Richard Benson v. Kevin Chappell

Related Cases

                    FOR PUBLICATION
    
      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT
    
    
    RICHARD ALLEN BENSON,                     No. 13-99004
                 Petitioner-Appellant,
                                                 D.C. No.
                     v.                       2:94-cv-05363-
                                                   AHM
    KEVIN CHAPPELL, Warden, San
    Quentin State Prison,
                   Respondent-Appellee.         OPINION
    
    
         Appeal from the United States District Court
             for the Central District of California
         Alvin Howard Matz, District Judge, Presiding
    
            Argued and Submitted December 5, 2017
             Submission Vacated February 7, 2019
                  Resubmitted April 24, 2020
                     Pasadena, California
    
                          Filed May 1, 2020
    
         Before: Consuelo M. Callahan, Carlos T. Bea,
             and Mary H. Murguia, Circuit Judges.
    
                   Opinion by Judge Callahan;
    Partial Concurrence and Partial Dissent by Judge Murguia
    2                      BENSON V. CHAPPELL
    
                                SUMMARY*
    
    
                    Habeas Corpus / Death Penalty
    
        The panel affirmed the district court’s denial of Richard
    Allen Benson’s habeas corpus petition challenging his
    California conviction and death sentence for murder and other
    crimes.
    
        Benson raised two certified claims on appeal: (1) that his
    confessions should have been suppressed, and (2) that his trial
    counsel was ineffective at sentencing. Reviewing under the
    Antiterrorism and Effective Death Penalty Act, the panel held
    that Benson did not show that the California Supreme Court’s
    denials of his claims were unreasonable determinations of the
    facts or contrary to clearly established federal law.
    
       Observing that – as Benson admits – he confessed after he
    was given his Miranda warnings, acknowledged the
    warnings, and waived them, the panel held that the California
    Supreme Court reasonably determined that an officer’s
    misstatement during Benson’s interrogation that there was
    no death penalty in California did not prompt Benson’s
    confessions; and that Benson did not show that his statements
    were not knowing, voluntary, and intelligent.
    
         The panel held that even if Benson were able to show that
    trial counsel was ineffective in not fully investigating his
    abuse as a child or his alleged organic brain injury, the
    California Supreme Court could reasonably have determined
    
        *
          This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
                        BENSON V. CHAPPELL                        3
    
    that any shortcoming in trial counsel’s investigation was not
    prejudicial.
    
       The panel granted a Certificate of Appealability on
    Benson’s two uncertified issues and determined that the state
    court reasonably rejected his claims that (1) his trial counsel
    was ineffective at the guilt phase of the trial, and (2) the
    prosecutor withheld material, exculpatory evidence.
    
        Concurring in the majority’s decision on the first certified
    issue and on the uncertified claims, Judge Murguia dissented
    from the majority’s opinion with respect to Benson’s penalty-
    phase ineffective-assistance claim. She wrote that significant
    and readily-available evidence that Benson was subjected to
    grotesque sexual and physical abuse, which was never
    discovered by Benson’s lawyer and never introduced at the
    penalty phase, has a substantial probability of convincing at
    least one juror to vote for life rather than death, and that the
    California Supreme Court’s conclusion to the contrary is
    fundamentally unreasonable.
    
    
                             COUNSEL
    
    Marcia A. Morrissey (argued), Santa Monica, California;
    John R. Grele (argued), San Francisco, California; for
    Petitioner-Appellant.
    
    David F. Glassman (argued) and A. Scott Hayward, Deputy
    Attorneys General; James William Bilderback II, Supervising
    Deputy Attorney General; Lance E. Winters, Senior Assistant
    Attorney General; Gerald A. Engler, Chief Assistant Attorney
    4                   BENSON V. CHAPPELL
    
    General; Xavier Becerra, Attorney General; Attorney
    General’s Office, Los Angeles, California; for Respondent-
    Appellee.
    
    
                              OPINION
    
    CALLAHAN, Circuit Judge:
    
        In 1986, Richard Allen Benson confessed to sexually
    molesting two little girls and murdering the girls, their
    mother, and their baby brother. He was tried and convicted
    for murder and other crimes and sentenced to death. After his
    conviction and sentence were affirmed and the California
    Supreme Court had denied several habeas petitions, Benson
    filed a federal habeas petition with the United States District
    Court for the Central District of California. The district court
    denied the petition and Benson has appealed.
    
        On appeal Benson raises two certified claims: (1) his
    confessions should have been suppressed, and (2) his trial
    counsel was ineffective at sentencing because he failed to
    investigate and present evidence of Benson’s severe physical,
    sexual, and emotional abuse in early childhood. In addition,
    Benson raises two uncertified claims: (3) trial counsel was
    ineffective at the guilt phase in failing to impeach the state’s
    case, and (4) the prosecutor withheld material and
    exculpatory evidence (a claim pursuant to Brady v. Maryland,
    373 U.S. 83 (1963)).
    
       Because Benson’s claims are subject to review under the
    Antiterrorism and Effective Death Penalty Act (AEDPA),
    28 U.S.C. § 2254, to be granted relief, he must show that the
    California Supreme Court’s denials of his claims were
                        BENSON V. CHAPPELL                         5
    
    unreasonable determinations of the facts or contrary to clearly
    established federal law. Benson has not done so. He
    confessed after he was given his Miranda warnings,
    acknowledged the warnings, and waived them. The
    California Supreme Court reasonably determined that an
    officer’s misstatement during Benson’s interrogation that
    there was no death penalty in California did not prompt
    Benson’s confessions. Furthermore, Benson has not shown
    that his statements were not knowing, voluntary, and
    intelligent. In addition, even if Benson were able to show
    that trial counsel was ineffective in not fully investigating his
    abuse as a child or his alleged organic brain injury, the
    California Supreme Court could reasonably have determined
    that any shortcoming in trial counsel’s investigation was not
    prejudicial. Finally, we grant the Certificate of Appealability
    on Benson’s two uncertified issues and determine that the
    state court reasonably rejected Benson’s claims that (a) his
    trial counsel should have impeached the government’s case,
    and (b) the prosecutor withheld material, exculpatory
    evidence. Accordingly, we affirm the district court’s denial
    of the writ.
    
                      I. The Underlying Facts
    
        A. Benson’s Criminal Activities
    
        There is overwhelming evidence that Benson deliberately
    murdered Laura Camargo and her two-year old son, and
    sexually molested her four-year-old and three-year-old
    daughters, before brutally murdering both girls. He then set
    the family’s home on fire and fled the scene.
    
        The California Supreme Court’s opinion provides this
    recitation of the underlying facts:
    6              BENSON V. CHAPPELL
    
        On the evening of Saturday, January 4, 1986,
        Laura Camargo set out to visit Barbara Lopez
        and Katrina Flores. The three women were
        close friends. Laura lived in Nipomo with her
        children, Stephanie Camargo, age four,
        Shawna Camargo, age three, and Sterling
        Gonzales, age twenty-three months, in a
        small, two-room shack that shared an
        unattached bathroom with another unit.
        Barbara and Katrina lived with their children
        in an apartment in Oceano, which was about
        10 miles away. Just before Thanksgiving of
        1985, defendant had moved into the
        apartment; he was a jeweler by trade. Over the
        following weeks, he became acquainted with
        Laura and her children.
    
        On the evening in question, Laura secured a
        baby-sitter to care for Stephanie, Shawna, and
        Sterling, and then obtained a ride to Oceano.
        She socialized with Barbara, Katrina, and
        defendant. Before long, she decided to return
        home. Defendant arranged for a ride. Taking
        measures to conceal his destination from
        Barbara and Katrina, he accompanied Laura
        to Nipomo, carrying with him a heavy
        briefcase. As he later admitted, he “went out
        there with the intention of doing something to
        the kids.”
    
        Around midnight, defendant and Laura
        arrived at the shack, and the baby-sitter
        departed. Shortly thereafter, defendant took
        up a claw hammer he found in the shack,
                BENSON V. CHAPPELL                     7
    
    apparently positioned himself behind Laura,
    and repeatedly and violently struck her in the
    head, as he subsequently acknowledged, “to
    take her out.” Laura fell; defendant thought
    she was dead; she gurgled loudly; he stuffed
    socks into and over her mouth; she soon
    expired. From that point on, he took pains to
    make it appear to Laura’s neighbors that no
    one was in the shack. He proceeded to
    sexually assault Stephanie and Shawna.
    
    Throughout Sunday, January 5, defendant
    continued to molest the two girls. A number
    of times that day, neighbors came by the
    shack and the common unattached bathroom.
    More than once, Sterling coughed and cried;
    more than once, defendant quieted the child.
    After nightfall defendant—in words he later
    used—“realized . . . that it was inevitable”: in
    order to avoid discovery, he decided to kill
    Sterling. Although he met with resistance
    from the child as he attempted to smother and
    strangle him to death, he finally succeeded.
    With Laura and Sterling dead, he found
    himself in what he later described as “a
    molester’s type of heaven”: in the paraphrase
    of the police psychiatrist to whom he
    confessed, “it was like being in heaven, and
    being completely able to get what he wanted
    with no interference.”
    
    As Monday, January 6, approached, defendant
    continued to molest Stephanie and Shawna.
    At the same time, he began to consider
    8                  BENSON V. CHAPPELL
    
           whether he should kill the girls. As he later
           described his thoughts: “I knew it couldn’t be
           put off and uh, in the state of mind that I was
           in at that time, the best thing, no I can’t say it
           like that, the only option I had was to go
           ahead and finish the job and uh, try to keep
           from being implicated in it, okay. Uh, I had
           trouble bringing myself to do it. . . . [A]nd uh,
           you know, three, four times I set them up for
           it and I, I just couldn’t do it. . . .” As the sky
           began to lighten, however, defendant found
           himself able to carry through. He took up a
           heavy steel jeweler’s mandrel which he
           carried in his briefcase; he repeatedly struck
           Stephanie and Shawna in the head; seeing that
           death did not come immediately, he seized the
           claw hammer and used the instrument to
           dispatch the children. As he subsequently
           admitted, he killed Stephanie and Shawna,
           and Laura and Sterling before them, “to
           protect my freedom.” To cover his crimes, he
           proceeded to start a fire in the shack. About 8
           a.m., just before the flames began to rage, he
           fled.
    
    People v. Benson, 802 P.2d 330, 336–37 (Cal. 1990).
    
        On Monday morning, January 6, 1986, Mike Owen
    stopped by a liquor store in Nipomo. Benson approached him
    and asked for a ride to Oceano. Owen agreed. Benson
    retrieved his briefcase and was dropped off in Oceano just
    after 8:00 a.m. At around this time, smoke was seen coming
    from Laura’s home and the fire department was called. The
                       BENSON V. CHAPPELL                       9
    
    home was heavily damaged and charred. According to the
    district court:
    
           Laura’s three children, Stephanie, Shawna,
           and Sterling, were all dead, on the floor in the
           middle of this room, which the fire had
           heavily damaged. A lot of burnt and partially
           burnt debris was under and around the girls’
           bodies and on the floor of the second room. A
           pink and black, wire-ribbed female corset was
           next to Stephanie’s body.
    
           A partially-burnt claw hammer was lying on
           top of Stephanie’s shoulder. Petitioner’s ring
           mandrel was lying next to Shawna. Another
           hammer was hanging on the wall next to the
           kitchen sink.
    
           Investigators found pornographic magazines,
           newspapers, and a photo album under the two
           girls’ bodies. . . .
    
           The arson investigator . . . examined the fire,
           and determined someone had deliberately set
           on fire the surface of a four foot wide pile of
           magazines, paper goods, clothing, and toys, in
           the middle of the children’s room next to and
           underneath the bodies of Stephanie and
           Shawna, allowing it to burn down into the
           pile.
    
       On Tuesday, January 7, Benson asked a friend of a friend,
    K.S., for a ride to Los Osos, a town north of San Luis Obispo.
    K.S. agreed to give him a ride as far as San Luis Obispo,
    10                        BENSON V. CHAPPELL
    
    Benson picked up his belongings, and they left for San Luis
    Obispo around 6:30 p.m. They drove to an apartment
    complex where Benson got out and asked K.S. to wait while
    he went inside. When Benson returned, he started gathering
    his belongings, then he grabbed K.S. from behind, put a knife
    to her throat, and ordered her to drive to Los Osos. K.S.
    panicked and offered Benson her car. He rejected the offer
    and “took out a cylinder with something like a needle sticking
    out of it and told her it would kill her if he pricked her with
    it.”
    
        Benson made K.S. drive to a liquor store in San Luis
    Obispo where he forced her to buy a bottle of whiskey and
    pornographic magazines. They returned to the car and
    Benson forced her to continue driving to Los Osos. When
    they got there, Benson said he was on a mission to rescue a
    family in Los Osos.1 They talked in the parked car for more
    than an hour until Benson made a phone call. K.S. was
    terrified of Benson, who remained within reach of her.
    Benson made K.S. drive to an abandoned house, where he
    eventually got his things out of the car and went inside. K.S.
    drove straight home to San Luis Obispo and called the police.
    
    
    
         1
             The district court noted:
    
                Petitioner claimed he knew a police officer in Los Osos
                who had been suspended for molesting an 11 year-old
                girl, and was producing and filming a home-made
                pornographic movie in which he was forcing his wife
                and two daughters to participate. Petitioner claimed he
                had borrowed some pornographic magazines from the
                policeman, and, under the guise of returning them, he
                would go to the policeman’s house to rescue the two
                girls.
                          BENSON V. CHAPPELL                            11
    
       Later that night, K.S. accompanied the police to the
    abandoned house in Los Osos. The police went to the house
    and arrested Benson. Benson was booked at around
    11:30 p.m. on Tuesday, January 7, in connection with the
    kidnaping of K.S.
    
        On Wednesday, January 8, Benson’s parole agent, Felix
    Martel, was notified of Benson’s arrest. Benson had four
    prior felony convictions for abducting minors. Martel went
    to the San Luis Obispo County Sheriff’s Office to discuss the
    matter with detectives. He authorized the breaking of the
    lock on Benson’s briefcase to conduct a parole search, and he
    placed a parole hold on Benson. Law enforcement officers
    spent Wednesday consolidating and reviewing the evidence
    they had concerning the murders.2 On Thursday morning,
    based on evidence pointing toward Benson as responsible for
    the murders, the Sheriffs Office called someone with the
    FBI’s Behavioral Science Unit to discuss how best to
    approach a pedophile like Benson.
    
        B. Benson’s Confessions
    
        Detective Bolts and Investigator Hobson began
    interviewing Benson in an office at the San Luis Obispo
    County Detective Bureau around 11:00 a.m. on Thursday,
    January 9, 1986. Benson was initially detained on a parole
    hold based on his kidnaping of K.S. At the beginning of the
    interview, Bolts read Benson his Miranda rights, and Benson
    indicated that he understood his rights and waived them. A
    portable transmitter in the room monitored the conversation
    and relayed it to another room where other investigators
    
         2
           Benson had been interviewed briefly at his home on the afternoon
    of January 6, 1986.
    12                  BENSON V. CHAPPELL
    
    could listen to, and record, the interview. All but the initial
    one and one-half hour to two hours of the almost twelve-hour
    interview was tape-recorded.
    
        The officers initially focused on a charge of kidnapping
    K.S. but then shifted their focus to the events that occurred at
    Laura Camargo’s home in Nipomo. Bolts commented: “I
    think we could perhaps start anew and talk about some things
    that occurred Saturday night and talk some straight turkey.”
    Bolts continued, “I think you only realize too well that we
    didn’t call you in here without having done our homework.”
    Benson responded that he had “known that for quite awhile”
    and that, “as it looks right now, I’m a very suspected man.”
    The following colloquy ensued:
    
           Hobson: What’s going through your head
           right now Richard?
    
           Benson: I don’t think you’d believe it.
    
           Hobson: I’d like to believe it, try me. We sat
           here with you all this time and that’s why
           we’re still here with you, because we care
           also.
    
           Bolts: We’re caring, feeling, human beings
           and we have compassion for a lot of things
           and we’ve seen a lot worse, believe me, this is
           not the end of the line by any means.
    
           Hobson: Richard, if we didn’t care, we
           wouldn’t be sitting here.
                BENSON V. CHAPPELL                  13
    
    Benson: I don’t see, I don’t see how you can
    say it’s not the end of the line.
    
    Bolts: It’s not.
    
    Benson: It is for me.
    
    Bolts: Why? There’s no death penalty here.
    
    Benson: That doesn’t matter.
    
    Hobson: Wait a minute, before we talk about
    that, we don’t know what happened in that
    house . . . [.]
    
    Bolts: Exactly. We know what kind of a
    person Laura could be.
    
    Hobson: Laura had a temper. We know that.
    Maybe you were put into a position where you
    had to make a choice.
    
    Benson: It doesn’t matter what choices I had.
    
    Hobson: Sure it does.
    
    Benson: No, because nothing justifies the
    outcome.
    
    Hobson: Well, why don’t you tell us and let
    us decide that.
    
    Benson: The thing ot [sic] it is, I can’t.
    14                  BENSON V. CHAPPELL
    
           Hobson: Why?
    
           Benson: I don’t know.
    
           Hobson: You don’t know what?
    
           Benson: I don’t know what happened.
    
    Benson, 802 P.2d at 841 n.3.
    
         Benson claimed he could not tell the officers what
    happened because he could not remember. However, after
    telling the officers a number of lies, Benson admitted he
    committed all the murders and sexually molested Stephanie
    and Shawna for 30 hours before he killed them. Benson’s
    admissions were laced with inconsistencies about how and
    why he committed the acts. The officers finally terminated
    the interview around 11:00 p.m., returned Benson to jail, and
    booked him on murder and other related charges.
    
        Later that night, Benson was placed on “suicide watch”
    and placed naked into a small empty cell with foam rubber
    padded walls and a bare concrete floor—a so-called “rubber
    room.” Id. at 346. He was told by a jailer that he would not
    be released until he was cleared by “Mental Health.” Id.
    
        On the morning of January 10, 1986, Dr. Gordon of the
    Sexual Assault and Response Team visited Benson.
    Dr. Gordon testified that he told Benson that he was a doctor
    and he advised him of his constitutional rights including the
    right to remain silent and the right to an attorney. Dr. Gordon
    stated that Benson agreed to talk to him and that Benson
    proceeded to describe his sexual molestation of the two girls
    in some detail.
                        BENSON V. CHAPPELL                       15
    
        On January 13, 1986, Bolts and Hobson interviewed
    Benson for another three hours. Benson was again advised of
    his Miranda rights and waived them. During the interview he
    provided further details of the crimes. Near the end of the
    interview, the following dialogue transpired:
    
           Bolts: . . . [J]ust so that I’m clear, is there
           something that we’ve said uh, as far as, you
           know, threats that we’ve made to you,
           promises or any promises of leniency,
           anything that has caused you to tell us what
           you’ve told us?
    
           Benson: No. I’m surprised that that came up.
    
           Bolts: Well, I, it’s something that uh, you
           know, I’ve thought of, that maybe something
           that we said you interpreted as some kind of
           threat or promise or some . . .
    
           Benson: You know what, if you guys started
           whipping me with billy clubs right now, you’d
           see me smile, so you know that’s not uh, a . . .
           now, no, you guys are good at your job, I
           complimented you to your lieutenant about it
           as a matter of fact, uh, I’m glad you are,
           because it served in getting me off the street,
           you know, I feel that in some sick twisted way
           I helped a little, but you guys still . . . you did
           your job.
    16                  BENSON V. CHAPPELL
    
                      II. Judicial Proceedings
    
         A. The Indictment and Appointment of Counsel
    
        On January 14, 1986, Benson was arraigned. He was
    charged in a 14-count complaint with murder, child
    molestation, arson, and kidnapping. That afternoon he
    appeared in court and was advised of his right to counsel.
    Although Benson initially said he did not want an attorney,
    the court appointed counsel, and advised Benson that the
    charges carried the possibility of the death penalty. After
    conferring with counsel, when Benson was again asked
    whether he wanted counsel, he responded:
    
            I do desire counsel, your honor. It turns out,
            in my interrogation with the deputies, I was
            led to believe that, according to them,
            California no longer had a death penalty.
            Because of that, we were just talking years,
            not life. Because of that, I didn’t feel that the
            expenditure of the court was warranted in
            something that was inevitable to happen.
    
         B. The Motion to Suppress
    
        On February 26, 1987, the first day of trial, the court ruled
    on Benson’s motion to suppress his confessions to the
    officers. The court first rejected his arguments that:
    (1) Benson’s arraignment had been delayed in order to elicit
    incriminating statements; and (2) Benson was entitled to a
    second Miranda warning when the subject of the questioning
    changed from kidnapping to homicide.
                       BENSON V. CHAPPELL                      17
    
        Benson testified at his suppression hearing. Benson
    explained that when Detective Bolts commented that there’s
    “no death penalty here,” Benson thought Bolts meant that
    “the death penalty was dormant in California, and that they
    weren’t seeking the death penalty as far as what the
    interview, what the case was going to.” When asked to
    explain his response “that doesn’t matter” to Bolts’s
    statement about the death penalty, Benson testified that “[a]t
    the time, the incidents were very fresh and vivid in my mind,
    and I was having a lot of trouble dealing with the whole
    situation.” Benson further stated that his “primary thought
    was nothing was going to change the effect of the people that
    died. Nothing was going to bring them back.” When asked
    why he gave information to the police, Benson testified that
    “there’s no one answer to that.”
    
        The judge carefully considered the possible impact on
    Benson of Bolts’s indication that there was no death penalty.
    The judge noted that Benson “is very articulate, very well-
    spoken, seems to the Court having read this transcript, that
    he’s an intelligent young man,” and that, by his own account,
    he is experienced in the criminal justice system. The court,
    having reviewed the transcript of the interrogation, opined
    that Benson had been focusing on the horror of the situation
    and did not rely on the officer’s statement. The judge also
    noted the passage of time between the officer’s statement and
    Benson’s eventual admission of what he had done. The judge
    concluded that he was “persuaded beyond a reasonable doubt
    that Mr. Benson’s statements were not coerced by promise of
    leniency, but rather were made freely and voluntarily.”
    18                  BENSON V. CHAPPELL
    
         C. The Motion to Exclude Dr. Gordon’s Testimony
    
       When Dr. Gordon was called as a witness, Benson’s
    counsel moved to exclude Benson’s statements to Dr. Gordon
    as involuntary. The district court described counsel’s
    argument as follows:
    
            the reason that Mr. Benson was so willing to
            speak to Dr. Gordon was his desire to vacate
            the - - what we have referred to as the rubber
            room. And in an effort to get out of that
            confinement, he was willing to open up and
            speak to Dr. Gordon. That that was, in effect,
            a ruse or a scam on behalf of the police in that
            there was a suggestion that he would be
            speaking to someone from Mental Health, and
            that they substituted in that person’s stead
            Dr. Gordon who came in and then proceeded
            to ask and obtain - - ask questions and obtain
            incriminating statements.
    
    The trial court denied the motion to exclude and noted that it
    seemed clear “that Mr. Benson was going through some
    terribly draining emotional feelings,” and “that in his own
    heart and mind he felt it was necessary to get this off of his
    chest and to speak to somebody about it.”
    
         D. The Guilt Phase
    
       The guilt phase of the trial began on February 26, 1987,
    and took less than four days. Defense counsel examined two
                        BENSON V. CHAPPELL                       19
    
    prosecution witnesses out of order in an attempt to show that
    Benson was a regular drug user, but offered no affirmative
    defense once the prosecution rested. Defense counsel told the
    trial judge, out of the jury’s presence, that once Benson’s pre-
    trial statements were admitted, their tactical decision was to
    concentrate on the penalty phase because they thought the
    result of the guilt phase was a foregone conclusion. On
    March 4, a jury found Benson guilty of the charges.
    
        E. The Penalty Phase
    
        At the penalty stage, the prosecution presented the
    kidnapping of K.S. as aggravating subsequent criminal
    activity. They also presented Benson’s four prior felony
    convictions. In 1971, when Benson was 24 years old, he was
    convicted of committing a lewd and lascivious act on a nine-
    year-old girl he had kidnapped as she was walking down the
    street. In 1975, Benson was convicted of kidnapping an
    eight-year-old girl from her bedroom where she was sleeping.
    In 1975, he was also convicted of lewd and lascivious acts on
    a three-year-old girl that he had taken from her mother’s
    house. In addition, in 1980, Benson was convicted of
    kidnapping a four-year-old girl he had taken from her
    bedroom while she was sleeping. As part of its case, the
    prosecution played the tapes of Benson’s January 9 and
    13 confessions in full for the jury.
    
        The tapes revealed that Benson had made a number of
    statements to the officers about how Laura had encouraged
    20                     BENSON V. CHAPPELL
    
    him to sexually abuse her daughters3 and how his inhibitions
    had been overcome by his use of methamphetamine.4
    
    
    
    
         3
          Benson stated that Laura encouraged him to molest the children,
    possibly in return for payment of money. When asked what Laura would
    allow him to do, Benson stated:
    
             Anything that didn’t hurt them. You know, they were
             too small for penetration or anything like that.
             Basically fondle, you know, and uh, I, you know,
             what’s important . . . this is believe it or not kind of
             funny, uh, I was the one that told her, you know what,
             I don’t want any of this to come out to where it leaves
             any lasting bad memories on the kids. And uh, she
             goes, what do you mean and I says . . . if for some
             reason, you know, they’re uncooperative, we drop it
             and she goes, well, my kids will do what I tell them to.
             And I said, that is what I’m saying, you know, I don’t
             want to talk, coerce or anything into something that
             later they will, you know, and, uh, she goes, man,
             you’re weird and uh, you know, I tell her that that was
             right . . . .
         4
         In responding to questions about the pornography in his briefcase
    and Laura encouraging him to molest her daughters, Benson commented:
    
             Yeah, you know, and uh, the pictures have been what
             has been keeping me out of trouble, okay, the only time
             I have problems with this is when I do crank, okay,
             needless to say, if I had any sense at all, I’d quit doing
             crank. Alright, uh, I like doing crank. I don’t like the
             end result, you know, and sometimes I get wired and
             start thinking about little girls and stuff like this and
             that’s when the briefcase comes in, you know, it keeps
             me off the streets, okay. Uh, the only thing I can say is
             it’s worked, you know, and I have cut back my use of
             crank. Okay.
                            BENSON V. CHAPPELL                              21
    
        In response to the prosecution’s presentation, Benson’s
    counsel called a number of witnesses to show that Benson
    had a very difficult childhood and was addicted to drugs.
    Counsel called Benson’s brothers Dale Snow and Brad
    Benson.5 Dale testified that, when he was one year old, he
    was sent to live on a ranch near Petaluma run by Marjorie
    Buchanan, and that all his brothers were also sent to the
    ranch. Dale identified a photo of the brothers taken at Easter
    at Aunt Grace’s home in San Francisco when Benson was
    seven or eight. He described Aunt Grace as being “very
    supportive of the family and instrumental in having holidays
    for all of us.” Dale then testified that when he was ten, and
    Benson nine, the brothers were returned to the custody of
    their alcoholic father. Brad also testified that all the brothers
    had lived on Marjorie Buchanan’s ranch until their father
    instituted proceedings to have them returned to his custody.
    Neither Dale nor Brad offered any criticism of life on the
    ranch in their testimony.
    
        Both Dale and Brad described the difficulties of the
    approximately three years they lived with their father before
    the state removed them from his custody. They first went to
    an apartment where their father, their “stepmother,” and their
    sister lived. The district court noted that within weeks the
    family was evicted, and for the next three years they lived “in
    seedy, skid row hotels, houses, apartments and shanties,
    including a converted chicken coop, never staying in any one
    place more than a few months or the time it took for the
    manager or landlord to realize that no rent was forthcoming.”
    The father, a chronic alcoholic, was always unemployed and
    
    
        5
           To avoid confusion the brothers, Dale and Brad, are referred to by
    their first names, and the petitioner, Richard Benson, is referred to by his
    last name.
    22                 BENSON V. CHAPPELL
    
    looking for money. The boys continually attended different
    schools, and worked at whatever odd jobs they could find.
    Dale and Brad testified that they were alcoholics and that
    their brothers, Bill, David, and Teddy Joe were also
    alcoholics.
    
        The defense also called Benson’s sister, Sandra Bradley,
    who testified that both their father and mother were
    alcoholics and confirmed that when her brothers came to live
    with them they “moved a great deal.” In three years she
    attended three or four different schools.
    
       Defense counsel had Grace Ehlig O’Brien, a retired high
    school principal and teacher, testify that she remembered
    Benson when he was in seventh grade for three-to-four
    months before being sent to juvenile hall. She identified a
    summary paragraph from Benson’s school records that read:
    
           Boy told vice-principal and later grade
           counselor that no one cared for him or wanted
           to listen to his problems. He said that no one
           believed him when he told the truth. He
           wants to be with his brothers and sister. He
           says he blames his parents for many of his
           present problems and he feels quite strongly
           about this.
    
    The note concluded that Benson “[w]ants to be an electrician.
    Likes to take radios apart, likes reading, dislikes math.”
    
        Counsel called Holmes R. Benson, Benson’s uncle, as a
    witness.   He testified that Benson’s father was an
    alcoholic—who was secretive, unreliable, and would at times
                            BENSON V. CHAPPELL                              23
    
    ask for financial assistance.6 On cross-examination, Holmes
    testified that he had arranged for Benson to get a job and
    outfitted him “with the necessary welding equipment, helmet,
    a jacket, gloves,” but he was employed only for three-to-six
    months.
    
        In addition, Mary Pat Degroodt, a chemical dependency
    nurse who had worked with Dale Snow, testified that
    alcoholism can run in families, that Benson was a member of
    a dysfunctional family, and that she thought that he had a
    chemical dependency.
    
        Defense counsel recalled Officer Bolts to the stand to
    testify that a person who knew Benson and had previously
    testified, had told the officer: “[Benson] often goes up to
    Katrina’s room long periods of time, stares [sic] out window.
    Often gets up, leaves early in a.m. [sic], does crank often dash
    every day.”7
    
        Dr. Gregory Hayner, a pharmacist at the Haight-Ashbury
    Free Medical Clinic, testified that he had interviewed Benson
    for two hours. Dr. Hayner expressed the opinion that at the
    time of the murders, Benson was “very, very paranoid.” He
    continued:
    
    
    
    
        6
          In addition, the defense called Mr. Gunville, a social worker with the
    State of Washington, who testified that Benson’s father was an alcoholic
    and had refused to address his alcoholism. He further testified that the
    father had been in a documentary film about the homeless in Seattle.
        7
          Officer Bolts also testified that the person used “crank” to refer to
    methamphetamine.
    24                     BENSON V. CHAPPELL
    
             And by the effects of the drug and lack of
             sleep, being very disoriented and unable to
             think very clearly, or really formulate many
             cogent plans about what he was going to do at
             any given time, and tended to react to the
             situation at hand rather than acting out on a
             set-out plan.
    
    Dr. Hayner concluded that Benson’s ability to conform his
    conduct to the requirements of the law was “definitely
    impaired,” that he heard and saw things that were not there,
    and that he was “suffering a toxic psychosis at the time due
    to chronic intoxication with amphetamines.”
    
        Dr. Gene Abel, a neurologist and psychiatrist and an
    expert in sexual violence and the evaluation and treatment of
    sex offenders, also testified for the defense. At counsel’s
    request, Dr. Abel had first examined Benson in August 1986.
    Dr. Abel had reviewed approximately 280 pages of
    information on various evaluations of Benson, had given
    Benson a variety of tests, and had interviewed him for about
    12-to-13 hours. Dr. Abel opined that Benson had a number
    of psychiatric disorders, including paraphilia, which in his
    case is a sexual deviation of pedophilia. He explained in
    some detail that Benson’s ability to conform his behavior had
    been impaired by his paraphilia.8 In reviewing Benson’s
    
         8
         Dr. Abel explained that a person suffering from paraphilia surrounds
    himself with cognitive distortions.
    
             “Molesting the child won’t hurt child.” That is a faulty
             belief. “I can predict if I molest a child, which child
             will be hurt in the future.” That is a faulty belief. That
             isn’t true. “If I’m not using force, it’s no harm to the
             child.” That’s a false belief. There are a variety of
                          BENSON V. CHAPPELL                           25
    
    records, Dr. Abel was very critical of the prior psychiatric
    treatment of Benson, opining that when “talk therapy” failed
    to help Benson to overcome his psychiatric problems, Benson
    “should have been placed on a medication to eliminate his
    arousal.”
    
        Dr. Abel also opined that Benson had a drug dependency
    with a variety of drugs, particularly amphetamines. He
    explained that for Benson the effect of amphetamines “starts
    from starting to feel good to misperceiving the realities of the
    situation, feeling that you have skills that you do not have,
    feeling that you have abilities that you do not have. You start
    getting frightened and scared to what would be called
    delirium.”
    
        Dr. Abel admitted that, based on his prior convictions,
    Benson was clearly dangerous and was likely to molest
    children. However, because Benson was manipulative and
    could “access children easily,” he didn’t “need to kill
    somebody.” He opined that the murders were “out of
    character” and the result of the combination of Benson’s
    pedophilia and drug dependency.
    
       Benson’s counsel also played a video of a program on San
    Quentin from the television series, “Two on the Town,”
    “which depicted the gas chamber, described how it operates,
    explained how one sentenced to die is executed, and provided
    background.”
    
       The jury returned a verdict that the aggravating factors
    outweighed the mitigating factors and fixed the penalty at
    
    
            these cognitive distortions that the offender surrounds
            himself with and begins to think and really believes in.
    26                      BENSON V. CHAPPELL
    
    death. The jury provided no written statement in support.
    Benson, 802 P.2d at 365. On April 30, 1987, Benson was
    given the death sentence.
    
         F. Direct Review
    
         On appeal, the California Supreme Court struck two
    witness-killing special circumstances, but otherwise
    confirmed Benson’s conviction and death sentence. Benson,
    802 P.2d at 366. The court reviewed the voluntariness of
    Benson’s confession “independently in light of the record in
    its entirety.” Id. at 343. It concluded that the trial court did
    not err in denying the motion to suppress and that “the court
    properly concluded that the confessions were voluntary
    beyond a reasonable doubt.” Id. at 344. The California
    Supreme Court concluded that even “[e]xamined de novo,
    each of the [trial] court’s crucial determinations is sound.”
    Id. The court explained, first, “the police activity here was
    clearly not coercive.” Id. “Second, Detective Bolts’s
    comment about the death penalty did not constitute a
    promise of benefit.”9 Id. “Third, Detective Bolts’s comment
    
    
    
    
         9
          The court reasoned: “Hobson’s words effectively ‘withdrew’ the
    remark. And as defendant himself conceded at the hearing, the remark
    was not ‘renewed’: the officers ‘[n]ever again discuss[ed] the matter of the
    death penalty with’ him.” Benson, 802 P.2d at 345.
                              BENSON V. CHAPPELL                             27
    
    about the death penalty did not operate as an inducement.”10
    Id. at 345.
    
        The California Supreme Court also rejected Benson’s
    argument that his statements to Dr. Gordon should have been
    suppressed. Reviewing the record de novo, the court agreed
    with the trial court’s implicit determination that Benson’s
    confession was voluntary. Id. at 346. It reasoned:
    (1) “defendant was properly advised of, and effectively
    waived, his Miranda rights - - nor does he claim otherwise”;
    (2) “of crucial importance, the necessary element of coercion
    
        10
             The California Supreme Court explained:
    
               On this record, it is difficult to conclude that the remark
               was even a cause-in-fact of the confessions. To Bolts’s
               observation, “There’s no death penalty here,” defendant
               immediately responded, “That doesn’t matter.” The
               evidence practically compels the inference that insofar
               as the confessions were concerned, the comment in fact
               “didn’t matter.” We recognize that the remark
               preceded defendant’s confessions. The intervening
               period of time, however, was not insubstantial.
               Moreover, temporal priority does not establish causal
               force: it is a logical fallacy to reason post hoc ergo
               propter hoc. In any event, the evidence simply does
               not support an inference that the causal connection
               between Bolts[’s] comment and defendant’s
               confessions was more than “but for.” As explained
               above, however, causation-in-fact is insufficient.
    
               Again, it is true that defendant testified that he was
               indeed induced to confess by the comment. But again,
               the court clearly, albeit impliedly, found his testimony
               lacking in credibility. Again, on this record we must
               agree.
    
    Benson, 802 P.2d at 345.
    28                  BENSON V. CHAPPELL
    
    on the part of the authorities is lacking”; (3) “there was no
    promise or deception by the authorities”; and (4) “defendant
    made his confession freely out of compunction.” Id.
    at 346–47.
    
         G. Post-Conviction Proceedings
    
        Benson filed his first state habeas petition in January 1993
    with the California Supreme Court. He argued that his
    confessions to the police and Dr. Gordon were involuntary
    based on “severe psychological, neurological and
    developmental impairments.” He relied on psychologists and
    psychiatrists who opined that Benson had brain damage
    caused by “in utero toxin exposure, anoxia, head trauma, and
    solvent inhalation,” as well as voluntary drug use, and also
    head injuries from physical abuse and a near drowning
    incident. Experts also asserted that Benson suffered from dis-
    associative disorder and Post-Traumatic Stress Disorder.
    Dr. Abel, who testified on Benson’s behalf at trial,
    supplemented his prior diagnoses and now opined that
    Benson’s neurological and psychiatric impairments rendered
    him an unreliable witness and that all of Benson’s statements
    should be viewed skeptically.
    
        In addition, the habeas petition alleged ineffective
    assistance of counsel at the penalty phase based on counsel’s
    failure to investigate and present evidence that Benson’s two-
    to-three years on the Buchanan farm were horrible, and that
    Benson suffered from an organic brain injury. In support of
    this claim, Benson alleged that on the Buchanan farm he and
    his brothers were subject to sexual, emotional, and physical
    abuse. He was beaten until bloody with various objects,
    including a belt buckle, his hand was intentionally burned on
    a stove, and soap and cayenne pepper were forced into his
                           BENSON V. CHAPPELL                              29
    
    mouth. Allegedly, Benson “developed psychotic behavior (in
    response to the beatings), which, for example included his
    withdrawing and becoming quiet, banging his head against
    the wall, and eating dirt and live bugs.” The petition alleged
    that Benson was “fondled, sodomized, beaten in the genitals,
    given frequent and repeated enemas, and forced to perform
    sexual acts with the farm animals.” The petition further
    alleged that David, Marjorie Buchanan’s son, caused Benson
    to be “fondled, sodomized, digitally raped, orally copulated,
    forced to orally copulate David, raped with foreign objects
    including a cattle prod and tied to a tree or a chair, molested,
    and then left naked and tied for hours.”11 However, the
    habeas petition also alleged that Benson had “no memory of
    the torture, and sexual, psychological and emotional abuse he
    suffered on the Petaluma farm.”
    
       On May 12, 1994, the California Supreme Court denied
    the habeas petition “on the merits,” with no further
    explanation.
    
       In February 2001, Benson filed a third habeas petition
    with the California Supreme Court.12 In this petition, Benson
    argued his Fourth Amendment rights were violated because
    he was not arraigned within 48 hours of his arrest as required
    by County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
    The court denied the petition on its merits without
    explanation.
    
    
        11
          In addition, the petition asserted that David was a Boy Scout leader,
    and in 1956, the year Benson left the farm, David was convicted of
    sexually molesting members of a Boy Scout troop.
         12
            A second habeas petition was denied in August 1997, but none of
    the claims asserted therein are at issue in this federal petition.
    30                  BENSON V. CHAPPELL
    
                  III. District Court Proceedings
    
        Benson filed his federal habeas petition with the United
    States District Court for the Central District of California in
    April 1997, and amended it in August 1997. After California
    moved for summary judgment, Benson was allowed to file a
    second amended petition. On February 28, 2013, the district
    court issued a 373-page memorandum and order granting
    summary judgment in favor of California and denying
    Benson’s request for an evidentiary hearing.
    
        Because Benson filed his habeas petition after April 24,
    1996, the district court reviewed the petition under AEDPA’s
    deferential standards. See Woodford v. Garceau, 538 U.S.
    202, 207 (2003). Accordingly, relief is available only if the
    last-reasoned state court decision was “contrary to, or
    involved an unreasonable application of, clearly established
    Federal law,” or was “based on an unreasonable
    determination of the facts.” 28 U.S.C. § 2254(d). See Ylst v.
    Nunnemaker, 501 U.S. 797, 803–04 (1991). The district
    court described the standard of review: where “a state court
    adjudicates the merits of an issue without providing its
    underlying reasoning, as it did here in the case of petitioner’s
    four state habeas petitions, the federal court conducts an
    independent review of the record to determine whether the
    state court’s resolution of the issue constitut[es] an
    objectively unreasonable application of clearly established
    federal law.” It further noted that where a state court “has not
    decided an issue, the federal court reviews that question de
    novo.” However, it recognized that in Harrington v. Richter,
    562 U.S. 86, 101 (2011), the Supreme Court held that a
    federal court may not grant relief just because it would have
    reached a different conclusion; rather, a “state court’s
    determination that a claim lacks merit precludes federal
                        BENSON V. CHAPPELL                      31
    
    habeas relief so long as ‘fairminded jurists could disagree’ on
    the correctness of the state court’s decision.” See also
    Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
    
       A. The Admissibility of Benson’s Confessions
    
        The district court first addressed Benson’s challenges to
    the admissibility of his statements to Detective Bolts,
    Investigator Hobson, and Dr. Gordon. Benson argued that the
    tape recordings of his statements to Bolts and Hobson were
    unreliable and inaccurate. The district court rejected this
    contention, noting that Benson had identified no clearly
    established federal law that required complete accuracy in
    tape-recordings and transcriptions of uncoerced admissions.
    The district court found that “the California Supreme Court
    could reasonably have concluded, on the record before it, that
    petitioner’s claim here fails because, although petitioner has
    pointed out numerous errors and omissions in the tapes and
    transcripts, he has not identified any errors or omissions
    which are materially prejudicial to him.”
    
        Second, Benson claimed that his statements to Bolts,
    Hobson, and Dr. Gordon were involuntary. The district court
    noted that the California Supreme Court had found that
    (1) Bolts’s statement (no death penalty) did not constitute a
    promise of leniency, (2) Hobson’s following statement
    effectively countered the death penalty statement,
    (3) Benson’s testimony that Bolts’s comment induced him to
    confess lacked credibility, and (4) Benson’s true motivation
    for confessing was “a compunction arising from of his own
    conscience.” Based on its review of the record, the district
    court held that these findings were “reasonable in light of the
    evidence presented in state court,” and were entitled to a
    presumption of correctness under § 2254(e)(1). The court
    32                 BENSON V. CHAPPELL
    
    further found that Benson “[had] failed to rebut these factual
    findings with any evidence at all, let alone evidence that is
    ‘clear and convincing.’” The court concluded:
    
           All of this evidence supports the California
           Supreme Court’s finding that police coercion
           played no role in causing petitioner to make
           his statements to Detective Bolts and
           Investigator Hobson on January 9 and 13,
           1986, or his statements to Dr. Gordon on
           January 10 and 12, 1986. This court “cannot
           conclude that there is no possibility that
           fairminded jurists could agree with the state
           court’s interpretation” of the record on this
           issue.
    
        Third, Benson asserted that his waiver of his Miranda
    rights was not voluntary, knowing, and intelligent. In
    rejecting this argument, the district court noted it was
    undisputed that Benson had been read his Miranda rights
    before the interviews and had agreed to speak. The court
    further reasoned that the California Supreme Court could
    reasonably have concluded that Benson’s waivers of his
    Miranda rights were motivated by the same “compunction
    arising from his own conscience.” The district court
    concluded that the California Supreme Court could
    reasonably have concluded that Benson’s waivers were
    voluntary, knowing, and intelligent, particularly as Benson
    “acknowledged that he understood his rights and expressly
    stated that he waived them,” and “demonstrated during the
    interviews that he had extensive, prior experience with law
    enforcement.”
                            BENSON V. CHAPPELL                             33
    
        Although Benson claimed his waivers were not knowing
    due to his mental condition and incompetence, the district
    court noted that none of his “experts’ declarations include an
    opinion that petitioner’s waiver of Miranda rights was not
    knowing or intelligent due to his mental condition or that he
    was incompetent to waive those rights.” Accordingly, the
    California Supreme Court could reasonably have concluded
    that Benson’s proffer of “conclusory evidence was
    insufficient to establish a prima facie case that his waiver of
    Miranda rights was not knowing or intelligent.”
    
        Fourth, Benson argued that the seven-day delay between
    his arrest and his arraignment violated his Fourth Amendment
    rights as set forth in McLaughlin, 500 U.S. at 57, as well as
    his rights to due process and counsel. He argued that the
    delay tainted his confessions. The district court rejected this
    claim and ruled that because Benson had been subject to a
    parole hold, no clearly established federal law required
    compliance with the 48-hour time frame set forth in
    McLaughlin. Recognizing that there was no copy of the
    parole hold in Benson’s file, the district court, nonetheless,
    credited the 2002 deposition of Benson’s parole officer that
    he had placed a parole hold on Benson.13
    
    
       13
            The district court commented:
    
              [T]here is no affirmative evidence demonstrating that
              Martel failed to place a parole hold on petitioner; in
              fact, all of the affirmative evidence supports the
              conclusion that Martel did place the parole hold when
              he testified he did. The only “evidence” to which
              petitioner points in support of the contrary contention is
              the absence of a document from a file where it should
              appear and Martel’s lack of an explanation for the
              document’s absence. This is insufficient to justify the
    34                    BENSON V. CHAPPELL
    
         B. Incompetence
    
        The district court also rejected Benson’s claim of
    incompetence. The district court concluded that Benson’s
    “claim he was actually incompetent to stand trial does not
    survive review under [28] U.S.C. § 2254(d), and must be
    DENIED. The full record establishes that he was unusually
    focused and responsive, and was acutely aware of the
    proceedings.”
    
         C. Ineffective Assistance of Counsel (IAC) at the
            Penalty Phase
    
         1. Benson’s Childhood
    
        In its memorandum order the district court reviewed the
    relevant filings and then described Benson’s childhood. He
    was the fourth child in a family of six boys and a girl. His
    mother was a drug addict, and both she and his father were
    alcoholics. Benson and his brothers were sent to live on a
    farm near Petaluma with a foster mother, Marjorie Buchanan.
    Life on the farm was represented at trial as relatively normal,
    aside from the fact that the boys seldom saw their natural
    parents. When Benson was nine years old, his father obtained
    physical custody over him, and Benson and his brothers went
    to live with his father and a stepmother in a motel in Long
    
    
            further delay of this action that granting a stay under
            Gonzalez [v. Wong, 667 F.3d 965 (9th Cir. 2011)]
            would entail. Also weighing against the grant of a stay
            is the fact that petitioner has apparently made no effort
            until now to present the alleged new evidence to the
            California Supreme Court even though he has had the
            deposition transcript where the “evidence” appears
            since 2002.
                        BENSON V. CHAPPELL                       35
    
    Beach. Within weeks the family was evicted, and for the next
    three years they lived “in seedy, skid row hotels, houses,
    apartments and shanties, including a converted chicken coop,
    never staying in any one place more than a few months or the
    time it took for the manager or landlord to realize that no rent
    was forthcoming.” The father, a chronic alcoholic, was
    always unemployed and looking for money. The boys
    continually attended different schools, and worked at
    whatever odd jobs they could find.
    
        The district court noted:
    
            The county protective services agency
            sometimes intervened to remove the Benson
            children from their father’s custody and place
            them in various foster and group homes. Off
            and on, the boys were reunited with their
            father, only to be repeatedly split up and
            placed in foster and group homes again.
            Finally when petitioner was 11 or 12, after
            three years of sporadically living with their
            father, the children were permanently taken
            from their father, and they were never
            together again as a family. All of the boys
            turned to alcohol to escape from reality, but
            Sandy [the daughter] did not.
    
        Benson lived in group homes and institutions from age 11
    onward and had difficulty adjusting to society. He began
    drinking alcohol and using marijuana at age 15. He was
    arrested a number of times for drunk driving and began using
    amphetamines and barbiturates around age 18. He went to
    junior high school in Los Angeles, and although he missed
    the last three weeks of school because he was placed in
    36                  BENSON V. CHAPPELL
    
    juvenile hall, all of his grades were passing and some were
    excellent. He told a school counselor that no one cared, no
    one believed him, he wanted to be with his brothers and
    sisters, and it was all his parents’ fault.
    
        Benson was first arrested at age 10, and was first
    committed to the California Youth Authority (CYA) at age
    13. He was removed from one foster home after he engaged
    in sexual activity with a younger female there. The district
    court further noted that Benson also had molested a four-
    year-old girl, but it was not reported to the authorities, he had
    a number of window-peeping charges, and he was a
    pedophile from age 14.
    
        Between June 1967, when he was released from the CYA,
    and his arrest in 1971, Benson had 13 run-ins with the law
    and spent a year in custody. After his 1972 conviction,
    Benson was confined at Atascadero State Hospital until 1974.
    Due to his criminal activity and convictions, Benson was out
    of custody for less than a year between 1975 and 1985.
    
         2. Denial of Relief on IAC
    
         The district court noted that trial counsel’s strategy at the
    penalty stage had been to argue that Benson “was a ‘normal’
    little boy on the Buchanans’ Petaluma farm, who was not
    born evil, but was a poor child taken from a normal life at the
    ranch and exposed to severe deprivation when his father took
    him and his brothers away from the ranch.” The court then
    reviewed the mitigating evidence that Benson contends
    should have been presented including his predisposition to
    mental illness, exposure to alcohol in his mother’s womb, the
    physical, sexual, and psychological abuse inflicted on Benson
                       BENSON V. CHAPPELL                    37
    
    by the Buchanans, and his numerous serious and longstanding
    mental deficiencies.
    
       The district court nonetheless denied relief on Benson’s
    IAC claim, reasoning:
    
           Having before it, as it did, petitioner’s
           complete social history and the psychiatric
           diagnoses of Drs. Able [sic] and Foster, the
           California Supreme Court could reasonably
           have concluded that the additional
           information provided in connection with
           petitioner’s first state habeas petition would
           have been insufficient to establish a
           reasonable probability that at least one juror
           would be persuaded to sentence petitioner to
           life without parole instead of the death
           penalty.     Although petitioner’s current
           account of his history is sordid and awful, his
           crimes were heinous, and the aggravating
           evidence presented by the prosecution was
           also sordid. The state court could reasonably
           have concluded that presenting petitioner as a
           normal little boy who was removed from a
           nurturing environment on the Buchanan farm
           and exposed to severe deprivation while living
           with his father might have benefitted
           petitioner, and that such a person would be
           more worthy of sympathy and a life sentence
           than someone who was environmentally and
           genetically damaged beyond rehabilitation
           from the beginning.
    38                        BENSON V. CHAPPELL
    
        The district court distinguished the then-most-recent
    Ninth Circuit case, Stankewitz v. Wong, 698 F.3d 1163 (9th
    Cir. 2012). The court noted that unlike counsel in Stankewitz,
    Benson’s counsel did present mitigating evidence,14 and that
    Benson had “committed four murders which, however
    callous, were far from impulsive.” The district court
    concluded that Benson’s claim of IAC at the penalty stage
    “[did] not survive review under AEDPA.”
    
                                  IV. Discussion
    
        On appeal, Benson challenges four aspects of the district
    court’s 373-page decision. The two certified issues are:
    (1) whether Benson’s statements to the officers and
    Dr. Gordon should have been suppressed, and (2) whether
    Benson’s counsel was ineffective at the penalty phase
    
         14
              The court noted that the evidence included:
    
                (1) that his mother was a prostitute and drug addict and
                his father an alcoholic; (2) that he was placed into
                foster care almost immediately after birth; (3) that his
                natural mother visited him only once during the first
                eight years of his life; (4) that upon reaching the age
                nine, his father obtained physical custody and within a
                few weeks of that Petitioner was forced to endure a
                years-long travail of bouncing around skid row hotels,
                shanties (including a chicken coop) and different
                schools; (5) that he experienced chronic hunger (he was
                forced to steal food); (6) that he was subjected to
                periodic placements into foster and group homes;
                (7) that petitioner and his several brothers all turned to
                alcohol; and (8) that he was first arrested at age 10,
                spent 4 of the 7 years between age 13 and 20 in the
                custody of the California Youth Authority, started using
                drugs at age 15, and between 1975 and 1985 was out of
                prison for a total of less than one year.
                           BENSON V. CHAPPELL                             39
    
    because he failed to investigate and present evidence of
    Benson’s “severe physical, sexual and emotional abuse in
    early childhood at the hands of a foster family.” Benson also
    raises two uncertified issues: (3) whether trial counsel was
    ineffective at the guilt stage in failing to impeach the state’s
    case, and (4) whether the prosecutor withheld material and
    exculpatory evidence.15
    
        A. Standard of Review
    
        As the district court noted, and Benson concedes, his
    federal habeas petition is reviewed under AEDPA, 28 U.S.C.
    § 2254. Woodford, 538 U.S. at 210 (“Because respondent’s
    federal habeas corpus application was not filed until after
    AEDPA’s effective date, that application is subject to
    AEDPA’s amendments.”). Accordingly, we can grant relief
    only upon a showing that the state court decision was
    “contrary to, or involved an unreasonable application of,
    clearly established Federal law,” or was “based on an
    unreasonable determination of the facts.” 28 U.S.C.
    § 2254(d). The Supreme Court has directed that “review
    under § 2254(d)(1) is limited to the record that was before the
    state court that adjudicated the claim on the merits,” Cullen
    v. Pinholster, 563 U.S. 170, 181 (2011), and that “[a] state
    court’s determination that a claim lacks merit precludes
    federal habeas relief so long as ‘fairminded jurists could
    disagree’ on the correctness of the state court’s decision.”
    Richter, 562 U.S. at 101. Moreover, even “[w]here a state
    
    
        15
           We requested and received a responding brief from California. See
    9th Cir. R. 22-1(f). We then accepted Benson’s oversized reply brief. We
    now issue a Certificate of Appealability for these two issues and consider
    the merits of Benson’s contentions. See Buck v. Davis, 137 S. Ct. 759,
    773–74 (2017).
    40                      BENSON V. CHAPPELL
    
    court’s decision is unaccompanied by an explanation, the
    habeas petitioner’s burden still must be met by showing there
    was no reasonable basis for the state court to deny relief.” Id.
    at 98.
    
         B. Benson’s Statements were Properly Admitted
    
        The record shows, and Benson admits, that he was
    advised of his Miranda rights prior to each of his police
    interviews and he indicated that he understood those rights
    and waived them. Nonetheless, Benson argues his statements
    should not have been admitted because: (1) his confession
    was tainted because he was not presented with the probable
    cause which supported his arrest within 48 hours as required
    by McLaughlin, 500 U.S. 44; (2) his statements were not
    voluntary because he relied on the officer’s statement that
    there was no death penalty and the interrogations were
    coercive; and (3) he has mental impairments which were
    exacerbated by his use of drugs, necessitating the suppression
    of his confessions. None of Benson’s arguments merit relief.16
    
    
    
         16
           Benson also appears to advance as a separate argument that it was
    clear error and an abuse of discretion for the district court not to hold an
    evidentiary hearing. This argument fails in light of the Supreme Court
    direction in Pinholster, 563 U.S. 170, that review under 28 U.S.C.
    § 2254(d)(1) is limited to the record in existence before the state court. Id.
    at 181. Our review of the record shows that the district court considered
    Benson’s evidence of mental impairment, was aware of the allegations
    concerning the interrogation procedures, and rejected Benson’s
    McLaughlin claim. Thus, it appears that all of Benson’s factual and legal
    allegations that were before the state courts were also before the district
    court, and we perceive no factual issue that required the district court to
    hold an evidentiary hearing. Benson has not carried his burden of
    showing that he was denied due process by the district court declining to
    hold an evidentiary hearing.
                        BENSON V. CHAPPELL                      41
    
       1. Benson is not entitled to any relief under McLaughlin
    
           a. Because a parole hold was put in place,
              McLaughlin does not apply.
    
         Benson gave multiple detailed confessions regarding the
    murders. However, each of the confessions was made during
    the period of time between Benson’s arrest for kidnapping on
    January 7, 1986 and January 14, 1986, when he was arraigned
    and presented with the probable cause for his arrest for the
    first time. The Supreme Court ruled in County of Riverside
    v. McLaughlin, 500 U.S. 44, 57 (1991) that an arrestee is
    entitled under the Fourth Amendment to a hearing at which
    he is presented with the probable cause of his arrest within
    forty-eight hours of the arrest. Benson argues that his
    confessions were tainted due to the delay in his arraignment.
    
        Benson raised his McLaughlin claim in his third state
    habeas petition, which was denied by the California Supreme
    Court on February 28, 2001. Accordingly, he is entitled to
    relief on this claim only if “there was no reasonable basis for
    the state court to deny relief.” Richter, 562 U.S. at 98.
    
        A Fourth Amendment claim resulting from a McLaughlin
    violation would be cognizable on habeas corpus review.
    Anderson v. Calderon, 232 F.3d 1053, 1071–72 (9th Cir.
    2000), overruled in part on other grounds by Bittaker v.
    Woodford, 331 F.3d 715, 728 (9th Cir. 2003). However, the
    State argues that the 48-hour rule described in McLaughlin
    does not apply to the Fourth Amendment rights of a parolee
    who is held pursuant to a “parole hold.” Generally, a parole
    hold authorizes a person suspected of violating his parole to
    be detained while authorities investigate the alleged parole
    violation. As we have already noted, Benson’s parole officer,
    42                     BENSON V. CHAPPELL
    
    Felix Martel, placed a parole hold on Benson immediately
    after Benson’s arrest for the kidnaping.
    
        Benson argues that evidence gathered since his trial calls
    into question whether a parole hold was, in fact, put in place.
    In particular, he asserts that as early as 2002, in connection
    with his third state habeas petition, the actual paper parole
    hold could not be located. However, Benson’s parole officer
    Martel testified at the initial suppression hearing in June
    1986, and at his deposition on May, 2002, that he had placed
    a parole hold on Benson on Wednesday, January 8, 1986.
    
        Although the district court accepted the 2002 deposition
    of Benson’s parole officer, the information in the deposition
    is not properly before us. See 28 U.S.C. § 2254(d)(2)
    (making clear that a writ of habeas corpus will not be granted
    unless the State court’s adjudication on the merits “resulted
    in a decision that was based on an unreasonable
    determination of the facts in light of the evidence presented
    in the State court proceeding”) (emphasis added). We have
    held that Pinholster prohibits consideration of new evidence
    “for the purpose of determining whether the last reasoned
    state court decision was contrary to or an unreasonable
    application of clearly established law or an unreasonable
    determination of the facts.” Crittenden v. Chappell, 804 F.3d
    998, 1010 (9th Cir. 2015). In other words, new evidence may
    not be used to determine whether the California Supreme
    Court’s decision was an unreasonable determination of the
    facts before it. Accordingly, we are precluded from
    considering the evidence.17
    
    
         17
          In any event the newly proffered evidence does not raise a material
    issue of fact. All the affirmative evidence in Benson’s state court
    proceedings shows that a parole hold was placed on Benson on
                            BENSON V. CHAPPELL                                43
    
         The existence of a parole hold obviated the Fourth
    Amendment requirement that Benson be arraigned within
    48 hours. In Morrissey v. Brewer, 408 U.S. 471, 483 (1972),
    the Supreme Court noted that “the State has an overwhelming
    interest in being able to return the individual [on parole] to
    imprisonment without the burden of a new adversary criminal
    trial,” commended a two stage process,18 and recognized that
    there is “typically a substantial time lag between the arrest
    and the eventual determination by the parole board whether
    parole should be revoked.” Id. at 485. In Pierre v.
    Washington State Board of Prison Terms and Parole,
    699 F.2d 471, 473 (9th Cir. 1983), we upheld a preliminary
    probable cause determination held 21 days after parole was
    suspended. Moreover, the California Supreme Court has
    declined to require a probable cause hearing for a parolee
    within ten days of arrest. People v. DeLeon, 399 P.3d 13 ,26
    (Cal. 2017). McLaughlin therefore does not apply to
    Benson’s situation, and there is no clearly established law that
    a parolee subject to a parole hold must be presented with the
    probable cause within 48 hours of his arrest.
    
    
    
    
    Wednesday, January 8, 1986. Indeed, multiple documents that were
    produced at the 2002 deposition confirm the parole hold. For example,
    both an incident report written by Benson’s parole officer and a teletype
    message sent to the sheriff’s office attest to the placing of a parole hold on
    Benson. Benson’s presentation does not come near showing that the
    California Supreme Court’s denial of relief was “based on an unreasonable
    determination of the facts.” 28 U.S.C. § 2254(d)(2).
        18
           The Supreme Court explained: “The first stage occurs when the
    parolee is arrested and detained, usually at the direction of his parole
    officer. The second occurs when parole is formally revoked.” 408 U.S. at
    485.
    44                  BENSON V. CHAPPELL
    
            b. Even if McLaughlin applied, Benson’s
               confessions would not be suppressed.
    
        In Anderson, 232 F.3d at 1071, we held that the
    appropriate remedy for a McLaughlin violation “is the
    exclusion of the evidence in question—if it was ‘fruit of the
    poisonous tree.’” We noted that this test “ensures that courts
    will not suppress evidence causally unrelated to the Fourth
    Amendment violation,” and “protects the arraignment right in
    question by barring any exploitation of the delay that causally
    produces a statement.” Id.
    
        Here, Benson was detained late at night on Tuesday,
    January 7, 1986, and he voluntarily confessed to the murders
    and sexual assaults in disturbing and graphic detail to the
    officers on January 9, 1986, within 48 hours of his detention.
    Thus, the “delay” of his arraignment until Monday, January
    13, in no way created or influenced his first confession.
    
        In addition, Benson’s assertion that the delay in his
    arraignment was specifically to deny him counsel and thus
    violated his Sixth Amendment right to counsel is not
    meritorious. Benson suggests that because his name was on
    the lists of individuals to be taken to court for arraignment on
    January 8, 9, and 10, and he was taken to the court on Friday,
    January 10, but not arraigned, he was held for an improper
    purpose. However, Officer Bolts explained that the “daily
    prisoner transportation list” was created every morning by the
    booking clerk and included the names of all those in custody
    who have not yet appeared in court. Officer Bolts indicated
    that Benson was transported to the court on Friday, January
    10 and not arraigned, but did not know why. There is no
    evidence in the record that the delay in arraignment was
    designed to frustrate or prevent the provision of counsel. We
                       BENSON V. CHAPPELL                      45
    
    need not inquire further into the reasons for Benson not being
    arraigned on Friday in terms of abridging his Fourth
    Amendment rights because it is not causally related to his
    prior confessions. Furthermore, as Benson points to no case
    law indicating that a failure to arraign an individual within
    48 hours represents a per se violation of that individual’s
    Sixth Amendment right to counsel, there is no clearly
    established law which compels a contrary result.
    
       2. The California Supreme Court reasonably concluded
          that Benson’s confessions were voluntary
    
        Benson asserts that the confessions he made to Bolts and
    Hobson were not “voluntary,” and that the state court’s
    determinations that they were voluntary represented an
    unreasonable determination of the facts. In his opening brief,
    Benson claims that the “officers’ plan was to make
    Mr. Benson believe they were dealing with him, but to not do
    so – the exact type of ‘trickery’ that is impermissible when
    leading one to believe in an inducement.”
    
        The trial court held a suppression hearing regarding
    Benson’s confessions, and the California Supreme Court
    upheld the trial court’s decision not to suppress the
    confessions. Before us Benson makes two arguments
    regarding the voluntariness of the confessions. First, he
    argues that the confession was coerced because of Detective
    Bolts’s incorrect statement that “there is no death penalty
    here.” Second, Benson argues that his mental defects
    prevented him from being able to confess voluntarily. The
    Supreme Court of California, after a review of the record,
    determined that Benson’s confession was “voluntary beyond
    a reasonable doubt.” People v. Benson, 802 P.3d at 345.
    46                  BENSON V. CHAPPELL
    
        In denying the motion to suppress the statements, the trial
    court found that the police officers had not been coercive and
    that their statement regarding the death penalty did not
    function as an inducement. The trial court described the
    interview as “totally aboveboard,” and noted that there was
    “no mention of the degree of any charge pending . . . [or] an
    implied promise of a reduced charge.” The trial court further
    found that there had been no false promises. It found that
    there was no deception, as “there’s no suggestion of different
    treatment if Mr. Benson chose to make any confessions or
    admissions” and no “implied promise of leniency.” The trial
    court concluded that “Mr. Benson’s statements were not
    coerced . . . but rather were made freely and voluntarily.”
    
        The California Supreme Court, upon a full review of the
    record, agreed and found that there was “[n]o coercion, no
    harassment. To the contrary, [the police interview] was
    strangely cordial and somewhat light, and not at all heavy-
    handed in the approach that was taken.” Benson, 802 P.3d at
    344. The California Supreme Court also noted that there was
    a “not insubstantial” period of time between Detective Bolts’s
    statement about the death penalty and Benson’s ultimate
    confession, and that Benson’s statement “it doesn’t matter”
    in response to Bolts’s comment “practically compels the
    inference that insofar as the confessions were concerned, the
    comment in fact ‘didn’t matter.’” Id. at 345.
    
        In the case of a coerced confession, we have observed that
    the “pivotal question . . . is whether the defendant’s will was
    overborne when the defendant confessed.” United States v.
    Miller, 984 F.2d 1028, 1031 (9th Cir. 1993). The California
    Supreme Court was presented with evidence that Benson
    understood the questions being asked of him and volunteered
    a confession. Benson stated that the existence of a death
                           BENSON V. CHAPPELL                            47
    
    penalty “didn’t matter” and the interrogation was not
    coercive. Benson testified that his “primary thought was
    nothing was going to change the effect of the people that
    died. Nothing was going to bring them back.” He noted that
    there was “no one answer” to explain why he decided to
    confess, and he indicated on several occasions that he felt
    relieved by admitting his actions. The California Supreme
    Court’s conclusion that Benson’s will was not overborne by
    the misstatement about the law regarding the death penalty in
    California was neither “an unreasonable application, of
    clearly established Federal law, as determined by the
    Supreme Court of the United States,” nor “based on an
    unreasonable determination of the facts in light of the
    evidence presented in the State court proceeding.” 28 U.S.C.
    § 2254(d)(1)–(2).19
    
        3. Benson has not shown that his mental condition
           rendered his confession involuntary
    
        Benson claims that he “suffers from diffuse organic brain
    damage and frontal lobe damage which severely affects his
    mental functioning.” He contends that these impairments
    “create irrational belief systems and behavior,” and deny him
    “the capacity to recall accurately the events that he
    recounted.” He argues that the California Supreme Court, in
    denying this claim, “unreasonably determined the facts, and
    unreasonably applied Supreme Court precedent.”
    
    
        19
           Benson’s argument that his confession to Dr. Gordon should have
    been suppressed because he was misled by Dr. Gordon, or confused, also
    fails because it is not compelled by the evidence. Benson admits that Dr.
    Gordon properly introduced himself and advised him of his Miranda
    rights. Thus, even if Benson was confused as to the purpose of Dr.
    Gordon’s visit, this was not Dr. Gordon’s or the state’s fault.
    48                     BENSON V. CHAPPELL
    
        Benson raised this argument in his first habeas petition,
    which the California Supreme Court, on May 12, 1994,
    denied on the merits without further explanation. We review
    the record to determine whether “there was no reasonable
    basis for the state court to deny relief.” Richter, 562 U.S.
    at 98.
    
        Benson has not met this standard. The district court
    carefully reviewed the evidence of Benson’s behavior during
    pretrial proceedings and at trial, concluded that Benson “was
    unusually focused and responsive, and was acutely aware of
    the proceedings.” This determination is a fair reading of the
    record of the state court proceedings. Benson was verbose
    and elaborate in his confession providing excruciating
    descriptions of how he molested the children and eventually
    killed them. He did not simply agree to suggestions from the
    police officers. Although Benson began his interview by
    dissembling, after becoming caught in lies, he made detailed
    confessions. Indeed, during the hearing on the motion to
    suppress, Benson’s trial attorney did not argue that Benson’s
    psychological state made him incapable of rendering a
    voluntary confession.20 Further, none of the experts presented
    to the California Supreme Court in Benson’s habeas filings
    specifically opined that Benson’s neurological defects made
    
    
         20
            The district court noted in reviewing Benson’s participation in the
    initial phases of his trial:
    
              These passages make it clear petitioner was well-aware
              of the nature of the proceedings against him.
              Significantly, in argument on the motion to suppress,
              petitioner’s attorney made no argument that petitioner
              was incompetent to render a voluntary confession, nor
              did counsel suggest a doubt existed as to petitioner’s
              competence to proceed with the hearing or with trial.
                        BENSON V. CHAPPELL                      49
    
    it likely that his confessions were false or otherwise made
    Benson incapable of truthfully inculpating himself in a
    confession.
    
        We agree with the district court that it was reasonable for
    the California Supreme Court to conclude that Benson was
    aware of the nature of the proceedings against him, and that
    he understood the consequences of his statements to the
    officers.
    
        C. Trial Counsel Was Not Ineffective at the Penalty
           Phase
    
        In Strickland v. Washington, 466 U.S. 668 (1984), the
    Supreme Court set forth the now well-established two-prong
    test for ineffective assistance of counsel.
    
            First, the defendant must show that counsel’s
            performance was deficient. This requires
            showing that counsel made errors so serious
            that counsel was not functioning as the
            “counsel” guaranteed the defendant by the
            Sixth Amendment. Second, the defendant
            must show that the deficient performance
            prejudiced the defense. This requires showing
            that counsel’s errors were so serious as to
            deprive the defendant of a fair trial, a trial
            whose result is reliable. Unless a defendant
            makes both showings, it cannot be said that
            the conviction or death sentence resulted from
            a breakdown in the adversary process that
            renders the result unreliable.
    
    Id. at 687.
    50                  BENSON V. CHAPPELL
    
         In addition to setting forth the Strickland two-prong test,
    the Supreme Court has further directed that where a federal
    habeas petitioner challenges his state trial counsel’s
    performance, the question in federal court “‘is not whether a
    federal court believes the state court’s determination’ under
    the Strickland standard ‘was incorrect but whether that
    determination was unreasonable—a substantially higher
    threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123
    (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473
    (2007)). Thus, our review of the state court decision on
    ineffective assistance of counsel is “doubly deferential.”
    Pinholster, 563 U.S. at 190 (quoting Knowles, 556 U.S.
    at 123).
    
         The Supreme Court emphasized that federal courts should
    defer to the state court’s decision. “Pinholster must
    demonstrate that it was necessarily unreasonable for the
    California Supreme Court to conclude: (1) that he had not
    overcome the strong presumption of competence; and (2) that
    he had failed to undermine confidence in the jury’s sentence
    of death.” 563 U.S. at 190. The Court further commented on
    the deference due counsel who “confronted a challenging
    penalty phase with an unsympathetic client,” and held that
    we, the Ninth Circuit, had “misapplied Strickland and
    overlooked ‘the constitutionally protected independence of
    counsel and . . . the wide latitude counsel must have in
    making tactical decisions.’” Pinholster, 563 U.S. at 193, 195
    (citing Strickland, 466 U.S. at 689).
    
        Accordingly, “[w]hen § 2254(d) applies, the question is
    not whether counsel’s actions were reasonable. The question
    is whether there is any reasonable argument that counsel
    satisfied Strickland’s deferential standard.” Richter, 562 U.S.
    at 105.
                        BENSON V. CHAPPELL                      51
    
       1. The record does not compel a finding that counsel
          was ineffective
    
        Benson argues that trial counsel was ineffective in failing
    to investigate and then present evidence of the physical,
    mental, and sexual abuse Benson endured at the Buchanan
    ranch. He also claims that counsel should have investigated
    whether he had an organic brain injury.
    
           a. Counsel’s “failure” to investigate further
              Benson’s childhood.
    
        The strategy at trial was to humanize Benson, and to point
    to at least one moment in time when Benson appeared happy,
    normal, and relatable. Benson’s counsel presented a
    photograph of Benson on the Buchanan farm: Benson was
    nine years old, smiling, and bottle-feeding a calf. Defense
    counsel then asked the question, “How did a little boy who
    got from – that darling little boy in that photograph with the
    bottle of milk feeding the calf – one wonders how did he get
    from there to where we are today?” Counsel then described
    the relative deprivation Benson experienced. Mitigating
    evidence was presented that (1) Benson’s mother was a
    prostitute and father an alcoholic; (2) he was placed into a
    foster home immediately after birth; (3) there was hope for a
    nice life due to his time on the Buchanan farm; (4) Benson
    was ripped from the farm at age nine, and within weeks was
    forced to endure a years-long travail of bouncing around
    seedy hotels, shanties (including a chicken coop) and
    different schools; (5) Benson experienced chronic hunger;
    (6) Benson was placed periodically in other foster homes;
    (7) Benson and his brothers turned to alcohol and drugs;
    (8) Benson was first arrested at age 10 and between 13 and 20
    was in and out of custody; (9) Benson was diagnosed with
    52                 BENSON V. CHAPPELL
    
    “early-onset pedophilia,” which made it difficult for him to
    conform his behavior to social norms; and (10) Benson had
    mental impairment due to drug use.
    
         Benson now contends that the strategy used by Benson’s
    trial counsel was deficient. He proffers evidence that life on
    the Buchanan farm was far from idyllic. Evidence has come
    to light indicating that Marjorie Buchanan beat Benson with
    a rubber hose, willow tree branches, a belt, and a large
    shovel. She held Benson’s hand to the stove, and punished
    him by filling his mouth with cayenne pepper. She gave the
    boys enemas of hot, soapy water. Her adult son would
    routinely sexually abuse Benson and his brothers, and forced
    Benson to do unnatural acts with animals. According to
    Benson’s brother Bill, “[i]t happened so much that we all
    thought it was normal.” The abuse allegedly led to strange
    behavior: Benson would bang his head against the wall and
    eat dirt, live bugs, and beetles. Benson was also hit on the
    head repeatedly as a child and at one point nearly drowned.
    To deal with the abuse, the Benson brothers abused various
    substances, including drinking cough syrup and sniffing glue
    to the point of hallucinations. Dr. Jonathan Pincus who
    examined Benson well after the trial, determined that Benson
    evinces signs indicative of brain damage.
    
        Benson argues that counsel should have been on notice to
    investigate his time on the Buchanan farm. He points to a
    February 1994 declaration by Dorothy Ballew, a private
    investigator and the defense investigator for Benson in
    1986–87. She stated that: (a) she was the only person on the
    defense team to meet regularly with Benson; (b) she “realized
    early on that many of his memories, especially of his
    childhood, were inaccurate and incomplete”; (c) she
    suspected trauma in Benson’s past; and (d) she had
                        BENSON V. CHAPPELL                       53
    
    “requested trial counsel’s assistance in pursuing specific
    avenues of investigation and was met with no response or was
    rebuffed.” Ballew asserted that she told trial counsel that
    there “were several extremely important investigative tasks
    that needed to be completed before commencing [the] penalty
    phase,” but counsel did not request a continuance. Ballew
    further asserted that when she interviewed Brad Benson,
    “immediately after the penalty phase had begun,” he told her
    that Marjorie Buchanan disciplined him and his brothers “by
    putting red pepper in their mouths and beating them with a
    rubber hose,” and that from the age of nine to twelve, he
    (Brad) “was routinely sodomized by his older foster brother,
    David Buchanan.” Ballew reported what Brad had told her to
    trial counsel but he declined to request a continuance of the
    penalty phase.
    
         Benson also points to a December 1992 declaration by
    Terry Kellogg, “a family systems therapist and Certified
    Chemical Dependency Practitioner.” Kellogg stated that he
    was contacted by Ballew in early 1987 and was retained by
    trial counsel as an expert to testify at trial. Kellogg traveled
    to Santa Barbara in March 1987 to consult with trial counsel.
    He informed counsel that he “was quite certain that
    Mr. Benson had suffered significant physical and/or sexual
    abuse in his formative years and advised him that further
    investigation of Mr. Benson’s childhood was necessary if the
    jury was to be provided an accurate picture of Mr. Benson’s
    mental state at the time of the crimes.” Kellogg asked
    counsel for an opportunity to meet with Benson, but counsel
    denied the request, and seemed to ignore Kellogg’s
    suggestions.
    
       Reasonable minds could conclude that Benson’s trial
    counsel’s decision not to investigate Benson’s life on the
    54                    BENSON V. CHAPPELL
    
    farm further was reasonable. Benson himself did not recall
    the abuses he endured at the Buchanan ranch. Indeed,
    Benson’s first habeas petition to the California Supreme
    Court noted that Benson “[had] no memory of the torture, and
    sexual, psychological and emotional abuse he suffered on the
    Petaluma farm.” Dr. Gordon testified that Benson told him
    that “until [Benson] was nine and a half years of age in that
    first foster home (the Buchanan ranch), he had the nicest life
    he has ever known.” Testimony from Benson’s siblings
    corroborated Dr. Gordon’s report about Benson’s life on the
    farm. Brad testified that he and his siblings were “displaced
    from the farm” after their father won custody. Brad then
    described his father’s alcoholism, the difficulties the family
    experienced after their time on the farm, and his own
    alcoholism. He further testified that when at age 15 he left a
    home for boys where he was temporarily placed, “the only
    thing . . . . I could think of was to return to the farm, to the
    only woman that cared about me . . . Marjorie Buchanan.”21
    
        Benson has provided no evidence that trial counsel was
    informed that Benson was seriously abused at the Buchanan
    ranch. The only mistreatment at the Buchanan ranch that trial
    counsel appears to have been aware of was that Marjorie
    Buchanan had disciplined the Benson boys with red pepper
    and a rubber hose. The California Supreme Court could
    reasonably have decided that such disciplinary measures did
    not put trial counsel on notice that Benson had been tortured
    during his stay on the Buchanan ranch, especially given the
    
    
    
         21
           According to Ballew’s declaration, when she spoke to Brad after
    the penalty phase had begun, Brad mentioned that he had been sodomized
    by David Buchanan, but apparently did not state that Benson also had
    been sodomized.
                            BENSON V. CHAPPELL                               55
    
    countervailing evidence which indicated that his time at the
    ranch was positive.
    
        Furthermore, counsel had a reasonable explanation for
    Benson’s aberrant behavior – Benson’s traumatic experiences
    living with his alcoholic father after the age of nine. Thus,
    with no suggestion from either Benson or his siblings that
    Benson suffered trauma on the Buchanan ranch, counsel
    cannot be faulted for not investigating a suspicion of
    suppressed past trauma. Reasonable minds could conclude
    that competent trial counsel would not have investigated
    Benson’s treatment during his two-to-three-year stay at the
    Buchanan ranch.22
    
        This is not an instance in which trial counsel did not
    proffer a defense at the penalty stage. Counsel called two of
    Benson’s brothers and his sister to establish that they all had
    endured horrible childhoods. Counsel called a retired high
    school principal to testify that in junior high school Benson
    was capable but misunderstood. Counsel called Benson’s
    uncle and a social worker to testify that Benson’s father was
    a secretive, unreliable alcoholic who refused to address his
    alcoholism. Counsel called a pharmacist who testified that
    Benson was “very very paranoid” and that his judgment was
    compromised by his addiction to methamphetamine. Several
    months before trial, counsel retained Dr. Abel who testified
    that Benson had a number of psychiatric disorders, including
    
        22
            Although the defense investigator and the family systems therapist
    stated in 1992 and 1994 that, in 1986, they thought “that Mr. Benson had
    suffered significant physical and/or sexual abuse in his formative years,”
    it does not appear that they focused on Benson’s two-and-a-half year stay
    at the Buchanan ranch. In light of Benson’s and Brad’s favorable
    testimony in 1986 concerning the Buchanan Ranch, there was little reason
    for trial counsel to investigate that period of Benson’s troubling childhood.
    56                  BENSON V. CHAPPELL
    
    paraphilia, that he had a drug dependency, and that he
    generally did not need to kill. Counsel even recalled one of
    the officers to support the argument that Benson was addicted
    to methamphetamine at the time of the murder. In sum, trial
    counsel presented a cogent theory supported by the testimony
    of several witnesses against the imposition of the death
    penalty
    
         This defense, although unsuccessful, was a reasonable
    strategy. Portraying Benson as a normal boy until he was
    nine or ten seems just as likely, perhaps more likely, to tug on
    the heart-strings of the jury as explaining that mental health
    problems ran in Benson’s family and that he was mistreated
    all his life rather than after he was nine and a half years old.
    Indeed, the suggestion that Benson’s perversion was a result
    of a traumatic period in his childhood allowed for the
    possibility that he could change, that he could reform.
    Arguing that Benson’s depravity emanated from sexual and
    physical abuse throughout the entirety of his childhood, while
    perhaps reducing a perception of his responsibility for his
    actions, might also make it appear less likely that Benson
    could change. This was a material concern in light of the
    admitted evidence of Benson’s multiple prior abductions of
    children. In addition, this approach would be slightly
    inconsistent with counsel’s argument, through Dr. Abel, that
    Benson did not need to kill and could conform his behavior
    to acceptable standards if incarcerated for life.
    
        Benson’s counsel’s efforts are clearly distinguishable
    from those cases in which defense counsel have been found
    ineffective at the penalty stage. See Rompilla v. Beard,
    545 U.S. 374, 389 (2005) (“It flouts prudence to deny that a
    defense lawyer should try to look at a file he knows the
    prosecution will cull for aggravating evidence, let alone when
                        BENSON V. CHAPPELL                       57
    
    the file is sitting in the trial courthouse, open for the
    asking.”); Wiggins v. Smith, 539 U.S. 510, 524 (2003)
    (holding that “[c]ounsel’s decision not to expand their
    investigation beyond [the pre-sentence report] fell short of the
    professional standard that prevailed in 1989”); Porter v.
    McCollum, 558 U.S. 30, 39–40 (2009) (per curiam) (holding
    that counsel’s failure to investigate any evidence of Porter’s
    mental impairment, family background, or military service
    was not a reasonable professional judgment). Similarly, in
    Stankewitz v. Wong, 698 F.3d 1163, 1166 (9th Cir. 2012),
    relief was based, in part, on counsel’s failure to hire “an
    investigator or interview[ ] Stankewitz’s teachers, foster
    parents, psychiatrists, psychologists or anyone else who may
    have examined or spent significant time with him during his
    childhood and youth.” Id. at 1171 (internal quotation marks
    and citations omitted).
    
        Benson’s trial counsel in 1986 investigated Benson’s
    background and put on a comprehensive defense to the death
    penalty. Perhaps different trial counsel might have employed
    different tactics, but on this record we agree with the district
    court that the “California Supreme Court could reasonably
    have concluded that ‘the egregious nature of [Benson’s]
    offenses’ and the sordid nature of the other evidence the
    prosecution proffered in aggravation were sufficient to
    ‘overcome any alleged prejudice resulting from counsel’s
    ‘failure’ to introduce mitigating evidence.’”
    
            b. Counsel’s failure to investigate organic brain
               injury.
    
        Benson also argues that his counsel was ineffective
    because he did not investigate whether Benson suffered from
    an organic brain injury. He points to a declaration by Terry
    58                  BENSON V. CHAPPELL
    
    Kellogg, the “family systems therapist” retained by Benson’s
    attorneys, who stated that he advised Benson’s counsel to
    look for symptoms of serious head injuries. Benson contends
    that the neurological impairments were apparent because he
    had difficulty in school, and his problems with concentration
    and attention were “apparent to teachers, social workers and
    probation officers.” Benson asserts that his neurological
    impairment has been confirmed by subsequent testing:
    Dr. Jonathan Pincus, a neurologist, stated in a declaration
    dated January 7, 1993, that testing has confirmed that Benson
    has organic brain injury.
    
        Benson objects that “the jury never knew . . . that [he]
    suffers from frontal and temporal lobe impairment [or]
    corresponding neurological impairment.” Benson further
    argues that the mitigating evidence which his trial counsel
    failed to present is “explanatory mitigation . . . . [it] does
    precisely what trial counsel in this case admitted he cannot do
    – it explains crimes.” According to Dr. Pincus, Benson’s
    “neurological damage in combination with the extreme abuse
    and sexual abuse to which [he] was subjected as a child were
    the cause of [his] bizarre sexual impulses. With the brain
    damage he sustained after birth, [his] ability to control these
    impulses is severely compromised and non-existent at times.”
    
        However, the California Supreme Court could have
    concluded that trial counsel was not on notice of organic
    brain injury, and therefore not required to investigate it. The
    only possible evidence of organic brain injury which was
    known to Benson’s trial counsel was that (1) Benson had
    trouble in school, and (2) a statement by Kellogg to the effect
                            BENSON V. CHAPPELL                               59
    
    that counsel should look for a history of head injuries.23 But
    Benson’s trial counsel had employed the aid of a mental
    health expert, Dr. Gene Abel, a board certified psychiatrist.
    According to his trial testimony, Dr. Abel examined
    approximately 280 “pages of information regarding various
    evaluations that [Benson] has had,” and met with Benson for
    approximately twelve to thirteen hours. Dr. Abel also
    administered “a variety of paper and pencil tests that he
    completed when [Dr. Abel] wasn’t there talking with him.”
    Dr. Abel testified that he received Benson’s “medical records
    from Atascadero and various other institutions in California
    as part of [his] preparation for examining [Benson].”
    Dr. Abel diagnosed Benson with pedophilia and serious drug
    dependency. He explained that Benson’s pedophilia should
    have been treated with hormonal injections but was not.
    Dr. Abel explained that these disorders made it difficult for
    Benson to conform his conduct to the requirements of the
    law. Dr. Abel did not diagnose Benson with having
    experienced severe head trauma.24
    
    
    
    
        23
           Kellogg’s declaration does not indicate his education. He describes
    himself as a “family systems therapist and Certified Chemical
    Dependency Practitioner.” He asserts that over the past 23 years he had
    “treated literally thousands of patients, including hundreds of people
    convicted of sex offenses,” has “created and consulted for sexual offender
    treatment programs throughout the country,” and “lectured extensively at
    continuing education seminars for mental health professionals.” The
    record does not indicate that he is a neurologist, psychologist, or any other
    kind of board certified professional.
        24
           In his 1992 declaration, Dr. Abel explained that after interviewing
    Benson in 1986, he diagnosed Benson with depression. However, he did
    not state in that affidavit that, after interviewing Benson in 1986, he
    suspected that Benson had experienced organic brain injury.
    60                  BENSON V. CHAPPELL
    
        Accordingly, trial counsel was not on notice that further
    examination of Benson with the specific goal to uncover
    organic brain injury was necessary. This was not a case
    where counsel failed to have the defendant examined by a
    psychological professional. Quite the opposite. The
    psychological professional who examined Benson, Dr. Abel,
    testified for the defense, diagnosed Benson with a medical
    disorder, and did not opine that Benson suffered a brain
    injury. Indeed, trial counsel reported to Benson’s state
    habeas counsel that “the mental health professionals . . .
    retained for Mr. Benson’s trial did not report that Mr. Benson
    suffered from organic brain damage,” and noted that had such
    brain damage been reported, he “‘would have seized upon it’
    and would have used the information at trial.”
    
        The California Supreme Court could reasonably have
    concluded that counsel did what investigation was necessary
    in terms of organic brain injury. We are aware of no clearly
    established law that shows otherwise.
    
         2. The record does not compel a determination that
            counsel’s performance, if ineffective, was prejudicial
    
        The ultimate step in determining whether counsel’s
    deficient performance prejudiced the defendant at the penalty
    phase is reweighing the evidence in aggravation against the
    totality of the mitigating evidence in order to determine
    “whether there is a reasonable probability that absent the
    errors, the sentencer . . . would have concluded that the
    balance of aggravating and mitigating circumstances did not
    warrant death.” Strickland, 466 U.S. at 695; see also Sears v.
    Upton, 561 U.S. 945, 956 (2010); Wiggins, 539 U.S. at 534.
    Reasonable probability is a level that “undermine[s]
    confidence in the outcome,” Strickland, 466 U.S. at 694;
                        BENSON V. CHAPPELL                       61
    
    however, counsel’s deficient performance is not prejudicial
    just because the court cannot “rule out” the possibility that
    the sentencer would have imposed a life sentence instead of
    the death penalty. Wong v. Belmontes, 558 U.S. 15, 20, 27
    (2009). Rather, “[t]he likelihood of a different result must be
    substantial, not just conceivable.” Richter, 562 U.S. at 112
    (citing Strickland, 466 U.S. at 693).
    
        Here, the record fully supports the California Supreme
    Court’s implicit determination that counsel’s performance,
    even if it were deficient, did not prejudice Benson. See
    Richter, 562 U.S. at 98 (commenting “[a]s every Court of
    Appeals to consider the issue has recognized, determining
    whether a state court’s decision resulted from an
    unreasonable legal or factual conclusion does not require that
    there be an opinion from the state court explaining the state
    court’s reasoning,” and holding that “[w]here a state court’s
    decision is unaccompanied by an explanation, the habeas
    petitioner’s burden still must be met by showing there was no
    reasonable basis for the state court to deny relief”).
    
        Benson’s trial counsel presented the jury with evidence
    that Benson’s aberrant behavior had been brought about by
    his horrendous childhood, that he was unable to control his
    pedophilia when he was high on amphetamines, and that he
    had taken methamphetamine during the weekend in issue.
    Thus, much of the proffered evidence offered in the post-
    conviction petition was cumulative. Benson’s childhood was
    not just horrible after he was nine years old, but also horrible
    between the ages of seven and nine. His pedophilia was not
    just the consequence of an appalling childhood, but might be
    partially genetic or due to in utero trauma.
    62                  BENSON V. CHAPPELL
    
        The proffered evidence in Benson’s post-conviction
    petition included evidence of his sexual abuse while living at
    the Buchanan farm. We have recognized that “[c]hildhood
    sexual abuse can be powerful evidence in mitigation,
    particularly when it is not an isolated event.” Wharton v.
    Chappell, 765 F.3d 953, 977 (9th Cir. 2014). Absent the
    considerable aggravating evidence, the proffered information,
    including evidence of sexual abuse, might have made Benson
    more sympathetic to the jury, but it also might have made
    him seem less likely to be rehabilitated. Furthermore, the
    information does not explain or justify Benson’s murder of
    Laura and her three children, particularly as, according to
    Benson, she was willing to indulge his pedophilia.
    
        Moreover, the evidence in aggravation was damning. The
    heinous nature of Benson’s crimes was overwhelming: killing
    Laura, sexually abusing two little girls for a day before
    murdering them, and killing a two-year old boy because he
    cried (he could hardly have been a witness). In addition,
    Benson had four prior felony convictions over a ten-year
    period of time for abusing little girls, including two instances
    in which he had taken the girls from their bedrooms when
    they were sleeping. In this context, additional evidence of
    Benson’s past abuse and possible genetic make up might not
    have assisted his attorneys’ argument for a life sentence as
    the evidence tends to suggest that Benson was not able to, and
    never would be able to, control his pedophilia.
    
        We do not fault the California Supreme Court for denying
    Benson’s relief. To grant relief, we would have to conclude
    that the California Supreme Court’s denial of relief was
    unreasonable. Pinholster, 563 U.S. at 190; Knowles,
    556 U.S. at 123. But, on this record, in light of Benson’s
    horrific crimes, past felony convictions, and the mitigating
                        BENSON V. CHAPPELL                       63
    
    evidence offered by trial counsel, we cannot conclude that
    there is no reasonable argument that the additional
    information would not have changed Benson’s conviction or
    sentence. See Richter, 562 U.S. at 105.
    
         Benson’s argument with respect to his organic brain
    injury is similarly unavailing. According to Dr. Pincus, the
    brain damage from which Benson suffers could lead to
    difficulty in impulse control and rational thinking. But the
    crime, as Benson himself described it in his confession, was
    for the most part not “impulsive.” Benson did not kill the
    Camargo family in a fit of rage. He killed Laura, and then,
    over the course of the next day, proceeded to molest the two
    daughters. He described killing the baby Sterling because he
    wanted to quiet him to avoid detection. Benson described
    hesitating before finally striking the killing blows on the two
    little girls. After it was all over he attempted to cover up his
    crime. He set the house on fire and fled. The crime was not
    “impulsive”: it was deliberate, and took place over
    approximately thirty hours. Benson has not shown that
    evidence of neurological damage which gave rise to problems
    with “impulse control” would have significantly aided his
    showing for mitigation.
    
        In sum, given the heinous nature of the crime and the
    mitigating evidence presented by trial counsel, we cannot
    conclude that it would have been unreasonable for the
    64                     BENSON V. CHAPPELL
    
    California Supreme Court to determine that the alleged
    deficient performance of Benson’s trial counsel at the penalty
    stage of his trial, did not prejudice Benson.25
    
         D. Benson Has Not Shown that Trial Counsel Was
            Ineffective at the Guilt Phase of the Trial
    
        The first of Benson’s newly certified claims is that trial
    counsel was ineffective at the guilt phase of the trial. Benson
    supports his claim with a smorgasbord of assertions. He
    argues that trial counsel should have: (1) further investigated
    the officers’ conduct in soliciting his confession;
    (2) presented expert opinions raising factual questions as to
    the timing of Laura’s death, whether Stephanie was alive
    when the fire began, and how Sterling died; (3) presented
    evidence that a test performed several days after the weekend
    revealed methamphetamine in Benson’s urine; (4) obtained
    and presented evidence of the absence of semen on the girls,
    and that Laura may have been breathing at the time of the
    fire; (5) investigated whether Dr. Gordon had, in bad faith,
    
    
         25
           The dissent, focusing on the abuses Benson suffered during his stay
    at the Buchanan Ranch, concludes that “no fair-minded judge objectively
    reviewing the unintroduced mitigating evidence . . . could conclude, with
    confidence, that the outcome would have been the same.” Dissent at 82.
    We, of course, disagree. As noted, the jury was presented with evidence
    of Benson’s horrendous childhood, much of it occurring after he left the
    Buchanan ranch, that Benson had multiple criminal convictions, including
    several for kidnapping young children, that he was unable to control his
    pedophilia when high on amphetamines, that he had taken amphetamines
    during the weekend at issue, and that his abhorrent actions over that
    weekend could not fairly be considered impulsive. Considering all the
    evidence, the California Supreme Court could reasonably determine, with
    confidence, that evidence that a portion of Benson’s childhood was
    considerably more horrendous than initially presented would not have
    changed the outcome.
                       BENSON V. CHAPPELL                      65
    
    intentionally destroyed exculpatory evidence in a prior case
    and had previously concealed evidence in violation of a court
    order; and (6) investigated evidence that a witness had told
    police she was at the Camargo residence on Sunday and that
    Laura was alive. In addition, Benson argues that counsel
    should have further investigated his impairments that
    rendered his statements involuntary as that would have
    undermined the credibility of his confession and made it less
    likely that the jury would have convicted him or given him
    the death penalty.
    
       1. Benson has not shown that further investigation and
          presentation of evidence could have affected the
          conviction or sentence
    
        Benson’s claim of ineffective assistance of counsel at the
    guilt phase cannot overcome the uncontroverted evidence that
    he arrived at the Camargo home on Saturday night when
    Laura and her children were alive, that nobody else was seen
    entering or leaving the home on Sunday, and that on Monday
    morning, when the home was found to be on fire and Laura
    and her children dead, Benson was not there. Moreover,
    Benson’s heavy ring mandrel, which had been used to strike
    Laura and her daughters, was found at the scene, along with
    pornography on which Benson’s fingerprints were found.
    Add to this Benson’s confession to sexually abusing the girls
    and murdering Laura and her children, and trial counsel’s
    decision to concentrate on the penalty phase of the trial was
    certainly reasonable.
    
        The assertion that trial counsel should have further
    investigated the officers’ conduct leading to Benson’s
    confession is not well taken. The matters Benson now
    suggests deserve further investigation—the lack of the tape
    66                  BENSON V. CHAPPELL
    
    recording for the first two hours of interrogation, Benson’s
    nine hours of equivocation, and the officers’ leading
    statements and questions —were all thoroughly considered in
    the litigation over the admission of Benson’s confessions.
    Even if the officers had engaged in some improprieties—and
    there is nothing in the record to suggest they did—the
    improprieties would be insignificant in light of Benson’s
    detailed, disturbing confessions.
    
        Furthermore, in light of the physical evidence and
    Benson’s confession, the actual sequence of events during the
    thirty hours that Benson was in the home is of little
    consequence. Even accepting that Benson’s experts could
    raise questions as to the timing of Laura’s death, whether
    Stephanie was alive when the fire began, and how Sterling
    died, those questions would not make Benson any less
    responsible for the murders and the sexual abuse of the girls.
    Indeed, such presentations may have led a jury to conclude
    that Laura and her children had suffered even more than as
    described in the state’s case. Also, the contention that there
    was an absence of semen on one of the daughters is not
    particularly probative under these circumstances. Nor would
    these factors necessarily undermine Benson’s narrative,
    which was full of contradictions and inconsistencies based on
    what he claimed he did, and did not, recall. Trial counsel
    may reasonably have determined that contesting the grisly
    details of the sexual abuse and murders, which would not
    have exonerated Benson, might have weighed against the jury
    sentencing him to life without the possibility of parole.
    
       Even accepting that trial counsel did not obtain the lab
    report indicating methamphetamine in Benson’s urine, and
    should have done so, Benson has failed to show that this
    deprived him of a fair trial. Strickland, 466 U.S. at 687. Trial
                          BENSON V. CHAPPELL                             67
    
    counsel presented evidence and argued that Benson was high
    on methamphetamine over the weekend, that
    methamphetamine compromised his ability to think and
    control his actions, and that the use of methamphetamine had
    a lingering effect. Indeed, the state did not really contest that
    Benson used methamphetamine. The lab report would have
    been cumulative evidence.
    
        2. Trial counsel’s alleged failure to investigate
           Dr. Gordon was not prejudicial
    
        In a different case involving child molestation in the
    Superior Court of San Luis Obispo, Dr. Gordon was found to
    have participated in the destruction of evidence and to have
    acted in bad faith.26 Accepting that the revelation of
    Dr. Gordon’s prior misconduct was important information
    which should have been turned over to the defense by the
    state, it does not follow that trial counsel was ineffective.
    Although the evidence would have impeached Dr. Gordon’s
    credentials, it would not have been evidence that
    Dr. Gordon’s testimony as to what Benson said, or even his
    impressions of Benson, were not sound. Critically, Benson
    had already confessed his sexual abuse and the murders to the
    officers before he met with Dr. Gordon and did so again after
    his meeting with Dr. Gordon. Attempting to impeach
    Dr. Gordon on the basis of his misconduct in an unrelated
    proceeding might have been difficult and of minimal value,
    suggesting that even if trial counsel should have discovered
    Dr. Gordon’s judicial reprimand, the failure to do so was not
    prejudicial. Moreover, we are not aware of any case where
    
    
        26
           The case was People v. Nurss, No. 13655 in the Superior Court of
    California for the County of San Luis Obispo. The superior court’s order
    stating that Dr. Gordon acted in bad faith was entered on July 29, 1986.
    68                  BENSON V. CHAPPELL
    
    counsel was deemed ineffective for failing to conduct a
    thorough analysis of each of the cases in which a proffered
    expert had previously testified. Benson has not shown that
    the state courts’ refusal to entertain his ineffective assistance
    of counsel claim based on Dr. Gordon’s alleged bias and
    incompetence was unreasonable.
    
         3. Benson’s allegation that trial counsel failed to
            investigate the statement of a lay witness is not
            persuasive
    
         Benson’s assertion that a witness had told the police that
    she was at the Camargo residence on Sunday and that Laura
    was alive is of little weight when placed in context. It
    appears that the alleged statement by a teenage neighbor was
    known to trial counsel or should have been known to trial
    counsel. The police had discounted the report because the
    girl was “an airhead or something like that.” Moreover, any
    trial testimony by the girl would have been undercut by
    testimony from others who saw no signs of activity in Laura’s
    residence on Sunday, the testimony of the forensic
    pathologist that by Monday Laura had been dead for several
    days, and Benson’s own statement that he had murdered
    Laura on Saturday night. Accordingly, we agree with the
    district court that “it would have served no purpose other than
    to diminish the defense’s credibility to attempt to inject [the
    girl’s] faulty memory into the proceedings to challenge the
    prosecution’s case that petitioner committed the crimes, a
    tactic defense counsel reasonably decided not to pursue in
    any event.”
    
       Given the murder of four persons, Benson’s confession,
    and the lack of any suggestion that anyone other than Benson
    was responsible for the murders, trial counsel reasonably
                        BENSON V. CHAPPELL                        69
    
    could have concluded that further investigation into the
    details of the underlying crimes and Dr. Gordon’s credentials
    would not be in Benson’s best interest. Benson has not
    shown that the state courts’ refusal to entertain his claim of
    ineffective assistance of counsel at the guilt stage of his trial
    was an unreasonable determination of fact or contrary to
    established federal law.
    
        E. Benson has not shown that there was a prejudicial
           violation of Brady
    
        Benson’s second previously uncertified claim is that the
    prosecution failed to disclose (1) information tending to
    impeach Dr. Gordon, (2) a lab report showing that Benson
    had methamphetamine in his urine three days after his arrest,
    (3) that three witnesses had their pending criminal charges
    reduced, and (4) officer notes showing that a teenage
    neighbor visited Laura on Sunday. Benson raised these
    claims in his first state habeas petition and the California
    Supreme Court denied the habeas petition on the merits
    without any explanation.
    
        There are three components to a true Brady violation:
    “[t]he evidence at issue must be favorable to the accused,
    either because it is exculpatory, or because it is impeaching;
    that evidence must have been suppressed by the State, either
    willfully or inadvertently; and prejudice must have ensued.”
    Strickler v. Greene, 527 U.S. 263, 281–82 (1999). A Brady
    violation is “material only if there is a reasonable probability
    that, had the evidence been disclosed to the defense, the result
    of the proceeding would have been different. A ‘reasonable
    probability’ is a probability sufficient to undermine
    confidence in the outcome.” Amado v. Gonzalez, 758 F.3d
    70                        BENSON V. CHAPPELL
    
    1119, 1139 (9th Cir. 2014) (quoting United States v. Bagley,
    473 U.S. 667, 682 (1985)).
    
         1. The failure to disclose Dr. Gordon’s judicial
            reprimand was not prejudicial
    
        In a prior case involving child molestation,27 Dr. Gordon,
    as part of the Sexual Assault Response Team, interviewed a
    child who had allegedly been sexually assaulted. The
    interview was taped, but the tape was destroyed. The court
    determined that the tape recording had contained exculpatory
    statements, and declared that it was “utterly unconvinced that
    Dr. Gordon failed to recognize that the statement was
    exculpatory at the time it was made.” In an order entered
    approximately six months before Benson’s trial, the court
    ruled that “law enforcement including Dr. Gordon, acted in
    bad faith regarding the tape.”
    
        The minute order meets the first prong for a Brady
    violation. It tends to show that Dr. Gordon is an unreliable
    witness who may obfuscate or lie in order to convict an
    alleged sex criminal. On this record, we accept that the
    prosecution did not bring the minute order to the attention of
    Benson’s counsel, and that it was suppressed.28
    
    
         27
              See footnote 26, supra.
         28
             The state argues that there is “no evidence [the impeaching
    evidence] was not available as part of the prosecution’s open file
    discovery policy.” The state’s argument is not persuasive. Although the
    state had an open file policy, Benson’s trial counsel reported that he
    “made a strategic decision that [he] would not relieve the prosecution of
    its obligation to provide discovery by inspecting the District Attorney’s
    files themselves to determine whether they had been provided everything
    to which they were entitled.” Moreover, while the information was
                           BENSON V. CHAPPELL                            71
    
        Nonetheless, we affirm the denial of relief on the alleged
    Brady violation. To set aside Benson’s conviction and
    sentence, there must be a “reasonable probability” that
    impeaching Dr. Gordon with evidence of his prior judicial
    reprimand would have altered the jury’s “conclusion that the
    aggravating circumstances outweighed the mitigating
    circumstances.” Strickland, 466 U.S. at 700. Benson has not
    made such a showing.
    
        The evidence both of guilt and of aggravation was so
    overwhelming that there is no reasonable probability of a
    different result had Dr. Gordon’s testimony been impeached.
    The evidence of guilt included not only Benson’s confessions
    to Bolts and Hobson but also the presence of his fingerprints
    at the scene and evidence that he owned the steel jeweler’s
    mandrel found at the home. The aggravating evidence is
    similarly overwhelming. Dr. Gordon was tasked with
    presenting forensic evidence of molestation, and he recounted
    Benson’s description of his acts. But Benson also admitted,
    in graphic detail, to the police officers his molestation of both
    young girls as well as his killing of all four members of the
    family. Thus, Dr. Gordon’s testimony was cumulative.
    Given the overwhelming nature of the aggravating evidence,
    and that Benson’s confession to Dr. Gordon was not the only
    evidence of molestation, it was reasonable for the California
    Supreme Court to conclude that the conviction and sentence
    would have been the same had Dr. Gordon been impeached
    or his testimony excluded.
    
    
    contained in a public record, we have held that under some circumstances,
    this does not diminish the state’s obligation to produce documents under
    Brady. Milke v. Ryan, 711 F.3d 998, 1017–18 (9th Cir. 2013). Here, the
    record indicates that the information regarding Dr. Gordon was not
    produced and that counsel would have used it if he had had it.
    72                  BENSON V. CHAPPELL
    
         2. Benson has failed to show that the suppression of the
            lab report was prejudicial
    
        Benson claims that the government withheld “a lab report
    [which] indicated Mr. Benson had methamphetamine in his
    urine three days after his arrest and during the time he was
    being interrogated.” This is the whole of Benson’s argument.
    He does not explain why the report matters or how this
    information could have been used at trial. That Benson had
    been a drug addict and had used methamphetamine was not
    in dispute. Benson’s counsel had presented evidence and had
    argued at trial—without dispute by the state—that Benson
    was under the influence of drugs over the weekend in
    question. The inclusion of a lab report showing the presence
    of methamphetamine in Benson’s urine three days after his
    arrest would not have significantly added to the information
    that was before the jury.
    
         3. Benson has failed to show that the reduction of
            pending charges against three witnesses had any
            effect on his conviction or sentence
    
        Benson argues that prosecutors failed to disclose criminal
    charges against several lay witnesses and suggests that their
    charges were subsequently reduced. The criminal records of
    the witnesses were of marginal relevance because none of the
    witnesses testified as to where Benson was or what he did
    over the weekend in question. Benson does not indicate what
    the defense would have accomplished with this information,
    how it would have aided the defense at trial, or even that the
    information was unknown to trial counsel. Benson has not
    made the requisite showing of prejudice for relief on this
    issue.
                        BENSON V. CHAPPELL                      73
    
       4. Benson has not shown that the failure to disclose a
          statement by a lay witness was prejudicial
    
        Finally, Benson argues that the prosecution withheld
    notes from a police officer indicating that a teenage lay
    witness had stated that she visited Laura Camargo and her
    three children on Sunday evening. Benson’s assertion that
    the witness had told the police that Laura and the children
    were alive on Sunday is of little weight when placed in
    context. It appears that Benson knew of the statement
    because during his discussion with the officers, he described
    having heard that a teenage girl claimed that she had “talked
    to Laura about 8:15 the night before the fire.” Benson
    intimated to police that the girl should not be believed,
    because she was a “champion airhead.”
    
        Moreover, as noted, any testimony by the witness would
    have been undercut by testimony from others who saw no
    signs of activity in Laura’s residence on Sunday, the
    testimony of the forensic pathologist that by Monday Laura
    had been dead for several days, and Benson’s own statement
    that he murdered Laura on Saturday night. Accordingly, we
    agree with the district court that “it would have served no
    purpose other than to diminish the defense’s credibility to
    attempt to inject [the girl’s] faulty memory into the
    proceedings to challenge the prosecution’s case that petitioner
    committed the crimes, a tactic defense counsel reasonably
    decided not to pursue in any event.”
    
       In sum, on this record, even if some Brady materials were
    withheld, Benson’s claim must be rejected because he cannot
    show prejudice from the alleged non-disclosures. The
    Supreme Court recently explained:
    74                  BENSON V. CHAPPELL
    
           Petitioners and the Government, however, do
           contest the materiality of the undisclosed
           Brady information. “[E]vidence is ‘material’
           within the meaning of Brady when there is a
           reasonable probability that, had the evidence
           been disclosed, the result of the proceeding
           would have been different.” “A ‘reasonable
           probability’ of a different result” is one in
           which the suppressed evidence “‘undermines
           confidence in the outcome of the trial.’” In
           other words, petitioners here are entitled to a
           new trial only if they “establis[h] the
           prejudice necessary to satisfy the ‘materiality’
           inquiry.”
    
    Turner v. United States, 137 S. Ct. 1885, 1893 (2017)
    (internal citations omitted). Benson has failed to show a
    “reasonable probability” that presentation of any or all of the
    alleged suppressed materials—the prior judicial reprimand of
    Dr. Gordon, the lab report, the witnesses’ criminal records,
    and the teenage girl’s statement—would have changed his
    conviction or sentence. Accordingly, even though the state
    court denied Benson’s Brady claims without explanation, a
    review of the record reveals sound reasons for the denial.
    
                           V. Conclusion
    
       It has been over thirty years since Benson murdered Laura
    and her toddler son and sexually abused and murdered her
    two young daughters. He has been ably represented by his
    counsel. After reviewing his conviction and sentence
    pursuant to AEDPA, as we must, we affirm the district
    court’s denial of Benson’s petition for a writ of habeas
    corpus. The California Supreme Court reasonably could have
                        BENSON V. CHAPPELL                        75
    
    determined that Benson’s confessions to the police should not
    have been suppressed. Because Benson was a parolee subject
    to a parole hold, his Fourth Amendment rights were not
    violated by the delay in his arraignment. Benson’s additional
    evidence concerning his background, mental problems, and
    horrendous childhood do not compel a determination that he
    did not knowingly and intelligently waive his Miranda rights.
    
        Similarly, the additional evidence of a predisposition to
    mental illness, exposure to alcohol in his mother’s womb, and
    physical, sexual, and psychological abuse inflicted on him
    during the two-to-three years he lived at the Buchanan ranch,
    does not compel a determination that he is entitled to relief
    under AEDPA. In light of the fact that at the time of his trial
    neither Benson nor his siblings informed counsel of any
    abuses at the Buchanan ranch, there is no compelling
    evidence that trial counsel’s performance was deficient. See
    Strickland, 466 U.S. at 687. Moreover, even if counsel’s
    performance were deficient, reasonable jurists could conclude
    that, in light of the defense offered by trial counsel, the
    gravity of Benson’s offenses, and Benson’s prior offenses,
    counsel’s errors were not “so serious as to deprive [Benson]
    of a fair trial.” Id.
    
         Finally, Benson’s claims that trial counsel was ineffective
    at the guilt stage of the trial and that the prosecution withheld
    materials do not merit relief. Benson’s confessions,
    combined with all the circumstantial evidence that confirm
    his responsibility for the murders and sexual abuse, render
    trial counsel’s decision not to further contest guilt reasonable,
    if not wise. Viewed in the light of the whole record, there is
    no probability that production of the so-called Brady
    materials would have produced a different result. See Turner,
    137 S. Ct. at 1893.
    76                  BENSON V. CHAPPELL
    
        The district court’s denial of Benson’s petition for a writ
    of habeas corpus is AFFIRMED.
    
    
    
    MURGUIA, Circuit Judge, concurring in part and dissenting
    in part:
    
        I agree with the majority’s decision on the first certified
    issue and on the uncertified claims. I cannot, however, join
    the majority’s opinion with respect to Benson’s penalty-phase
    Strickland claim.       The California Supreme Court
    unreasonably determined that Benson’s counsel provided
    constitutionally adequate representation at the penalty phase.
    Even under AEDPA’s deferential standard, 28 U.S.C.
    § 2254(d), Benson is entitled to penalty-phase relief.
    
        Make no mistake, Benson’s crimes are brutal and
    reprehensible. He senselessly murdered Laura Camargo and
    her three young children—Stephanie, Shawna, and Sterling.
    He repeatedly sexually assaulted Stephanie and Shawna
    before killing them. And he ruthlessly burned the bodies of
    his victims to hide the crimes.
    
        But whether or not Benson’s crimes are abhorrent does
    not determine whether he is entitled to constitutionally
    adequate representation. At the penalty phase of his trial,
    Benson’s attorney had a professional duty to explain those
    crimes, and the person who committed them, to the jury.
    Indeed, his counsel’s job—and that of any lawyer defending
    a client facing the death penalty—was to explain what, in
    Benson’s life, might have driven him to commit such heinous
    acts so as to shed some amount of human light on his
    behavior. This means, concretely, that Benson’s attorney was
                       BENSON V. CHAPPELL                      77
    
    duty-bound to investigate and present mitigating evidence
    that could give the jury a reason to exercise some measure of
    mercy for crimes that otherwise warrant none.
    
         Significant evidence of that nature existed here. From
    infancy until the age of nine, Benson was subjected to
    grotesque sexual and physical abuse at the hands of his foster
    family, the Buchanans. And although readily available, this
    evidence was never discovered by Benson’s lawyer and was,
    therefore, never introduced at the penalty phase of Benson’s
    trial. Mitigating evidence of this magnitude clearly has a
    substantial probability of convincing at least one of twelve
    jurors to exercise mercy and vote for life rather than death.
    The California Supreme Court’s conclusion to the contrary is
    fundamentally unreasonable.
    
       I must, therefore, respectfully dissent.
    
                                  I
    
        Benson’s biological parents abandoned him at birth and
    sent him to live with the Buchanan family on a ranch in rural
    Petaluma, California. Each of Benson’s six brothers was
    eventually sent to the ranch, which the boys referred to as
    their foster home. Their foster parents, Marjorie Buchanan
    and her husband Jack, ran the ranch. Marjorie’s son, David,
    also lived on the ranch.
    
       According to the declarations submitted by two of
    Benson’s brothers, life on the Buchanan ranch was a veritable
    78                    BENSON V. CHAPPELL
    
    hell.1 All of the boys were physically, sexually, and
    psychologically abused while living there. The physical
    abuse was extreme. Marjorie beat at least one of the boys
    every day. She beat them with a rubber hose, branches, and
    a belt. She even hit Benson, at around the age of six, over the
    head with a shovel. She would punish the boys by placing
    their hands on a hot stove; filling their mouths with cayenne
    pepper; and holding their heads underwater to stop their
    crying. At least once, Marjorie held Benson’s head
    underwater until he lost consciousness. Another time, as
    punishment for leaving a gate open, Marjorie tied Benson’s
    limbs spread-eagle across the gate and beat his genitals with
    a rubber hose and ping pong paddle. Benson was seven or
    eight years old at the time.
    
        Jack, Marjorie’s husband, also beat the boys. He would
    use the buckle-end of a belt to hit the children and would
    “kick [Benson] in the head and ribs when [he] fell down
    during a beating.” On one occasion, he beat Benson for so
    long and so severely that Benson’s brother, William, feared
    for Benson’s life.
    
        According to his brothers, Benson was subjected to the
    worst of the beatings. At times, Benson was beaten so badly
    that he could not walk, nor could he go to school. After
    beatings, Benson’s face and body would be so severely
    bruised and swollen that his brothers were embarrassed to go
    to school with him. Benson would withdraw and would
    
    
         1
         The evidence of Benson’s life on the ranch comes from declarations
    from Benson’s brothers, Brad and William. These declarations were
    presented to the California Supreme Court, but Benson was never afforded
    an evidentiary hearing to further develop his penalty-phase Strickland
    claim.
                           BENSON V. CHAPPELL                              79
    
    refuse to speak after severe beatings. He would bang his head
    against a wall and eat dirt and live bugs.
    
        Benson and his brothers were also routinely sexually
    abused on the ranch by David, their older “foster brother.”
    According to William Benson, the sexual abuse “happened so
    much that we all thought it was normal.” David would fondle
    the boys and orally copulate them. He would take the boys
    into a treehouse, away in a car, or tie them to a chair or tree
    and sexually abuse them. He forced the boys to have anal
    intercourse with him and inserted foreign objects into their
    anuses, including an electric cattle prod.
    
        In addition to sexual abuse, David forced the boys to
    engage in bestiality and wanton torture of animals. He made
    the boys put their penises in calves’ mouths and pigs’
    vaginas. He would put the electric cattle prod in the cows’
    throats and pigs’ rectums and turn the electricity on. He
    made the boys watch as he sledgehammered animals to death,
    and he would make the boys clean up the animals’ feces after
    they were killed. He made the boys bite the testicles off
    sheep and drink the animals’ blood. When the boys did not
    comply, David would beat them.2
    
         Though it should have been, the jury was not informed of
    all of these monstrous details regarding Benson’s life on the
    ranch.
    
    
    
    
        2
          Benson’s brothers’ declarations describe additional deviant acts that
    occurred on the ranch—including forced enemas, forced sexual contact
    with adults, and witnessing other acts of bestiality.
    80                      BENSON V. CHAPPELL
    
                                        II
    
        In short, Benson’s childhood on the ranch was remarkably
    horrific. Benson’s counsel, nevertheless, failed to discover
    the abuse despite being put on notice by a mental health
    expert and his own investigator that physical and sexual
    abuse—specifically, on the ranch—likely occurred during
    Benson’s childhood.3 Counsel therefore failed in his duty to
    perform a reasonable investigation, rendering his
    performance at the penalty phase patently deficient. Williams
    v. Taylor, 529 U.S. 362, 396 (2000); Andrews v. Davis,
    944 F.3d 1092, 1108–10 (9th Cir. 2019) (en banc). It was
    unreasonable for the California Supreme Court to conclude
    otherwise. Wiggins v. Smith, 539 U.S. 510, 520–34 (2003);
    Andrews, 944 F.3d at 1115–16.4
    
    
         3
           The majority errs when it suggests that the only abuse of which
    Benson’s counsel was aware was that Marjorie “disciplined” the boys with
    pepper and hit them with a rubber hose. Maj. Op. at 54. I assume,
    although skeptically, that those punishments—specifically, filling a child’s
    mouth with cayenne pepper and striking a child with a rubber
    hose—would not trigger counsel’s duty to investigate that abuse more
    thoroughly. But Benson’s counsel knew more than that. He also knew
    that his mental health expert suspected Benson had been sexually abused
    in the past and that Benson’s brother had been sexually abused by David,
    who was later convicted of molesting children. Any reasonably competent
    attorney aware of those two facts would have undertaken further
    investigation of Benson’s relationship with David and, more generally, of
    Benson’s life on the ranch.
         4
           Because Benson’s counsel failed in his duty to investigate, it is
    irrelevant whether the strategy counsel adopted at the penalty phase was
    reasonable. That is, counsel’s performance can still be deficient under
    Strickland based on the failure to adequately investigate, even if the
    strategy counsel ultimately settled on was superficially reasonable.
    Wiggins, 539 U.S. at 521–22. The majority thus errs by crediting
    counsel’s strategy. See Maj. Op. at 53–57. The relevant question is
                           BENSON V. CHAPPELL                             81
    
                                       III
    
        The admittedly more difficult question relates to
    prejudice. See Strickland v. Washington, 466 U.S. 668,
    694–96 (1984). Indeed, the question the California Supreme
    Court had to answer—and the decision we review under
    AEDPA for substantive unreasonableness—was whether
    there was a “reasonable probability” that the omitted evidence
    would have altered the outcome of the penalty phase.
    Wiggins, 539 U.S. at 537. That is, whether there was a
    reasonable probability that the omitted mitigating evidence
    would persuade a single juror that—despite the violence and
    suffering Benson inflicted on others—he should be sentenced
    to life in prison rather than death. Id. The California
    
    
    whether counsel’s investigation was reasonable under the circumstances.
    Wiggins, 539 U.S. at 523; Andrews, 944 F.3d at 1111–16.
    
         Additionally, although Benson himself had no memory of the abuse
    he suffered on the ranch, the Supreme Court has recognized that a client’s
    representations, or lack thereof, do not excuse counsel’s investigatory
    responsibilities. For example, a client facing the death penalty may be
    “fatalistic or uncooperative,” but that does not relieve counsel of his
    independent duty to investigate the client’s background. Porter v.
    McCollum, 558 U.S. 30, 40 (2009) (per curiam).
    
        Simply put, counsel had a duty to investigate Benson’s life on the
    ranch—not to make assumptions about what his life was like. Had
    counsel fulfilled that duty, he would have discovered evidence of the
    abuse Benson suffered. And any reasonably competent attorney would
    have presented that mitigation evidence at the penalty phase.
    
        Accordingly, Benson’s counsel had an independent duty to
    investigate and—contrary to the majority’s inaccurate characterization of
    the record, see Maj. Op. at 55 n.22—was sufficiently aware of facts
    pointing to a probability that Benson had been severely abused on the
    ranch, see supra note 3.
    82                  BENSON V. CHAPPELL
    
    Supreme Court concluded such a reasonable probability did
    not exist. That determination is objectively unreasonable.
    
        The question is not whether jurors, presented with the
    evidence, would nonetheless have voted for death. Rather,
    the question is whether the omitted evidence was of such a
    magnitude that there was a reasonable probability the
    outcome would have been different. See Buck v. Davis,
    137 S. Ct. 759, 776 (2017) (applying Strickland’s prejudice
    prong). No fair-minded jurist objectively reviewing the
    unintroduced mitigating evidence in this case could conclude,
    with confidence, that the outcome would have been the same.
    See Strickland, 466 U.S. at 694. There is simply “too much
    mitigating evidence that was not presented to now be
    ignored.” Porter, 558 U.S. at 44 (internal quotation marks
    omitted).
    
         The majority’s most severe error is its conclusion that the
    evidence of Benson’s life on the ranch was “cumulative” of
    other mitigating evidence. Maj. Op. at 61, 64 n.25. Contrary
    to the majority’s conclusion, the mitigating evidence actually
    presented at the penalty phase pales in comparison to the
    evidence of the suffering imposed on Benson at the ranch. It
    is not a difference in magnitude, but a difference in kind. The
    unintroduced mitigating evidence of unprovoked, grotesque
    abuse inflicted on Benson as a child is precisely the type of
    mitigating evidence that could have moved the jury to
    sentence Benson to life in prison rather than death. See
    Wiggins, 539 U.S. at 535; Boyde v. California, 494 U.S. 370,
    382 (1990); Andrews, 944 F.3d at 1116–18. It is the type of
    evidence that “alter[s] the entire evidentiary picture,” and its
    omission undermines confidence in the penalty phase verdict.
    Strickland, 466 U.S. at 696; see Andrews, 944 F.3d at 1121.
                        BENSON V. CHAPPELL                      83
    
        Given Benson’s attorney’s inadequate representation, the
    jury that sentenced him to death was unable to fully evaluate
    Benson’s moral culpability for his actions. Unless certain
    crimes are beyond the reach of prejudicial error—or we view
    jurors as immovable and incapable of exercising mercy—then
    the omission of the mitigating evidence here must be
    considered prejudicial.
    
        The aggravating factors in this case are substantial, to be
    sure. But so, too, is the mitigating evidence that was not
    introduced. Although I cannot say with certainty that the
    penalty-phase result would have been altered had counsel
    investigated and introduced evidence of Benson’s childhood
    on the ranch, the evidence is sufficiently significant that my
    confidence in the penalty is undermined. Any fair-minded
    jurist would agree.
    
       I respectfully dissent.