concurring in part and dissenting in part:
I join in most of the Court’s opinion but respectfully dissent from Parts III and V. I agree that Bean did not procedurally default his claim of ineffective assistance of counsel, that Bean received effective assistance of counsel at the guilt phase of the trial and that there was sufficient evidence to convict Bean of the Fox murder. I disagree, however, on the two remaining issues: I conclude that Bean received effective assistance of counsel at the penalty phase and that joinder of the Schatz and Fox indictments did not deprive Bean of a fundamentally fair trial.
I
While I recognize that Bean’s representation at the penalty phase was by no means flawless, it did not “so undermine[ ] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The Supreme Court has read the Sixth Amendment right to trial to include a right to counsel. See id. at 685, 104 S.Ct. 2052. To satisfy this right to counsel, it is not enough “that a person who happens to be a lawyer is present at trial alongside the accused.” Id. Rather, the “accused is entitled to be assisted by an attorney ... who plays *1088the role necessary to ensure that the trial is fair.” Id. The Supreme Court has set a low standard for counsel to qualify as effective because “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation ... [but] is simply to ensure that criminal defendants receive a fair trial.” Id. at 689, 104 S.Ct. 2052. The Court, therefore, has stated:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
Id. The Court cautioned that
The availability of intrusive post-trial inquiry into attorney performance ... would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of the counsel’s unsuccessful defense. Counsel’s performance and even willingness to serve could be adversely affected.
Id. at 690, 104 S.Ct. 2052. Thus, while we must ensure that an accused has effective counsel at trial and, in Bean’s case, at his sentencing hearing, we can do no more than require that the counsel provided was adequate.
The Supreme Court’s two part Strickland test governs our review of an accused’s counsel. It provides that a defendant claiming ineffective assistance must demonstrate that (1) counsel’s actions were outside the wide range of professionally competent assistance, and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See id. at 687-694, 104 S.Ct. 2052.
Bean’s counsel was not constitutionally ineffective during the penalty phase. Bean’s counsel presented nine witnesses with more than 200 pages of witness testimony (page number includes cross-examination of witnesses), including two psychiatric experts, Dr. Weissman and Dr. Blunt. Dr. Blunt testified that, after performing five neurological tests, she was convinced that Bean was organically brain damaged from three lesions on the brain. This brain damage, she testified, involved an inability to think, to form judgments, to plan or to appreciate the criminality of conduct. Dr. Weissman testified that he had used six different tests on Bean and discovered that Bean was suffering from organic personality disorder and mental retardation (Bean had the mental age of an eight to eleven-year old in terms of “thinking” and “capacity to understand his environment”). Dr. Weissman testified further that, although he had reached no firm conclusion, he found that Bean had “soft signs” of “potentially mild to moderate degree of organic ... brain damage.” Counsel’s presentation of the two psychiatrists was not, as the majority claims, a “failure to elicit mitigating testimony from mental health experts.”
Bean’s counsel also presented testimony from Bean’s family and friends which showed a very poor upbringing. The jury knew that Bean was whipped by his mother, was placed in classes for “slow learners,” was suspended from school several times, was made a ward of juvenile court at an early age, left home at age fifteen, and was interned at “Boys Ranch,” some sort of juvenile detention center. The jury could also have gleaned from the testimony that Bean’s father hit or whipped Bean, even though Bean’s father denied beating Bean when asked directly.1
Bean alleged that his counsel inadequately investigated his background, inexcusably delayed his neuropsychological testing, inadequately prepared the witnesses, asked the expert witnesses the wrong questions and, *1089overall, failed to present a compelling or reliable mitigation argument. Bean is correct that his counsel did a less than perfect job during the penalty phase. They could have presented Bean’s mitigating evidence in greater and more compelling detail. Their inadequacies, however, do not “ ‘amountf ] in every respect to no representation at all.’ ” Clabourne v. Lewis, 64 F.3d 1373, 1387 (9th Cir.1995) (quoting Blake v. Kemp, 758 F.2d 523, 533 (11th Cir.1985)). Bean’s arguments would have greater merit if the issue before this court were whether Bean’s counsel did a good job during the penalty phase of his trial. The issue here is, however, whether Bean’s counsel was constitutionally competent, a much lower standard.
This case differs markedly from other recent cases in which this court has held that counsel was constitutionally deficient during the penalty phase. In Smith v. Stewart, 140 F.3d 1263 (9th Cir.), cert. denied, — U.S. -, 119 S.Ct. 336, 142 L.Ed.2d 277 (1998), this court held that trial counsel provided ineffective assistance because counsel “provided no evidence at the penalty phase and virtually no argument,” despite the fact that evidence of mitigating circumstances “was rather near the surface.” Id. at 1269 (emphasis added). Counsel’s only argument involved “a few asthenic comments to the effect that Smith still denied his guilt and that he was just 30 years of age. Nothing else!” Id. at 1268,
In Cornell v. Stewart, 137 F.3d 1404 (9th Cir.), cert. denied, — U.S.-, 119 S.Ct. 450, — L.Ed.2d-(1998), counsel failed to present any evidence of the petitioner’s purported mental illness as a mitigating factor. Defense counsel’s argument at the sentencing heainng took a total of eight transcript pages. We held that “[tjhis almost complete absence of effort on the part of Correll’s counsel to investigate, develop, and present mitigating evidence, including evidence of Correll’s psychiatric history and his condition at the time of the murders, constitutes deficient performance ‘outside the wide range of professionally competent assistance.’ ” Id. at 1412 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). In addition, defense counsel met with his client for just five minutes in the month between the jury verdict and the pre-sentencing hearing.
Other cases are to the same effect. In Hendricks v. Calderon, 70 F.3d 1032 (9th Cir.1995), counsel failed to conduct any investigation into mitigating evidence without a strategic rationale to justify the lack of preparation. See id. at 1043. In Claboume, counsel “did not call any witnesses, introduce any evidence of Clabourne’s history of mental illness, or argue any mitigating circumstances beside Clabourne’s mental condition at the time of the offense.” Clabourne, 64 F.3d at 1384. Clabourne’s entire mitigation argument took up six pages of the sentencing hearing transcript. We held that “the total absence of advocacy [fell] outside Strickland’s ‘wide range of professionally competent assistance,’ ” and that counsel’s representation at the sentencing hearing “amounted] in every respect to no representation at all.” Id. at 1387 (citations and internal quotation marks omitted).
These cases are instructive; Bean’s counsel was not derelict in their duties compared to any of them. In these cases, counsel generally conducted no investigations, presented no mitigating evidence, made no arguments on behalf of their clients, and brought few (or no) witnesses to the stand. Of course, these cases do not stand for the proposition that only a complete failure to present mitigating evidence during the penalty phase will be sufficient to warrant a writ of habeas corpus for ineffective assistance of counsel, but they do serve as a valuable comparison. Bean’s counsel did offer mitigating evidence to show Bean’s background information and mental deficiencies and did make reasonable arguments on Bean’s behalf. Although it would have been preferable for counsel to have asked different questions, presented more detailed mental health evidence, and investigated Bean’s family background more carefully, the Constitution does not demand as much. Bean’s counsel was not guilty of a “total absence of advocacy” amounting to no representation at all. Clabourne, 64 F.3d at 1387. In my opinion, therefore, Bean does not satisfy the first prong of the Strickland test.
Furthermore, under the second prong of the Strickland test, it is unlikely that, had the more detailed evidence now available re*1090garding Bean’s background and mental health been presented to the jury, the outcome of the trial would have changed. The jury was exposed to the majority of the evidence this court now points to as mitigating factors. Certainly, some of the more graphic details of Bean’s childhood were not shared with the jury. The jury knew, however, that Bean spent time in juvenile detention, was whipped by his parents and left home at fifteen. Similarly, while the jury did not hear all the possible evidence of Bean’s mental difficulties, the jury did hear two experts testify to Bean’s brain damage. The added details discussed by the majority do not sufficiently change the overall picture of Bean’s condition and history such that there is a reasonable probability that the outcome of the sentencing hearing would be different. In my opinion, therefore, Bean does not satisfy the second prong of the Strickland test.
I believe that the district court’s decision to grant Bean a writ of habeas corpus for ineffective assistance of counsel during the penalty phase was error and should be reversed. I, therefore, respectfully dissent from Part III.
II
Nor do I believe Bean has demonstrated that he suffered actual prejudice from the district court’s discretionary refusal to sever Bean’s two murder counts. We address this issue on collateral review after the California Supreme Court has thoroughly considered the facts and arguments. People v. Bean, 46 Cal.3d 919, 251 Cal.Rptr. 467, 760 P.2d 996 (1988). Out of respect for important notions of federalism, comity and finality, our review should be deferential to the state court findings.
As a general matter, “[t]he propriety of a consolidation rests within the sound discretion of the state trial judge.” Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir.1989) (quoting Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th Cir.1976)). In order for this court to issue a writ of habeas corpus, Bean must have shown that the trial court’s failure to sever the counts against him “actually render[ed][his] state trial fundamentally unfair and hence, violative of due process.” Id. at 1502 (emphasis added); see also Herring v. Meachum, 11 F.3d 374, 377 (2nd Cir.1993) (“In considering whether a violation of due process occurred, the emphasis must be on the word ‘actually.’ ”) Neither the potential for prejudice nor even a high probability of prejudice will suffice; Bean must establish that prejudice actually resulted “from the events as they unfolded during the joint trial.” Herring, 11 F.3d at 377-378. The Second Circuit has clearly articulated the procedural posture for this habeas corpus review:
[Hjabeas petitioners challenging their state convictions under the general fairness mandate of the due process clause bear an onerous burden. Because of the significant procedural protection provided by direct review through the state system, we will not lightly conclude that state court proceedings were so arbitrary as to violate due process.
Herring, 11 F.3d at 378 (citing Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (presumption of fidelity and legality attaches to state criminal proceedings)).
Bean alleges, and the majority agrees, that Bean was prejudiced because joinder allowed evidence of the Schatz crime, evidence that otherwise would not have been admitted, to be used by the prosecution to bolster its weak Fox case. The California Supreme Court found that the evidence for the two murder counts was not cross-admissible. Certainly, this finding heightens the likelihood of prejudice because joinder risks tainting the jury’s view of the accused with evidence that would not otherwise have been admissible. It does not lead, however, to an automatic finding of actual prejudice. Also, as Bean and the majority point out, joinder in these cases can be especially dangerous when strong evidence of one crime is used to bolster weak evidence of a second crime. The California Supreme Court considered all these arguments and still concluded, I think correctly, that Bean did not show that there was a substantial danger of prejudice from the joinder of the two offenses.
We have not directly addressed this issue in a habeas case. In United States v. Johnson, 820 F.2d 1065 (9th Cir.1987), a direct review case, however, we noted in dictum that:
*1091Even if the evidence would not have been admissible, the district court did not abuse its discretion because the jury was not likely in this case to confuse which count particular evidence was introduced to establish. When evidence concerning the other crime is limited or not admissible, our primary concern is whether the jury can reasonably be expected to “compartmentalize the evidence” so that evidence of one crime does not taint the jury’s consideration of the other crime.
Johnson, 820 F.2d at 1071 (emphasis added). The court elaborated further, “[ejven where evidence of one of the crimes is particularly weak, ... we consider[ ] principally whether the jury was likely to have been confused.” Id. at 1071 n. 6 (citations omitted). The main issue we must decide is, therefore, whether the jury was reasonably able to distinguish evidence introduced in one case from evidence introduced in the other.
The California Supreme Court found that the evidence against Bean was sufficient on both counts and that “no spillover effect” of the evidence occurred. Bean, 46 Cal.3d at 940, 251 Cal.Rptr. 467, 760 P.2d 996. I agree. The evidence introduced for both the Fox offense and Schatz offense was simple and distinct, making it likely that the jury was able to keep the evidence separate when considering the various counts against Bean. See Herring, 11 F.3d at 378 (“Moreover, because the evidence with respect to each murder was distinct and easily compartmentalized, the risk of jury confusion at petitioner’s trial was significantly limited.”). The evidence of the Fox offenses consisted of Bean’s fingerprint on a pair of sunglasses, witness testimony that Bean had been seen multiple times “casing” the Fox residence, and Bean’s inconsistent testimony regarding ownership of the sunglasses. The evidence in the Schatz charge consisted of witnesses testifying to Bean’s incriminating statements, a partial palm print, fingerprint, and footprints at the Schatz residence, and witness testimony. Neither the Fox nor the Schatz crimes involved complicated scenarios or crimes that involved confusing scientific evidence or complex transactions.
In addition, the two crimes were distinctly different. The Schatz crime involved two assailants breaking into a mobile home at night and attacking two victims with a hammer. The Fox crime involved a single assailant attacking a single woman with his fist or foot as she entered her house during the day. The evidence used to prove such distinctly distinguishable crimes is unlikely to have confused the jury. The majority, for example, is concerned that the jury would have been confused as to which crime the instructions regarding aiding and abetting, and conspiracy applied. This, I think, underestimates jury intelligence. Surely a jury would be able to realize that instructions regarding aiding and abetting, or conspiracy apply to the crime involving multiple assailants and not to the crime involving a single assailant. The majority also suggests that acquittal as to one of the counts would have established that the jury had compartmentalized the evidence. This is not an appropriate guide where, as here, there is sufficient evidence to convict the accused on both counts. In any event, the jury did bring in separate verdicts for the two murders and decided Bean should be sentenced to death for the Schatz murder and should get life imprisonment for the Fox murder.
The majority also worries that the trial court did not properly instruct the jury. It cites Johnson for the proposition that a jury can only compartmentalize the evidence if properly instructed to do so by the court. The jury instruction we found to be sufficient in Johnson was “[e]ach count charges a separate crime. You must decide separately what the evidence in the case shows about the crime.” Id. at 1071. This instruction is not significantly more explicit than the instruction in Bean’s trial. Although the trial court’s instructions to the jury were certainly limited regarding the separateness of the crimes and their evidence, the jury was told it must “decide each count separately” and that “[e]ach count charges a distinct offense.”
While I realize that the joinder of two counts always includes the risk that the jury wiE be prejudiced against a defendant charged with multiple crimes or that the jury wiE consider the evidence cumulatively, “join-der of offenses has long been recognized as a constitutionally acceptable accommodation of the defendant’s right to a fair trial.” Her*1092ring, 11 F.3d at 377. In this case, I am not convinced that Bean has presented evidence to show that he suffered actual prejudice as a result of the joinder of his two murder counts. I, therefore, must dissent from Part V. I would not second-guess the California Supreme Court’s holding that joinder was not an abuse of discretion, and would affirm Bean’s conviction for the Fox murder.
. When asked at the Sentencing Hearing what he would have done to Bean if he had not come home, Bean’s father answered "I was going to whip him.” In addition, when asked if he had anything to do with Bean leaving home, Bean's father answered "Well, I tell you, when you got kids you got to have a firm hand with them, you know, when you are raising them up. See, when the boys get a certain age they don’t want to mind, see. But at my house, when they come up, I was the boss of the house. I don’t let my kids rule my house. I’m the one that rules the house.”