James v. Schriro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEVEN CRAIG JAMES,  No. 08-99016
Petitioner-Appellant, D.C. No.
v.  2:00CV-01118-
DORA B. SCHRIRO, NVW
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding

Argued and Submitted
March 17, 2011—San Francisco, California

Filed October 12, 2011

Before: William A. Fletcher, Marsha S. Berzon, and
Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge William A. Fletcher

18785
 JAMES v. SCHRIRO 18789

COUNSEL

Gary T. Lowenthal, Santa Fe, New Mexico, Thomas James
Phalen, Phoenix, Arizona, for the petitioner.

Kent Ernest Cattani, ARIZONA ATTORNEY GENERAL’S
OFFICE, Phoenix, Arizona, Amy Pignatella Cain, ARI-
ZONA ATTORNEY GENERAL’S OFFICE, Tucson, Ari-
zona, for the respondent.

OPINION

W. FLETCHER, Circuit Judge:

Death-sentenced prisoner Steven James appeals the district
court’s denial of his petition for a writ of habeas corpus.
James, Lawrence Libberton, and Martin Norton were con-
victed in separate proceedings in Arizona state court of crimes
connected to the 1981 murder of Juan Maya. James, Libber-
ton, and Norton severely beat Maya, drove him to an isolated
desert area, killed him by shooting him and striking him with
rocks, and threw his body down an abandoned mine shaft.
Norton, who was 14 years old at the time of the murder,
agreed to testify against James and Libberton and to plead
18790 JAMES v. SCHRIRO
guilty in juvenile court to first-degree murder, kidnapping,
armed robbery, and credit card fraud. In exchange for his tes-
timony and guilty plea, Norton was committed to juvenile
detention until he turned 18, with no subsequent incarceration.
Libberton was convicted of first-degree murder, aggravated
kidnapping, robbery, and theft, and sentenced to death. State
v. Libberton, 685 P.2d 1284, 1286 (Ariz. 1984). A panel of
this court granted Libberton habeas relief with respect to his
death sentence. Libberton v. Ryan, 583 F.3d 1147, 1151-52
(9th Cir. 2009), cert. denied, 130 S. Ct. 3412 (2010). James
was convicted of first-degree murder and kidnapping, and
sentenced to death. State v. James, 685 P.2d 1293, 1296 (Ariz.
1984).

James raises three grounds for relief. First, he claims that
the state failed to disclose an oral plea agreement with Nor-
ton, in violation of Brady v. Maryland, 373 U.S. 83 (1963),
and Giglio v. United States, 405 U.S. 150 (1972). Second, he
claims that the state failed to correct Norton’s false testimony
denying the existence of this agreement, in violation of Napue
v. Illinois, 360 U.S. 264 (1959). Third, he claims that his trial
counsel provided ineffective assistance at the penalty phase,
in violation of Strickland v. Washington, 466 U.S. 668 (1984).

We affirm the denial of relief with respect to James’s guilt-
phase claims based on Brady, Giglio, and Napue. However,
we reverse with respect to James’s penalty-phase claim of
ineffective assistance of counsel, which was not decided on
the merits in state court. We conclude that counsel’s complete
failure to investigate and present mitigating evidence of
James’s troubled childhood, his mental illness, and his history
of chronic drug abuse constituted deficient performance. We
further conclude that this failure prejudiced James because it
prevented the sentencing judge from learning that James had
“the kind of troubled history we have declared relevant to
assessing a defendant’s moral culpability.” Wiggins v. Smith,
539 U.S. 510, 535 (2003); see also, e.g., Penry v. Lynaugh,
492 U.S. 302, 319 (1989) (“[E]vidence about the defendant’s
 JAMES v. SCHRIRO 18791
background and character is relevant because of the belief,
long held by this society, that defendants who commit crimi-
nal acts that are attributable to a disadvantaged background,
or to emotional and mental problems, may be less culpable
than defendants who have no such excuse.” (quoting Califor-
nia v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., con-
curring))). We therefore grant the writ with respect to James’s
death sentence.

I. Factual and Procedural Background

A. Factual Background

1. The Investigation

On November 17, 1981, James, Libberton, Norton, and
Daniel McIntosh were arrested at a bank in Phoenix after Lib-
berton attempted to obtain a cash advance on a credit card
belonging to Maya. Libberton was arrested either inside or
just outside the bank. James, Norton, and McIntosh were
arrested in the bank’s parking lot where they were waiting in
a 1975 Ford Thunderbird registered to Maya. Libberton was
booked on a forgery charge, but the others were interviewed
and released. Two days later, after Maya’s father filed a miss-
ing person report on his son — and after receiving a tip from
McIntosh, who had heard James and Libberton bragging
about killing Maya — police located and rearrested James and
Norton.

James gave a statement to Detective Russell Davis in which
he recounted that Norton, followed by Maya, had burst
through the door of James’s trailer on the night of November
16, claiming that Maya “was following him and trying to rape
him.” Norton retrieved a revolver from James’s trailer and
chased Maya outside into the trailer park. After a short time,
Norton returned with Maya, sat him down on James’s couch,
and “slapped [Maya] around, trying to get him to tell where
his money was at.” James stated that Libberton and Norton
18792 JAMES v. SCHRIRO
then walked Maya outside to his own car. James stated that
he took the wheel and the group left in Maya’s car. At that
point in the interview, James requested counsel, but shortly
thereafter volunteered to show police Maya’s body. See Lib-
berton, 583 F.3d at 1152; James, 685 P.2d at 1296.

With James giving directions, Detective Davis and Ser-
geant Michael Midkiff drove about two hours west of Phoenix
to property owned by James’s adoptive parents in the desert
outside Salome, Arizona. James led Davis and Midkiff to an
abandoned mine shaft several hundred yards from the
entrance to the property. Maya’s body lay at the bottom, cov-
ered with railroad ties and a rusted pipe. Tire tracks that
appeared to match the treads on the tires of Maya’s Thunder-
bird ran from the entrance of the property to the base of the
incline where the shaft was located, and a shoeprint that
appeared to match the tread on Maya’s shoes was found on
the incline leading up to the shaft. Two drag marks, about as
far apart as the distance between a person’s feet would be, ran
from a bloodstained area of terrain at the top of the incline to
the shaft’s entrance. Blood and hair consistent with Maya’s
were found matted on several rocks scattered around the
entrance to the mine; on the sides of the shaft; and on the rail-
road ties that lay across the opening of the shaft. The railroad
ties and the rusted pipe on Maya’s body were not blood-
stained, suggesting that they had been thrown down onto
Maya. An autopsy revealed that Maya suffered lacerations to
both sides of his scalp, a complicated skull fracture, and
bruises and abrasions to his forehead, chin, nose, cheek, and
ear. Maya died of head injuries that included a hemorrhage
and bruises to the surface of his brain, which were consistent
with blows from rocks or a heavy board.

2. Norton’s Statements

Norton gave several statements. Each statement inculpated
James, Libberton, and himself in progressively greater detail.
Because James’s Brady, Giglio, and Napue claims turn on
 JAMES v. SCHRIRO 18793
Norton’s statements, and the differences among them, we
recount them at some length. See generally Libberton, 583
F.3d at 1152-56. During his first interview on November 19,
Norton told Detective Davis different versions of what hap-
pened to Maya. Norton first said that he was hitchhiking when
Maya picked him up at around 11:30 p.m. on November 16.
Norton said that Maya “started talking about gay power,” so
Norton asked to be let out of Maya’s car. Maya agreed but
kept following Norton until Norton managed to evade Maya
near a local elementary school. Norton then acknowledged
that he had hit Maya. Norton said that Maya “tried to get in
my pants. He puts his arm around me. He tried to kiss me. I
hit him and I hit him.” Norton told Davis that he hit Maya in
the throat and the solar plexus because “I know where to hit
people.” Norton stated that he broke free and escaped to
James’s trailer, where he told James and Libberton that Maya
had attacked him. James and Libberton went looking for
Maya but could not find him.

Norton’s story then changed. In this version, Norton
rebuffed Maya’s sexual advances and got out of Maya’s car,
but now Maya followed Norton inside James’s trailer. Norton
told James, “[T]his is the guy,” whereupon James kicked
Maya in the leg. Maya fled the trailer, but Norton, James, and
Libberton pursued Maya and soon “had him surrounded.”
Norton punched Maya in the stomach. The group brought
Maya back into the trailer, where James and Libberton took
turns beating Maya “in the face, the stomach, and the balls.
. . . [Libberton] said he broke [Maya’s] nose.” James and Lib-
berton talked quietly out of earshot for a few minutes, then
took Maya by the arm and walked him outside to his car. Nor-
ton said that James and Libberton returned after about three
hours without Maya. James told Norton “not to tell a soul
about this or [Norton] would die the same way [Maya] did.”

On November 26, Norton, then detained in a juvenile facil-
ity, gave a statement to Detective Jack Hackworth in which
he admitted for the first time his own participation in Maya’s
18794 JAMES v. SCHRIRO
murder. Norton’s story again began with Maya picking him
up while hitchhiking. Norton said that he became frightened
when Maya secured the electric locks on his car doors, and
that he proposed that Maya come to James’s trailer because
Norton “had a friend that was also queer there and they could
make out.” Norton stated that he “sort of lured [Maya] into
the trailer in order to get away from him. . . . ‘I told him Steve
was gay and queer and he would make him happy if he’d
come in the trailer.’ ” According to the interview notes, once
Maya followed Norton into the trailer, Norton “turned to
Steve and [Libberton] and said, ‘He’s a queer.’ . . . [A]t that
time Steve kicked [Maya], knocking him down, and he and
[Libberton] both began to beat the man in the trailer.” James
and Libberton beat Maya until he was bleeding from the nose
and mouth. James took Maya’s wallet and threw it to Norton,
who removed Maya’s credit cards. Maya pleaded, “Take my
car and my credit cards and money if you want to but don’t
hit me anymore.” Norton “slapped [Maya] upside the face
with his right hand, telling him, ‘Don’t smart off, queer.’ ”

James then produced a revolver and he, Norton, and Lib-
berton walked Maya to Maya’s car. The group drove off,
stopping at a gas station where James used one of Maya’s
credit cards to buy a tank of gas and a carton of cigarettes. On
the way to the mine, the group discussed shooting Maya and
throwing him into the shaft. Norton said that Maya “just sat
in the back seat[,] but I know he heard what [Libberton] and
Steve were saying.” When the group arrived at James’s par-
ents’ property, Norton asked James if he was serious about
killing Maya. James responded, “Yes, we’re going to shoot
him.” Norton suggested breaking Maya’s legs and throwing
him in the shaft instead, but Libberton countered, “[I]f we
don’t kill him, he will snitch us off.” When the group reached
the mine, it was almost daylight. James walked Maya at gun-
point up to the shaft and shot Maya in the left forearm. James
passed the revolver to Norton, who passed it to Libberton
without shooting. Libberton shot Maya in the head, then
returned the revolver to James, who did the same. Norton
 JAMES v. SCHRIRO 18795
stated that Maya was not dead, so both James and Libberton
“mashed [Maya’s] head in” with large rocks. James and Lib-
berton forced Norton to do the same. Norton threw one rock
and missed, then threw another, hitting Maya in the back.
James and Libberton dragged Maya’s body to the shaft and
threw him in. On the drive back to Phoenix, James and Lib-
berton both told Norton that “if I told anyone, I would be in
the shaft with him.”

Norton gave a final pretrial statement on December 29. By
this time, the state had filed a juvenile delinquency petition
charging Norton with murder, kidnapping, and armed rob-
bery, as well as a request to transfer Norton’s case from juve-
nile to adult court. On December 29, Norton, represented by
appointed counsel Robert Wertsching, gave a tape-recorded
statement to Detective Davis and Maricopa Deputy County
Attorney Myrna Parker, the lead prosecutor at the trials of
both James and Libberton.

During James’s federal habeas corpus proceedings in 1993,
his counsel Gary Lowenthal obtained an affidavit in which
Wertsching stated that soon after his appointment as Norton’s
lawyer, he “had at least two conversations with the head pros-
ecutor of the juvenile division of the Maricopa County Attor-
ney’s office on the subject of whether the County Attorney
would agree not to seek transfer of Mr. Norton to adult court.”
Wertsching stated in his affidavit that “the head of the juve-
nile division indicated orally that if Mr. Norton would give a
full and accurate statement to the County Attorney and would
testify consistently with that statement at the trials of the
adults who participated in the homicide offense, the County
Attorney would not seek to have [Norton] transferred to adult
court.” When Norton gave his December 29 statement, there-
fore, both he and Wertsching “expected that if [Norton] was
truthful in the debriefing and cooperated fully with the prose-
cution of the adult defendants, he would not be remanded to
adult court. . . . Subsequent to the formal jail interview with
Myrna Parker, [Norton] and I signed a formal written agree-
18796 JAMES v. SCHRIRO
ment that conformed with the oral understanding I had previ-
ously reached with the juvenile division prosecutor.”

Parker began the interview, which was recorded and tran-
scribed verbatim, by telling Norton:

I’m offering you absolutely nothing today except
that [ ] I’m not going to use any of the statements
that you make today against you. . . . The end result
of this interview with you is that we are going to
attempt to set up an agreement between you, your
attorney and the county attorney’s office regarding
the charges that are now pending against you in the
death of [Maya]. None of that has been put down in
writing at this time, and in fact we haven’t even
explored what those possibilities may be. It will all
depend on your truthfulness during this interview
today.

Norton stated that, at the time of the murder, he had been
living with James for about a week. He described James as
“big,” “heavy,” and “real mean.” Norton said that James “was
really heavy into drugs, marijuana, cocaine, heroin.” Norton
knew that James kept a loaded .44 revolver under a chair in
his living room “because his wife had been kidnapped from
what I hear and he wanted that for protection.” Norton said
that on November 16, he, James, Libberton, McIntosh, and
Norton’s friend “Ralph” were smoking marijuana at James’s
trailer. Norton and “Ralph” left the trailer around 10:30 p.m.
to “dine and dash” — that is, to eat and then skip out on the
check — at a local diner. Norton said that James had been
drinking vodka and smoking marijuana and was not drunk
when he left, but was “on the way there” and “feeling good.”
James was “more high than he was drunk” and “staggered a
little bit when he went to the restroom.” Norton and “Ralph”
were caught trying to dodge the check at the diner, picked up
by police, and taken to their parents’ homes. Norton stayed at
 JAMES v. SCHRIRO 18797
his mother’s home “about 10 minutes, . . . smoked a couple
of joints,” and left to hitchhike to James’s trailer.

Maya picked Norton up and drove him to James’s trailer.
Maya parked outside, locked the car doors, and tried to “get
on top of” Norton. Norton “started struggling to get away
from him” but Maya persisted, telling Norton, “Don’t stop
me.” Maya attempted to remove Norton’s pants, but Norton
“pushed him away and he got back on me and wouldn’t let me
go. . . . He was starting to breath[e] harder and he kept kissing
me and I kept pushing away from him.” Maya “unsnapped”
Norton’s pants and got them “half way unzipped.” Norton
continued to resist, finally proposing that Maya come into
James’s trailer because “I have a friend in there who’s gay
and he’ll give you what you want and you don’t have to get
me.” Maya hesitated but agreed.

Once inside, Norton hid behind James and said, “[‘]Steve[,]
get him away from me.[‘ James] looked at me and looked at
him and I said, ‘He’s a queer, get him away from me,’ and
[James] kicked him.” Maya fled outside into the trailer park,
but James and Libberton pursued him and brought him back
inside. When James and Libberton returned, Maya’s “nose
was bleeding real bad.” James sat Maya down on the couch
in the trailer and began to beat him. James then invited Norton
to beat Maya, and Norton “hit him as hard as I could . . . [i]n
the jaw,” three times. Libberton then struck Maya in the face,
possibly breaking his nose, and causing more bleeding. The
group continued beating and taunting Maya. Eventually,
James pointed the revolver at Maya and demanded his wallet,
which James then turned over to Norton. Norton removed
Maya’s cash, credit cards, and identification. Libberton
retrieved the title to Maya’s car from his wallet and forced
Maya to sign it over. James took a small ring and a turquoise
bracelet from Maya. Libberton took Maya’s belt from a suit-
case in the trunk of Maya’s car and said, “[S]eeing how I got
the car and everything else signed over to my name, I’m
going to wear his belt, so I’ll be Juan Maya.”
18798 JAMES v. SCHRIRO
After some time, James asked the group what they planned
to do with Maya. Libberton suggested letting Maya go, and
Norton suggested beating Maya further. James responded,
“[T]hat ain’t going to do no good, he’ll come right back.
. . . [T]he only thing we can do is kill him.” When Libberton
objected that the murder would be discovered, James replied,
“there’s no way we’ll get caught because I know a perfect
place to put the body.” James then described the mine outside
Salome. The group led Maya to his car, where Libberton sat
in the backseat with Maya, holding him at gunpoint. “All the
way [Maya] was saying, [‘]I have a wife,[’] and Steve said,
[‘S]hut the fuck up, we don’t want to hear your sad sto-
ries.[’]” Norton said that the group stopped at a gas station
where James purchased gas and cigarettes using one of
Maya’s credit cards. Norton also said that a police officer
stopped the car for speeding on the drive between the gas sta-
tion and the mine. While Libberton held the revolver on
Maya, James got out of the car to talk to the officer behind
the vehicle. After speaking with James, the officer sent the car
on its way. James “was drunk, he was high too,” but had
nonetheless talked his way out of receiving a ticket. Upon
returning to the car, James said, “[S]ee Marty, all you got to
do is learn how to talk to those pigs and they’ll do whatever
you want.”

When the group arrived at the mine, Norton attempted to
dissuade James and Libberton from carrying out the murder,
suggesting instead that the group break Maya’s legs and
throw him down the shaft. James said, “[W]e’ll have to kill
him anyway. . . . [W]e’ve gone too far, we have to do it.” Lib-
berton said, “Marty[,] it will be all right, we went this far,
we’re going to go all the way.” Norton stated that “I told
[Maya] I’m sorry this has to happen.” Maya said, “I wish this
wouldn’t happen to me either. I wish you could talk your
friends out of this.” Libberton, still holding the revolver,
walked Maya up a hill to the shaft. James took the revolver
from Libberton, allowed Maya to finish smoking a cigarette,
then directed Maya to stand next to the shaft. Maya pleaded
 JAMES v. SCHRIRO 18799
with James, “[W]ait a minute, wait a minute. Don’t kill me,
please don’t kill me.” James fired at Maya’s upper body.

According to Norton, the revolver went off but Maya was
not badly hurt and began to grapple with James for the
revolver. Libberton hit Maya with a rock, then with a board
provided by Norton, until Maya gave up the struggle. James
then shot Maya again, causing Maya to fall to the ground.
James handed the gun to Norton, who cocked the hammer but
did not pull the trigger, and handed the gun to Libberton. At
this point, Maya

was just going uh uh breathing really hard and rap-
idly and [Libberton] put the gun about 10 inches
from his head and pulled the trigger. [Maya] wasn’t
breathing anymore. A gurgling sound started coming
out. Steve didn’t know what was going on. That son
of a bitch ain’t dead yet. So [James] picked up a real
heavy rock, it was heavy because he barely put it up
and slammed it down on [Maya’s] head.

. . . [T]hen [Libberton] picked up the same rock and
put it on his head. Then I picked up the same rock
and threw it on his head.

Once Maya was dead, James and Libberton dragged Maya’s
body to the shaft, and Libberton threw him in. When the
group returned to the car, Norton stated, “[T]hey said,
[‘]Norton, you say one word to anybody, I mean anybody,
even Ralph, I’ll kill you.[’] . . . [Libberton] said, [‘Y]ea,
you’ll find your body right next to Juan.[’]”

After giving this statement, Norton entered an undated plea
agreement providing that, if he testified against James and
Libberton in a manner “substantially consistent” with his
December 29 statement, the state would withdraw its request
to transfer Norton’s case to adult court. Norton agreed to
admit to the allegations in a juvenile petition charging him
18800 JAMES v. SCHRIRO
with first-degree murder, armed robbery, kidnapping, and
credit card fraud. On February 3, 1982, the state withdrew its
transfer request and Norton was ordered committed as a juve-
nile until he turned 18. See Libberton, 583 F.3d at 1156.

B. Procedural History

1. Guilt Phase

James was charged with first-degree murder, aggravated
robbery, kidnapping, and theft. His trial began in September
1982. At trial, James conceded that he was present when
Maya was beaten at his trailer; that he drove Libberton, Maya,
and Norton to the mine; that he was present when Maya was
shot and beaten to death; and that he helped Libberton throw
Maya’s body down the shaft. James’s defense theory was that
he struck Maya only once, in self-defense, and participated in
the murder only under duress exerted by Libberton, who
forced him to cooperate at gunpoint. James’s counsel, Terry
Pillinger, chose this strategy even though Arizona law does
not permit a duress defense to homicide. See ARIZ. REV. STAT.
§ 13-412(C). The trial court rejected Pillinger’s request for a
duress instruction, but Pillinger, undeterred, argued in closing
that the jury should acquit James because he acted under
duress.

In addition to the physical evidence, the state relied primar-
ily on the testimony of McIntosh and Norton. McIntosh testi-
fied that James admitted the murder to him. According to
McIntosh, James said that Norton had brought Maya to the
trailer, accused Maya of sexually assaulting him, and asked
James and Libberton to “waste” Maya. James and Libberton
“beat the hell out of [Maya] for a little while,” and James told
McIntosh that he had split open a knuckle on his hand when
he punched Maya in the face, breaking Maya’s nose. McIn-
tosh testified that when James recounted breaking Maya’s
nose, he “kind of laughed about it.” James then told McIntosh
that the group drove to the mine, where “they went out and
 JAMES v. SCHRIRO 18801
shot [Maya] and beat on him for a while. [James] said [Maya]
was kind of hard to kill. He said [Maya] just wouldn’t die. So
they were beating on him with clubs and dropping rocks on
him and stuff like that. And he still wouldn’t die, so they just
kicked him off into the mine shaft . . . [A]fter they threw
[Maya] in the mine shaft they kicked a bunch of rocks and
debris on the guy so that he would be kind of buried, and they
drove away.” McIntosh testified that during the retelling,
James “had a smile on his face.”

Norton’s testimony conformed with his December 29 state-
ment in all relevant respects. On direct, Parker, the prosecutor
who had taken the December 29 statement, elicited the fol-
lowing testimony:

Q: [Y]our attorney, Robert Wertsching and I and
Detective Davis met with you; is that correct?

A: Yes.

Q: Now, you weren’t offered any kind of plea
agreement at that time, were you?

A: No.

Q: And I told you that I only want you to tell me
the truth?

A: Yes.

Q: And you did talk to me at that time, did you
not?

A: Yes.

Q: In fact you gave a statement?

A: Yes.
18802 JAMES v. SCHRIRO
Q: And you substantially told us exactly what had
happened to Juan Maya and what you told the
jury again today; is that correct?

A: Yes.

Q: Then later, Mr. Norton, you entered into a plea
agreement with the State upon the advice of
your attorney; is that correct?

A: Yes.

On cross, Pillinger elicited that Norton had reasons to lie,
both to minimize his own culpability and to ensure treatment
as a juvenile because he feared that he would be killed or sex-
ually abused in adult custody. Pillinger also established that
Norton would be released from juvenile detention when he
turned 18. On redirect, Norton repeated that he gave the
December 29 statement and consented to testify against James
and Libberton without any plea agreement in place. In clos-
ing, Parker argued that at the time of the December 29 state-
ment, when Norton “talked to me with his defense attorney
present [there were] no promises, nothing.”

James testified in his own defense and attributed his partici-
pation in Maya’s murder to duress. James testified that after
Maya fled the trailer, James pursued him into the trailer park
to “find the guy and bring him back and get him out of here
so we didn’t have any trouble.” James surprised Maya by
approaching him from behind, prompting Maya to swing and
miss at James. James testified that he punched Maya once in
self-defense, striking him in the tooth and bloodying his own
knuckle. James then “helped [Maya] up because I knocked
him down, and I explained to him what I wanted to do was
help him get back to his car. . . . because we didn’t want any
trouble whatsoever.”

James testified that he proposed to let Maya go, but that
Libberton disagreed and led Maya back to the trailer, where
 JAMES v. SCHRIRO 18803
Libberton held him at gunpoint while Norton beat and robbed
him. Libberton then suggested that Maya’s body could be
concealed in the Salome mine. James testified that Libberton
“knew that my father owned some mines in Salom[e] . . .
because on the previous day there was a television show on,
on the mines, . . . and I mentioned that my father owns some
mines.” James testified that he was “petrified” because Lib-
berton was armed and because “he fights . . . [d]irty. He just
didn’t really fight. He just kills people.” James protested, but
Libberton “told me to sit down and shut up or he would shut
me up.” Libberton then “told me to get in the car and drive
because I knew where the mines were.”

James acknowledged that the group stopped for gas and
cigarettes but testified that Norton, not he, paid. James also
acknowledged that a police officer stopped the car on its way
to the mine. James testified that he was speeding in order to
get caught, but that when he got out of the car, Libberton said,
“Watch what you say and don’t go too far past your door.”
James did not tell the police officer what was happening
because the car window was open and Libberton, who was
sitting in the backseat holding the gun on Maya, was within
earshot. James explained that “Libberton was sitting right
there with the gun where he could have very easily reached
out and shot somebody. Most likely it would have been me.”
After the officer let James go, Libberton told James, “[‘D]on’t
try anything like that again.[’] Because he knew I was trying
to speed up in order to get pulled over.”

Once the group arrived at the mine, James testified that
Libberton marched Maya at gunpoint up the incline to the
shaft, and that only Libberton and Norton shot and beat Maya.
James conceded that he helped drag Maya’s body into the
shaft, but he said he did it because Libberton “told me if I
didn’t help him to drag the man into the mine shaft he and
Norton were going to throw me in the mine shaft.”
18804 JAMES v. SCHRIRO
After about two and a half hours of deliberations, the jury
found James guilty of first-degree murder and kidnapping, but
not guilty of aggravated robbery and theft.

2. New Trial Motion/Penalty Phase

The court scheduled the penalty phase trial to begin just
over three weeks after the verdict. Arizona law then provided
that a judge, not a jury, determined the existence of any
aggravating or mitigating circumstances and decided whether
to impose the death penalty. See ARIZ. REV. STAT. § 13-703(B).1
In Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court
held that this procedure violated a capital defendant’s Sixth
Amendment entitlement to “a jury determination of any fact
on which the legislature conditions an increase in [his] maxi-
mum punishment.” Id. at 589. However, the Ring rule does
not apply retroactively. Schriro v. Summerlin, 542 U.S. 348,
358 (2004).

Two days after the verdict, Pillinger submitted a four-page
memorandum arguing that no statutory aggravating circum-
stances applied but listing several mitigating circumstances.
Pillinger argued that the applicable mitigating circumstances
included James’s age, See ARIZ. REV. STAT. § 13-703(G)(5);
the fact that Norton testified to inflicting the fatal blow; the
fact that James was under duress, see id. § 13-703(G)(2); the
evidence in a pretrial competency report prepared by Dr.
Maier Tuchler that James was under the influence of LSD at
the time of the murder; the opinion of Dennis Watterson,
James’s former probation officer, that James “had been a
model probationer”; and the evidence that James did not par-
ticipate in the actual killing. Pillinger either abandoned or
failed to substantiate each of these mitigating circumstances
at the penalty phase trial.
1
Arizona’s capital sentencing statute has been substantially amended
and recodified since James’s sentencing. We refer to the version of the
statute in effect at the time. See 1982 Ariz. Sess. Laws ch. 238, § 2 (codi-
fied at former ARIZ. REV. STAT. § 13-703).
 JAMES v. SCHRIRO 18805
Nine days before the penalty phase trial was to take place,
Pillinger received a telephone call from Dr. Jack Potts, a psy-
chiatrist for the Maricopa County Health Department who had
treated James during his pretrial detention. Dr. Potts told Pil-
linger that James had been taking lithium since March 1982
to treat what Potts had diagnosed as cyclothymia, a form of
bipolar disorder. Drs. Tuchler and Merton Berger, who con-
ducted pretrial competency examinations of James, had not
been made aware of the prescription for lithium or the diagno-
sis. Pillinger saw this as a smoking gun. He moved for a new
trial on the ground that James’s treatment with lithium, not
disclosed to Pillinger by the state, deprived James of an insan-
ity defense; interfered with the client-counsel relationship by
masking James’s otherwise psychotic mental state; tainted the
competency evaluations by Drs. Tuchler and Berger; and
adversely affected James’s demeanor during his trial and testi-
mony. The trial court granted Pillinger’s request to subpoena
all of James’s pretrial treatment records from the Maricopa
County Sheriff’s Office and Department of Health, as well as
Pillinger’s motion for fees to employ Tuchler to assist him in
preparing a supplemental motion for a new trial. Pillinger’s
request did not contemplate using Tuchler to prepare any mit-
igation evidence related to James’s mental health.

The parties stipulated that the penalty phase trial would be
combined with the hearing on Pillinger’s new trial motion
“[s]o that . . . if a motion for new trial is not granted, the
Court will be able to consider any evidence offered in these
proceedings[,] whether in support of the Motion for New Trial
or in support of mitigation[,] in connection with mitigation.”
The court conducted a combined new trial motion/penalty
phase hearing that dealt almost exclusively with James’s treat-
ment with lithium. Pillinger called five witness: Jerry Ott, an
“inmate classification counselor” with the Maricopa County
Sheriff’s Office who conducted about a dozen counseling ses-
sions with James; Dr. Potts; Dr. Tuchler; Watterson; and
James’s adoptive mother Winnie.
18806 JAMES v. SCHRIRO
Ott testified that James had been classified a “918” on
intake. That designation meant “mentally disturbed.” Ott testi-
fied that James was a suicide risk when he was first arrested,
and in fact attempted suicide by ingesting 24 aspirin, after
which his stomach was pumped. But Ott conceded that
another inmate classification counselor had characterized
James as “criminally sophisticated,” and Ott’s treatment notes
indicate that James had “a pattern of using superficial suicide
attempts to release his frustrations.” When Pillinger asked Ott
what he thought of James as a person, Ott responded, “I tr[y]
not to put a value on it.” In Ott’s opinion, during the course
of several months of counseling, James “developed some
more positive relationships with some other inmates,” and
was at times “genuinely interested in making some positive
changes.” James could be rehabilitated “[i]f he chose to.”
James reported some history of alcohol, cocaine, and LSD use
to Ott, but Ott did not ask him whether he was intoxicated at
the time of the murder. On cross, the state elicited Ott’s belief
that James cultivated the role of a victim. “[R]ather than
accepting responsibility for his own behavior, . . . it’s other
people’s fault that he is in jail.” Ott’s testimony was brief
because he had a plane to catch.

Based on James’s pretrial treatment records, Dr. Tuchler
testified that James had been prescribed the antidepressant
Tofranil, the antipsychotic Mellaril, and the antianxiety drug
Librium, in addition to lithium. Tuchler testified that he was
not aware that James was undergoing psychiatric treatment or
taking lithium when he conducted his competency evaluation,
but stated on cross that nothing he learned from reviewing
James’s records would have affected his conclusion that
James was competent for trial. Tuchler confirmed that at the
time of the evaluation, James stated that he had a long history
of using mind-altering drugs including LSD, PCP, and mari-
juana, and that he had been high on LSD at the time of the
murder. In Tuchler’s opinion, James was telling the truth and
LSD use “may have” compromised James’s capacity to appre-
ciate the wrongfulness of his conduct. However, Tuchler con-
 JAMES v. SCHRIRO 18807
ceded that while James may have been “under the influence
of some drugs” at the time of the murder, Tuchler “could not
determine whether there was an alteration of [James’s] mental
state at that time. He had a good enough memory of the inci-
dents for which he is charged.”

Dr. Potts’s direct testimony covered only the possible
effects of lithium on James’s demeanor during trial. On cross,
the state asked Potts whether he had diagnosed James’s men-
tal condition, but Pillinger objected, arguing that he “didn’t
have [Potts] testify as to any psychiatric determination. Only
as to the drugs and the possible effects.” The court overruled
Pillinger’s objection, and Potts testified that he diagnosed
James with “psycholothalmic [sic] personality disorder.” Potts
was likely referring to “cyclothymic” personality disorder,
which the court reporter rendered phonetically. Cyclothymia
is a form of bipolar disorder characterized by chronic, fluctu-
ating moods involving periods of hypomania and depression.

Watterson testified that in 1977, when James was 19 years
old, he “was convicted of a burglary of his pastor’s residence
where he broke into the pastor’s home and stole approxi-
mately $17 worth of loose change from a can.” Watterson tes-
tified that James had “difficulties at home specifically with
his father,” and that he “attributed the burglary . . . to rebel-
lion against [James’s] father.” Watterson reported that James
served 10 weekends in jail and was a “good” probationer who
completed his four-year term of supervision without serious
incident. However, when Pillinger asked whether Watterson
believed James could be rehabilitated, Watterson equivocated.
“From what I have read about the offense it is a dangerous
offense. [James] committed a murder. There is a kidnapping
charge. I do not know about the substantive nature of what
transpired during the trial. I honestly can’t say whether he is
rehabilitable or not.”

Finally, James’s adoptive mother Winnie gave extremely
brief testimony. She explained that she and her husband Brad-
18808 JAMES v. SCHRIRO
ley adopted James when he was four and a half because “Ste-
ven had no one to take him. There was no place for him to go.
His mother had given him away.” Winnie testified that James
“had been rejected many times” and “had been in other foster
homes.” Once James was adopted, however, Winnie testified
that his life became normal and stable. She testified that
James never had fits of rage or displayed violence, never
threatened or mistreated anyone, and was kind to his pets.
Asked whether James had a drug problem, Winnie testified
that James “did drink beer. . . . Other than that I guess I was
not very up on drugs, and I was not aware.”

The Maricopa County Adult Probation Department pre-
pared a Presentence Report upon which the court relied in
reaching its sentencing decision. In an interview with Officer
Jane Santos, who wrote the PSR, James said that “he had
taken a large quantity of LSD just prior to this incident in an
attempt to commit suicide,” and that “he was not fully aware
of the events that occurred because of his diminished func-
tioning as a result of the influence of LSD.” James “attributed
his actions to the fact that he was on drugs when [the murder]
occurred as well as the fact that he was very depressed
because his girl friend had recently left him.” James stated
that because of duress, drug use, and depression, “these were
not normal circumstances and he was not behaving rationally
under these conditions.”

The PSR related that Winnie stated that James “had never
demonstrated a propensity toward violent or vicious behav-
ior.” Winnie acknowledged that she and her husband “experi-
enced some difficulty with [James] during his adolescence,
that he always seemed to ‘be in the wrong place at the wrong
time.’ ” James’s adoptive father Bradley agreed that James
“was not a violent person and was always afraid of gangs.”
He stated that James “was under stress at the time of this inci-
dent” because James’s “wife had left him the previous year,
. . . . [James] had been to see his biological mother in Califor-
nia, which had proved to be a very upsetting experience, and
 JAMES v. SCHRIRO 18809
. . . his most recent girl friend had left him just prior to this
incident.” Bradley “also noted [James’s] unemployed status
and the fact that he apparently had been using drugs.”

The PSR related further that Jim Stepp, a childhood friend,
stated that “he has never known [James] to demonstrate vio-
lence or initiate any fights. He opined that [James’s] involve-
ment in this offense must have been due to irrationality
brought on by [James’s] excessive drug use.” Don Thorp, a
cousin, stated that James “was always somewhat rebellious
and refused to follow rules imposed on him by society. He
noted that [James’s] father was a very strict disciplinarian
who, although he obviously loved [James] tremendously, did
not often demonstrate this.” Thorp attributed the murder to
“immaturity as well as drug use.”

The PSR presented a skeletal social history based only on
information provided by James. The PSR reported that
James’s biological father “was a drug addict and was sen-
tenced to prison when [James] was very young. . . . [James’s
biological] mother had too many children to support, conse-
quently she gave up custody of him and his sister to the state
where they were placed up for adoption.” After a year and a
half in foster care, James was adopted by Bradley and Winnie
James, then in their 50s, who “provided [James] a good, sta-
ble middle class home in which he always felt loved and pro-
tected.”

James stated that “he has always felt rather depressed and
unhappy, with feelings of inability to cope with pressure.” As
a consequence, James reported, “he has attempted suicide
approximately four times, primarily through deliberate car
accidents. He also related several events during the recent past
which he believes are significant. He stated that prior to this
offense, he visited his natural mother for the first time, which
he stated had a devastating effect on him. He also related that
his wife divorced him after only a few months of marriage
18810 JAMES v. SCHRIRO
and he had tried to kill himself in a car accident as a result of
severe depression brought on by this incident.”

James described his short-lived marriage to Marna Hulgren,
which ended “due to marital conflicts caused by his excessive
drug usage. [James] stated that his ex-wife used to tell him
she thought he was crazy.” James described his substance
abuse by admitting “frequent and excessive use of a variety
of illicit substances since 1972, including LSD, PCP, heroin,
[and] marijuana . . . . He claim[s] to have been addicted to
cocaine during 1979 and 1980. He attributes his involvement
in the instant offense partially to the fact that he was halluci-
nating and taking LSD on the night of the offense.”

The PSR reported interviews with several of Maya’s rela-
tives, all of whom recommended that James receive the death
penalty because of the cruelty of the murder and the grief that
it caused Maya’s family. The PSR also related a recommenda-
tion of Detective Davis that James receive the death penalty
because Maya “was killed by torture which occurred over a
period of hours, . . . apparently suffered pain, and . . . this
appears to have been a cold-blooded, cruel and senseless mur-
der.”

In summary, the PSR concluded that James

experienced disruptive and unstable circumstances
until he was adopted by the James family at the age
of four and a half. His acknowledged depressions
and morosity in later years may be related to unre-
solved feelings of insecurity and/or anxiety as a
result of early deprivation. He apparently received
sufficient attention, love, and care from the James-
[es] from the age of five and they continued to be
supportive of him. There is, however, some indica-
tion that he experienced an antagonistic relationship
with his father during his adolescence and his prior
criminal arrest was perceived as perhaps an uncon-
 JAMES v. SCHRIRO 18811
scious attempt to defy his father and his beliefs.
. . . [A]lthough [James] was twenty-three years old
when the instant offense occurred, he was unem-
ployed at the time and financially supported primar-
ily by his parents, indicating that he had not yet
learned to be responsible for himself or to rely on his
own initiative to become independent of his parents.
This may have contributed to feelings of inadequacy,
powerlessness, anger, and depression. . . . It also
seems reasonable that a great deal of peer pressure
was involved in the commission of these offenses,
but [James’s] claim of having been threatened with
death by the codefendants for refusal to participate
seems questionable . . . . [I]t was [James] who
chased [Maya] after he ran from the trailer and
brought [Maya] back to the others, it was [James’s]
gun which was used to coerce [Maya], it was
[James] who drove [Maya’s] vehicle and provided a
place to dispose of the body, and, by his own omis-
sion, it was [James] who dragged [Maya’s] body into
the mine shaft. [James’s] culpability in the execution
of this offense seems primary.

The PSR recommended a death sentence.

One week after the evidentiary hearing, the trial court heard
argument on and denied Pillinger’s motion for a new trial. It
then heard argument on the sentence. Pillinger jettisoned most
of the arguments he had made in his pre-hearing memoran-
dum and urged the court to find only two mitigating circum-
stances. Pillinger relied on the statutory mitigating
circumstance that James’s “capacity to appreciate the wrong-
fulness of his conduct or to conform his conduct to the
requirements of law was significantly impaired,” ARIZ. REV.
STAT. § 13-703(G)(1), and the non-statutory mitigating cir-
cumstance that James could be rehabilitated, id. § 13-703(G).
With respect to diminished capacity, Pillinger relied entirely
on Dr. Tuchler’s testimony that James had reported LSD use
18812 JAMES v. SCHRIRO
before the murder. With respect to rehabilitation, which Pil-
linger billed as “most important,” Pillinger argued that Wat-
terson had described James as rehabilitable and that Ott had
referred to James’s progress “in his appreciation of himself
and his role in society.” In response, the state correctly
pointed out that “there was no testimony by any of the investi-
gating officers that [James] appeared to be under any kind of
drugs . . . other than his own statement that he either had used
PCP or LSD.” The state also correctly pointed out that Pil-
linger had misrepresented Watterson’s testimony: Watterson
had expressed no opinion on James’s prospects for rehabilita-
tion. Pillinger conceded his mistake and abandoned that miti-
gating circumstance.

The trial court sentenced James to death. The court found
two aggravating circumstances: James “committed the offense
as consideration for the receipt, or in expectation of the
receipt, of anything of pecuniary value,” ARIZ. REV. STAT.
§ 13-703(F)(5); and James “committed the offense in an espe-
cially heinous, cruel, or depraved manner,” id. § 13-
703(F)(6). The court found that the state had established the
pecuniary gain aggravating circumstance because James par-
ticipated in stealing Maya’s wallet and car, and in using
Maya’s credit card to buy gas and cigarettes, and in attempt-
ing to obtain a cash advance. The court found the “heinous,
cruel, or depraved” aggravating circumstance established
because

the victim in this case suffered prolonged and excru-
ciating mental, physical and psychological pain and
distress, and that such pain and distress were
inflicted deliberately and sadistically. Several hours
passed between the time [James] and his co-
murderers formed the intent to kill the victim and the
time that they did kill him. During this time the vic-
tim was viciously beaten all over his body, including
his head, face and groin. He was taunted and his
murder was openly and blithely discussed in his
 JAMES v. SCHRIRO 18813
presence. Early in the evening, he attempted escape,
and was caught by [James] and returned to [James’s]
home. His repeated pleas to be released in return for
all his valuables were rejected. He was robbed of all
possessions he had with him. He was held at gun-
point for hours. He was kidnapped and spent hours
traveling to the scene of his death in his own auto-
mobile. After finally arriving at the scene of his mur-
der in a remote, isolated desert area, he was shot,
causing his clothing to catch on fire. He was then
viciously beaten with fists, boards and rocks until
finally he expired. The evidence shows that he had
been beaten beyond recognition prior to his death. In
short, the murder was committed in an especially
cruel manner. . . .

[T]his was a totally senseless murder. Even if the
events of the evening began as the perpetrators now
claim, there was no reason for the killing other than
the perpetrators’ greed and their arrogation to them-
selves of the role of executioners to those whose sex-
ual preferences they purport to decry. [James]
carried out this murder in a depraved manner, indi-
cating a total disregard of even minimal feelings of
compassion for a fellow human being. The manner
in which the killing was accomplished has already
been detailed. Following the killing, [James] bragged
about his role in it and of the difficulty he and the
others had in finally making Juan Maya die.
[James’s] statements evidence no compassion or
remorse and indicate he felt he was justified in kill-
ing someone whom he believed to be different than
himself. The mode of disposing of the body itself
demonstrates a certain callousness and depravity and
disregard for the victim’s family who might never
have learned of the fate of Juan Maya, but for the
later brazenness of [James] and his co-murderers.
18814 JAMES v. SCHRIRO
The court rejected diminished capacity as a mitigating cir-
cumstance, finding that “[w]hile [James] later made a self-
serving statement that he had drugs the night of the murder,
the evidence is clear that his capacity was not impaired.”
Because the court found “no mitigating circumstances suffi-
ciently substantial to call for leniency,” Arizona law required
the imposition of a death sentence. ARIZ. REV. STAT. § 13-
703(E); see, e.g., Robinson v. Schriro, 595 F.3d 1086, 1094
(9th Cir.), cert. denied, 131 S. Ct. 566 (2010).

3. Direct Appeal

On direct appeal, the Arizona Supreme Court affirmed. See
ARIZ. REV. STAT. § 13-4031. As pertinent here, the court
struck the pecuniary gain aggravating circumstance because
the jury had acquitted James of aggravated robbery and theft.
James, 685 P.2d at 1298. However, the court affirmed the hei-
nous, cruel, or depraved aggravating circumstance, quoting
the trial court’s factual findings and summarily stating that
they were “correct.” Id. at 1299. The court rejected the argu-
ment that James proved diminished capacity due to LSD
intoxication, concluding that “[t]he evidence of drug ingestion
was unrefuted but it was uncorroborated. The record reveals
that James’ capacity on the night of the crime was not
impaired.” Id. at 1300. The United States Supreme Court
denied certiorari. James v. Arizona, 469 U.S. 990 (1984).

4. State Postconviction and Federal Habeas

James filed numerous postconviction petitions. We discuss
them only to the extent that they pertain to the claims now
before us. In his first Petition for Postconviction Relief
(“PCR”), filed in 1985, James argued that Pillinger provided
ineffective assistance by failing adequately to investigate and
present evidence of James’s LSD intoxication at the time of
the murder, and by failing to interview witnesses who could
have testified to James’s potential for rehabilitation. The
Maricopa County Superior Court dismissed the claim as pro-
 JAMES v. SCHRIRO 18815
cedurally barred and denied James’s request for an evidenti-
ary hearing. The court cited Ariz. R. Crim. P. 32.2(a)(3),
which at the time provided that relief could not be granted on
any claim “[k]nowingly, voluntarily and intelligently not
raised at trial, on appeal, or in any previous collateral pro-
ceeding.” See also ARIZ. REV. STAT. § 13-4232(A)(3). The
Arizona Supreme Court denied review.

In his second PCR, filed in 1991, James did not present an
ineffective assistance of counsel claim as a freestanding basis
for relief. However, in an attempt to circumvent the proce-
dural bars to relief on claims finally adjudicated in a prior
proceeding, ARIZ. REV. STAT. § 13-4232(A)(2); Ariz. R. Crim.
P. 32.2(a)(2), or not raised in a prior proceeding, ARIZ. REV.
STAT. § 13-4232(A)(3); Ariz. R. Crim. P. 32.2(a)(3), James
argued that his trial, appellate, and first PCR counsel were all
ineffective. The Maricopa County Superior Court dismissed
the petition, finding that “no facts have been presented which
would rise to the level of a colorable [ineffective assistance of
counsel] claim. . . . Additionally, the issue of ineffective assis-
tance of counsel at the trial level and on appeal and in the first
petition for post-conviction relief was presented in the first
petition for post-conviction relief. This court is precluded
from granting relief on this issue now.” The Arizona Supreme
Court denied review. The United States Supreme Court
denied certiorari. James v. Arizona, 507 U.S. 928 (1993).

James filed a federal habeas petition in 1993. Based on the
Wertsching affidavit, see supra pp. 18795-96, James raised
claims under Brady, Giglio, and Napue. The district court dis-
missed James’s habeas petition without prejudice so that he
could exhaust his state remedies on this claim. James there-
fore filed a third PCR in state court in 1995, in which he
raised the three claims now before us. The Maricopa County
Superior Court denied relief and again denied James’s request
for an evidentiary hearing. With respect to the Brady/Giglio
claim, the court assumed that Wertsching’s affidavit was true
and that the state had entered a “secret agreement” to treat
18816 JAMES v. SCHRIRO
Norton as a juvenile before Norton gave his December 29
statement. The court denied relief on the rationale that any
nondisclosure was not material. See Giglio, 405 U.S. at 154;
Brady, 373 U.S. at 87. Referring to Norton’s November 19
statement to Detective Davis and his November 26 statement
to Detective Hackworth, the court wrote, “Prior to the time
there was any agreement, Norton had already made state-
ments to the police that incriminated [James]. These state-
ments were made before he was represented by counsel.
Therefore, his motive [to testify] was not based on the agree-
ment. . . . Although the statements [Norton] made while being
interrogated by the police were not necessarily consistent, the
statements either implicated or connected [James] with the
murder or were statements where Norton denied having
knowledge of how the crime occurred.” Moreover, the court
determined that “[t]he existence of the agreement has little
impeachment value. The defense had a copy of the plea agree-
ment that was signed after Norton gave his statement to the
prosecutor. The agreement was introduced in evidence. Nor-
ton was cross-examined about the plea agreement. He was
questioned about prior inconsistent statements. The jury knew
Norton had a motive to cooperate with authorities.” Because
of the “overwhelming evidence” of James’s guilt — including
McIntosh’s testimony that James bragged about the murder
and James’s role in driving the group to the mine — as well
as the jury’s rejection of James’s duress defense, “[t]he out-
come of the trial would not have been affected by knowledge
of Norton’s agreement.”

With respect to the Napue claim, the court reached the
identical conclusion — that any false testimony about the
agreement was not material. See Napue, 360 U.S. at 271.
Even assuming the existence of a “secret agreement,” there
was no reasonable likelihood that the false testimony affected
the verdict or sentence due to “overwhelming independent
evidence of [James’s] guilt, including his confession to McIn-
tosh and his own incredible testimony. Additionally, . . . the
 JAMES v. SCHRIRO 18817
jury had substantial reason to question Norton’s motives even
without knowledge of the alleged agreement.”

Finally, the court determined that James’s ineffective assis-
tance of counsel claim remained procedurally barred. The first
PCR court had held James’s ineffective assistance claim pre-
cluded because James could have raised it on direct appeal.
See Ariz. R. Crim. P. 32.2(a)(3). The third PCR court
explained that “[t]o the extent that the claims were precluded
in the first petition, they were precluded in the second, and are
precluded now in the third petition. . . . Those issues were and
are precluded under Rule 32.2(a)(3). That is the law of the
case.” The court then added an alternative procedural bar.
Rule 32.2(a)(3) prevented consideration of James’s ineffec-
tive assistance of counsel claim because James “waived any
such argument by failing to cite in his second petition specific
errors of counsel and he failed to indicate how he was actually
prejudiced by any alleged errors. . . . [James] could have
raised his claims in the second petition, but failed to do so.”

James filed this federal habeas petition in 2000. He raised
33 claims for relief and expanded the record by presenting 82
exhibits, most of them related to his claim that Pillinger pro-
vided ineffective assistance at the penalty phase by failing to
investigate and present mitigating evidence. See Rule 7 of the
Rules Governing § 2254 Cases. James also sought an eviden-
tiary hearing. Without conducting a hearing, the district court
denied relief and denied a subsequent motion to amend the
judgment. See Fed. R. Civ. P. 59(e). The court granted a cer-
tificate of appealability on the three claims now before us, and
James appealed.

II. Standard of Review

We review the denial of a habeas petition de novo. Stanley
v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010). We review
denials of evidentiary hearing requests and Rule 59(e)
18818 JAMES v. SCHRIRO
motions for an abuse of discretion. Id.; Duarte v. Bardales,
526 F.3d 563, 567 (9th Cir. 2008).

Because James filed this habeas petition after April 24,
1996, the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) applies. Lindh v. Murphy, 521 U.S. 320, 326-27
(1997). We may not grant habeas relief with respect to any
claim that was adjudicated on the merits by the Arizona courts

unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Because the Arizona Supreme Court denied review in a
summary order, we “ ‘look through’ that opinion to the last
reasoned decision” on James’s current federal claims, that of
the Superior Court denying James’s third PCR. Hurles v.
Ryan, ___ F.3d ____, No. 08-99032, 2011 U.S. App. LEXIS
13819, at *21-22 (9th Cir. July 7, 2011) (quoting Ylst v. Nun-
nemaker, 501 U.S. 797, 806 (1991)). The third PCR court
rejected James’s Brady/Giglio and Napue claims on the mer-
its, so § 2254(d) circumscribes our review of those claims.
Section 2254(d) imposes a standard that is “difficult to meet.”
Harrington v. Richter, 131 S. Ct. 770, 786 (2011). “It pre-
serves authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state
court’s decision conflicts with [Supreme Court] precedents,”
but “goes no farther.” Id. Consequently, “[a]s a condition for
obtaining habeas corpus from a federal court,” James must
 JAMES v. SCHRIRO 18819
show that the third PCR court’s rejection of his Brady/Giglio
and Napue claims was “so lacking in justification that there
was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.”
Richter, 131 S. Ct. at 786-87.

However, the third PCR court relied on a procedural bar to
dismiss James’s ineffective assistance of counsel claim. That
claim was not “adjudicated on the merits in State court pro-
ceedings,” and 28 U.S.C. § 2254(d) therefore does not apply.
Where a state court does not reach the merits of a federal
claim, but instead relies on a procedural bar later held inade-
quate to foreclose federal habeas review, we review de novo.
See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002);
see also Cone v. Bell, 129 S. Ct. 1769, 1784 (2009) (where
state court relies on inadequate procedural bar and does not
address merits, “federal habeas review is not subject to the
deferential standard that applies under AEDPA to ‘any claim
that was adjudicated on the merits in State court proceedings.’
Instead, the claim is reviewed de novo.” (quoting 28 U.S.C.
§ 2254(d)). The third PCR court found James’s ineffective
assistance of counsel claim procedurally barred. If we find the
state procedural bar inadequate to foreclose federal review,
we review de novo.

The third PCR court’s reliance on a procedural bar to dis-
miss James’s ineffective assistance of counsel claim without
reaching the merits has an additional consequence. James is
not subject to the rule announced in Cullen v. Pinholster that
“review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the mer-
its.” 131 S. Ct. 1388, 1398 (2011). Pinholster acknowledged
that a habeas petitioner who raises a claim that was not adju-
dicated on the merits in state court, and is therefore not sub-
ject to § 2254(d), may present new evidence in federal court,
as long as he satisfies the requirements of § 2254(e). See 131
S. Ct. at 1401 (“[N]ot all federal habeas claims by state pris-
oners fall within the scope of § 2254(d), which applies only
18820 JAMES v. SCHRIRO
to claims ‘adjudicated on the merits in State court proceed-
ings.’ At a minimum, therefore, § 2254(e)(2) still restricts the
discretion of federal habeas courts to consider new evidence
when deciding claims that were not adjudicated on the merits
in state court.”). Because Pinholster does not apply, we may
consider the new evidence developed by James’s federal
habeas counsel and presented to the district court, pursuant to
a valid evidentiary hearing, in determining whether Pillinger
provided ineffective assistance.

At oral argument, counsel for the state argued — for the
first time in nearly 11 years of federal court litigation — that
even if James’s ineffective assistance of counsel claim was
not “adjudicated on the merits in State court proceedings,” 28
U.S.C. § 2254(d), de novo review is nonetheless inappropri-
ate. The state’s argument was less than pellucid, but counsel
appeared to contend that even if § 2254(d) does not apply, we
may not grant habeas relief on the basis of evidence not pre-
sented to the state court unless that evidence “would be suffi-
cient to establish by clear and convincing evidence that but
for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.” Id.
§ 2254(e)(2)(B). Counsel suggested that we apply a “Jackson
[v. Virginia, 443 U.S. 307 (1979),]” standard and deny relief
unless the evidence that James presented for the first time on
federal habeas was so persuasive that no reasonable sentencer
presented with that evidence during the penalty phase could
have sentenced James to death.

The state’s late-raised argument is easily resolved. When a
party raises a distinct argument for the first time at oral argu-
ment before us, not having briefed it at all, we normally con-
sider that argument waived. See Clem v. Lomeli, 566 F.3d
1177, 1182 (9th Cir. 2009); Butler v. Curry, 528 F.3d 624,
642 (9th Cir. 2008). Even if we were to consider the state’s
argument on the merits, we would reject it. Section
2254(e)(2)(B), the only authority cited for the state’s position,
“imposes a limitation on the discretion of federal habeas
 JAMES v. SCHRIRO 18821
courts to take new evidence in an evidentiary hearing.” Pin-
holster, 131 S. Ct. at 1400-01. It applies by its terms only to
a federal habeas petitioner who “has failed to develop the fac-
tual basis of a claim in State court.” But “a failure to develop
the factual basis of a claim is not established unless there is
a lack of diligence, or some greater fault, attributable to the
prisoner or the prisoner’s counsel.” Williams v. Taylor
(Michael Williams), 529 U.S. 420, 432 (2000). At oral argu-
ment, the state conceded that James was diligent, as it had to.
By requesting evidentiary hearings on his ineffective assis-
tance of counsel claim before the first and third PCR courts,
James demonstrated the necessary diligence. Id. at 437; Stan-
ley, 598 F.3d at 624 & n.8; Estrada v. Scribner, 512 F.3d
1227, 1235 n.7 (9th Cir. 2008).

Finally, the state’s position contradicts clear Supreme Court
authority indicating that when a state court “d[oes] not reach
the merits” of a federal claim, “federal habeas review is not
subject to the deferential standard that applies under AEDPA
. . . . Instead, the claim is reviewed de novo.” Cone, 129 S.
Ct. at 1784; see Porter v. McCollum, 130 S. Ct. 447, 452
(2009); Rompilla v. Beard, 545 U.S. 374, 390 (2005).

III. Discussion

A. Brady/Giglio and Napue Claims

[1] James’s Brady/Giglio and Napue claims fail for the
reasons we previously articulated in Libberton’s case. Libber-
ton, 583 F.3d at 1162-64. In his federal habeas petition, Lib-
berton presented factually and legally identical Brady/Giglio
and Napue claims based on the state’s “secret agreement”
with Norton. Libberton relied on the Wertsching affidavit pro-
cured by James’s habeas counsel to substantiate these claims.
Id. at 1158-59, 1162-64. The same police reports recording
Norton’s statements were provided to James and Libberton.
Norton’s trial testimony, including his responses to Parker’s
questions regarding a plea agreement, was the same in all rel-
18822 JAMES v. SCHRIRO
evant respects. In both cases, the same prosecutor, Parker,
told the jury that no deal preceded Norton’s December 29
statement. James and Libberton both rely on the Wertsching
affidavit to prove the existence of the oral plea agreement.
Finally, the state postconviction courts in both cases adopted
the same materiality rationale: assuming the existence of an
oral plea agreement, neither nondisclosure of nor the state’s
acquiescence in Norton’s false testimony was material
because Norton’s testimony could have been corroborated by
his November 26 statement to Hackworth, which preceded
any plea agreement. Moreover, Norton was adequately
impeached with evidence of the plea agreement that was dis-
closed. Finally, AEDPA’s deferential standard of review
applied to Libberton’s claims, as it does to James’s.

[2] We have already rejected Libberton’s claims in a pub-
lished opinion. Id. at 1162-64. With respect to the
Brady/Giglio claim, we agreed with the state court’s conclu-
sion that “the agreement, if it existed, was not material.” Id.
at 1162. We wrote:

Unlike in Giglio, the key witness in this case, Nor-
ton, had already given a deeply incriminating state-
ment to Detective Hackworth before the alleged deal
was entered into. Therefore, the government could
have pointed to a statement untainted by any secret
deal, if such a deal existed, in order to corroborate
Norton’s trial testimony. Unlike in Giglio, where the
jury was unaware of any deal with prosecutors, the
jury in Libberton’s case was well aware that Norton
had reached a plea agreement with prosecutors
whereby he agreed to testify in exchange for being
prosecuted as a minor. The question is not whether
Norton made a deal with prosecutors, but only when
he did so. Given the availability of Norton’s earlier
statement to Hackworth as corroboration of his trial
testimony, it is unlikely that the jury would have
 JAMES v. SCHRIRO 18823
reached a different conclusion as to Libberton’s guilt
even if it had known of the alleged oral agreement.

Id. at 1163-64 (emphasis in original).

[3] We reached a similar conclusion with respect to the
Napue claim:

While the precise materiality standard under Napue
is slightly different than under Giglio, the result in
this case is the same. Instead of asking whether there
was a “reasonable probability” of a different out-
come, a Napue violation requires a court to ask
whether there is “any reasonable likelihood that the
false testimony could have affected the judgment of
the jury.” Hayes v. Brown, 399 F.3d 972, 985 (9th
Cir. 2005) (en banc). For the reasons explained
above, we conclude under AEDPA that Libberton’s
Napue argument does not succeed.

Id. at 1164. James has not identified any distinction between
his case and Libberton’s, nor do we see one. Consequently,
we reach the same conclusion as the Libberton panel. The
third PCR court did not unreasonably apply Brady, Giglio, or
Napue by determining that, even if a secret agreement existed,
neither the state’s failure to disclose the agreement nor its fail-
ure to correct Norton’s false testimony denying the existence
of such an agreement was material.

B. Ineffective Assistance of Counsel

1. Procedural Default

[4] Before we turn to the merits of James’s claim of inef-
fective assistance of counsel, we consider the state’s argument
that the claim is procedurally defaulted. A state prisoner pro-
cedurally defaults a claim, and federal habeas review is
barred, “when a state court decline[s] to address a prisoner’s
18824 JAMES v. SCHRIRO
federal claims because the prisoner ha[s] failed to meet a state
procedural requirement. In these cases, the state judgment
rests on independent and adequate state procedural grounds.”
Coleman v. Thompson, 501 U.S. 722, 729-30 (1991) (citing
Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977)). To qualify
as an adequate procedural ground, a state rule must be “firmly
established and regularly followed,” though a “discretionary
state procedural rule” may satisfy this standard. Walker v.
Martin, 131 S. Ct. 1120, 1127 (2011) (quoting Beard v. Kin-
dler, 130 S. Ct. 612, 617 (2009)). “[O]nly a ‘firmly estab-
lished and regularly followed state practice’ may be
interposed by a State to prevent subsequent review . . . of a
federal constitutional claim.” Ford v. Georgia, 498 U.S. 411,
423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348
(1984)). Relying on Lambright v. Stewart, 241 F.3d 1201,
1203-04 (9th Cir. 2001), the district court concluded that there
had been no procedural default because “[a]t the time of
[James’s] alleged default, Arizona did not have a firmly estab-
lished procedural rule precluding as waived [ineffective assis-
tance of counsel] claims asserted in a PCR petition filed after
the conclusion of the direct appeal.”

We agree. In Lambright, which is directly on point, we
concluded that in 1985, when James filed his first PCR, there
was no firmly established rule requiring a defendant to raise
on direct appeal an ineffective assistance of counsel claim that
relied on extra-record evidence. 241 F.3d at 1203-04. To the
contrary, we concluded that Arizona law then prohibited
defendants from raising on direct appeal claims based on
extra-record evidence, and mandated instead that defendants
raise such claims in PCRs. Id. In Lambright, the habeas peti-
tioner claimed in his first PCR that trial counsel “failed to
investigate or present evidence of his mental disability and
social history.” Id. at 1204. Because of the nature of this inef-
fective assistance claim, “neither the evidence of counsel’s
deficiencies nor of the prejudice caused therefrom appeared in
the trial record.” Id. We therefore held that
 JAMES v. SCHRIRO 18825
[s]ince [the petitioner’s] ineffective assistance of
counsel claim required factual development, Rule
32.2 did not clearly require that he raise it on appeal.
In fact, Arizona’s procedural rules required that he
wait until state postconviction proceedings to raise it.
Thus, the procedural default in this case is inade-
quate to bar federal review.

Id.

The state points to the alternative ruling of the third PCR
court that James waived his ineffective assistance of counsel
claim “by failing to cite in his second [PCR] specific errors
of counsel and he failed to indicate how he was actually prej-
udiced by any alleged errors. . . . [James] could have raised
his claims in the second [PCR], but failed to do so.” The
state’s position, like that of the third PCR court, is self-
contradictory. The first PCR court determined that James’s
ineffective assistance of counsel claim was “clearly preclud-
ed” by Rule 32.2(a)(3). The second PCR court stated that
because James’s ineffective assistance of counsel claim “was
presented in the first petition for post-conviction relief,” it
was “precluded from granting relief on this issue now.” The
third PCR court agreed that this finding of preclusion consti-
tuted “the law of the case.”

Preclusion and waiver are mutually exclusive procedural
bars. See, e.g., Cone, 129 S. Ct. at 1781 (describing preclusion
and waiver as “contradictory” grounds for barring state post-
conviction review of a federal claim); Lambright, 241 F.3d at
1205 (same); Ceja v. Stewart, 97 F.3d 1246, 1252-53 (9th Cir.
1996) (noting that preclusion and waiver are inconsistent). A
claim cannot be waived if it cannot be raised, and a precluded
claim cannot be raised. The first PCR court determined that
because James had failed to advance any ineffective assis-
tance of counsel claim on direct appeal, Rule 32.2(a)(3) pre-
vented any postconviction court from granting relief. The
second and third PCR courts determined that James was pre-
18826 JAMES v. SCHRIRO
cluded from raising such a claim, because it had been decided
in the first PCR petition. James cannot now be charged with
having waived in his second PCR a claim that had already
been resolved against him, on procedural grounds, in the first.

2. Deficient Performance

[5] To establish that counsel provided constitutionally inef-
fective assistance, a defendant must demonstrate both defi-
cient performance and prejudice. Strickland, 466 U.S. at 687.
To establish deficient performance, a defendant must show
that “counsel’s representation fell below an objective standard
of reasonableness.” Id. at 688. A court considering a claim of
ineffective assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range” of rea-
sonable professional assistance. Id. at 689. The defendant
bears the burden of showing “that counsel made errors so seri-
ous that counsel was not functioning as the ‘counsel’ guaran-
teed the defendant by the Sixth Amendment.” Id. at 687. The
district court concluded, and the state does not dispute, that
Pillinger’s performance was “clearly deficient.” We agree.
Pillinger’s performance fell far below prevailing professional
norms applicable to capital defense counsel in 1982.

[6] First, Pillinger failed to conduct even the most basic
investigation of James’s social history. It is “unquestioned”
that counsel in a capital case has an “obligation to conduct a
thorough investigation of the defendant’s background.” Por-
ter, 130 S. Ct. at 452 (quoting Williams v. Taylor (Terry Wil-
liams), 529 U.S. 362, 396 (2000)); see also Rompilla, 545
U.S. at 387; Wiggins, 539 U.S. at 522-23. This obligation was
clear at the time of James’s trial. See Hamilton v. Ayers, 583
F.3d 1100, 1130 (9th Cir. 2009) (in 1982, it was “undisputed
that counsel was required to obtain the type of available infor-
mation that a social history report would contain, such as fam-
ily and social background and mental health”); Summerlin v.
Schriro, 427 F.3d 623, 629 (9th Cir. 2005) (en banc) (in 1982,
professional standards then in effect “clearly described the . . .
 JAMES v. SCHRIRO 18827
‘duty of the lawyer to conduct a prompt investigation of the
circumstances of the case and to explore all avenues leading
to facts relevant to the merits of the case and the penalty in
the event of conviction’ ”) (quoting ABA Standards for Crim-
inal Justice 4-4.1 (2d ed. 1980)); id. at 630 (“[T]he investiga-
tion should include inquiries into social background and
evidence of family abuse.”).

[7] There were obvious indications that James had suffered
emotional and psychological trauma during his childhood. Dr.
Tuchler’s pretrial competency report referred to James’s “dis-
turbed childhood” and his adoption. The PSR described
James’s biological father Lester Pannell as a drug addict who
was incarcerated during James’s childhood; stated that
James’s biological mother Lora Pannell could not care for her
children; and reported that James spent one and one-half years
in foster care before his adoption at age four. Nonetheless, as
the district court determined from a review of his billing
records, Pillinger “failed to take any steps to investigate and
present evidence of [James’s] life history, including consult-
ing with [James], his adoptive parents, his biological family,
and others who knew him.” Pillinger also failed to obtain
readily available educational records that would have demon-
strated James’s subaverage academic and intellectual func-
tioning, as well as his behavioral and social problems. This
was deficient performance. See Porter, 130 S. Ct. at 453
(deficient performance where counsel “had only one short
meeting with [the defendant] regarding the penalty phase” and
“did not . . . interview any members of [the defendant’s] fami-
ly” or obtain school records); Wiggins, 539 U.S. at 524-25
(deficient performance where counsel “abandoned their inves-
tigation of [the defendant’s] background after having acquired
only a rudimentary knowledge of his history from a narrow
set of sources” that nonetheless revealed that “[the defen-
dant’s] mother was a chronic alcoholic; [and the defendant]
was shuttled from foster home to foster home and displayed
some emotional difficulties while there”); Summerlin, 427
F.3d at 631 (deficient performance where counsel “conducted
18828 JAMES v. SCHRIRO
no investigation of [the defendant’s] family and social histo-
ry” and “did not speak with [the defendant’s] family or
friends”).

[8] Second, Pillinger failed to investigate James’s mental
health. The duty to investigate a capital defendant’s back-
ground for mitigating evidence includes the duty to assess his
mental health. In Summerlin, where the underlying trial took
place in Arizona in 1982, we made this point clearly:
“[W]here counsel is on notice that his client may be mentally
impaired, counsel’s failure to investigate his client’s mental
condition as a mitigating factor in a penalty phase hearing,
without a supporting strategic reason, constitutes deficient
performance.” Id. at 632 (quoting Hendricks v. Calderon, 70
F.3d 1032, 1043 (9th Cir. 1995)) (alteration in original); see
also Porter, 130 S. Ct. at 453.

[9] Pillinger possessed evidence of James’s mental illness
that should have prompted further investigation. Dr. Tuchler’s
report stated that James had attempted suicide several times
by intentionally crashing cars at high speeds, and Tuchler
observed a slash on James’s wrist that revealed “a rather typi-
cal suicidal gesture.” Dr. Berger’s pretrial competency report
also noted a history of suicide attempts. Pillinger also knew
that James took lithium and underwent psychiatric care during
his pretrial detention. See Hamilton, 583 F.3d at 1117 (where
“counsel was aware that [the defendant] tried to commit sui-
cide in prison . . . and that he was taking anti-depressant med-
ication at the time of trial,” counsel “should have retained a
mental health expert and provided the expert with the infor-
mation needed to form an accurate profile of [the defendant’s]
mental health”). Pillinger was sufficiently aware of the need
to investigate James’s mental health that he moved for the
appointment of a forensic psychiatrist in July 1982. The court
denied the motion but offered to order an additional examina-
tion by either Dr. Tuchler or Dr. Berger. Pillinger declined.
When Pillinger did obtain a court order securing Tuchler’s
assistance to review James’s treatment records before the pen-
 JAMES v. SCHRIRO 18829
alty phase, Pillinger used Tuchler only to prepare and argue
his new trial motion that dealt with the effects of lithium on
James’s demeanor at trial. Likewise, Pillinger questioned Dr.
Potts on direct only about the effects of lithium on James’s
trial conduct and objected when the state asked Potts for a
psychiatric diagnosis on cross.

[10] Third, Pillinger failed to investigate James’s history of
drug abuse. This component of a competent mitigation inves-
tigation is well-established. See Rompilla, 545 U.S. at 382
(deficient performance where counsel “did not look for evi-
dence of a history of dependence on alcohol that might have
extenuating significance”); Correll v. Ryan, 539 F.3d 938,
944 (9th Cir. 2008) (describing drug abuse history as “classic
mitigation evidence”); Summerlin, 427 F.3d at 630 (“The
defendant’s history of drug and alcohol abuse should also be
investigated.”). Again, there were clear cues that James had
a history of polysubstance abuse and dependency. James
reported a history of using marijuana, cocaine, and LSD to
Dr. Tuchler and to several clinicians at the Maricopa County
Department of Health. In his December 29 statement, Norton
said that on the night of the murder, James had been drinking
vodka and smoking marijuana, was “feeling good” and “stag-
gered a little bit when he went to the restroom.” Pillinger
argued James’s diminished capacity because of LSD intoxica-
tion at the time of the offense as a mitigating circumstance.
But he failed to appreciate that chronic drug abuse itself
evinces, as well as exacerbates, serious mental illness. See,
e.g., Jones v. Ryan, 583 F.3d 626, 642 (9th Cir. 2009) (inef-
fective assistance where counsel “did present evidence to the
court regarding [the defendant’s] drug induced impairment on
the night of the murders, but he did not take the next critical
step: to explain why [the defendant] had pursued a life of sub-
stance abuse”), vacated on other grounds, 131 S. Ct. 2091
(2011) (summarily vacating “for further consideration in light
of Cullen v. Pinholster, 131 S. Ct. 1388 (2011)”); Correll,
539 F.3d at 952 (regular use of marijuana, LSD, and amphet-
amines is “behavior that can be characterized as self-
18830 JAMES v. SCHRIRO
medication for the everyday trauma of [the defendant’s] life
and for the mental health illnesses that were later diagnosed”).

[11] Pillinger’s deficient investigation and failure to pre-
pare a mitigation case adversely affected the penalty phase
trial. Pillinger’s lack of familiarity with James’s social history
meant that he could elicit from James’s adoptive mother Win-
nie only banal observations such as, for example, James was
kind to his pets and kept a clean trailer. Winnie was not asked
to describe the residual emotional and psychological handi-
caps that plagued James long after his adoption. Because Pil-
linger did not discuss Winnie’s testimony with her
beforehand, Winnie disclaimed on the stand any knowledge
of James’s chronic drug abuse. In a later interview with
James’s postconviction counsel, Winnie said that she was
aware of James’s drug use, but did not testify to it because
Pillinger had not asked her to do so, and that she mistakenly
assumed that if she “said anything bad about Steven it would
hurt his case.” Pillinger’s failure to prepare Ott and Watter-
son, and his decision not to put them on the stand, resulted in
the harmful concessions that Ott “tried not to put a value on”
James’s worth as a person, and that Watterson “c[ould]n’t say
whether [James] is rehabilitable or not.” Pillinger’s ignorance
of James’s family background, his pretrial treatment history,
and his mental illnesses deprived Dr. Potts of the information
necessary to present a psychiatric diagnosis of cyclothymia as
a mitigating circumstance.

3. Prejudice

[12] Under Strickland, counsel’s deficient performance
prejudices a defendant if “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 694. “To
assess that probability, we consider ‘the totality of the avail-
able mitigation evidence — both that adduced at trial, and the
evidence adduced in the habeas proceeding’ — and
‘reweig[h] it against the evidence in aggravation.’ ” Porter,
 JAMES v. SCHRIRO 18831
130 S. Ct. at 453-54 (quoting Terry Williams, 529 U.S. at
397-398) (alteration in original). The measure of prejudice is
“the magnitude of the discrepancy between what counsel did
investigate and present and what counsel could have investi-
gated and presented.” Hovey v. Ayers, 458 F.3d 892, 929 (9th
Cir. 2006) (quoting Stankewitz, 365 F.3d at 716). A “reason-
able probability” is “less than the preponderance more-likely-
than-not standard.” Summerlin, 427 F.3d at 643. Rather, it is
“a probability sufficient to undermine confidence in the out-
come.” Strickland, 466 U.S. at 694. “[I]t is not necessary for
the habeas petitioner to demonstrate that the newly presented
mitigation evidence would necessarily overcome the aggra-
vating circumstances.” Correll, 539 F.3d at 951-52; see also
Rompilla, 545 U.S. at 393.

[13] In comparison to the meager mitigation evidence set
before the sentencing judge at the penalty phase — most of
which came from the PSR, not Pillinger — James’s federal
habeas counsel developed a detailed picture of James’s trou-
bled childhood, his mental illness, and his downward spiral of
depression and drug abuse in the year before Maya’s murder.
Such a portrait, attentive to James’s “character and record,” as
well as the “possibility of compassionate or mitigating factors
stemming from the diverse frailties of humankind,” is a “con-
stitutionally indispensable part of the process of inflicting the
penalty of death.” Woodson v. North Carolina, 428 U.S. 280,
304 (1976); see also Eddings v. Oklahoma, 455 U.S. 104,
111-12 & n.7 (1982). We summarize that portrait.

James was born in 1958 in Los Angeles. James’s mother
Lora Pannell was a teenage mother with a seventh-grade edu-
cation. Lora had her first child as a teenager, and had five
children by three different fathers by the age of 23. Lora gave
birth to James, her second child, when she was 19 years old.
James’s father Lester Pannell was a lifelong heroin addict and
petty criminal with a tenth-grade education who was in and
out of jail during James’s early childhood. Thomas Smith, a
friend of Lester’s, declared that he and Lester “supported our
18832 JAMES v. SCHRIRO
heroin addiction by illegal activities,” including burglaries
and car break-ins. Smith declared that Lester “could be vio-
lent if anyone interfered with us when we were stealing stuff.
He did whatever was necessary to get what he was after to
support his habit.”

Lester neglected the children from his first marriage, as
well as the children he had with Lora. According to Lora,
Lester “had no interest in his children. The only things he
really cared about were his first wife (who was in prison) and
getting high on heroin.” When Lester married Lora he was
still married to his first wife, but Lora did not know that.
Smith declared that Lester “wasn’t any good at being a father
because it got in the way of his drug addiction.” Lester shot
heroin in front of James. Lester was also a violent alcoholic
who physically abused Lora, beating her if he thought the
house was messy. Thomas Blackman, who met Lester in a
substance rehabilitation program in 1974, declared that Lester
was “a vicious and hard-hearted man” who “had no feeling
for others, usually no affect, and could not bond with the peo-
ple around him.” In Blackman’s view, Lester “had no interest
in his own children. He had never bonded with any of them
and never expressed even the slightest interest in their well-
being. He did not care about them at all.”

Lora received welfare but moved her family frequently
because she could not afford rent. At one point, Lora and Les-
ter lived with James in a shack in Tujunga, California. When
he visited, Lester’s brother Donald slept on the porch because
there was not enough room inside. At another point, Lora and
Lester lived in a house basement in Tujunga with exposed
pipes, a single bed, and “not much else,” according to Smith.
Because of the family’s poverty, Smith declared that “[i]t was
a struggle . . . to put food on the table, or to provide anything
at all for the babies.” Lora verbally abused her children, but
also left them alone much of the time.

Lester left Lora when James was two or three years old.
After Lester moved out, Jerry Isgrigg Sr. moved in and Lora
 JAMES v. SCHRIRO 18833
soon gave birth to their son, Jerry Jr. Isgrigg was an alcoholic
who physically abused Lora and the children. Isgrigg put
alcohol in the milk bottle of his infant son, Jerry Jr., and beat
him “very hard and often, usually when he was drinking or
drunk,” according to Jerry Jr.

Lora Pannell’s family has a significant history of mental ill-
ness characterized by violent episodes. Roxann Hallquist,
James’s full sister, declared that their mother “was mentally
ill. I never saw her happy. . . . I believe she is bi-polar.” Lora
was institutionalized at least twice. Lora’s mother and grand-
mother suffered from mental illness, with the latter institu-
tionalized. Lora’s sister Diane was diagnosed with
schizophrenia and committed to a mental hospital between the
ages of 10 and 14. As an adult, Diane struck one of Lora’s
later husbands with a brick. Lora’s brother Norman Osteen Sr.
was schizophrenic, often homeless, and once broke the jaw of
an ex-wife. Lora’s son Jerry Jr., James’s half-brother, has
attempted suicide several times. He is illiterate and an alco-
holic, and has been homeless for much of his life. Lora’s
daughter Donna, James’s full sister, suffers from bipolar dis-
order.

Norman Osteen Sr., James’s uncle, sexually abused several
children, including his children Debbie and Norman Jr., as
well as Jerry Isgrigg Jr. Family members referred to him as
“Chester the Molester.” Norman Jr. declared that Norman Sr.
sexually abused him beginning at age three or four, and that
Norman Sr. admitted abusing other children. According to
Hallquist, Norman Sr. “prostituted his daughter for rent
money. [He] also molested . . . Jerry [Jr.] as a child.”
Although there is no direct evidence that Norman Sr. abused
James, Hallquist declared that Norman Sr. was a “frequent
visitor” to Lora’s home while James lived there. Norman Sr.’s
father Samuel Osteen, James’s grandfather, who shared with
his son a history of sexually abusing children, was also a “reg-
ular visitor” to Lora’s home while James lived there, accord-
ing to Jerry Jr. Hallquist declared that Lora “always needed
18834 JAMES v. SCHRIRO
to be with abusive, alcoholic men,” and took no action when
Hallquist reported that one such man had “done something
bad” to her. Likewise, Lora allowed Norman Sr. to continue
visiting her home even after Lora learned that he was molest-
ing Jerry Jr. James’s habeas counsel located Norman Sr., who
lives in a retirement home in Grand Rapids, Michigan, but the
district court denied counsel’s request for funds for an investi-
gator to travel to interview him.

Lora said she had difficulty raising James because he was
“in constant motion, climbing into things, always needing her
attention.” James “cried a lot” and screamed whenever Lora
was out of sight. Because of his neediness, Lora regarded
James as a “brat.” On one occasion, Lora became so frustrated
with James that she “wanted to kill him. . . . I put a pillow
over his face, but I stopped myself when I realized what I was
doing.”

Some time after the birth of Jerry Jr. in 1962, all of Lora’s
children — Pam, Steven, Roxann, Donna, and Jerry Jr. —
were removed from her custody by the state of California.
Roxann Hallquist declared that “all of [Lora’s] children
(including me) were removed from her home by the state.”
Tacla Machesney, Donna’s adoptive sister, declared that
“[t]he authorities were putting pressure on Lora to have some
of her children adopted because she was having babies virtu-
ally every year . . . and was not capable of caring for all of
them.” The district court denied habeas counsel’s request to
subpoena relevant records maintained by the Los Angeles
County Department of Children and Family Services.

James lived in an adoption center in Los Angeles and in
various area foster homes for six to nine months. Lora ulti-
mately gave James, then four, and Donna, then an infant, up
for adoption. Lora kept Pam, Roxann, and Jerry Jr. Donna
was adopted by the Pool family. When Donna was adopted
she had a broken nose and collarbone. Her clothes were soiled
and too big for her. Machesney declared that while they were
 JAMES v. SCHRIRO 18835
still under Lora’s care, Pam, Roxann, and Donna “were obvi-
ously neglected and very needy. Their hair was uncombed and
dirty. Their clothes were too old and too big for them, appar-
ently hand-me-downs. They wore sandals that had nails com-
ing through the bottom.” Even after her adoption, Donna “was
developmentally delayed” and experienced a “troubled life in
her adolescence . . . . She became a drug addict, she married
a man who was both an addict and an alcoholic, she is some-
times homeless.”

Initially, the White family adopted James, but soon deter-
mined that they could not handle James’s hyperactivity, so
their friends Bradley and Winnie James agreed to adopt James
instead. James was four years old. Bradley and Winnie James
were significantly older than most parents of a young child.
Winnie conceded that the couple was unprepared to raise a
child with emotional problems like James’s. Bradley and
Winnie, Machesney declared, “were religious, very strict,
older, and had never had children of their own.” They lacked
“the experience to deal with a child like Steven, who came
from such an unstable environment, with a mother who had
neglected him and the experience of going back and forth into
foster homes.”

Bradley was very strict and whipped James when he misbe-
haved. On one occasion, Bradley whipped James so severely
with a rope that he raised bloody welts all over James’s back.
Bradley tried to teach James to be tough. Bradley was “very
stern, a man who could be rigid. Brad loved Steven, but it was
not easy for him to show that love, and Steven rebelled,”
according to one of Winnie’s cousins. Winnie stated in an
interview that James worshiped Bradley when he was grow-
ing up, even though Bradley was very strict with him and
would whip him when he acted out.

According to his pastor, Rev. Richard Jackson, James was
“on the edge,” undisciplined, and difficult for his adoptive
parents to control, even as a young child. Winnie stated that
18836 JAMES v. SCHRIRO
James was emotionally troubled from the moment he entered
her home. After the adoption, Winnie quickly appreciated that
James was going to be very difficult to raise because of his
short attention span and his rebelliousness. She would often
receive calls from his elementary school teachers because he
disrupted class to get attention. Winnie said, “Steven was a
problem from day one. I don’t think my husband and I were
equipped to handle the situation.” Rev. Jackson believed that
James’s “bent, his trouble, his disturbance, was something
from infancy, from the beginning of his life. . . . I don’t think
that he had the chances as a youngster, before they adopted
him, and he had a temperament set before they adopted him.”

James was taking several unidentified medications when
Bradley and Winnie adopted him, but at Bradley’s insistence
those medications were discontinued. James demonstrated
several signs of early childhood trauma. He wet his bed unless
Bradley or Winnie slept in his bed to comfort him, feared
walking down a dark hallway at night to use the bathroom,
and had anxiety about being abandoned. Winnie recalled that
when couples would visit, James asked if he was going home
with them. James never had psychiatric therapy as a child.
Winnie wanted to enroll James in a summer camp for youths
with emotional problems, but Bradley would not allow it.
Bradley, Winnie said, “was a very strict father and thought
that all Steven needed was discipline.”

James attended Campo Bello Elementary School between
1964 and 1972, receiving mostly C’s and D’s in his classes
and “unsatisfactory” marks in measures of “citizenship” such
as “behavior,” “dependability,” “courtesy,” “care of proper-
ty,” and “work habits.” In standardized tests administered
annually between first and sixth grades, James consistently
scored below the class median. James’s IQ was measured
three times, yielding scores of 98, 90, and 86. Charles Beau-
lieu, an elementary school classmate, described James as “a
little different. . . . He was intellectually slower, a little behind
everyone else.”
 JAMES v. SCHRIRO 18837
James was a poor student and earned mostly D’s at Para-
dise Valley High School by his sophomore year. Bradley and
Winnie hired a tutor, but James kept falling behind. Winnie
recalled that he seemed to be losing motivation. James also
began using marijuana, prompting his parents to withdraw
him from Paradise Valley and enroll him in military school.
James spent only a few months there, receiving mostly C’s
and D’s, and was dismissed for accumulating excessive
demerits. After his expulsion from military school, James
enrolled at Apollo High in Glendale, Arizona. At Apollo,
James resumed using drugs, received mostly F’s, and dropped
out after 11th grade.

James married Marna Hulgren in January 1980. The mar-
riage lasted less than a year. Hulgren declared that she “loved
Steven dearly, but it became more and more difficult to live
with him. He constantly needed attention, like a little boy, and
I felt like a baby sitter.” James “was seriously mentally ill and
desperately needed help.” James experienced “dramatic,
instant and unpredictable mood swings, on average three
times a week. . . . [T]he smallest of things would set [James]
off into rages, often for fifteen or twenty minutes at a time.”
Hulgren recalled one incident in which Winnie James acci-
dentally knocked over a vase. Although James caught the
vase, preventing it from breaking, he “yelled at his mother in
uncontrolled anger.” On another occasion, James threw a
table across a room in anger. Hulgren also declared that James
“had hallucinations. I remember him telling me that he saw
little green men in the corner of the room. . . . He also fanta-
sized that he was a descendant of the outlaw, Jesse James.”
Hulgren described James’s sexual appetite as “seemingly
insatiable” and “very abnormal.” Although James was “terri-
bly disturbed and needed help in the worst way,” he refused
to seek psychiatric care.

In 1981, Roxann Hallquist, James’s full sister, located and
visited James, whom she had not seen since his adoption
about 20 years earlier. James returned to California with Hall-
18838 JAMES v. SCHRIRO
quist to reconnect with the rest of his family of origin. The
trip proved traumatic. When he first saw his mother Lora,
James asked, “Why did you sell me and keep my brother and
sisters?” James told Lora that he believed she had “sold” him
to Bradley and Winnie James; apparently, Bradley and Win-
nie referred to James as “bought and paid for.” James also
learned that his biological father, Lester Pannell, had been
incarcerated. After the visit James told Jim Stepp, “I’m just
like my old man. No good.” Marna Hulgren declared that
James “had been told that his biological father was in prison,
and he had a strong belief — a fixation — that he would also
end up in prison.”

James spent much of his time in California with Jerry
Isgrigg Jr., then 18, who regarded James as a “big brother”
and told James about sexual abuse inflicted by Norman Ost-
een Sr. Jerry Jr. declared that he and James “drank a lot of
beer and smoked pot all the time. Steven also used cocaine
whenever he could. We were high most of the time.” James
and Jerry Jr. hitchhiked to Arizona so that James could
retrieve his pickup truck, which the two drove back to Cali-
fornia before selling it for a motorcycle and cocaine. Donna
Herzog declared that “Steven and Jerry were both using a lot
of drugs, especially LSD, and Steven was a mess.”

James’s depression worsened after he returned from Cali-
fornia. Jim Stepp said that James “could not understand why
his mom had given him away when she had other kids, and
then she had even more babies after giving him away. This
devastated Steve. He felt worthless.” According to Don
Thorp, James said that his “home environment before his
adoption had been very bad. . . . [H]is biological father had
been in prison and his biological mother had been involved in
prostitution and drugs.” James’s drug use intensified after he
returned from California. Stepp saw James and two men he
believed to be Libberton and Norton “obviously high” a few
weeks before Maya’s murder. “Their eyes were glassy and
their speech was slurred.” James, Norton, and Ross Waller
 JAMES v. SCHRIRO 18839
drank and used drugs together during the months preceding
the murder. Waller said that “[w]hen Steve was awake, he
was drinking beer and smoking marijuana much of the time.
I also saw him taking LSD, cocaine, [and] mushrooms.”
When James was high, Waller said, “[t]he drugs and alcohol
affected [James’s] personality and the way he acted. . . . [H]e
often got mad [at] other people when he got drunk or high. He
had a difficult time letting go of things that irritated him, and
he would stay agitated well into the next day.”

Waller stated that on November 16, he, James, and Norton,
among others, “were drinking all afternoon” in James’s
trailer. When he left with Norton to “dine and dash,” on the
evening of the murder, James was “pretty plastered.” Daniel
Severance, James’s roommate for the six weeks preceding the
murder, stated that on the day before the murder James was
“very emotionally upset . . . because his girlfriend had
recently left him,” and “was extremely violent as a result of
drinking due to the situation involving his girlfriend.” In Sev-
erance’s opinion, James “was in a very bizarre emotional state
as a result of his girlfriend’s departure, the manner in which
she left, and because he was also quite intoxicated.” In an
affidavit given in 1993 in conjunction with Libberton’s post-
conviction proceedings, Daniel McIntosh confirmed that
James “was upset because his girlfriend had moved out to live
with two black men,” and stated that James had borrowed a
gun from a neighbor. Severance stated that James “also
became very upset involving any situation with Martin Nor-
ton, who [James] looked at as a son. He attempted to take care
of [Norton] and would become extremely upset if something
happened with this relationship.”

[14] The meager mitigation evidence presented at sentenc-
ing bore no resemblance to the detailed narrative of James’s
life and mental health constructed by habeas counsel. The
failure to present evidence of childhood conditions like those
James experienced while living with Lora Pannell has consis-
tently been found prejudicial. See, e.g., Sears v. Upton, 130
18840 JAMES v. SCHRIRO
S. Ct. 3259, 3262 (2010) (parents’ physically abusive rela-
tionship and divorce when defendant was young; verbal
abuse); Porter, 130 S. Ct. at 449 (witnessing domestic vio-
lence as child; father shooting at defendant but missing);
Rompilla, 545 U.S. at 391-92 (alcoholic parents who fought
violently; no expressions of parental love or affection; verbal
abuse); Wiggins, 539 U.S. at 517 (severe sexual and physical
abuse; placement in foster care); Terry Williams, 529 U.S. at
395 (parents imprisoned for neglect; defendant committed to
state custody and placed in foster care). James was similarly
prejudiced in this case.

The district court erroneously discounted the significance
of the evidence of James’s early childhood on the ground that
James “has no recollection of the first few years of his life.”
It is well established that early childhood trauma, even if it is
not consciously remembered, may have

catastrophic and permanent effects on those who . . .
survive it. It has a severe impact on the child’s men-
tal development and maturation. Sustained feelings
of terror, panic, confusion, and abandonment as a
child have long term consequences for adult behav-
ior. Psychosis, dissociative states, depression, dis-
turbed thinking and alcohol and drug dependency are
directly linked to child victimization.

Hamilton, 583 F.3d at 1132-33 (internal quotation marks and
citation omitted) (describing effects of a childhood home in
which defendant’s father was an alcoholic, beat defendant’s
mother, and both parents sexually abused defendant’s sister).

The district court also discounted evidence of James’s early
trauma in the Pannell home based on James’s “good fortune
in being adopted at age four” into what the PSR described as
a “good, stable middle class home in which he always felt
loved and protected.” The court’s reasoning underscores the
manner in which Pillinger’s deficient performance prejudiced
 JAMES v. SCHRIRO 18841
James. Pillinger left the sentencing court with the erroneous
impression that James experienced no residual effects of the
abuse and neglect that he suffered in the Pannell home, and
that Winnie and Bradley James were unambiguously loving
and effective parents. Winnie testified at the penalty phase
that after his adoption James’s life became normal and stable.
Likewise, the PSR concluded that the “disruptive and unsta-
ble” circumstances of the Pannell home were replaced by the
“good, stable middle class home” provided by the Jameses.

In fact, habeas counsel demonstrated that, despite his adop-
tion, James experienced severe emotional problems. James
feared the dark, wet his bed, and made few friends. He was
a poor student who dropped out of high school. He “wor-
shiped” his father Bradley, but received little paternal love or
approval. Instead, Bradley whipped James to discipline him.
Bradley and Winnie, who lacked the parenting experience
necessary to raise an emotionally troubled child like James,
discontinued his prescription medications and did not seek
mental health counseling for him. The inaccurate assessment
before the trial court prevented the court from appreciating
the severity of James’s pre-adoption circumstances and their
lifelong impact on him. See Sears, 130 S. Ct. at 3261 (preju-
dice where defendant’s childhood was inaccurately portrayed
as “stable, loving, and essentially without incident”); Rom-
pilla, 545 U.S. at 391 (evidence of childhood in “slum envi-
ronment,” discontinuation of education at age 16, and teenage
alcohol consumption “would have destroyed the benign con-
ception of [the defendant’s] upbringing . . . counsel had
formed from talking with [the defendant] himself and some of
his family members”); Hamilton, 583 F.3d at 1120 (where
counsel failed to elicit evidence of childhood hardship from
mother during penalty phase, mother’s testimony “left the
false impression that [the defendant’s] childhood, while
unhappy, was not unusual”).

Pillinger also failed to present evidence of James’s mental
illness as a mitigating circumstance, a deficiency that has
18842 JAMES v. SCHRIRO
repeatedly been found prejudicial. See, e.g., Porter, 130 S. Ct.
at 454 (brain abnormality and cognitive defects); Rompilla,
545 U.S. at 392 (“organic brain damage” and “extreme mental
disturbance significantly impairing several of [the defen-
dant’s] cognitive functions”); Daniels v. Woodford, 428 F.3d
1181, 1209 (9th Cir. 2005) (“family history of mental ill-
ness”); Summerlin, 427 F.3d at 641 (“lack of impulse and
emotional control and organic brain dysfunction”). Similarly,
we have found prejudicially deficient the failure to employ a
mental health expert to explain the effect of traumatic experi-
ences on a defendant’s conduct. See, e.g., Douglas v. Wood-
ford, 316 F.3d 1079, 1090 (9th Cir. 2003); Caro v. Calderon,
165 F.3d 1223, 1227 (9th Cir. 1999).

The district court concluded that James was not prejudiced
because the sentencing judge, in determining competency to
stand trial, was able to consider a great deal of evidence
related to his mental health, including his “918” classification,
his suicide attempts in pretrial detention, and the evaluations
provided by Drs. Tuchler, Berger, and Potts, including the lat-
ter’s diagnosis of cyclothymia. A defendant who is mentally
competent for trial may nonetheless suffer a mental illness
that is severe enough to mitigate his culpability. See Summer-
lin, 427 F.3d at 631; Bean v. Calderon, 163 F.3d 1073, 1078
(9th Cir. 1998); Hendricks v. Calderon, 70 F.3d 1032, 1043
(9th Cir. 1995). More fundamentally, James was prejudiced
because Pillinger failed to characterize James’s mental illness
as a mitigating circumstance or to elicit Potts’s opinion as to
whether James’s “capacity . . . to conform his conduct to the
requirements of law was significantly impaired,” under ARIZ.
REV. STAT. § 13-703(G)(1). In his 1995 affidavit, Potts stated
that he was not

asked to evaluate the effect of [James’s] mental con-
dition, family and social history, and drug usage on
his mental state or his ability to control his conduct
the night that [Maya] was killed. . . . [N]o evidence
was brought to the court’s attention to properly eval-
 JAMES v. SCHRIRO 18843
uate the important effect of social, psychiatric, and
psychological factors on [James’s] conduct.

Pillinger argued the mitigating circumstance under § 13-
703(G)(1) only with respect to James’s intoxication, not his
mental illness. Without any indication that Potts’s diagnosis
was mitigating in nature because it affected James’s volitional
capacity, the sentencing court would not have afforded
James’s cyclothymia, suicide attempts, and depression appro-
priate mitigating weight under state law. See, e.g., State v.
McMurtrey, 726 P.2d 202, 206-07 (Ariz. 1986) (section 13-
703(G)(1) mitigating circumstance not established where
defendant, “while eliciting some evidence of emotional or
mental impairment, . . . was unable to provide a precise show-
ing of its substantial significance in causing defendant’s con-
duct”); State v. Murray, 906 P.2d 542, 575 (Ariz. 1995)
(“Character or personality disorders alone are generally not
sufficient to find that defendant was significantly impaired.”).

Pillinger’s failure to investigate James’s long-term drug
abuse further harmed James’s mitigation case. Pillinger pre-
sented evidence of intoxication at the penalty phase, but
focused exclusively on James’s drug use at the time of the
crime. Had Pillinger developed evidence of James’s long-term
drug use, he could have presented a coherent account of
James’s emotional and psychological deterioration during
1981, fueled by drug abuse, that culminated in Maya’s mur-
der. See, e.g., Mayfield v. Woodford, 270 F.3d 915, 931 (9th
Cir. 2001) (en banc). In Mayfield, we found counsel’s penalty
phase performance prejudicially deficient based in part on the
postconviction testimony of a psychiatrist who described the
defendant’s suffering “ ‘a growing onslaught of catastrophes,
losses, and increased emotional turmoil that were boiling up,’
exacerbated by ‘the continued drug use that makes it more
difficult for [the defendant] to figure out what is the best thing
to do and how to control his emotions.’ ” Id. at 931. As here,
the defendant’s psychological setbacks in Mayfield included
a breakup with a girlfriend and a suicide attempt. Id.
18844 JAMES v. SCHRIRO
[15] In the year before the murder, James’s wife Marna
Hulgren divorced him and another girlfriend left him. James
took a deeply traumatic trip to California and met his dysfunc-
tional biological family. James confronted his mother Lora
Pannell and asked why she had given him up for adoption and
not his siblings. Lora did not respond. James learned for the
first time that his father Lester Pannell had been incarcerated
and began to believe that he would share his father’s fate.
James met his half-brother, Jerry Isgrigg Jr., who told James
about the sexual abuse he suffered at the hands of Norman
Osteen Sr. James grew close to Isgrigg, who told James that
he “wished [James] had been there earlier, to protect me from
[Norman Sr.].” James’s depression and drug use worsened
after his return from California. Jim Stepp — whom Probation
Officer Santos interviewed in compiling the PSR — attributed
this deterioration to James’s feelings of worthlessness at hav-
ing relived his mother’s rejection. On the night of the murder,
Martin Norton, whom James treated “like a son,” reported
that he too had been sexually assaulted. This confluence of
loss, dysfunction, shame, depression, self-medication, and
anger would have provided context and explanation for
Maya’s murder. If Pillinger had competently discharged his
investigative duties, he could have presented a powerful nar-
rative that would have mitigated the “heinous, cruel, and
depraved” aggravating circumstance — the sole aggravating
circumstance that now supports his death sentence. There is
a “reasonable probability” that a sentencing judge confronted
with all of the information now available would have drawn
a different conclusion in balancing the mitigating factors
against the heinousness and depravity of the killing. See, e.g.,
Stanley, 598 F.3d at 625.

The state argues that much of this material was before the
sentencing judge in the PSR, and that James was not preju-
diced because the material now proffered by habeas counsel
would have been cumulative. We have several times rejected
variations of this argument. See, e.g., Correll, 539 F.3d at
949-50, 953 n.8; Lambright v. Schriro, 490 F.3d 1103, 1125-
 JAMES v. SCHRIRO 18845
26 (9th Cir. 2007); see also, e.g., Stanley, 598 F.3d at 624.
The PSR presented a relatively spare recitation of facts and
did so in the context of a recommendation that James be sen-
tenced to death. The PSR also recited the opinions of Maya’s
family members, Detective Davis, and the lead prosecutor,
Myrna Parker, that James should be sentenced to death. As in
Correll, the PSR was “one-sided.” 539 F.3d at 949. The PSR
opined that Maya’s murder was “senseless, unnecessary, and
executed in a particularly depraved and cruel manner. The
mental and physical suffering which the victim presumably
experienced before his death should be considered . . . . Addi-
tionally, the defendant has failed to admit his wrongdoing and
has attempted to minimize his involvement in the offense.” As
in Correll, “[t]hese statements are hardly the words of mitiga-
tion, and no competent capital defense counsel would have
relied upon such a report as providing mitigation evidence.”
Id.; see also Stanley, 598 F.3d at 624 (“Even where the sen-
tencer is aware of facts underlying the defendant’s mitigation
case, trial counsel may not necessarily rest on these facts.”);
Lambright, 490 F.3d at 1125 (“The sentencing judge cannot
be expected to comb the record looking for mitigating factors,
particularly where the minimal evidence that exists is buried
in reports that are on the whole strongly unfavorable to the
defendant.”).

Lester Pannell was not merely a “drug addict [who] was
sentenced to prison when [James] was very young,” as the
PSR put it. He was a lifelong heroin addict and alcoholic, a
“vicious and hard-hearted man” who shot up in front of his
children, beat James’s mother for keeping a messy house, and
“never expressed even the slightest interest” in the well-being
of his children before abandoning them. Lora Pannell did not
merely “have too many children to support,” as the PSR put
it. She was a teenage mother with five children by three
fathers who alternately neglected and verbally abused her
children. Lora raised her children in poverty and allowed
unsuitable men into the home — including Jerry Isgrigg Sr.,
an alcoholic with a felony assault conviction, and Samuel Ost-
18846 JAMES v. SCHRIRO
een and Norman Osteen Sr., serial child sexual abusers. At
one point, Lora came close enough to killing James that she
placed a pillow over his face. It is not clear that Lora volun-
tarily “gave custody of [James] and his sister [Donna] to the
state,” as the PSR put it. Tacla Machesney and Roxann Hall-
quist both indicated that all of Lora’s children were forcibly
removed from her home and placed in foster care. Machesney
stated that when Donna, then less than a year old, was
adopted, she had a broken collarbone and nose and was wear-
ing ill-fitting, soiled clothes. James’s trip to California did not
simply have a “devastating impact” on him, as the PSR put it,
but set in motion a steep deterioration in his emotional health
and his drug abuse.

Finally, the PSR makes clear that most of its social history
favorable to James came from James himself. The trial court
found James to lack credibility and therefore discounted his
evidence. The court referred to James’s account of his LSD
use on the night of the murder as “self-serving,” and James’s
testimony in support of his duress defense as “blatant perju-
ry.” Evidence from James’s family members and friends
would have given his self-reported social history much
needed corroboration.

4. Reweighing

To ascertain whether James has shown a reasonable proba-
bility of a different outcome, “we consider ‘the totality of the
available mitigation evidence — both that adduced at trial,
and the evidence adduced in the habeas proceeding’ — and
‘reweig[h] it against the evidence in aggravation.’ ” Porter,
130 S. Ct. at 453-54 (quoting Terry Williams, 529 U.S. at
397-98) (alteration in original). In doing so, we put to one
side the pecuniary gain aggravating circumstance found by
the trial court but stricken by the Arizona Supreme Court.
James, 685 P.3d at 1298. That is, we assess what reasonably
could have happened had the trial court “appropriately
reduced the ballast on the aggravating side of the scale.” Por-
 JAMES v. SCHRIRO 18847
ter, 130 S. Ct. at 454; see also Boyde v. Brown, 404 F.3d
1159, 1179-80 (9th Cir. 2005).

The killing of Maya was appalling. It was a hate crime.
Maya was targeted because of his sexual orientation. He was
beaten, taunted, robbed, and forced to contemplate his
impending death during the last hours of his life. But the hei-
nousness of the crime does not in itself compel the conclusion
that James was not prejudiced. See Stanley, 598 F.3d at 616;
Stankewitz v. Woodford, 365 F.3d 706, 723 (9th Cir. 2004);
Douglas, 316 F.3d at 1091. The state offered Glenn Johnson,
James’s initial trial counsel, a life sentence with the possibil-
ity of parole after 25 years in exchange for a guilty plea to
first-degree murder. Against Johnson’s advice, James refused.
The “mitigatory effect” of the state’s willingness to accept a
non-capital disposition “is clear: the prosecution thought this
was not a clear-cut death penalty case.” Scott, 567 F.3d at
584; Summerlin, 427 F.3d at 631.

The mitigation evidence that was available but not pre-
sented at the penalty phase trial was significant. Lester and
Lora Pannell were utterly unfit parents who exposed James to
violence, drug abuse, poverty, and sexually predatory adults.
James’s siblings suffered physical and sexual abuse. After his
adoption, James showed the residual effects of life in the Pan-
nell home: he was fearful, friendless, and needy. Instead of
the paternal affection James craved, Bradley James adminis-
tered disciplinary beatings. James was a dismal student, a
high school dropout, and a habitual drug user. In the year
before the murder, his marriage ended and he learned of the
extensive dysfunction in his biological family. The single
most significant category of mitigating evidence advanced —
evidence of dysfunction in the Pannell home — supplies a
“graphic description” of James’s childhood, “filled with abuse
and privation, . . . [which] might well have influenced the
jury’s appraisal of his moral culpability.” Terry Williams, 529
U.S. at 398 (citing Boyde v. California, 494 U.S. 370, 387
(1990)).
18848 JAMES v. SCHRIRO
[16] We conclude that there is a reasonable probability that
a sentencing court confronted with the powerful mitigating
evidence developed by James’s habeas counsel would not
have returned a death sentence. James has therefore shown
that Pillinger provided constitutionally ineffective assistance.

We remand and instruct the district court to grant the writ,
rather than hold an evidentiary hearing, because “the claim
presents a purely legal question and there are no disputed
facts.” Beardslee v. Woodford, 358 F.3d 560, 585 (9th Cir.
2004). Although courts often invoke this rationale to deny a
petition, this is a case in which we may grant the writ without
a hearing. See 1 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL
HABEAS CORPUS PRACTICE AND PROCEDURE § 20.1[a] (6th ed.
2011) (“federal courts have the power to grant habeas corpus
relief without holding an evidentiary hearing, even on fact-
based claims” (footnote omitted)). The state conceded at oral
argument that it does not dispute James’s evidence. It chal-
lenges only the legal sufficiency of those facts. We need not
require that the district court hold an evidentiary hearing at
which the state would not present any evidence. Moreover,
this case is unlike others where we remanded for a hearing.
For example, unlike in Earp v. Ornoski, 431 F.3d 1158, 1169-
70 (9th Cir. 2005), there is no material dispute about the affi-
ants’ credibility. Likewise, this is not a case in which we must
determine that the petitioner’s allegations are colorable. See,
e.g., Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir.
2005). James has introduced a plethora of evidence to support
the allegations of his petition.

We conclude that the district court was within its discretion
to deny an evidentiary hearing absent controverted facts, see,
e.g., Beardslee, 358 F.3d at 585, but abused its discretion by
rejecting James’s Rule 59 evidence as legally immaterial, see,
e.g., Strauss v. Comm’r, 635 F.3d 1135, 1137 (9th Cir. 2011)
(“An error of law is an abuse of discretion.”).
 JAMES v. SCHRIRO 18849
Conclusion

[17] We affirm the district court with respect to James’s
guilt phase claims based on Brady, Giglio, and Napue. We
reverse and remand with instructions to grant the writ with
respect to the death sentence. We instruct the district court to
grant the state a reasonable amount of time in which to resen-
tence James. If the state chooses not to resentence, James’s
sentence will automatically be converted to life in prison in
accordance with Arizona law. See Libberton, 583 F.3d at
1174.

AFFIRMED in part; REVERSED and REMANDED in
part.