” Maj.
Op. at 6758-59. But the majority fails to give proper emphasis
to the fact that several witnesses testified on those issues: Bel-
montes’s mother spoke of how Belmontes’s father used to
beat her, once breaking her arm, and another time stabbing
her and of how Belmontes suffered from the departure of her
second husband and became “difficult to control.” Bel-
montes’s grandfather described how his grandson cared for
his grandmother, visiting her every day in the hospital and
attending her funeral. The jury did not need an expert to
understand that these experiences had a negative impact on
Belmontes.
11
Schick explained that his four goals in the penalty phase were (1) to
“humanize” Mr. Belmontes for the jury; (2) to show that he would not be
a difficult prisoner and that he could form good relationships with people;
(3) to show his background to the jury so that it would know what his life
had been like; and (4) to raise lingering doubt whether Belmontes was
really the actual killer by offering evidence of Vasquez’s agreement to tes-
tify for the prosecution to obtain a lighter sentence.
 BELMONTES v. AYERS 6829
B

Nor was Belmontes prejudiced by the lack of expert testi-
mony about his rheumatic fever. Dr. Yates characterized that
illness as “pretty mild,” rather than “significantly debilitat-
ing,” as the majority asserts. She clarified that “[a]ctually, it
was the mother that expected him to die early, but [Belmontes
himself] didn’t.”12 According to Dr. Yates, the illness “wasn’t
very severe, it was associated with [ ] arthritis, but not with
anything more ominous and he probably shouldn’t have had
a home teacher.”13 Dr. Missett similarly stated that Belmontes
“did not face an illness that was going to result in imminent
death.”

Belmontes never was diagnosed with a depressional disor-
der. In fact, Dr. Yates stated that it would have been inappro-
priate to diagnose Belmontes with a depressional disorder,
attributing his unhappiness during home-schooling to “a situa-
tional depression, which . . . just means that it’s not a good
situation and he doesn’t like it and doesn’t feel good about it.”
Dr. Missett opined that certain events in Belmontes’s child-
hood corresponded with a form of “symptomatic” depression.
For example, he remarked that “[i]f [Belmontes was] to be
believed about his visits to [his infant sister’s] grave, this
would have been an indication of an early essentially child-
hood depression.” And he stated that the “description of [Bel-
montes] not liking school and the feeling of not getting much
out of it [to be] consistent with his having a symptomatic
childhood depression.” Those triggering causes for depression
offered little reason to believe the depression was serious or
debilitating.
12
Dr. Missett also noted that he was not sure whether Belmontes, or his
mother, believed that Belmontes would die before age 21.
13
She also noted that she “s[aw] no reason why he was so impaired that
he couldn’t go to school” and speculated that “it may have been coming
more from the mother than any [medical necessity].”
6830 BELMONTES v. AYERS
On the other hand, Dr. Missett did suggest that Belmontes’s
sickness as a child might have led to his later use of drugs:
“Belmontes’s drug abuse appears to have had its onset during
and immediately after the period of time that he was so
repeatedly physically ill.” He opined that Belmontes might
have used drugs as a form of “self-medication.” Although this
evidence might have led the jury to pity Belmontes, the prose-
cutor could have brought in damaging evidence on cross-
examination. For example, the prosecutor could have queried
of such expert whether depression also induced Belmontes to
deal and to distribute drugs. That rebuttal evidence would
have undercut Schick’s efforts to transform Belmontes’s
drug-related conduct into a cause for sympathy.14

C

Belmontes’s drug use would not have carried much weight
to humanize him as the majority would suggest. When
deposed for habeas purposes, Schick’s trial mental-state
expert, Dr. Cavanaugh, opined that Belmontes had a “clear
mental status at the time of the incident [murder of McCon-
nell].” He stated that Belmontes claimed to have been high on
drugs shortly before the crime, and yet his “recounting of the
events leading up to this murder was very, very detailed”—a
detailed description inconsistent with a person whose actions
were influenced by drugs.15 Moreover, the way in which the
crime was planned and committed indicates forethought and
control: Belmontes armed himself with a metal bar and put on
14
A police report dated March 1, 1979, described how surveillance offi-
cers witnessed Belmontes give two balloons of heroin to the confidential
informant. After Belmontes parted company with the confidential infor-
mant, the informant gave the officers the heroin. He told them that he had
promised to try to find an “outfit” (heroin injection paraphernalia) for Bel-
montes and that Belmontes had warned him that he was armed, had com-
mitted at least one murder, and had shot people on two different occasions.
15
Other witnesses corroborated the accuracy of Belmontes’s detailed
description.
 BELMONTES v. AYERS 6831
gloves16; after the crime, Belmontes had the lucidity to discard
the bloody weapon in a river.

Dr. Yates thought that the evidence of Belmontes’s mental
state at the time of the crime could cut either way. On the one
hand, his careful preparation and execution of the crime sug-
gested that he retained self control and that his brutal act was
representative of his general personality. On the other hand,
Belmontes “could have been very impulsive at times.” If he
were “under the influence of substances,” Dr. Yates
remarked, “[h]is anger could have broken through, even
though it wasn’t his ordinary way of acting and feeling and
thinking, he could have done something that was horrible.”
(emphasis added). The prosecution could have impeached
such testimony regarding Belmontes’s “ordinary way of act-
ing and feeling and thinking,” and asked whether that opinion
took into account the fact that Belmontes had killed Howard
without any evidence of drug or alcohol intoxication. Again,
any effort to lessen Belmontes’s culpability for the crime
would have either been weak or counterproductive.

D

If Schick had offered expert testimony to show that Bel-
montes’s childhood experiences harmed his ability to interact
with others, such testimony would have led to similar rebuttal
evidence. For example, Dr. Missett stated Belmontes’s grand-
father expressed anti-Latino sentiments toward Belmontes’s
father, causing Belmontes a sense of “inferiority and lower
self-esteem.” He opined that it became “difficult [for Bel-
montes] to mainstream himself socially or racially into a
mixed situation or a largely Anglo situation at school.” Such
testimony might have explained why Belmontes decided to
join gangs. But Belmontes was not prejudiced by the lack of
16
Belmontes himself told Dr. Yates about the gloves, which he stated he
always wore to “do a job.”
6832 BELMONTES v. AYERS
such explanation, since Schick succeeded in keeping out evi-
dence of gang relations altogether.

The majority also contends that Schick should have intro-
duced mitigating evidence to show Belmontes’s difficult
childhood and to emphasize the abuse in the family. However,
Belmontes’s mother had already testified to being beaten by
Belmontes’s father. And as a psychological expert, Dr. Mis-
sett found it significant that Belmontes never asserted that he
had witnessed his father hit his mother. Even now, Belmontes
offers no evidence as to how the abuse impacted him and
never states that he was abused himself.

Furthermore, several witnesses noted positive aspects of
Belmontes’s family relationships. Belmontes’s sister
recounted how she and Belmontes went to their father’s on
Sundays and “spent the whole day together.” She remembered
the days positively, but noted that they “never did much
because he never had any money.” When asked whether the
financial problems of the family caused Belmontes psycho-
logical harm, Dr. Missett opined that the “father’s inability to
hold a job even in the face of [ ] poverty,” caused Belmontes
a “level of shame.” It is not clear, however, how much that
“shame” affected Belmontes or his relationships, for his sister
noted that he “had lots of friends.”

Having painted Belmontes’s childhood in the darkest possi-
ble light, the majority attempts to cite sickness and poverty
and family troubles as the reason why he became a violent
murderer. The majority notes that witnesses who knew Bel-
montes as a child described him as a “sweet” boy who was
polite and pleasing. And as a psychological expert, Dr. Mis-
sett noted that Belmontes was “extremely well socialized” and
had “a very well-developed capacity to function in a socially
attractive way by the time the he [wa]s entering adolescence.”
The majority cites these positive features of Belmontes as a
child to support its assumption that external factors, and not
 BELMONTES v. AYERS 6833
volition, can be blamed for Belmontes’s criminal transforma-
tion.

The majority’s suggestion that Belmontes’s rheumatic fever
caused so dramatic a change in his personality is undermined
by the “pretty mild” characterization of that illness by Dr.
Yates. And Belmontes’s own sister stated that she “did not
notice or understand emotional changes in him” due to his
illness—“He was the same easygoing person in the way he
related to [her].” And while the majority contends that Bel-
montes suffered from having to move into a single motel
room, his sister recounted that Belmontes “did not stay at the
[ ] motel very much.” The majority’s suggestion that the jury
would have considered Belmontes less culpable for McCon-
nell’s murder, had they known further details about his child-
hood, is simply implausible.

E

The cumulative effect of Belmontes’s childhood experi-
ences would have offered little antidote to the “overwhelm-
ing” evidence of Belmontes’s later drug trafficking,
involvement in gangs, assault on his girlfriend while she was
pregnant, and multiple murders. Schick’s failure to offer fur-
ther testimony about Belmontes’s childhood experiences was
not prejudicial. Even if the jury remained ignorant of the
chilling Howard murder, the aggravating evidence presented
overwhelmed any benefit of the omitted mitigating evidence.
The jury would not have forgotten Belmontes’s brutality, evi-
denced by the autopsy photos of McConnell’s mangled head.
The jury would have recalled Belmontes’s testimony that he
and his friends left McConnell’s bloody body and drove to a
place where they could sell her belongings and buy beer. The
jury still would have had no explanation for why, even in his
closing address, Belmontes expressed no remorse.
6834 BELMONTES v. AYERS
III

A

Contrary to the majority’s claim, neither Mayfield v. Wood-
ford, 270 F.3d 915 (9th Cir. 2001) (en banc), nor Douglas v.
Woodford, 316 F.3d 1079 (9th Cir. 2003), supports its conclu-
sion.

Mayfield involved a claim of ineffective assistance in a
capital sentencing. The majority deems the facts in Mayfield
nearly identical to those at bar, with only two significant dif-
ferences: In Mayfield, the aggravating evidence was “strong”
and the mitigating evidence introduced was “substantial”;
here the state conceded that the aggravating evidence was
“scant” and the mitigating evidence introduced was “insub-
stantial.” Maj. Op. at 6805-06. The majority’s statement with
respect to the strength of the aggravating evidence distorts the
state’s reference, which characterized the aggravating evi-
dence other than the circumstances of the crime.17 When the
circumstances of the crime were considered in context, the
prosecutor made clear that the death penalty was appropriate.

Moreover, the deficiency of Mayfield’s counsel was
marked and clearly consequential. Mayfield’s counsel spent
only 40 hours on the entire trial and waived opening argument
in the penalty phase. Mayfield alleged that he had been influ-
enced by drugs at the time of the offense, but his counsel
“mistakenly stipulated that [his] urine tested negative for PCP
the day after the crime, indicating to the jury both that May-
field did not have a substance abuse problem and that May-
field had lied about it.” Id. The lawyer called only one witness
at the penalty phase. Mayfield, 270 F.3d at 928. Although
important,18 this witness’s testimony revealed only a fraction
17
The majority argues that I have incorrectly interpreted statements
made by the State at oral argument, however, on this point my colleagues
and I will simply have to disagree. Maj. Op. at 6802 n.21.
18
The witness, a doctor, testified that Mayfield had been diagnosed with
diabetes at age nine, suffered from a childhood behavioral disorder caused
 BELMONTES v. AYERS 6835
of the mitigating evidence available to Mayfield. At a later
state evidentiary hearing on habeas, Mayfield’s family mem-
bers, none of whom testified at trial, described how Mayfield
was born to a 15-year-old mother and grew up in the projects.
They recounted his growing emotional disturbance as he
“began drinking and smoking marijuana to fit in with the
tough kids of the San Bernardino projects” and started using
PCP. Id. at 931. Friends and siblings explained that his “per-
sonality changed as a result of his drug and alcohol abuse and
his poorly controlled diabetes,” id. at 931, and that he became
“incorrigible and occasionally had physical altercations with
[his mother].”

Experts at the later proceeding verified that Mayfield had
been “diagnosed with childhood behavioral disorder and
depression” and described how “[a] psychological evaluation
indicated that, although he had low-normal IQ, ‘he actually
performed as though he were mildly retarded.’ ” Id. (empha-
sis added). A psychiatrist explained that “ ‘a growing
onslaught of catastrophes, losses, and increased emotional tur-
moil . . . ma[de] it more difficult for him to figure out what
is the best thing to do and how to control his emotions.’ ” Id.
An endocrinologist detailed the impact of Mayfield’s long-
term fight with diabetes, including comas and hospitalizations
as frequent as five times a month. This evidence might well
have engendered the sympathy of Mayfield’s jury, had it been
presented.

Mayfield also had significant positive character evidence—
evident in his case—that would not have opened the door to

by depression, and began using PCP in his late teens and that his “mental
state deteriorated because of drug usage.” Id. at 929. The doctor also
revealed that Mayfield repeatedly had expressed remorse and he recounted
that others described Mayfield as a gentle person and the crimes to be out
of character. Unfortunately, the mitigating effect of the doctor’s testimony
was undermined by his erroneous statement that Mayfield “was not under
the influence of drugs or alcohol the night of the crimes.” Id. at 930.
6836 BELMONTES v. AYERS
devastating rebuttal evidence. Witnesses described Mayfield
as “helpful and generous” and recounted that he had looked
after his younger brother and sister and had routinely assisted
his wheel-chair bound uncle. Id. at 932. Other witnesses told
how Mayfield had aided them to overcome personal struggles,
how he loved his son, how he interacted well with children,
and how he was not a violent person. Id. Finally, they stated
that they loved Mayfield and wished that his life would be
spared. Id.

Belmontes had nothing close to this mitigating evidence.
Unlike Mayfield’s documented brain damage from physical
and mental disorders, Belmontes had “pretty mild” rheumatic
fever and “situational” or “symptomatic” childhood depres-
sion. In contrast with the evidence suggesting that Mayfield
devoted enormous amounts of time to actively assist others,
Belmontes’s mother stated that he used his illness as an
excuse to be lazy.19 Mayfield and Belmontes both abused
drugs, but Belmontes also dealt them.20 And while no family
or friends were presented to testify to the positive aspects of
Mayfield’s character, Belmontes had several witnesses who
testified on his behalf and still the jury found their words
insufficient to justify mercy.21
19
Belmontes’s parole agent at CYA recorded this statement in a report
on June 13, 1979.
20
Belmontes’s girlfriend and the mother of his child, Barbara Murillo,
stated that Belmontes did not use drugs, because they were bad for his ill-
ness. Police reports included witness statements and documentation that
Belmontes engaged in drug dealing.
21
As the defense investigator discovered, several persons who knew
Belmontes as a youth had only negative things to say. Members of the
Detective Staff at the Ontario Police Department (who investigated the
Howard murder) “felt that [Belmontes’s] mother was very over-protective
of her son and other siblings.” They noted his reputation as a “heavily
involved” member of the Black Angels gang, and stated that he had “a
long history of anti-social behavior” and was “very fortunate that he ha[d]
not been caught” for the crimes he had committed. Belmontes’s probation
officers indicated similar sentiments and noted that he was “very manipu-
lative,” a characterization corroborated by several psychiatric experts.
 BELMONTES v. AYERS 6837
The majority complains that the witnesses did not show
“Belmontes’s positive attributes”: that “he was a kind, respon-
sible, and likeable child who got along well with his siblings,
was respectful towards his grandparents despite their disap-
proval of his mixed racial background, participated in com-
munity activities, kept up in school and got along with his
teachers before his illness, and made friends easily.” Maj. Op.
at 6792. But several aspects of Belmontes’s positive child-
hood characteristics were presented: Belmontes’s mother told
the jury of his “close” relationship with his sister, his grandfa-
ther spoke of Belmontes’s devotion to his grandmother, the
jury had learned that Belmontes had assumed a leadership
position on his CYA fire crew and had joined the “M2” reli-
gious program while in CYA custody. The remaining evi-
dence that could have been presented would have added little:
Belmontes was involved in Sea Cadets and little league and
many adults found him to be a polite child with a pleasant demea-
nor.22 Third, evidence that Belmontes “kept up in school”
could have been impeached by noting that he was a high-
school drop-out.23

Even more importantly, we distinguished the facts in May-
field from the situation where new mitigating evidence would
open the door to additional aggravating evidence. Specifi-
cally, we cited the Fifth Circuit’s holding in Williams v. Cain,
125 F.3d 269, 278-280 (5th Cir. 1997), in which the court
rejected an ineffective assistance of counsel claim because
“[the omitted] testimony could have opened the door to testi-
mony regarding [the defendant’s] drug use, expulsion from
22
At the same time, the fact that he brought a gun to school because he
was having trouble with classmates suggested that his relationships with
his childhood peers were not as favorable as the majority would suggest.
There is little doubt the prosecution could have brought that incident in as
rebuttal to evidence of Belmontes’s positive character as a child.
23
An attempt by the majority to attribute this decision to leave school
to Belmontes’s rheumatic fever would be contradicted by Dr. Yates’s
statement that she saw no reason why Belmontes had to leave school even
in the worst period of his illness.
6838 BELMONTES v. AYERS
school, and discharge from [a] job [and] such testimony
‘would have had little mitigating effect against the aggravat-
ing evidence.’ ” Mayfield, 270 F.3d at 938 (emphasis added).
The only such rebuttal evidence in Mayfield related to May-
field’s mother’s awareness of “an incident in which Mayfield
may have engaged in inappropriate sexual conduct with his
infant sister when he was twelve.” Id. at 928. Had her testi-
mony been the only available testimony, we agreed that this
risk “argue[d] against a determination of prejudice.” Id. How-
ever, counsel had failed to present any testimony by family or
friends, although “family members, except for Mayfield’s
mother, did not have damaging testimony.” Id. (emphasis
added).

Belmontes’s case differs from Mayfield because the miti-
gating evidence Schick could have presented would have elic-
ited a plethora of aggravating rebuttal evidence—evidence
that leaves little doubt that the net effect of the additional tes-
timony would have been negative.

Belmontes has not made the required showing of prejudice.
There was no “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. The majority’s
discordant conclusion conflicts with Strickland and manifests
disagreement with governing precedent. “Unless a defendant
makes both showings [of deficiency and prejudice], it cannot
be said that the . . . death sentence resulted from a breakdown
in the adversary process that renders the result unreliable.”
Strickland, 466 U.S. at 687. The majority’s view appears to
adopt a “per se rule that we must reverse a death sentence if
we find that counsel’s performance at the penalty phase was
deficient”—a rule we have expressly rejected. Mayfield, 270
F.3d at 928 (citations omitted).

B

Nor can I accept the majority’s facile analogy of this case
to Douglas, 316 F.3d at 1079. Contrary to its assertion that
 BELMONTES v. AYERS 6839
“[t]he facts of the case at hand and those in Douglas are quite
similar,” Maj. Op. at 6781, the two cases differed in crucial
respects.

The aggravating evidence in Douglas was powerful: Doug-
las killed two teenage girls after torturing them and forcing
them to commit sex acts. Douglas v. Woodford, 316 F.3d at
1079, 1083 (9th Cir. 2003). The omitted mitigating evidence,
however, was also powerful: Douglas had been orphaned and
placed in foster care; his alcoholic foster father locked him in
a closet for long periods of time, causing him permanent
claustrophobia. After running away at 15 to join the Marines,
“Douglas was arrested and put in a Florida jail where he was
beaten and gang-raped by other inmates.” Id. at 1088. Later,
Douglas got in a car accident that left him with permanent
brain damage. Despite these traumatic experiences and their
documented harm to his mental capacity, Douglas had acted
heroically even in his older years: he had medals and com-
mendations from the Marines, and witnesses testified that he
had saved the lives of two drowning sailors. Id. Our conclu-
sion in Douglas was based on a reasonable probability that the
jury would have spared Douglas his life, had it known these
sympathetic facts.

In Douglas, as in Mayfield, we confronted no risk that dev-
astating aggravating evidence would enter on cross-
examination. The available aggravating evidence against
Douglas had already been presented. The case does not com-
pare to Belmontes, where the prosecution had found a skele-
ton in the closet, and was waiting for Belmontes to open the
door.

IV

Equally troubling is the majority’s conclusion that Schick’s
preparation of the penalty phase witnesses was inadequate and
prejudicial. The majority states that:
6840 BELMONTES v. AYERS
In addition to failing to investigate adequately,
Schick did little to prepare the lay witnesses he cal-
led to testify. . . . It is evident from the testimony
given at the penalty phase that Schick did not . . .
[prepare the witnesses]. . . . Several of the witnesses
who knew Belmontes best . . . did not testify to a sin-
gle positive quality he possessed.

Maj. Op. at 6785 (emphasis added). Without any meaningful
discussion of Schick’s actual preparation of the witnesses,24
the majority assumes that the limited appeal of the witnesses’s
testimony reflects a lack of coaching.

The majority does not explain what positive qualities were
not mentioned, but could have been illuminated. Belmontes’s
mother already had told the jury that Belmontes had a close
relationship with his sister.25 His grandfather had described
Belmontes’s faithfulness to his grandmother. His friends Rob-
ert and Darlene Martinez had described their close relation-
ship. Rev. Barrett and the Haros had described the sincere
religious commitment Belmontes made during his CYA incar-
24
This same failing is reflected in Belmontes’s argument. He focuses on
the resulting testimony, without describing what Schick did or did not do
to prepare the witnesses. He states that Belmontes received “virtually no
support from his obviously nervous and tongue-tied mother” and con-
cludes that the “presentation [of the mother] fell in the same range
between ‘woefully inadequate’ and ‘deleterious.’ ” But we have no reason
to believe that the mother’s nervousness on the stand was the result of
inadequate preparation.
25
Belmontes argues that the mother should have been shown “photo-
graphs of [Belmontes] actually involved in positive activities as a youth,
and [been asked] to identify and describe the contents for the jury.” But
counsel enjoys “wide latitude . . . in making tactical decisions,” such as
selecting which evidence to present to make the most compelling argu-
ment. Strickland, 466 U.S. at 689-90. In any case, Dr. Yates aptly noted
that the photographs might not have represented such positive moments:
“The pictures are a very small slice of what happened and usually it’s a
family affair when people are saying, well, smile now and that’s not nec-
essarily characteristic of anything that goes on in the family.”
 BELMONTES v. AYERS 6841
ceration. Finally, Miller had testified to Belmontes’s ability to
make a positive contribution while in prison.26

The majority faults Schick for allowing the witnesses to
state that they believed Belmontes was innocent. Although
such view contradicted the jury’s guilty verdict, Schick’s fail-
ure to stop the witnesses from so testifying was not objection-
able. In fact, this testimony may have had a mitigating effect,
because it allowed Schick to present positive character evi-
dence indirectly, without opening the door to a damaging
rebuttal. It is hard to imagine that the witnesses’s implication
that Belmontes was normally not a violent person prejudiced
Belmontes’s hope for leniency.

V

For the third time, the majority has granted Belmontes
habeas relief without the requisite legal or factual support.
The mere desire for mercy toward a man found guilty of capi-
tal murder, however admirable, provides no legal ground to
disturb the jury’s sentence of death. Again, I must dissent.

26
The majority’s analysis erroneously assumes that the witnesses’ testi-
mony required explanation: “Although Schick stated in his deposition that
one of his four themes at the penalty phase was Belmontes’s capacity to
adjust well to prison, he failed to argue that such was the import of the tes-
timony of any of the witnesses he had called to testify.” Maj. Op. at 6787.
But much of what the witnesses said conveyed a clear mitigating message
on its own. For example, Miller said that Belmontes had returned on sev-
eral occasions to speak to later CYA wards and to offer them motivating
advice. Miller explained that he believed Belmontes could offer similar
encouragement and inspiration to fellow prison inmates. The jury did not
need Schick to explain “the import of th[at] testimony.” Id.