Craig Ross v. Ronald Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CRAIG ANTHONY ROSS, No. 17-99000
Petitioner-Appellant,
D.C. No.
v. 2:96-cv-02720-
SVW
RONALD DAVIS, Warden, California
State Prison at San Quentin,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding

Argued and Submitted May 24, 2021
Pasadena, California

Filed March 25, 2022

Before: Mary H. Murguia, Chief Judge, and Kim McLane
Wardlaw and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Wardlaw
2 ROSS V. DAVIS

SUMMARY *

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Craig
Anthony Ross’s habeas corpus petition in a case in which a
jury sentenced Ross to death after convicting him of three
counts of murder, five counts of robbery, and two counts of
rape in concert.

Ross claimed that an erroneous aiding and abetting
instruction allowed the jury to find him guilty of the first-
degree murder counts without making the finding that he had
the intent to kill, and thus the imposition of the death penalty
violated the Eighth Amendment under Enmund v. Florida,
458 U.S. 782 (1982). The panel concluded that the
California Supreme Court on direct appeal reasonably
rejected this claim. The panel wrote that the state court
reasonably concluded that the instructions were adequate for
the jury to make the requisite culpability finding, especially
in light of the exception to the rule of Enmund found in Tison
v. Arizona, 481 U.S. 137 (1987), and Tapia v. Roe, 189 F.3d
1052 (9th Cir. 1999).

Ross also claimed that his trial counsel’s failure to
investigate and present then available mitigation evidence at
the penalty phase was ineffective assistance of counsel in
violation of the Sixth Amendment under Strickland v.
Washington, 466 U.S. 668 (1984). The panel agreed with
the district court that counsel’s performance during the
penalty phase was deficient. But given the entirety of the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 ROSS V. DAVIS 3

evidence before the jury, Ross’s disruptive conduct in front
of the jury, and the sure-to-be-admitted rebuttal and
impeachment evidence that would follow introduction of the
mitigation evidence, the panel concluded that the California
Supreme Court reasonably concluded that Ross did not show
a reasonable probability that the result would have been
different but for counsel’s unprofessional errors.

COUNSEL

Norman D. James (argued), Law Office of Norman D.
James, Hamilton, Montana; Jerry L. Newton (argued),
Carmel, California; for Petitioner-Appellant.

Steven E. Mercer (argued) and A. Scott Hayward, Deputy
Attorneys General; James William Bilderback II,
Supervising Deputy Attorney General; Lance E. Winters and
Ronald S. Mathias, Senior Assistant Attorneys General;
Gerald A. Engler, Chief Assistant Attorney General; Rob
Bonta, Attorney General; Office of the Attorney General,
Los Angeles, California; for Defendant-Appellant.

OPINION

WARDLAW, Circuit Judge:

Over forty years ago, Craig Anthony Ross participated
in three brutal gang-involved home invasion robberies in
which three people were murdered. In 1982, a jury
convicted Ross of three counts of murder, five counts of
robbery, two counts of burglary, and one count of rape in
concert. The jury also found that during each offense he was
armed with a firearm, and, as to each count of murder, found
4 ROSS V. DAVIS

special circumstances of robbery-murder, burglary-murder,
and multiple murder. On one of the murder counts, the jury
found a rape-murder special circumstance. At the penalty
phase, the jury returned a verdict of death. Ross now appeals
from the denial of his federal petition for a writ of habeas
corpus.

Two penalty phase claims are before us. First, Ross
claims that an erroneous aiding and abetting instruction
allowed the jury to find him guilty of the first-degree murder
counts without making the finding that he had the intent to
kill, and thus the imposition of the death penalty violated the
Eighth Amendment. See Enmund v. Florida, 458 U.S. 782
(1982). We conclude that the California Supreme Court on
direct appeal reasonably rejected this claim. The state court
reasonably concluded that the instructions were adequate for
the jury to make the requisite culpability finding, especially
in light of the exception to the rule of Enmund found in Tison
v. Arizona, 481 U.S. 137 (1987) and our decision in Tapia v.
Roe, 189 F.3d 1052 (9th Cir. 1999).

Second, Ross claims that his trial counsel’s failure to
investigate and present then available mitigation evidence at
the penalty phase was ineffective assistance of counsel in
violation of the Sixth Amendment under Strickland v.
Washington, 466 U.S. 668 (1984). Though we agree with
the district court that counsel’s failure to perform was
deficient, given the entirety of the evidence before the jury,
Ross’s disruptive conduct in front of the jury and the sure-
to-be-admitted rebuttal and impeachment evidence that
would follow introduction of the mitigation evidence, the
California Supreme Court reasonably concluded that Ross
did not show a reasonable probability that the result would
have been different but for counsel’s unprofessional errors.
 ROSS V. DAVIS 5

I.

Throughout his murder trial, Ross was represented by
lead counsel Gerald D. Lenoir, an experienced capital
defense attorney. Lenoir was assisted by co-counsel
H. Elizabeth Harris, who had tried a single prior capital case.
The California Supreme Court in its 1995 opinion in Ross’s
direct appeal, 1 recited the facts related to Ross’s guilt,
People v. Champion, 2 9 Cal. 4th 879 (1995), modified on
denial of reh’g (June 1, 1995), as follows:

1. Murders of Bobby Hassan and His Son,
Eric

On the morning of December 12, 1980,
Mercie Hassan left her home at 849 West
126th Street, Los Angeles, to go to work.
Residing with her were her husband, Bobby
Hassan (an unemployed carpenter who sold
marijuana and sometimes cocaine), and their
four children. Mercie spoke to Bobby on the
telephone between 11:00 and 11:30 that
morning. Bobby normally picked up their

1
Though Ross does not raise any guilt phase claims on appeal, a
summary of the guilt phase evidence is necessary to evaluate Ross’s
penalty phase claims. See Eddings v. Oklahoma, 455 U.S. 104, 112
(1982) (“[T]he Eighth Amendment requires consideration of the
character and record of the individual offender and the circumstances of
the particular offense.”) (internal quotation marks and ellipsis omitted);
Cal. Penal Code § 190.3(a) (stating that a sentencing jury shall take into
consideration, among other relevant factors, “[t]he circumstances of the
crime of which the defendant was convicted . . . and the existence of any
special circumstances”).
2
Ross was jointly tried and convicted for the three murders with his
cousin and fellow gang member Steve Champion.
6 ROSS V. DAVIS

14-year-old son, Eric, from school at noon
and brought him home for lunch.

Sometime around noon, Elizabeth Moncrief,
a nurse working for an elderly woman across
the street from the Hassan residence, saw
Bobby and Eric return home. Half an hour
later, she saw a large gold or cream-colored
Cadillac containing 4 Black males, ages 19–
25, parked in front of the Hassan home.
Moncrief went outside and took a close look
at the car. About five minutes later, she saw
two of the men get out of the car and knock
at the Hassans' door. There was a struggle at
the door, and the two men entered. The other
two men then got out of the car and entered
the house, and someone closed the curtains in
the Hassan residence.

Later, Moncrief saw all four men leave the
house. One was holding a pink pillowcase
with something in it; the others were carrying
paper bags containing unknown items.
Moncrief was able to get a particularly good
look at the last man who left the house, a tall
man with heavy lips, a scar on his face, and
either a chipped tooth or a gap between his
teeth. She paid closer attention to this man
because she had seen him once in Helen
Keller Park, which was just across the street.

Mercie Hassan returned home at about
3:30 p.m. The house had been ransacked.
Part of the lunch she had prepared for Bobby
and Eric was on the floor, along with
 ROSS V. DAVIS 7

wrapping paper from the children's
Christmas presents. Several of the presents
were missing, as were some colored
pillowcases and a .357-caliber Ruger
Security Six revolver. Police, called to the
scene, found the bodies of Bobby and Eric
Hassan in the bedroom, lying on the bed.
Each had been shot once in the head. Bobby's
hands were tied behind his back, and three
rings and a necklace he customarily wore
were missing.

Defendant Champion was arrested on
January 9, 1981. When arrested, he was
wearing a yellow metal ring with white
stones and a gold chain necklace that
contained a charm bearing half of a king-of-
hearts playing card. Mercie Hassan
identified the ring and charm as belonging to
her husband, Bobby. Latent fingerprints
lifted from the Christmas wrapping paper and
from a white cardboard box matched
defendant Ross's fingerprints.

[. . .]

A ballistics expert testified that Bobby
Hassan was killed by a .357-caliber bullet
with rifling characteristics; the latter are
produced by the gun that fired the bullet, and
were described by the expert as “six lands and
grooves with a left hand twist.” The expert
also testified that most Colt revolvers
produce these particular characteristics. The
prosecution produced photographs, found in
8 ROSS V. DAVIS

defendant Champion's home, showing each
defendant holding a Colt revolver. [. . .]

2. The Murder of Michael Taylor

During the evening of December 27, 1980,
three men came to the door of Cora Taylor's
apartment at 11810 ½ Vermont Avenue, not
far from the Hassan home. Residing with
Cora were her son Michael (who sold
marijuana) and her daughter Mary. The men,
one of whom Cora identified at trial as
defendant Ross, walked into the living room
and asked to speak to Michael. When
Michael and Mary came out of the next room,
accompanied by William Birdsong, a friend
who was visiting, one of the men, whom Cora
and Mary later identified as Evan Malett,
grabbed Birdsong. A struggle ensued, which
ended when Malett drew a gun and ordered
Cora, Mary, Michael, and Birdsong to sit on
the bed. Malett then demanded money and
drugs. When Mary said they did not have
any, one of the three men hit her in the jaw
with his fist. The men then ordered the
Taylors and Birdsong to lie face down on the
bed, opened Cora's purse, and ransacked the
premises. While the three robbers were
rummaging through the apartment, a fourth
man (apparently a lookout) came to the door
but did not enter.

At Cora's urging, Michael told the robbers
that there was money in a box in the kitchen.
At that point one of the men, whom Mary
 ROSS V. DAVIS 9

later identified as defendant Ross, grabbed
Mary by the hair and forced her to go into the
bathroom, where he raped her. He then left
the bathroom, returning moments later to
rape Mary again. Thereafter, Malett entered
the bathroom and unsuccessfully tried to rape
Mary.

The three men then ordered Birdsong and
Cora to join Mary in the bathroom. A short
time later, Cora and Mary heard a shot. After
a few minutes, they left the bathroom and
found Michael in the living room, dead. A
prosecution expert testified that Michael had
died from a single shot from a high-powered
weapon (such as a .357 magnum), fired at
close range. The agent also testified that the
gun used to kill Bobby Hassan could not have
been the murder weapon, but that the bullet
could have been fired by the .357-caliber
Ruger stolen from the Hassan home.

Missing from the Taylor's apartment was an
8-track tape player. Also missing was a
Christmas present—a photo album—which
had been taken out of its wrapping.

Later that night, shortly after midnight, Los
Angeles County Deputy Sheriff Ted Naimy
saw a brown Buick automobile that contained
four Black males and did not have its
headlights turned on in the neighborhood
where Michael Taylor had been murdered.
As the Buick pulled alongside of him, Deputy
Naimy and his partner ordered it to stop.
10 ROSS V. DAVIS

Instead, the car sped away. As the deputies
pursued the Buick, it went out of control,
struck a curb, and came to a halt. Its four
occupants jumped out of the car and ran.
Inside the car, the deputy found the 8-track
tape player stolen from the Taylor apartment
and the .357-caliber Ruger revolver stolen
from the Hassan home. The gun contained
two live rounds and an empty shell casing,
and smelled as if it had recently been fired.
Under the car, Deputy Naimy found the
photograph album stolen from the Taylors.

Police searched the neighborhood for the
occupants of the Buick. They found Evan
Malett hiding in a backyard of a nearby
house, in which defendant Champion was
living.

Natasha Wright, the Taylors' next-door
neighbor, identified defendant Ross at trial as
one of the men she saw arrive at the Taylors'
apartment. Prosecution experts testified that
two latent fingerprints lifted from the bathtub
in the Taylors' apartment belonged to Ross,
and that spermatozoa found on Mary's pants
were consistent with Ross's blood type,
which is shared by roughly 11 percent of the
population. [. . .]

3. Other Prosecution Evidence at the Guilt
Phase

[. . .]
 ROSS V. DAVIS 11

The prosecution also offered expert
testimony that both defendants were
members of the Raymond Avenue Crips, a
gang whose territory encompassed the houses
where the murders occurred; that defendant
Ross's nickname in the gang was “Little Evil”
or “Evil;” and that defendant Champion's
gang nickname was “Trecherous,” “Trech,”
or “Mr. Trech,” all standing for treacherous.
[. . .]

In addition, the prosecution introduced a tape
recording of a conversation between
defendants that took place in a bus
transporting them from jail to court.

[. . .]

In the two tape-recorded conversations,
which contained numerous profanities,
defendants fantasized about taking a “stroll”
out of the jail and about “blow [ing] up” the
driver of the transport van and escaping.
They spoke in derogatory terms of a man
named Ishimoto, apparently a guard at the
jail, calling him a “little Jap,” a “Buddha head
motherfucker,” and a “little bastard Buddha
head.” Their conversations also included the
following interchange, in which they talked
about Bobby Hassan, Jr., the son of victim
Bobby Hassan and a “junior member” of
defendants' gang, the Raymond Avenue
Crips. . . . According to the prosecution, in
this interchange defendants discussed
whether Bobby Hassan, Jr., had told the
12 ROSS V. DAVIS

police about defendants' participation in the
murder of his father and brother, and
discussed whether the bed on which victims
Bobby and Eric Hassan were lying when they
were shot was a waterbed:

CHAMPION: “Man, shit. I saw that mother
fucker Bobby Hassan.

ROSS: “Bobby Hassan what you mean?

CHAMPION: “His father—the one that got
killed.

ROSS: “A picture?

CHAMPION: “No, I saw him. He's in the
courtroom.

ROSS: “What you mean? He's dead.

CHAMPION: “No (inaudible) (laughs) the
other (inaudible).

ROSS: “Oh, the Raymond Crip.

CHAMPION: “Yeah.

CHAMPION: “He always be at all the courts,
Cuz.

ROSS: “Yeah?
 ROSS V. DAVIS 13

CHAMPION: “(Laughs) Him and his mother
. . . his other brother and shit. I look at him
raw—the mother fucker (laughs).

ROSS: “He's in court (inaudible)?

CHAMPION: “Yeah, he be at all my courts.
I look at him raw, the mother fucker (laughs).
I was sleepy and just woke up . . .

ROSS: “He ain't never said nothing?

CHAMPION: “No, he's a punk ass.

ROSS: “They supposed to be witnesses?

CHAMPION: “No, they just come to see
what's happening with me. (Laughs) See if
I'm going to get convicted and shit.

ROSS: “(Inaudible)

CHAMPION: “(Inaudible)

ROSS: “Was that a waterbed in that room?

CHAMPION: “Uh-uh.”

Defendant Ross offered no evidence at the
guilt phase.

Champion, 9 Cal. 4th at 898–901, 909–10.

After one day of deliberation, the jury found Champion
and Ross guilty of burglarizing the Hassan home and
14 ROSS V. DAVIS

robbing and killing Bobby and Eric Hassan. It also
convicted Ross of burglarizing the Taylor residence, of
robbing Cora, Michael, and Mary Taylor, of raping Mary,
and of murdering Michael. As the verdicts were being read,
Ross and Champion rose and attempted to leave the
courtroom, participating in the following exchange with the
trial court:

THE COURT: Mr. Champion, Mr. Ross,
we’re not finished.

CHAMPION: Not no more to hear.

THE COURT: Have a seat until we finish
reading the verdicts. Mr. Champion, Mr.
Ross—

CHAMPION: What more I gotta hear? I ain’t
got no more to hear.

THE COURT: We have further proceedings.
Mr. Ross, Mr. Champion, have a seat.

CHAMPION: I ain’t sitting down in this
court. Let me go back in there.

THE COURT: Mr. Ross, Mr. Champion,
have a seat.

CHAMPION: I’m not sitting down, your
Honor, simple as that.

THE COURT: All right. Ladies and
gentlemen of the jury, I’m going to excuse
you at this point from the courtroom. Want
 ROSS V. DAVIS 15

you to go into the jury room just a few
minutes. Do not discuss this case—

(The defendants resume their seat at counsel
table).

THE COURT: All right. It will not be
necessary at this time. Continue reading the
verdicts.

As the verdicts continued to be read, Ross and Champion
again rose and were escorted out of the courtroom after the
following exchange:

THE COURT: Mr. Champion, Mr. Ross—

CHAMPION: Fuck that, man. Get out this
mother fucker, man.

The California Supreme Court also recited the evidence
presented at the penalty phase:

At the penalty phase of the trial, the
prosecution presented the following evidence
of violent criminal conduct involving
defendant[] Ross.

[. . .]

On July 29, 1977, Mark Howard, a gang
member, was in Helen Keller Park when
Walter Gregory approached and said that
defendant Ross wanted to talk to him.
Howard walked to another part of the park
and spoke to Ross, who was with a group of
16 ROSS V. DAVIS

people. Ross demanded that Howard return
a radio that Howard had taken from Gregory.
Howard said he took the radio because
Gregory owed him money. When Howard
refused to return the radio, Ross produced a
revolver, and said that if Howard did not
return the radio he would blow Howard's
head off. Howard then slapped Ross,
whereupon Ross shot Howard six times in the
stomach and the chest. Howard recovered,
but a bullet remains lodged close to his spine,
and his ability to use his left leg is seriously
impaired. As a result of this incident,
defendant Ross entered a plea of guilty to a
charge of assault with a deadly weapon, and
was sentenced to three years in prison. [. . .]

Champion, 9 Cal. 4th at 901–04.

Though Ross’s defense counsel failed to call any
witnesses in mitigation, they did introduce three pieces of
evidence by stipulation and judicial notice. 3 First, the parties
stipulated that, if called, the prosecution’s gang expert would
have testified that Mark Howard, who had been another
shooting victim of Ross, was previously a “peripheral
member” of two different gangs. This evidence impeached
Howard, who had testified he was never a member of a gang.
Second, the parties stipulated that Ross was twenty-one
years old at the time of the three murders. Finally, at
defendants’ request, the trial court took judicial notice that a
jury had found Evan Malett guilty of eight felonies for his
role in the Taylor home invasion murder, that one of the

3
The California Supreme Court incorrectly stated that “Ross offered
no evidence at the penalty phase.” Champion, 9 Cal. 4th at 904.
 ROSS V. DAVIS 17

felonies was first degree murder with the personal use of a
firearm, and that the total sentence Malett received was
46 years to life imprisonment. At the prosecution’s request,
the court also took judicial notice that the jury in Malett’s
case was instructed that personal use of a firearm included
merely displaying the firearm or striking someone with it,
and that the jury found not true the allegation that Malett
personally inflicted great bodily injury on Taylor.

Arguing for the death sentence, the prosecutor asserted
that Ross continued to present a danger to society. The
prosecutor relied not only on Ross’s recorded statements
about committing a violent escape from custody, but also
“the display that was put on . . . when the verdicts were
rendered.” According to the prosecutor, when the verdicts
were being read, “Mr. Ross engaged in a confrontation with
the guards here and almost got into a fight with them.” As a
result, Ross was not “the kind of person from whom we can
protect not only the society outside of prison but society
inside prison by incarcerating him for the rest of his life.”

The prosecutor also emphasized the “brutal and cold-
blooded” nature of the murders and pointed to Ross’s
shooting of Mark Howard as “a[nother] murder where the
victim, fortunately, did not die.” The prosecutor, however,
conceded that “we didn’t prove beyond a reasonable doubt,
I thought, that either of the defendants actually was a shooter
in any of these murders.” Nevertheless, the prosecutor
maintained that the evidence showed that Ross was the
leader because: (1) he had “the nerve” to shoot Howard in
broad daylight; (2) he was the one who previously had spent
time in state prison; (3) he told Mary that he was the leader;
(4) he did most of the talking during the recorded
conversation with Champion; and (5) when the verdicts were
being read, “he was the one who first got up and in mock
18 ROSS V. DAVIS

indignation started to walk toward the lockup, [and]
Mr. Champion followed.”

The prosecutor anticipated the defense’s argument that
Ross deserved a life sentence because Malett’s jury found
him guilty of being the actual shooter, and yet did not impose
the death penalty. The prosecutor first distinguished
Malett’s case from Ross’s because Malett was found guilty
of the Taylor murder only, whereas Ross was found guilty
of the Hassan murders as well. Moreover, unlike in Ross’s
case, the jury in Malett’s case did not find true the special
circumstance allegations. Additionally, based on the jury
instructions, Malett’s conviction for personal use of a
firearm did not necessarily mean that the jury found him
guilty of being the shooter in the Taylor murder; in fact, the
jury actually found untrue the allegation that Malett
personally inflicted great bodily injury on Taylor. Finally,
the prosecutor noted that “it’s not the test for your purposes
as to whether or not this case is more or less aggravated than
some other case.”

For his part, Ross’s counsel Lenoir argued that a
sentence less than death meant that Ross would “die in
prison” because escape from Folsom prison was “an utter
impossibility.” According to Lenoir, the question was
“whether or not [Ross] c[ould] be useful by making license
plates” because “[t]hat’s where they’re made, prison.”

Comparing Ross’s case to Malett’s, Lenoir pointed out
that, unlike Malett, Ross was not charged with the personal
use of a firearm or the infliction of great bodily injury on
Taylor. Yet, while “Malett c[ould] look forward to getting
out of jail and being back on the streets,” Ross “c[ould] never
dream of getting out.”
 ROSS V. DAVIS 19

As for Ross’s outburst during the reading of the verdicts,
Lenoir noted, and Champion’s counsel agreed, that
Champion was the one who stood up first. Additionally,
Lenoir claimed that the courtroom bailiff “ha[d] [no]
problems” with Ross until “two persons from the audience,”
who apparently were plainclothes deputies, “ran over
towards” him and Champion as they were walking to the
lock-up area.

Lenoir also attempted to mitigate the assault on Mark
Howard. He explained, “I don’t say that [Howard] deserved
to have been shot, but certainly he instigated it by slapping
Ross.” Moreover, Lenoir noted that, even though Howard
“denied being connected with any gang,” the prosecution
“graciously . . . assisted me in . . . entering into the
stipulation” that Howard in fact had gang affiliations.

Finally, Lenoir argued that there were four specific
mitigating circumstances. First, the jury “c[ould] reasonably
infer that Mr. Ross behaved during the two years he was in
prison” for the Howard shooting because “if there was one
black mark on [his] record[,] . . . it would have been
presented.” Second, because Ross was then only twenty-
three years old, he had “a long time [remaining in his life] to
think about one thing, what I’m in [prison] for.” Third, Ross
told Mary in the bathroom that “he would see [that her]
mother was not hurt, and [her] mother was not hurt.” Lastly,
“it ha[d] been conceded that there [wa]s no evidence that
Ross had a gun at any time during these actions.”

The jury began penalty phase deliberations, and, after
two days, delivered death verdicts against Ross and
Champion.
20 ROSS V. DAVIS

II.

Ross appealed his convictions and his sentence to the
California Supreme Court. The state court affirmed both his
convictions and his sentence but struck as duplicative all but
one of Ross’s multiple murder special circumstances.
Champion, 9 Cal. 4th at 952. The state court also addressed
Ross’s Enmund claim. It held that, although the jury
instructions inadequately described the mens rea for aiding
and abetting, that error was harmless because the
instructions on the special circumstance allegations, found
true by the jury, required that the “defendants shared the
intent of the killers when they aided and abetted the
murders.” Id. at 928–29.

Ross concurrently filed a habeas petition in the
California Supreme Court, in which he raised ineffective
assistance of counsel at the penalty phase. In re Ross,
10 Cal. 4th 184, 187 (1995). The state court issued an order
to show cause and appointed a Los Angeles Superior Court
judge as a Referee to take evidence and make findings as to
whether trial counsel was ineffective in the penalty phase for
failing to present available mitigation evidence. Id. at 189.
Specifically, the state court asked the Referee to make six
findings:

1) What mitigating character and
background evidence could have been,
but was not, presented by petitioner at his
penalty trial?

2) What investigative steps by trial counsel,
if any, would have led to such items of
evidence?
 ROSS V. DAVIS 21

3) What investigative steps, if any, did trial
counsel take in an effort to gather
mitigating evidence to be presented at the
penalty phase?

4) What tactical or financial constraints, if
any, weighed against the investigation or
presentation of mitigating character and
background evidence at the penalty
phase?

5) What evidence damaging to petitioner,
but not presented by the prosecution at
the guilt or penalty trials, would likely
have been presented in rebuttal if
petitioner had introduced any such
mitigating character and background
evidence?

6) Did petitioner himself request that either
the investigation or the presentation of
mitigating evidence at the penalty phase
be curtailed in any manner? If so, what
did petitioner request?

Id. at 189–90.

The Referee conducted an evidentiary hearing (known as
a “reference hearing” under California law), took extensive
evidence, answered the six questions asked by the state
court, and then offered his opinion that had counsel
performed adequately and presented the mitigating
evidence, there was a reasonable probability that Ross would
not have been sentenced to death. Id. at 189–201. The
California Supreme Court accepted the Referee’s factual
determination as to the then available mitigation evidence.
22 ROSS V. DAVIS

Id. at 205. It upheld most, but not all, of the Referee’s factual
findings, but disagreed with its legal conclusions, which it
reviewed de novo. The court “accept[ed] for purposes of
discussion that [counsel’s] performance was indeed
deficient,” id. at 201, but did not “decide whether counsel’s
performance was truly deficient, or merely obscured by the
fog of time,” id. at 204, as nine years had elapsed between
the trial and the reference hearing. Noting that it had
deliberately not asked the Referee to opine on the ultimate
question of whether Ross was prejudiced by counsel’s
performance, the court did not find the Referee’s conclusion
as to prejudice persuasive, particularly as the record
reflected that the Referee had not reviewed the trial record
to compare the actual trial with the hypothetical trial that
would have occurred had counsel performed effectively.
The state court concluded that although the mitigating
evidence was substantial, it did not stand alone, but was
“subject to substantial impeachment and potentially
devastating rebuttal.” Id. at 205. “[C]omparing the trial as
it actually occurred with the trial as it would have been with
the mitigating evidence,” the California Supreme Court
determined that Ross was not prejudiced. Id. at 213.

Ross then sought federal habeas relief in the Central
District of California under 28 U.S.C. § 2254. Ross v. Davis,
No. CV 96-2720 SVW, 2017 WL 2374101, at *1 (C.D. Cal.
Apr. 26, 2017). The district court held that the California
Supreme Court reasonably concluded that counsel’s
deficient performance at the penalty phase did not prejudice
Ross and properly denied his Enmund claim in light of the
Tison exception. Id., at *20, 53. The district court then
granted a certificate of appealability as to the Strickland
claim, which we expanded to include the Enmund claim.
 ROSS V. DAVIS 23

III.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291,
2253(a). We review a district court’s denial of habeas relief
de novo. Avena v. Chappell, 932 F.3d 1237, 1247 (9th Cir.
2019), cert denied, 140 S. Ct. 1137 (2020); Sanders v.
Cullen, 873 F.3d 778, 793 (9th Cir. 2017).

The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214,
controls our analysis of Ross’s petition for both his Enmund
claim and his Strickland ineffective assistance of counsel
claim. Under AEDPA, we must defer to the state court’s
decision with respect to any claim adjudicated on the merits
unless the decision was: (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States”;
or (2) “based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). “This is a ‘difficult to
meet,’ and ‘highly deferential standard for evaluating state-
court rulings, which demands that state-court decisions be
given the benefit of the doubt.’” Cullen v. Pinholster,
563 U.S. 170, 181 (2011) (citations omitted). Our review is
“limited to the record that was before the state court that
adjudicated the claim on the merits.” Id.

For Ross’s ineffective assistance of counsel claim,
“Strickland v. Washington and its progeny constitute the
clearly established federal law.” Andrews v. Davis, 944 F.3d
1092, 1107–08 (9th Cir. 2019) (en banc) (citing Pinholster,
563 U.S. at 189, and Strickland, 466 U.S. at 668). To
establish ineffective assistance of counsel under Strickland,
Ross must demonstrate two elements: first, that defense
counsel’s performance was deficient, and second, that the
deficient performance prejudiced the defense. Prejudice is
24 ROSS V. DAVIS

shown where “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 687,
694. Because AEDPA guides our review, the question
before us is whether the California Supreme Court “applied
Strickland to the facts of [t]his case in an objectively
unreasonable manner.” Bell v. Cone, 535 U.S. 685, 699
(2002). “The standards created by Strickland and § 2254(d)
are both highly deferential, and when the two apply in
tandem, review is doubly so.” Harrington v. Richter,
562 U.S. 86, 105 (2011) (quotations and citations omitted).
In determining whether a state court decision is an
unreasonable application of Strickland, “[w]e consider only
the evidence that was before the state court at the time of its
ruling.” Avena, 932 F.3d at 1247 (quoting Pinholster,
563 U.S. at 182).

IV.

Ross was not charged with or proven to be the actual
killer of either Taylor or the Hassans. 4 He contends that the
State was required to prove he had the specific intent to
commit murder to impose the death penalty. Two Supreme
Court cases decided before the California Supreme Court
affirmed Ross’s convictions and death sentence on direct
appeal clearly establish the law governing when a defendant
who is convicted of felony murder, but who is not the actual
killer, may be given a sentence of death: Enmund v. Florida,
458 U.S. 782 (1982) (decided two months before Ross’s trial
began), and Tison v. Arizona, 481 U.S. 137 (1987).

4
According to the California Supreme Court, Evan Malett was
charged with and convicted of the murder of Michael Taylor. In re Ross,
10 Cal. 4th at 210.
 ROSS V. DAVIS 25

In Enmund, the Supreme Court reversed the death
sentence of a Florida man under that state’s felony-murder
rule. Enmund, 458 U.S. at 801. Enmund’s role in the
robbery was to wait in the car by the side of the road, while
two others robbed the elderly victims, and then to drive the
get-away car. Id. at 784. The Court focused on Enmund’s
culpability—not that of the co-defendants who committed
the murders. Because Enmund did not kill, attempt to kill,
or have any intention of participating in or facilitating a
murder, his culpability was “plainly different” from that of
those who committed the murder. Id. at 798. The Court,
therefore, held that imposition of the death sentence was
impermissible under the Eighth Amendment. Id.

Tison presented more egregious facts. There, the three
Tison brothers “helped their father and his cellmate—both
convicted murderers—escape from prison, armed them with
shotguns, helped flag down and kidnap a family on an
isolated road, drove the family [which included a two-year-
old] to a remote site, and then stood by as their father and his
cellmate murdered [them].” Dickens v. Ryan, 740 F.3d
1302, 1311 (9th Cir. 2014) (en banc) (citing Tison, 481 U.S.
at 139–41). The Court distinguished the Tisons’ culpability
from Enmund’s: “their degree of participation in the crimes
was major rather than minor, and the record would support a
finding of the culpable mental state of reckless indifference
to human life.” Tison, 481 U.S. at 151. The Court held that
“major participation in the felony committed, combined with
reckless indifference to human life, is sufficient to satisfy the
Enmund culpability requirement” for imposition of the death
penalty. Id. at 158. 5

5
“[T]he reckless disregard for human life implicit in knowingly
engaging in criminal activities known to carry a grave risk of death
26 ROSS V. DAVIS

Thus, following the Supreme Court’s decisions in
Enmund and Tison, the Eighth Amendment permits
imposition of the death penalty in the case of a “felony
murderer who actually killed, attempted to kill, or intended
to kill.” Id. at 150. It also permits the imposition of the death
penalty in the case of a felony murderer “whose participation
[in the felony] is major and whose mental state is one of
reckless indifference to the value of human life.” Id. at 152.

A.

The State first argues that Ross’s Enmund claim is
procedurally barred. We disagree. The State mistakenly
asserts that Ross’s Enmund claim was raised for the first time
in his successive 1999 state habeas petition, which the
California Supreme Court denied on the merits as untimely
under In re Robbins, 18 Cal. 4th 770, 780–81 (1998), and
barred under In re Dixon, 41 Cal. 2d 756, 759 (1953),
because it was not raised on direct appeal when it could have
been. But Ross challenged his death sentence under Enmund
on direct appeal, arguing in his opening brief that the
instructions permitted his death sentence “without even a
determination that [he] intended to commit a felony, much
less intended to kill,” and referencing Enmund. Ross again
referred to Enmund error in his reply brief on direct appeal,
where he argued that the State had failed to respond to it as

represents a highly culpable mental state, a mental state that may be
taken into account in making a capital sentencing judgment when that
conduct causes its natural, though also not inevitable, lethal result.”
Tison, 481 U.S. at 157–58. This is because the “reckless indifference to
the value of human life may be every bit as shocking to the moral sense
as an ‘intent to kill.’ Indeed it is for this very reason that the common
law and modern criminal codes alike have classified behavior such as
occurred in this case along with intentional murders.” Id. (citations
omitted).
 ROSS V. DAVIS 27

an issue. And, in a supplemental brief filed after Tison v.
Arizona was decided, Ross argued that “[s]ince it cannot be
determined from the present record that any finding of intent
to kill was made, reversal is required under Enmund v.
Florida, Tison v. Arizona, and their progeny.” Because a
claim is exhausted for federal habeas purposes when it is
“fairly presented to the state courts,” Picard v. Connor,
404 U.S. 270, 275 (1971), Ross’s repeated challenges to his
death sentence on Enmund grounds in his direct appeal are
sufficient to preserve the claim for habeas relief.

B.

1.

Ross contends that the jury instructions given at his state
trial negated Enmund’s requirement of proof that he killed,
attempted to kill, or intended to kill the Hassans or Michael
Taylor, primarily because Enmund “held that it was a
violation of the Eighth Amendment to impose the death
penalty under the felony murder rule or as an aider and
abettor” in the absence of such proof.” He also argues that
the California Supreme Court’s denial of this claim was
contrary to and an unreasonable application of the Supreme
Court decisions in Enmund, Tison, and Cabana v. Bullock,
474 U.S. 376 (1986). On habeas review, we “must examine
the entire course of the state-court proceedings . . . to
determine whether, at some point in the process, the requisite
factual finding as to the defendant’s culpability has been
made.” Id. at 387. If the requisite finding has been made, it
is presumed correct under 28 U.S.C. § 2254(d), “and unless
the habeas petitioner can bear the heavy burden of
overcoming the presumption,” his Enmund claim fails. Id.
at 388.
28 ROSS V. DAVIS

As the California Supreme Court acknowledged, 6 the
jury instruction on aiding and abetting liability was
inadequate to describe the specific intent required to convict
Ross of aiding and abetting the three killings. Champion,
9 Cal. 4th at 929. The instruction allowed Ross to be
convicted if the murders were “the natural and reasonable or
probable consequences of any act that he knowingly aided
or encouraged,” or “if, with knowledge of the unlawful
purpose of the perpetrator of the crime, he aids, promotes,
encourages, or instigates by act or advice the commission of
such crime.” Id. at 927–28 nn.17–18. This instruction was
given in error because it was “sufficiently ambiguous” to
permit conviction upon the “finding of an intentional act
which aids, without necessarily requiring a finding of an
intent to encourage or facilitate the criminal offense.” Id.
at 928.

Despite the erroneous aider or abettor instruction, the
California Supreme Court determined that the error was
rendered harmless by the special circumstances instruction.
The jury was instructed that it could find the special
circumstances true “if defendant was not the actual killer”
only if it found that he “intentionally aided, abetted,
counseled, commanded, induced, solicited, requested or
assisted the actual killer in the commission of the murder in
the first degree.” Id. at 929. The California Supreme Court
reasoned that the import of this instruction was reinforced by
the prosecutor, who in his closing argument explained, “[i]t

6
The court never once characterized this as an Enmund claim, but
instead relied on analogous state law to discuss the substance of that
claim. Champion, 9 Cal. 4th at 927–29. Under AEDPA, however, “a
state court’s decision need not cite or even be aware of controlling
Supreme Court precedent, so long as it does not contravene those
precedents.” Andrews, 944 F.3d at 1116–17.
 ROSS V. DAVIS 29

must therefore be established, before you can convict
defendants of special circumstances, that . . . they share,
along with the trigger man, the intent that these victims
perished in the course of these crimes.” Id. at 928–29.
Therefore, the California Supreme Court concluded, “when
the jury in this case found the special circumstance
allegations true, it also necessarily found that defendants
shared the intent of the killers when they aided and abetted
the murders.” Id. at 929. Thus, the erroneous aiding and
abetting instruction did not prejudice Ross.

This conclusion was neither “contrary to” nor an
“unreasonable application of” Enmund. Enmund’s
culpability requirement for imposition of the death penalty
is proof beyond a reasonable doubt that Ross killed,
attempted to kill, or intended to kill the Hassans and Michael
Taylor. Because the prosecution offered no evidence to
prove Ross was the actual killer, the jury could find true the
special circumstances allegations only if it found Ross had
the intent to assist in killing the victims. And the jury found
true the multiple murder special circumstances, under
instructions that required a finding of a shared intent to kill.
Id.; see also People v. Neely, 6 Cal. 4th 877, 898 (1993)
(holding that a felony-murder special circumstance
instruction “properly required that the jury find that
defendant, if he was only an aider and abettor, had the intent
to kill”); People v. Pinholster, 1 Cal. 4th 865, 954 (1992)
(explaining that a special circumstance instruction requiring
that defendant “intentionally aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the
actual killer” means the jury forms a determination on
whether the defendant had the intent to kill) (emphasis
omitted); People v. Sanders, 51 Cal. 3d 471, 516–17 (1990)
(same); People v. Warren, 45 Cal. 3d 471, 487 (1988)
(same).
30 ROSS V. DAVIS

The state court’s determination that the special
circumstances instruction included the necessary specific
intent to satisfy Enmund’s culpability requirement was
reasonable. We have previously addressed an inadequate
aiding and abetting instruction in a pre-AEDPA case. In
Tapia v. Roe, the aiding and abetting instruction given to the
jury was erroneous because “it failed to instruct the jury to
find ‘intent to encourage or facilitate the criminal offense.’”
Tapia, 189 F.3d at 1056 (quoting People v. Beeman, 35 Cal.
3d 547, 561 (1984). We found the error harmless under
either the Brecht v. Abrahamson, 507 U.S. 619 (1993) or the
Chapman v. California, 386 U.S. 18 (1967) standards of
review, in light of the jury’s separate determinations that the
defendant was guilty of lying-in-wait and multiple-murder
special circumstances, which necessarily showed that the
jury found the defendant had or shared the specific intent to
kill both of the victims. Tapia, 189 F.3d at 1056–57. This
was the “equivalent” of finding the erroneously omitted
intent element of aiding and abetting. We concluded “if the
jury did find Tapia guilty on an aiding and abetting theory,
rather than as the actual perpetrator, the omission of the
intent element from the aiding and abetting instruction could
not have had an ‘injurious effect or influence in determining
[their] verdict,’ Brecht, 507 U.S. at 637, and was ‘harmless
beyond a reasonable doubt,’ [under] Chapman, 386 U.S. at
24.” Id. at 1057.

This case is distinguishable from the circumstances
presented in Cabana. There, the Court invalidated a death
sentence imposed under a Mississippi law that allowed any
robbery participant to be convicted of capital murder
“notwithstanding the defendant’s own lack of intent that any
killing take place.” Cabana, 474 U.S. at 379. The jury
instructions allowed the conviction based on an intent to rob
without any finding of an intent to kill. Id. at 380. Because
 ROSS V. DAVIS 31

“the jury may well have sentenced [the defendant] to death
despite concluding that he had neither killed nor intended to
kill; or it may have reached its decision without ever coming
to any conclusion whatever on those questions,” the Court
found the death sentence constitutionally inadequate under
Enmund. Id. at 384. Here, by contrast, the special
circumstances instruction required the jury to make the
finding satisfying Enmund.

2.

Moreover, to the extent Ross alternatively contends that
there was insufficient evidence from which a jury could find
major participation and reckless indifference under Tison,
we disagree, as Ross was a major participant in the crimes
committed and demonstrated a reckless indifference to
human life.

a.

First, there was ample evidence that Ross was a major
participant in the felonies. Our decision in Dickens is
instructive. There, we rejected an assertion of Enmund error,
reasoning that Dickens’s participation in the two murders
was less like that of Enmund’s passive get-away role and
more like the conduct of the Tison brothers. Dickens,
740 F.3d at 1311. As in Tison, Dickens participated in the
events leading up to the killings of two victims. Dickens
suggested to his co-defendant Amaral, who had a history of
violence, that they plan a robbery, id. at 1306, and then he
drove Amaral to a highway rest site where the robbery was
to take place and waited for three hours until their chosen
victims arrived, id. at 1307. Dickens then watched and
waited while Amaral used Dickens’s gun to rob and murder
the victims. Id. Dickens made no effort to help the victims
but picked up Amaral and drove to Dickens’s brother’s
32 ROSS V. DAVIS

house, where the pair burned the stolen wallet, split the cash,
and went their separate ways. Id. at 1308. “In short, Dickens
was actively involved in every aspect of the deadly crime—
suggesting they undertake the robbery, planning the robbery,
staking out the crime scene, selecting the victims, arming
Amaral with a handgun, watching the murders, aiding
Amaral’s escape, destroying evidence, and helping Amaral
evade capture.” Id. at 1311.

Here, like Dickens, Ross was “present at the murder site
and did not interfere with the murders.” Id. at 1311. In fact,
Ross was even more actively involved in the crimes resulting
in the Taylor and Hassan murders. Ross’s participation in
the Hassan robbery was demonstrated through the
fingerprint evidence found on the wrapping paper inside the
Hassan home, indicating Ross had entered the house and
participated in the robbery while the killings took place.
Champion, 9 Cal. 4th at 898. Days later, after participating
in the Hassan robbery where two victims were shot and
killed, Ross took an active role in the Taylor home-invasion
robbery, raped one of the victims twice, told her that he was
the leader of the group ransacking the house, and assisted in
separating Mark Taylor from the rest of the family just
before Taylor was shot and killed. Id. at 899–901. Ross
“continued the joint venture when he . . . failed to report the
crimes.” Dickens, 740 F.3d at 1311 (quotations omitted).
And Ross could have anticipated the use of deadly force,
even if he never pulled the trigger himself, because he knew
his colleague “had [a] weapon with him for the robberies.”
Id.

As in Dickens, Ross “was actively involved in every
aspect of the deadly crime,” and was thus “clearly a major
participant.” Id. And because “Tison does not illuminate the
precise line where a defendant’s conduct becomes major
 ROSS V. DAVIS 33

participation . . . even assuming [Ross’s] conduct falls into a
grey area between Enmund and Tison, we must defer to the
[California] Supreme Court’s conclusion.” Id. at 1312.

b.

Ross also “knowingly engaged” in the home-invasion
robbery, an activity “known to carry a grave risk of death.”
Tison, 481 U.S. at 157. This mental state “may be taken into
account in making a capital sentencing judgment when that
conduct causes its natural, though also not inevitable, lethal
result.” Id. at 157–58.

We have previously rejected the argument that armed
robbery is not a crime known to carry a grave risk of death.
See Dickens, 740 F.3d at 1314. Ross does not attempt to
argue, nor are we aware of any authority, to the contrary.
And the armed robberies in this case posed even graver risk
of death as they were gang-orchestrated home invasion
robberies of small-time drug dealers. Champion, 9 Cal. 4th
at 898–901; see also United States v. VonWillie, 59 F.3d 922,
929 (9th Cir. 1995) (accepting that drug dealers often
possess and use weapons to protect their drugs and
intimidate potential buyers). Ross knew at least one of his
colleagues had a gun. Champion, 9 Cal. 4th at 900. The
purpose of the unlawful entry was to look for drugs and
money associated with drug sales. Id. This is precisely the
type of activity that is known to carry a grave risk of death.
See Dickens, 740 F.3d at 1314 (holding that the defendant
was aware of a grave risk of death when he knew that his
colleague had a violent and explosive temper, a history of
violence, and that he recklessly handled guns, yet proceeded
with participating in the robbery knowing his colleague had
a gun). And after the shootings, Ross chose to “aid those
whom he had placed in the position to kill rather than [aid]
their victims.” Tison, 481 U.S. at 152. The state courts could
34 ROSS V. DAVIS

reasonably have found that Ross demonstrated reckless
disregard to human life.

V.

We next address Ross’s claim that his counsel provided
ineffective assistance in the penalty phase, primarily by
failing to investigate and present readily available mitigating
evidence. To understand what that evidence was and
whether it was then available, the California Supreme Court
referred the matter to a Referee.

A.

The Referee found that fifteen witnesses were available
to testify at the time of Ross’s trial. They would have
testified to Ross’s childhood and family circumstances but
they were never called to testify. These witnesses included
Ross’s mother, Gloria Brown, along with Ross’s siblings and
step-siblings, and several other family members with
personal knowledge of mitigating evidence.

The Referee found that all of the evidence recounted
below was readily available to the defense and was not
presented at trial. In re Ross, 10 Cal. 4th at 195.

1.

a. Violence Inflicted on Mother by Ross’s father, Stafford

Ross’s mother, Gloria Brown, testified that during her
short marriage to Ross’s biological father Stafford, Stafford
beat and stabbed her on multiple occasions. When she was
eight months pregnant with Ross, Stafford pushed her
against a wall and she fell, causing Ross to be born
prematurely the next morning. When Ross was an infant,
 ROSS V. DAVIS 35

Gloria left Stafford, but he insisted that she take him back.
When she refused, he stabbed her multiple times, puncturing
her lung, and she was saved only because her police
detective brother was able to fend Stafford off until
additional officers arrived.

b. Abuse by Stepfather Henry Brown

After Stafford went to prison for the stabbing, Gloria
lived alone with Ross and her five other children. She had
difficulty making ends meet. In 1963, when Ross was about
four years old, the family began living with Henry Brown,
Gloria’s future husband. In 1966 or 1967, Brown’s three
sons began living with them as well.

Brown would drink often, and “when he drank, he would
become violent.” He was especially violent after gambling
losses at the horse track. He physically and verbally abused
Gloria, cutting her many times. He once chased her around
the kitchen, causing her to be burned by flaming grease from
a skillet. On another occasion, Brown hoisted a television
set to throw at Gloria, but Gloria’s sister, “grabbed a knife
out of the kitchen drawer and threatened him, so he would
put [the television set] down.” Several times, Brown
threatened to kill Gloria, and Gloria’s police detective
brother had to come to disarm Brown. After these types of
incidents, Brown would apologize to Gloria and buy her
flowers.

Ross and the other children witnessed this abuse and
were also abused themselves. Brown severely “whooped the
kids,” especially Ross, possibly because Ross “would
become very emotional . . . by seeing his mother being beat
up.” Holding the children upside down, Brown would whip
them all over their bodies with “a big wide thick belt,” and
with large switches off the backyard peach tree. As a result,
36 ROSS V. DAVIS

the children, including Ross, suffered welts, bruises, and
cuts.

Brown also abused the children in other ways. He forced
them to kneel in the garage and stare at the wall for long
periods of time ranging from “a couple of hours” to
“sometimes half a day.” He refused to allow Ross to meet
his biological father, Stafford Ross. One day, Brown locked
Ross’s younger sister out of the house, and when she
attempted to enter through the window, he “came at [her]
with [a] butcher knife.” After this incident, the sister, who
was a high school freshman at the time, moved out of the
house. Ross’s older sister also had moved out earlier when
she was fourteen years old due to “the violence that
happened in the house.” The children’s nicknames for
Brown were “monster,” “ski ball head motherfucker,” and
“the devil.”

Around late 1970, when Ross was twelve years old,
Gloria went to an attorney and had Brown removed from the
home. After they were separated, Brown refused to allow
his sons to spend time with Gloria’s sons, but they still
managed to do so in secret. In 1978, while Ross was in
prison for the Howard shooting, Brown apparently
“changed,” and Gloria reunited with him. Gloria and Brown
were living together again at the time of Ross’s trial.

c. Neighborhood Violence

Ross grew up in a “pretty rough” neighborhood. There
were “a lot of gangs” and the children “couldn’t play out in
the streets . . . because [they] would get attacked by the gang
people.” Around the time of Gloria and Brown’s separation,
Ross at age twelve began associating with the gang members
on the street.
 ROSS V. DAVIS 37

d. Ross’s Good Character

Ross’s family members also testified to his good
character. When Ross was between the ages of about six and
fourteen, he visited his grandparents’ “large acreage” each
summer. On these trips, Ross was very respectful and did
all the chores he was asked to do.

Ross showed great affection for his siblings and cousins.
He babysat them, watched over them at the local park,
helped teach them how to draw and write, and “always
entertain[ed] them.” He walked his sisters to school and
protected them from bullies. His younger sister recalled: “If
Henry [Brown] would only allow us to have one sandwich,
[Ross] would give me his sandwich. . . . One particular
incident . . . [Ross] stood in front of me and told [Brown]
don’t whoop me, that he’ll take my whooping for me.” And
according to his aunt, Ross “was like a protector of the
children.”

Moreover, Ross’s stepbrother and brother both testified
that Ross helped them turn around their lives. Specifically,
when Ross was twenty-one years old, after the stepbrother’s
young daughter drowned in 1980, he went “on an alcohol
binge,” but Ross “worked with [him] very hard and told
[him] that it wasn’t going to bring [his] baby back, and he
would stick with [him] and made sure [he] didn’t go back
[to] drinking again.” Similarly, around 1977, Ross’s brother
“was into smoking a lot of weed,” but Ross “didn’t like that”
and talked to him and introduced him to bodybuilding. As a
result, Stafford Ross, Jr. “got it together” and went on to win
third place in a “Mr. Los Angeles” bodybuilding
competition.

When asked if, in spite of Ross’s crimes, he would have
testified at Ross’s penalty phase that Ross was a person of
38 ROSS V. DAVIS

good character, Ross’s police detective uncle answered:
“[K]nowing the way that he was abused, misused, hurt,
knowing what he has seen his mother go through, knowing
that the only people that he had contact with were the people
out on the streets, who were gang-members, yes, I would
have said yes.”

e. School and Institutional History

Gloria and one of Ross’s sisters testified about a race-
fueled incident at Ross’s public school. When Ross was in
the fifth or sixth grade, one of his teachers called him the N-
word. Ross was “really upset” and told his mother that “he
hated to go to the class” and “didn’t want to go [back].”
Gloria “went to the school to talk to the teacher, and the
teacher denied it.” Gloria believed Ross, but she did not
“press the issue further.”

In 1970 and 1971, when Ross was twelve and thirteen
respectively, Ross received “an honor award for outstanding
achievement in safety” and “a first place award for the
shotput.” Before Gloria and Brown’s separation, Ross’s
grades were passing, if “not particularly exemplary,” but
afterward he began getting even lower grades. One of
Ross’s aunts also testified that Ross began getting into
trouble after Gloria and Brown’s separation.

By stipulation, the Referee admitted into evidence
Gloria’s statements to Ross’s juvenile probation officers.
According to a 1973 probation report: “[Gloria] stated that
she feels other boys influenced [Ross] negatively. He is very
cooperative at home. [Gloria] asserted that [Ross] needs
male guidance and hopes that he can have a male probation
officer with much supervision. [Ross] has a poor
relationship with the [separated] stepfather.”
 ROSS V. DAVIS 39

According to a 1974 report: “[Gloria] state[d] that she
would like to try [Ross] home again. ‘I feel [the California
Youth Authority] would make him only bitter. I don’t think
there is anything wrong with him psychologically. He is
always warm with his family. . . . I never had any problem
with [him] until after Mr. Brown and I separated. There was
no male supervision. . . .” In that report, Gloria also stated:
“[Ross] takes his punishment. He does feel remorse,
although he doesn’t show it. He would write letters to us
stating that he’s done wrong and had to pay for his mistakes.
He wrote ‘It’s time I become a better person’ and said he
would pray for himself.”

In a 1975 report, however, Gloria’s view had changed:
“I am completely unable to control or understand [Ross]. I
have done all I can for him, and out of my six children, he is
by far the worst.” Moreover, she stated that Ross “has a hate
for whites, shows a great deal of resentment towards all
types of people,” and she did not want him released from
juvenile custody.

Finally, one of Ross’s sisters testified to his difficulties
following his release from prison in 1980. Ross “went to the
Urban League with [her] and he wanted a job,” but “he didn’t
know what he was doing with the [applications].” Ross
could write poetry, but he lacked “the technical skills . . . to
get him in a training program” or understand the “jargon” on
the applications.

f. Availability of Witnesses

Ross’s family members who testified at the reference
hearing stated that they would have testified at his penalty
phase and asked the jury to spare his life, but they were never
interviewed by the defense. While attending portions of
Ross’s trial, Gloria “briefly” had conversations with Harris
40 ROSS V. DAVIS

and “one brief conversation with [Lenoir] in the hallway”
during which he told her that Ross “should take a plea
bargain.” “[N]obody approached [her] about testifying.”

Additionally, two of Ross’s aunts and two of his sisters
testified that they came to court, but when they attempted to
speak to Lenoir or Harris, they were either rudely ignored or
“brushed” or “shunned” away. Another aunt testified that,
at Gloria’s direction, she came to court one day because “the
attorney wanted her to have some character witnesses for
[Ross].” As potential witnesses, she and Gloria were
excluded from the courtroom for portions of the proceedings
that day. When the day ended without them testifying,
counsel said, “We’ll call you,” but she “never heard anything
else from them.”

Ross’s post-conviction investigator testified that he
called Gloria in 1986 and arranged a meeting. At the
meeting about two weeks later, Gloria gathered
approximately fifteen family members, and the investigator
spent eleven or twelve hours interviewing them in one day.

2.

Ross also called the members of his trial defense team as
witnesses at the reference hearing. By that time, Lenoir had
retired and was in poor physical health. He could no longer
remember “the specifics” of the case but he could remember
there were “no financial impediments” to investigating.
Additionally, it appears that, after Ross’s trial, Lenoir
directed defense investigator Charles Watson and co-
counsel Harris to hand over their trial files to him.
Subsequently, “appellate counsel repeatedly requested
access to the files over a two-year period and during that
period received no replies. Only when the files were
subpoenaed to a court hearing did [Lenoir] assert that they
 ROSS V. DAVIS 41

had been lost.” At the reference hearing, Lenoir testified that
he lost the files when he moved offices.

In an earlier deposition, Lenoir stated that he talked to
Gloria “many times” about the case, and that Ross told him
that he did not want his mother called as a witness.
Champion’s counsel also recalled Lenoir stating that “he
would have liked to call [Ross’s] family members” as
witnesses, but that Ross either did not want him to call his
family members or did not want him to call his mother
specifically.

Investigator Watson “vaguely recall[ed]” that, in
preparation for the penalty phase, he interviewed and
subpoenaed two of Ross’s friends. At Lenoir’s direction,
Watson also telephoned Gloria and asked her and another
family member to appear in court on one specific day during
the penalty phase.

Lenoir placed Harris in charge of preparing for the
penalty phase of the trial. Harris testified she prepared for
the penalty phase by speaking with Ross, Gloria, and several
other members of Ross’s family, including Brown. These
conversations were likely conducted either over the
telephone or in the courthouse hallway. Harris’s impression
from these conversations was that “Ross came from a very
stable supportive middle-class type family environment,”
and she told Lenoir that she thought some of the family
members would make good witnesses.

Harris also testified that “the final decision was that
Mr. Lenoir simply told me that we weren’t going to put on
any evidence.” She and Lenoir never discussed the
possibility that the prosecution might present rebuttal
evidence if the defense presented the testimony of Ross’s
family members. Harris neither obtained Ross’s
42 ROSS V. DAVIS

institutional records nor went or sent an investigator to
Ross’s house to conduct interviews. Additionally, Ross
never told her “not to put any witnesses on to testify in his
behalf.” Harris testified that, in hindsight, she had lacked the
skills to “go deep enough” and “pick up on the[ ] clues” that
Ross may have been abused, such as Ross’s “very emphatic”
statement to her that Brown was not his father, or Gloria’s
“reluctance in talking about the family situation.” Harris
concluded: “I absolutely feel I did not do a competent job at
the penalty phase, . . . and I’m not happy to say that, but
that’s true.”

According to Lenoir’s billing records, Lenoir spent a
total of 114.5 hours preparing for the guilt and penalty
phases in this case. Robert Bryan, an experienced capital
defense attorney, testified that “looking at this billing by
itself . . . certainly raises . . . questions” about Lenoir’s
“performance.” Bryan also testified that “child abuse
evidence . . . can often make a substantial difference” in a
penalty phase, and that it is “very common” for a capital
defendant to ask counsel not to present a mitigation case or
call particular witnesses. In Bryan’s opinion, competent
counsel in 1982 would have conducted interviews of family
members, retained a mental health expert to investigate
issues such as child abuse, and obtained available
institutional records.

3.

At the reference hearing, the State presented evidence
that it would have sought to introduce in rebuttal if Ross had
offered the additional mitigation evidence. This included
evidence of Ross’s juvenile adjudications for three counts of
burglary involving the theft of guns, four counts of robbery,
and one adjudication for brandishing a “barbeque fork” at a
cook while at a probation camp. These juvenile
 ROSS V. DAVIS 43

adjudications were excluded from evidence during the
penalty phase of Ross’s trial, but the Referee found that “the
trial court would have permitted the prosecutor to introduce
[evidence of these adjudications] on rebuttal.” In re Ross,
10 Cal. 4th at 199.

In addition, the State presented Ross’s own statements to
his probation officer in 1978 that he had no remorse about
the Howard shooting, felt that he had acted in self-defense,
and was not concerned about going to prison. The State also
relied on Ross’s statements in a psychiatric report “prepared
for Los Angeles County Juvenile Court proceedings in 1974,
when [Ross] was 15.” Id. There, Ross stated that “he had
never been beaten or physically abused by anyone, that he
liked his stepfather, Brown, and had gotten along well with
him, and that he felt better when there was a man at home
fulfilling the role of father. [Ross], who had been held at a
camp, said that he wanted to go home.” Id. at 199–200.
Psychiatrist Michael Coburn, however, testified at the
reference hearing that adolescents “frequently deny that they
have been abused.”

The State also presented evidence of four instances of
misconduct by Ross while at Deuel Vocation Institution in
1978 and 1979, but the Referee “found that the prosecution
probably could not have presented [this] evidence” at the
penalty phase because the witnesses had no memory of the
events. Id. at 199–200, 207. The California Supreme Court
“accept[ed] this finding.” In re Ross, 10 Cal. 4th at 207.

4.

Following the hearing, the Referee filed an eleven-page
report containing his factual findings in response to the six
questions that the California Supreme Court had referred to
him. The Referee first found that Ross’s fifteen family
44 ROSS V. DAVIS

members who testified at the hearing “were sincere,” that
their testimony “inspire[d] confidence, trust, sympathy, and
belief,” and that “they were amicable, willing, and anxious
to testify now and would have been so in 1982.” After
summarizing these witnesses’ testimonies with varying
levels of accuracy, the Referee concluded that the penalty
phase jury would have deemed the evidence of abuse
suffered by Ross “believable” and “significant,” “could
[have] easily believed” the evidence of Ross’s good
character, and could have “infer[red]” and found
“instructive” that Ross “was negatively and severely
affected by the family breakup and enforced isolation from
his stepbrothers.”

Next, the Referee found that the “customary and indeed
mandatory” steps of interviewing family members,
obtaining relevant records, and employing mental health
experts “would have led to all of the evidence adduced at the
reference hearing.” The Referee concluded that, “sad to say,
nothing, absolutely nothing of a competent nature was done
by way of penalty phase preparation by defense counsel in
this case.” There were no tactical or financial reasons for the
“virtually non-existent” penalty phase preparation, including
“no investigation regarding rebuttal.” Further, “[a]lthough
[Ross] indicated some concerns about his mother’s health
and her being called as a witness,” the Referee found “no
substantial evidence to support any reasonable conclusion
that [Ross] requested curtailment of the presentation of
penalty phase evidence.”

With regard to potential rebuttal evidence, the Referee
found that the prosecution would have presented Ross’s
juvenile record and conducted “extensive cross-examination
of [Ross’s] witnesses.” Nevertheless, based on the evidence
adduced during the reference hearing, the Referee opined
 ROSS V. DAVIS 45

that “such [rebuttal] evidence would have been outweighed
by [Ross’s] mitigating evidence and that it is reasonably
probable that a more favorable determination would have
resulted in the absence of defense counsel’s failings.”

B.

To establish deficient performance by counsel, Ross
must demonstrate that counsel’s representation “fell below
an objective standard of reasonableness . . . under prevailing
professional norms.” Strickland, 466 U.S. at 688. The
relevant inquiry is not what defense counsel could have
done, but rather whether the choices made by defense
counsel were reasonable. See Babbitt v. Calderon, 151 F.3d
1170, 1173 (9th Cir. 1998). Courts “must indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Strickland, 466 U.S. at 689 (quotations
omitted). This means “strategic choices made after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable.” Id. at 690.

However, “counsel has a duty to present and explain all
available mitigating evidence, absent a tactical reason for not
doing so.” Demetrulias v. Davis, 14 F.4th 898, 913 (9th Cir.
2021). After all, “fail[ing] to present important mitigating
evidence in the penalty phase—if there is no risk in doing
so—can be as devastating as a failure to present proof of
innocence in the guilt phase.” Hamilton v. Ayers, 583 F.3d
1100, 1113–14 (9th Cir 2009) (quoting Mak v. Blodgett,
970 F.2d 614, 619 (9th Cir. 1992) (per curiam)). To uncover
mitigating evidence, “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S.
46 ROSS V. DAVIS

at 691; see also Wiggins v. Smith, 539 U.S. 510, 523 (2003)
(explaining that in analyzing deficient performance, instead
of focusing on whether counsel should have presented a
mitigation case, the court should instead analyze “whether
the investigation supporting counsel’s decision not to
introduce mitigating evidence . . . was itself reasonable”).
Satisfying this duty requires counsel “to conduct a thorough
investigation of the defendant’s background.” Williams v.
Taylor, 529 U.S. 362, 396 (2000).

According to the Referee’s findings, however, counsel
failed to fulfill that obligation, and thus performed
deficiently. The California Supreme Court accepted for
purposes of discussion the Referee’s finding that defense
counsel’s “performance was indeed deficient.” In re Ross,
10 Cal. 4th at 201, 204. However, the California Supreme
Court also stated that it “need not decide whether counsel’s
performance was truly deficient” and focused its analysis
solely on Strickland’s prejudice prong. Id. at 204. Because
the issue of deficient performance was left unadjudicated by
the California Supreme Court, we review this issue de novo.
Porter v. McCollum, 558 U.S. 30, 39 (2009); see also Avena,
932 F.3d at 1248. Nonetheless, to the extent the California
Supreme Court accepted the Referee’s findings of fact, we
afford them a presumption of correctness under AEDPA.
See 28 U.S.C. § 2254(e)(1) (providing that “a determination
of a factual issue made by a State court shall be presumed to
be correct.”); Avila v. Galaza, 297 F.3d 911, 921 (9th Cir.
2002) (noting that “AEDPA requires us to presume that the
referee’s factual findings are correct” when they have been
adopted by the state court).

The Referee found that the “customary and indeed
mandatory” steps of interviewing family members,
obtaining relevant records, and employing mental health
 ROSS V. DAVIS 47

experts “would have led to all of the evidence adduced at the
reference hearing[ ].” According to the Referee, Lenoir “had
delegated responsibility for the preparation of the penalty
phase” to Harris, and “the only penalty phase preparation
performed by her were 2 or 3 perfunctory conversations in
or about the court hallway with family members.” Further,
the Referee found that there were no tactical or financial
justifications for the “virtually non-existent” penalty phase
preparation, there was “no investigation regarding rebuttal,”
and there was “no substantial evidence to support any
reasonable conclusion that [Ross] requested curtailment of
the presentation of penalty phase evidence.” The California
Supreme Court did not reject any of these findings.

Based upon the Referee’s findings, trial counsel could
have investigated and presented the mitigation evidence
presented at the reference hearing, but they did not do so.
The California Supreme Court acknowledged that this
evidence was “substantial” enough that, “[i]f it stood alone,”
it “may well have . . . established prejudice.” In re Ross,
10 Cal. 4th at 205.

On federal habeas review, the district court, reviewing
de novo, held there is “no reason to reject the referee’s
finding” of deficient performance. Ross v. Davis, No. CV
96-2720 SVW, 2017 WL 2374101, at *15 (C.D. Cal. Apr.
26, 2017). The district court explained that after the guilt
phase, “the jurors knew little more about [Ross] than that
they had found him guilty on three counts of first degree
murder, five counts of robbery, two counts of burglary, one
count of rape, and that he was a member of a gang.” Id. “At
the end of the penalty phase, the only additional evidence the
jury had was that petitioner had a prior violent felony
conviction, resulting from his altercation with Mark
Howard, and that Evan Malett had received a life sentence
48 ROSS V. DAVIS

for his role in the Taylor murder.” Id. The district court
emphasized that the standard penalty phase jury instruction
at the time of Ross’s trial “essentially required the jury to
impose the death penalty if the evidence submitted showed
only aggravating circumstances.” Id., at *16. The district
court reasoned that “counsel’s failure to present a penalty
[phase] defense gave the jury little choice but to return a
verdict of death.” Id. This failure was “a gross deviation
from what competent counsel would have done.” Id. The
district court concluded, “[t]here is no adversarial process
when, in the face of three capital convictions, and multiple
accompanying felonies, defense counsel neither thoroughly
investigates nor puts forth mitigating evidence of any
substance.” Id.

Like the district court, we have little difficulty
concluding that defense counsel’s performance was
deficient during the penalty phase. The reference hearing
illuminated a wealth of potential mitigating evidence that
could easily have been discovered by Ross’s counsel.
Indeed, it took the investigator retained by habeas counsel
just fifteen to sixteen hours over less than two weeks to
interview all fifteen potential witnesses. In re Ross, 10 Cal.
4th at 196. Neither Lenoir nor Harris spent time obtaining
records, employing mental health professionals, or looking
into Ross’s background in any meaningful way to uncover
mitigating evidence—steps that competent capital counsel
should have taken. Id. While counsel spoke briefly to a few
family members, there was little (if any) follow up and none
of the mitigating evidence was presented. Id. There is no
suggestion in this record that counsel was aware of the
potential mitigating evidence and made a tactical decision
against presenting it. Cf. Dunn v. Reeves, 141 S. Ct. 2405,
2412 (2021) (refusing to find deficient performance where
the record indicated counsel was aware of the defendant’s
 ROSS V. DAVIS 49

mental health records and evaluations but ultimately decided
not to hire a mental health expert because “counsel’s choice
regarding experts involved a strategic decision entitled to a
presumption of reasonableness.”). Here, where counsel
“simply did not know” the mitigating evidence, this utter
failure to investigate meant that “they could not have
intelligently chosen one strategy over another.” Andrews,
944 F.3d at 1112.

C.

To establish prejudice, Ross must demonstrate that there
is a “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. When
examining the penalty phase of a capital case, the standard
requires “a reasonable probability that at least one juror”
would have recommended a sentence of life instead of death.
Wiggins, 539 U.S. at 537. This probability must be
“substantial, not just conceivable.” Richter, 562 U.S. at 112;
Shinn v. Kayer, 141 S. Ct. 517, 523 (2020).

The California Supreme Court rejected the Referee’s
finding of prejudice. In re Ross, 10 Cal. 4th at 205. The
state court noted that it deliberately did not ask the Referee
to make a finding on the ultimate question of whether Ross
was prejudiced by counsel’s performance, because that
question is a mixed question of law and fact. Id. To properly
analyze the prejudice prong requires a reweighing of the
evidence introduced and the mitigating evidence available.
Mayfield v. Woodford, 270 F.3d 915, 928 (9th Cir. 2001).
Here, the “record of the reference hearing indicate[d] the
referee did not review the trial record.” In re Ross, 10 Cal.
4th at 205. The Referee therefore could not have properly
50 ROSS V. DAVIS

assessed prejudice by “compar[ing] the actual trial with the
hypothetical trial that would have taken place had counsel
[performed] competently.” Id.

Instead, the California Supreme Court concluded that it
was not reasonably probable that the outcome of Ross’s
penalty phase trial would have been different had counsel
presented the mitigating evidence. Id. Although
“substantial,” the mitigating evidence was somewhat weaker
than the Referee had found. As the California Supreme
Court described it, the “mitigating evidence consisted of the
testimony of 15 members of petitioner’s family testifying
primarily that they loved petitioner, that he was protective
and caring to other family members, and that he was abused
as a child . . . , that petitioner lived in a violent
neighborhood, that his failure to be rehabilitated was partly
the fault of institutional authorities, and that he expressed
remorse for earlier crimes.” Id. However, this mitigating
evidence “was subject to substantial impeachment and
potentially devastating rebuttal,” which “alters the
equation.” Id.

Specifically, the state court recognized several
significant areas of impeachment weakening the evidence in
mitigation. First, the court found the psychiatric report in
which Ross told the psychiatrist that he had never been
beaten or abused by anyone and that he liked and got along
well with his stepfather, Brown, would have made effective
impeachment because it was in Ross’s own words and was
“more contemporaneous to the alleged incidents than the
later testimony of his relatives.” Id. at 206. Moreover, at the
time of trial, Gloria and Brown had reconciled and had
begun living together. Id. This, too, “would certainly have
weakened the impact of the abuse evidence.” Id. Finally,
Gloria’s statements to the probation officer that Ross was
 ROSS V. DAVIS 51

cooperative at home, but that when he was with his peers he
had no control of himself or his behavior, made “long before
the trial, and thus closer in time to the events at issue” would
have “undercut the mitigating evidence relating to [Ross’s]
behavior.” Id.

When discussing the “potentially devastating rebuttal”
evidence, the state court primarily focused on Ross’s
juvenile criminal history. Id. At Ross’s trial, “no evidence
of misconduct by [Ross] before he was 18 years old” was
presented to the jury. Id. However, the Referee found, and
the California Supreme Court accepted, that Ross’s juvenile
convictions for robbery and for brandishing a weapon at
probation camp would have been permitted as rebuttal
evidence. Id. at 207. Additionally, the state court
recognized that Ross’s sustained petitions on juvenile
burglary convictions involving theft of guns would have
been admissible to rebut the character evidence painting
Ross as a “kind, protective, caring person.” Id. The court
reasoned that the potential evidence was “not limited to any
singular incident, personality trait, or aspect of his
background,” so the “breadth and generality of [] good
character evidence warranted rebuttal evidence of the scope
offered.” Id. at 208.

The California Supreme Court also recognized how
almost all of the mitigation evidence was “painfully limited”
to Ross as a young child. Id. The state court then
“question[ed] how effective it would be for the defense to
present a parade of witnesses testifying about [Ross’s] good
qualities up to sometime around the age of 12 years, but
necessarily leaving an obvious gap during his teen years,”
id., when he incurred his series of juvenile convictions and
delinquent acts. This, the court found, opened the door to
52 ROSS V. DAVIS

the rebuttal evidence proffered by the prosecution. Id.
at 208–09.

Next, the California Supreme Court evaluated the
defense actually presented at trial. It concluded that
“counsel gave the penalty jury a reason to spare [Ross’s]
life.” Id. at 209. It found that “[c]ounsel did not simply give
up, but had a specific tactical approach, and presented
evidence and argument to support this approach.” Id.
(quotation and citation omitted). While defense counsel did
not present witnesses, Lenoir did “argue[] mitigating
inferences from the guilt phase evidence presented by the
prosecution” and presented three items of evidence through
stipulation and judicial notice.” Id. at 209–10. While the
court found that this defense was minimal, it still “presented
a coherent case, and avoided the impeachment and rebuttal
the new mitigating evidence would have elicited.” Id.
at 210.

The state court then walked through all the arguments
Ross’s defense counsel actually made in his closing
argument. Lenoir stressed the “harshness” of a life sentence
without the possibility of parole. Id. He compared the fate
of Ross’s accomplice in the Taylor murder, who was found
to have used a firearm in the crime, but who did not receive
a verdict of death. Id. Counsel also argued that the
prosecution “concede[d]” it did not prove Ross used a
firearm during the murders. Id.

Lenoir also introduced evidence that Mark Howard, who
Ross had assaulted, was a gang member. And Lenoir argued
that the jury “can reasonably infer that Mr. Ross behaved
during the two years he was in prison [for the assault of Mark
Howard]. There is nothing to show otherwise.” Id. This
supported Lenoir’s argument that Ross has proven he could
conform in a confined environment. Id. at 211. This
 ROSS V. DAVIS 53

argument, “a potentially compelling one” according to the
California Supreme Court, “could not have been made if
counsel had produced the mitigating evidence suggested in
this proceeding and triggered the rebuttal evidence” of
Ross’s nonconforming behavior while in juvenile detention.
Id. Lenoir also argued Ross’s young age was a mitigating
factor and “discussed a mitigating circumstance of the crime,
and mitigating facts of the Howard assault, including the
victim’s gang membership.” Id. The California Supreme
Court found that “[a]ll of these circumstances would have
justified a decision not to use the additional evidence
presented at the reference hearing even after full
investigation, and must be considered in deciding whether it
is reasonably probable the result would have been different
had the evidence been presented.” Id.

The state court acknowledged that there was no direct
evidence, due to Lenoir’s lack of memory, that failing to
present mitigating evidence was based on tactical reasons.
Id. at 213. “But even if we assume[d] counsel would have
presented the evidence,” said the court, “we conclude, after
comparing the trial as it actually occurred with the trial as it
would have been with the mitigating evidence, that there was
no prejudice.” Id. The court then cogently explained its
reasoning:

Petitioner was convicted of three murders on
two separate occasions, including the cold-
blooded killing of a father and fourteen-year-
old son, who were shot while lying on a bed,
one with his hands tied behind his back. He
personally raped the sister of the third murder
victim. Although the additional mitigating
evidence, had it been presented, might have
evoked sympathy, there was no compelling
54 ROSS V. DAVIS

connection between that evidence and the
crimes of this case. The crimes were gang-
conducted robbery murders, not sudden
explosions of angry violence or psychopathic
serial killings. Moreover, the mitigating
evidence would have elicited damaging
impeachment and rebuttal evidence, with an
inevitable adverse effect on the actual
defense strategy at trial. For all these reasons,
we find no reasonable probability the result
would have been different had the mitigating
evidence been presented.

Id. Ross argues that the California Supreme Court’s
rejection of his ineffective assistance of counsel claim was
both contrary to and an unreasonable application of
Strickland. We address these contentions in turn.

1.

The parties agree that once the reviewing court identifies
all the potential mitigating evidence then available to
competent counsel to present to the trial court, Strickland
requires that the court reweigh the “evidence in aggravation
against the totality of available mitigating evidence to
determine ‘whether there is a reasonable probability that,
absent the errors, the sentencer . . . would have concluded
that the balance of aggravating and mitigating circumstances
did not warrant death.’” Apelt v. Ryan, 878 F.3d 800, 832
(9th Cir. 2017).

Ross relies on our recent en banc decision in Andrews to
suggest that the California Supreme Court improperly
weighed the mitigating and aggravating circumstances. He
also argues that the similarity of the fact patterns between
Andrews and his case requires us to conclude that the
 ROSS V. DAVIS 55

California Supreme Court was unreasonable in its prejudice
determination. As to Ross’s legal argument, our decision in
Andrews lends no support. In contrast to the California
Supreme Court’s careful and meticulous reweighing of the
evidence in light of the potential mitigating evidence
adduced in the reference hearing in Ross, the California
Supreme Court in Andrews failed to separately analyze the
prejudice prong. This resulted in two unreasonable
applications of Strickland’s legal principles.

First, we concluded in Andrews that the California
Supreme Court committed legal error when it improperly
conflated the two Strickland prongs. In denying habeas
relief, the California Supreme Court held that Andrews’s
counsel had not performed deficiently and concluded “[f]or
the same reasons,” it was not probable that Andrews was
prejudiced by the failure to present the potential mitigating
evidence. Andrews, 944 F.3d at 1106. But, as we reasoned
in Andrews, “Strickland’s two prongs serve separate
purposes,” with the deficiency analysis focused on
“counsel’s adherence to reasonable professional standards,
while prejudice looks to the weight of the available evidence
and its effect on the case.” Id. at 1116 (citing Strickland,
466 U.S. at 693–95). In Ross, the California Supreme Court
did not commit this error. It expressly stated it was not
addressing the deficiency prong and instead focused
exclusively on prejudice. In re Ross, 10 Cal. 4th at 205.

Second, in Andrews, “the California Supreme Court
hardly engaged in the reweighing of evidence that
Strickland’s prejudice analysis requires.” Andrews,
944 F.3d at 1116. Indeed, the entirety of the court’s
“reweighing” of the evidence can be found in sixty-two
words in a single sentence. Id. (quoting In re Andrews,
28 Cal. 4th 1234, 1259 (2002)). Thus, we concluded even
56 ROSS V. DAVIS

“giving the California Supreme Court’s analysis all the
deference it is due along with every benefit of the doubt, only
an unreasonable application of Strickland’s principles could
lead to the conclusion that Andrews was not prejudiced by
counsel’s deficient representation at the penalty phase.” Id.
at 1117. The same is not true here. Rather, the California
Supreme Court devoted several pages of its opinion to the
prejudice analysis. The court discussed at length the
aggravating and mitigating evidence actually presented at
trial by the parties along with all the potential mitigation
evidence, and the “inevitable adverse effect” that the
additional rebuttal and impeachment evidence would have
had. In re Ross, 10 Cal. 4th at 205–13. Considering that
“AEDPA demands that ‘state-court decisions be given the
benefit of the doubt,’” Andrews, 944 F.3d at 1116 (quoting
Pinholster, 563 U.S. at 181), the thorough analysis by the
California Supreme Court here cannot fairly be compared to
the brief aside the California Supreme Court gave to its
Strickland prejudice analysis in Andrews.

And as to the facts, although there are some similarities
between the crimes for which Andrews and Ross were
convicted, Andrews involved readily available potential
mitigating evidence of such an order of magnitude that the
failure to investigate and present that evidence, and the
California Supreme Court’s denial of habeas relief under
Strickland, represented “the type of ‘extreme malfunction []’
in the operation of a state’s criminal justice system that
justifies the intervention of a federal habeas court.”
Andrews, 944 F.3d at 1099 (quoting Richter, 562 U.S.
at 102).

Like Ross’s crimes, the “facts of Andrews’s crimes
inspire little sympathy.” Andrews, 944 F.3d at 1100.
Andrews participated in a drug-related robbery that resulted
 ROSS V. DAVIS 57

in the murders of three persons. He was convicted of the
first-degree murder of those persons, rape, sodomy, and
robbery, and the jury found four special circumstances to be
true, making him eligible for the death penalty. Id. The jury
sentenced Andrews to death on each of the murder counts.
Id. at 1101.

As in Ross’s case, Andrews’s lead defense counsel, who
was also Gerald Lenoir, made a limited presentation during
the penalty phase. Defense counsel stipulated that Andrews
was twenty-nine at the time of the murders and that Andrews
had previously pleaded guilty in Alabama to armed robbery,
escape, and robbery, stipulations which the prosecutor
introduced into evidence. Id. Defense counsel submitted
sworn affidavits explaining that in connection with
Andrews’s prior murder conviction, it was his co-defendant
who actually used a firearm to kill the victim. Id. No
witnesses for the defense were called. Id.

In both cases, the California Supreme Court affirmed the
convictions on direct review. In both cases, on habeas
review, the court appointed a Los Angeles Superior Court
judge to conduct a reference hearing and to take evidence
and answer a series of questions. And this is where the two
cases diverge in the nature, extent, and gravity of the readily
available mitigating evidence.

The prosecutor in Andrews’s case portrayed him as a
“vicious animal.” Id. at 1099. Defense counsel failed to
employ the “standard investigative techniques” and “simple
persistence” that would have revealed humanizing evidence
that could have allowed the jury to understand how it was
that Andrews came to commit these violent crimes. Id.
at 1101. As eloquently described in Andrews, as a result of
counsel’s deficient performance:
58 ROSS V. DAVIS

The jury . . . did not know—because it was
never told—anything about Andrews’s
upbringing in a segregated and impoverished
area of Mobile, Alabama. Andrews’s
counsel did not tell the jury that Andrews, as
a child, had been confined to the Alabama
Industrial School for Negro Children known
as “Mt. Meigs”—a segregated, state-run
institution that, in the words of one witness,
was a ‘slave camp for children.’ The jury was
not told that, during these formative years,
Andrews was repeatedly subject to brutal
abuse at the hands of his state custodians. It
was not told that, from the age of fourteen,
Andrews was in the custody of Alabama state
institutions so degrading that federal courts
later found the conditions in those institutions
violated the Eighth Amendment’s prohibition
on cruel and unusual punishment. Nor was
the jury told that, in the view of mental health
experts, the severe abuse Andrews suffered
made his subsequent criminal behavior
understandable and predictable.

Id. at 1099.

The mitigating evidence withheld during the penalty
phase in Andrews’s case cannot be understated. A witness
testified, “the children committed to Mt. Meigs in the 1960s
had ‘no chance of rehabilitation’ and ‘came out much worse’
than when they entered. Indeed, the institution was ‘not
designed for rehabilitation.’” Id. at 1102. Children instead
“pick[ed] cotton and tend[ed] vegetables.” Id. And if that
weren’t enough, “[a]t night, there was little supervision,
leading to ‘a lot of sexual abuse of children.’” Id. Thirteen
 ROSS V. DAVIS 59

witnesses who had been committed to Mt. Meigs detailed its
abhorrent conditions. One witness recalled a truly disturbing
disciplinary trend:

When a child was disobedient in the fields or
failed to pick his quota of cotton, an overseer
would “poke a hole in the ground and order
him to lie down, to pull down his pants, and
to stick his penis into the hole. The overseer
would then beat the boy’s thighs with a stick,
often until the skin burst open. One witness
remembered seeing [Andrews] beaten in this
manner.”

Id. It was reported that, because of Andrews’s “young age
and slight build,” he was often the target of “substantial
sexual pressure,” particularly from “older, tougher boys,
from whom no protection or separation was provided.” Id.
at 1103. This physical and sexual abuse continued after
Andrews’s incarceration “[j]ust months after his release
from Mt. Meigs”: Andrews’s “counsel presented evidence at
the state court hearing that Andrews was ‘repeatedly raped
in prison.’” Id. And a former inmate described Andrews as
a “little sheep among wolves, a baby among a bunch of
grownups.” Id. Like Mt. Meigs, the prison in which
Andrews was detained had debilitating conditions, and
because it was newly integrated, “many of the [w]hite prison
guards resented the [b]lack prisoners, whom they called
‘things’ and ‘niggers.’” Id.

Andrews’s defense counsel’s closing argument was
extremely limited. Defense counsel “gave a short, rambling
closing statement” that “overwhelmingly focused on
Andrews’s age,” and argued that Andrews’s age alone “can
be sufficient mitigation.” Andrews, 944 F.3d at 1101.
60 ROSS V. DAVIS

Defense counsel “veered from topic to topic,” ineffectively
arguing that Andrews didn’t pull the trigger in his prior
murder conviction, and that his current co-defendant
received a life sentence. Id.

Our en banc court held that “it is unconscionable and
unreasonable to uphold a sentence of death when the jury
never heard readily available mitigating evidence of the
magnitude present here.” Id. We upheld the district court’s
grant of habeas relief on Andrews’s claim of ineffective
assistance of counsel at the penalty phase. Id.

By contrast, here, it was not unreasonable for the
California Supreme Court to conclude that the potential
mitigation evidence—which is limited to Ross as a young
child—was likely insufficient to give the jury a basis to
understand why Ross would engage in such heinous crimes
as an adult. Arguably, it might have swayed one juror to
vote for life upon hearing fifteen relatives ask for mercy, but
it was not unreasonable for the California Supreme Court to
have concluded otherwise. We therefore do not believe
Andrews controls the outcome of this case.

It also bears mentioning that defense counsel’s closing
argument on behalf of Ross was more detailed than on behalf
of Andrews, particularly with respect to mitigating
inferences. As the California Supreme Court reasonably
concluded in Ross, defense counsel “gave the penalty jury a
reason to spare his life.” In re Ross, 10 Cal. 4th at 209. He
“argued mitigating inferences from the guilt phase evidence
presented by the prosecution,” and also that Ross was only
twenty-one at the time of the murders, that Mark Howard
was a gang member, that it was Evan Malett who pulled the
trigger in the Taylor murders, and that Ross had proven he
can behave in a confined environment like prison. Id.
at 209–10.
 ROSS V. DAVIS 61

Ross contends that the California Supreme Court’s
consideration of defense counsel’s closing argument while
reweighing the evidence was contrary to Strickland because
it is axiomatic that “argument is not evidence.” But this is
not quite what the California Supreme Court actually did—
it did not consider counsel’s argument in a vacuum. Rather,
the state court considered counsel’s argument to the extent
he argued inferences legitimately drawn from the evidence.
Lenoir “argued mitigating inferences from the guilt phase
evidence presented by the prosecution” as well as mitigating
inferences from the three items of evidence introduced by
stipulation and judicial notice—Malett’s life sentence,
Howards’ gang membership, and Ross’s relative youth and
conformity during confinement. In re Ross, 10 Cal. 4th
at 209–10. Although argument is not evidence, it must be
based on inferences properly drawn from the evidence. And
drawing out those inferences in a way favorable to Ross was
counsel’s duty. Here, unlike in Andrews, the California
Supreme Court reweighed the evidence, including the
reasonable inferences rationally drawn from it, as required
by Strickland.

For example, defense counsel argued, “You can
reasonably infer that Mr. Ross behaved during the two years
he was in prison [for the assault on Mark Howard]. There is
nothing to show otherwise.” Id. at 210 (emphasis added).
And he pointed out that the diligent prosecutor would have
presented evidence to the contrary had it existed. From that,
defense counsel drew the inference he believed the jury
should make: “Some people cannot conform unless they are
in a confined environment, and he has proven that he can do
that.” Id. at 211. The California Supreme Court weighed
that evidence and those inferences against the hypothetical
trial where the potential mitigation evidence had been
introduced: “This argument, a potentially compelling one
62 ROSS V. DAVIS

when the jury must decide whether the defendant should
spend the rest of his natural life in a ‘confined environment,’
could not have been made if counsel had produced the
mitigating evidence suggested in this proceeding and
triggered the rebuttal evidence that petitioner had a sustained
juvenile petition ‘for brandishing a weapon based on
threatening a probation camp cook with a large serving
fork.’” Id.

Moreover, Ross cites no well-established Supreme Court
precedent precluding consideration of closing argument
when a reviewing court conducts the Strickland prejudice
analysis. To the contrary, both the Supreme Court and our
court have addressed defense counsel’s closing argument
when conducting a Strickland prejudice analysis. See, e.g.,
Williams, 529 U.S. at 369 (noting that the bulk of defense
counsel’s closing argument “was devoted to explaining that
it was difficult to find a reason why the jury should spare
[defendant’s] life” and ultimately concluding habeas relief
was warranted); Yarborough v. Gentry, 540 U.S. 1, 4 (2003)
(explaining how “tactical decisions in [counsel’s] closing
presentation [are] particularly important because of the
broad range of legitimate defense strategy at that stage” in
denying habeas relief); Bell, 535 U.S. at 701 (rejecting the
argument that waiving closing argument and “counsel’s
failure to advocate for life in closing necessarily left the jury
with the impression that he deserved to die” in denying
habeas relief); Andrews, 944 F.3d at 1101 (highlighting
counsel’s “short, rambling closing statement” as part of the
minimal mitigation case that warranted granting federal
habeas relief); Avena, 932 F.3d at 1251 (discussing a defense
closing argument that congratulated the jury on reaching the
right decision in convicting their client).
 ROSS V. DAVIS 63

Ross next argues for the first time on appeal 7 that the
California Supreme Court acted contrary to Strickland
because it improperly applied a causal nexus test between
the potential mitigation evidence and the home-invasion
robbery murders. See In re Ross, 10 Cal. 4th at 212–13.
After reviewing the strong aggravating factors in this case—
the three cold-blooded murders, including that of a man and
his fourteen-year-old disabled son, hands tied behind one of
their backs, and the rape of the sister of the third murder
victim—the California Supreme Court did note “[a]lthough
the additional mitigating evidence, had it been presented,
might have evoked sympathy, there was no compelling
connection between that evidence and the crimes of this
case.” In re Ross, 10 Cal. 4th at 213. It explained that “[t]he
crimes were gang-conducted robbery murders not sudden
explosions of angry violence or psychopathic killings.” Id.

In Eddings v. Oklahoma, 455 U.S. 104 (1982), the
Supreme Court held that it was an Eighth Amendment
violation to preclude the sentencing entity from considering
mitigation evidence because it was not mitigating as a matter
of law. There, the trial judge stated that, in “following the
law,” he could not “consider the fact of this young man’s
violent background,” meaning the mitigating evidence of
Eddings’s violent physical abuse by his father. Eddings,

7
Although we generally do not consider an issue raised for the first
time on appeal, we may address this issue when either (1) “review is
necessary to prevent a miscarriage of justice or to preserve the integrity
of the judicial process,” (2) “a new issue arises while appeal is pending
because of a change in the law,” or (3) “the issue presented is purely one
of law and either does not depend on the factual record developed below,
or the pertinent record has been fully developed.” Bolker v. C.I.R., 760
F.2d 1039, 1042 (9th Cir. 1985) (citations omitted). We elect to consider
the issue here to preserve the integrity of the judicial process and because
the record is fully developed for our consideration.
64 ROSS V. DAVIS

455 U.S. at 109. But, once again, this is not quite what the
California Supreme Court did here. It did not refuse to
consider the physical abuse of Ross by his stepfather Brown;
it did consider it and concluded Ross’s abuse did evoke
sympathy. In re Ross, 10 Cal. 4th at 195. However, the state
court noted that all of the abuse had ended when Brown left
the family when Ross was age twelve. Id. at 208. And in
stating that there was “no compelling connection between
that evidence” and these crimes, the court was merely stating
that the early childhood abuse Ross had suffered had failed
to sufficiently explain why Ross had committed the heinous
crimes of which the jury had just found him guilty,
especially in light of the potential rebuttal that Ross has an
extensive record consisting of gun-related juvenile offenses.

For example, in Avena v. Chappell, we found that
potential mitigating evidence that defense counsel failed to
present prejudiced the defendant precisely because it
explained to the jury why the brutal crimes were committed.
For Avena, evidence of “habitual PCP use, as well as the
effects the drug had on his demeanor” provided
“considerable potential . . . to argue . . . [its] use contributed
to [Avena’s] violent and erratic behavior on the night of the
carjacking homicides.” Avena, 932 F.3d at 1252. Here, the
potential mitigating evidence of abuse, while indisputably
significant, sheds no light on why Ross would have
committed the three cold-blooded murders and rapes, or why
the jury should not impose the death penalty given the
heinous nature of the crimes. See In re Ross, 10 Cal. 4th
at 212–13. We conclude that the California Supreme
Court’s decision was not contrary to Strickland.

2.

The California Supreme Court’s decision denying
Ross’s claim of ineffective assistance of counsel during the
 ROSS V. DAVIS 65

penalty phase for lack of prejudice was a reasonable
application of Strickland. 28 U.S.C. § 2254(d)(1).

To begin, we defer to the California Supreme Court’s
finding that the additional mitigation evidence uncovered at
the reference hearing was “substantial.” Id. at 205. While
growing up, Ross was abused extensively by his stepfather,
and “[e]vidence of abuse inflicted as a child is especially
mitigating.” Andrews, 944 F.3d at 1117; see also Summerlin
v. Schiro, 427 F.3d 623, 635 (9th Cir. 2015) (en banc)
(referring to family history and abuse as “classic mitigation
evidence”). All fifteen available witnesses would have
asked the jury for a life sentence instead of death, a plea for
mercy that the jury should have heard. See Livaditis v.
Davis, 933 F.3d 1036, 1048 (9th Cir. 2019).

The California Supreme Court properly reweighed the
old and new mitigating evidence against the existing
aggravating evidence. “Courts considering additional
evidence in post-conviction proceedings must ‘evaluate the
totality of the available mitigation evidence—both that
adduced at trial, and the evidence adduced in the habeas
proceeding in reweighing it against the evidence in
aggravation.’” Mann v. Ryan, 828 F.3d 1143, 1160 (9th Cir.
2016) (en banc) (quoting Williams, 529 U.S. at 397–98).
When the state habeas record includes new factual
allegations or evidence that the court reasonably finds
subject it to a “potentially devastating rebuttal,” In re Ross,
10 Cal. 4th at 205, the court may reasonably conclude that
the mitigating evidence “is of questionable mitigating
value.” Pinholster, 563 U.S. at 201.

Here, the California Supreme Court recognized that
Ross’s potential classic mitigating evidence—physical
abuse and good character—did not cover Ross’s post-
adolescent period following Gloria’s separation from Brown
66 ROSS V. DAVIS

when Ross was twelve. And while substantial testimony
painted Ross as a kind and nurturing person as a child and
young adolescent, the California Supreme Court found that
there was no evidence of Ross’s continuing good character.
Indeed, the prosecutor introduced evidence that by the time
Ross turned eighteen, he was a gang member who had
already shot Mark Howard six times in the chest and torso
over a dispute about a radio. The California Supreme Court
questioned just how “effective it would be for the defense to
present a parade of witnesses testifying about petitioner’s
good qualities up to sometime around the age of twelve
years, but necessarily leaving an obvious gap during his teen
years.” In re Ross, 10 Cal. 4th at 208. Because the
California Supreme Court recognized that practically all the
mitigating evidence was “painfully limited” to a pre-
adolescent Ross, id., the court reasonably concluded the jury
would not have been swayed by it against imposing the death
penalty in light of the potential rebuttal and impeachment
evidence and the heinous circumstances of the murders.

Had the potential mitigating evidence been admitted at
trial, potentially damaging impeachment and rebuttal
evidence would have been triggered, according to the
California Supreme Court. See id. at 205. This evidence
was particularly devastating because it filled the gap from
the time Brown stopped beating Ross at age twelve to his
gang membership and shooting of Howard at age eighteen.
Between the ages of twelve and eighteen, Ross developed an
extensive juvenile record: four counts of robbery, three
counts of burglary involving the theft of guns, and one count
of brandishing a fork in a threatening manner at a cook while
in custody. Id. at 207. The California Supreme Court
reasonably determined this evidence was admissible “to
rebut evidence portraying [Ross] as a kind, protective, caring
person.” Id.
 ROSS V. DAVIS 67

Ross argues that this evidence may not have been
admitted had counsel solely focused on his family
background and the physical abuse he endured at the hands
of Brown. But even assuming that defense counsel had
found the good character evidence, but decided not to
introduce it in mitigation, the California Supreme Court
reasonably determined the testimony about the physical
abuse itself was impeachable in two ways: by Ross’s
mother’s prior statements and by Ross’s own prior
statements. Id. at 206. The state court reasonably found that
the statements Gloria made to Ross’s probation officers
highlighting how Ross’s problems only started after she
separated from Brown and how Ross was “by far the worst”
out of her six children and “show[ed] a great deal of
resentment towards all types of people,” statements made
closer in time to his juvenile crimes, would have undermined
her trial testimony. And the facts that at the time of trial
Gloria had reunited with Brown and that they were living
together would surely have been elicited to question the fact
and extent of any abuse Ross suffered. Ross’s own
statements to a psychiatrist at the age of fifteen that he liked
his stepfather Brown and was not abused at home further
undermined the testimony about the abuse. Id. at 200.
Because this statement was closer in time to the alleged
abuse, the court reasonably determined it carried more
weight than the potential mitigation testimony would have
carried. Id. Considering that these statements and actions
are logically inconsistent with the claimed abuse, the
California Supreme Court reasonably concluded that the
mitigating evidence of abuse would have been weakened in
reweighing the mitigating evidence. 8

8
As the California Supreme Court itself noted, Ross could have
countered this impeachment evidence with argument about how victim
68 ROSS V. DAVIS

The California Supreme Court also found Ross’s
argument that his defense counsel could “parse” the
character evidence into discrete periods failed as a matter of
law. It explained that the purpose of rebuttal at this stage
was to present a “balanced picture of the defendant’s
personality.” Id. at 208. The court elaborated: “Evidence
that petitioner was a good child, but committed various acts
of misconduct as a teenager and then as an adult, presents a
more balanced picture than evidence that petitioner was a
good child, then later committed adult crimes, deleting
accurate evidence of petitioner’s juvenile record.” Id.
at 208–09. It reasonably concluded, “[c]haracter evidence
cannot be parsed so finely.” Id. at 209.

The circumstances of the murders, as well as the murders
themselves, were aggravating factors. Ross “was convicted
of three murders on two separate occasions, including the
cold-blooded killing of a father and his fourteen-year-old
[disabled] son, who were shot while lying on a bed, [the
father] with his hands tied behind his back.” Id. at 213. Ross
personally twice raped the sister of the third murder victim,
Michael Taylor. Id. The state court judges used words such
as “sadistic, unbelievably cruel, senseless,” and “cold-
blooded” to describe the murders. In re Ross, 10 Cal. 4th at
213. Indeed, these facts “inspire little sympathy.” Andrews,
944 F.3d at 1100; see also Cain v. Chappell, 870 F.3d 1003,
1021 (9th Cir. 2017) (“[I]n light of the aggravating
circumstances involving the brutal murders of a couple in

denial and inconsistent forms of behavior are common in abusive
situations. See In re Ross, 10 Cal. 4th at 206. The court nevertheless
reasoned that “petitioner’s own words, more contemporaneous to the
alleged incidents than the later testimony of his relatives, would have
made effective impeachment.” Id. Under AEDPA, we must defer to this
finding.
 ROSS V. DAVIS 69

their sixties, the thirteen blows administered to [the
husband], the attempted rape of [the wife], and Cain’s prior
violent acts, the state court’s denial of this claim was not
unreasonable.”).

The jury heard further aggravating evidence of Ross’s
violence. Ross shot Mark Howard six times in the chest in
a dispute over a radio, an act the prosecutor described as
essentially “a[nother] murder where the victim, fortunately,
did not die.” Based on the extent of the aggravating
circumstances here, as well as the rebuttal evidence of
juvenile crime, the California Supreme Court reasonably
concluded that “even if [it assumed that] counsel would have
presented the [mitigating] evidence, . . . after comparing the
trial as it actually occurred with the trial as it would have
been with the mitigating evidence, [] there was no
prejudice.” In re Ross, 10 Cal. 4th at 213; see Shinn, 141 S.
Ct. at 524 (finding that because of the nature of the
aggravating circumstances, “[p]erhaps the most probable
reason for [the state court’s] no-prejudice determination is
simply that the new mitigation evidence . . . did not create a
substantial likelihood of a different sentencing outcome.”);
see also Livaditis, 933 F.3d at 1050–51 (9th Cir. 2019)
(finding the strength of aggravating evidence a factor in
favor of denying the Strickland claim under AEDPA
review).

Ross disputes that the nature of the murders was so
aggravating that the potential mitigation evidence could not
have shifted the balance between life and death in the mind
of at least one juror. But this argument is based on his
rearguing the weight of the evidence as to his presence at the
Hassan murders when the jury found that he was present and
participated in the murders. Ross also argues that the fact he
70 ROSS V. DAVIS

was not the triggerman 9 minimizes his role in the murders.
Yet the jury had just convicted him of the three heinous
murders, robbery, and rape. After carefully considering all
of the mitigating and aggravating evidence introduced at
trial—including Ross’s conduct during the trial, the potential
mitigating evidence, and the potential impeachment and
rebuttal evidence that could have been introduced—the
California Supreme Court concluded that a sentence less
than death was not reasonably probable. We cannot say that
the California Supreme Court’s conclusion was
unreasonable under all the circumstances presented here.

VI.

Certainly we would not find it unreasonable had the
California Supreme Court determined Ross was prejudiced
by counsel’s deficient performance. Even the State agreed
that “the [California Supreme Court] certainly could have
decided the matter differently.” But because the California
Supreme Court’s conclusion “was premised on logic and
reason,” it “cannot be fairly called unreasonable,” and thus
should not be disturbed. On this record, habeas relief cannot
be granted.

For the reasons stated herein, we AFFIRM the decision
of the district court.

9
The record is inconclusive on who actually fired the gun for all
three murders, meaning it is entirely possible that Ross was indeed the
shooter. However, no evidence established that fact and the prosecution
conceded it likely did not prove that Ross was the shooter beyond a
reasonable doubt.