dissenting:
I respectfully dissent. A previous panel of this court already has held that Petitioner failed to prove that defense counsel was ineffective at the guilt phase of this trial. Ainsworth v. Calderon, 138 F.3d 787 (9th Cir.), amended by 152 F.3d 1223 (9th Cir.1998). In my view, the same result should obtain with respect to the penalty phase. Petitioner did not demonstrate that his defense lawyer’s performance was constitutionally deficient. Even assuming that it was, Petitioner failed to demonstrate prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (establishing two-part test for claims of ineffective assistance of counsel). Accordingly, I would reverse.
A. Defense Counsel’s Performance at the Penalty Phase
We “must indulge a strong presumption that counsel’s conduct falls within the wide *879range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. In particular, we must avoid “the distorting effects of hindsight.” Id. The presumption of competence is warranted in this case.
First, counsel did engage in preparation. Although memories understandably faded between the time of trial in 1979 and the time of depositions 12 years or more later, it is clear that counsel made some efforts to investigate.1 Counsel remembered talking with Petitioner’s mother and with at least one other potential witness, in addition to the four witnesses whom he did call. He reviewed school records. Petitioner recalled that counsel discussed with him his background and social history.
Second, defense counsel affirmatively presented significant mitigating evidence.
(1) Petitioner’s teen-aged niece testified that she had spent weekends, and whole weeks, visiting Petitioner in San Francisco. They went to the mountains and fished. They painted and drew, and Petitioner helped her develop these skills. Petitioner treated animals kindly. His niece felt entirely safe with him.
(2) Petitioner’s sister testified that Petitioner was married and had an infant son. She never saw him hurt anyone. She told of his intelligence and explained that he had finished high school and taken college classes. Petitioner’s sister also recounted their father’s suicide when Petitioner was a very young man.
(3) A former girlfriend testified that, in the eight years they had known each other, she never saw him exhibit violence. Indeed, she recalled a particular incident demonstrating Petitioner’s kindness. After a little girl had been hit by a car, Petitioner comforted the child and sent for the fire department and the child’s mother, staying with the child until fire fighters arrived. The former girlfriend felt safe with Petitioner. In fact, they had lived together for a year, during which he was employed full-time and had discussed marriage.
(4)A former landlady testified. She and her husband had met Petitioner several months before. They knew Petitioner as a tenant, as a reliable worker, and as a friend. Petitioner worked part-time for the landlady, doing maintenance and carpentry. In addition, the two couples socialized. This witness never saw Petitioner with a gun and never observed any violent behavior. She, too, felt safe with him.
The foregoing evidence was favorable and humanizing. Even the untoward question posed to the former girlfriend was not wholly problematic, for two reasons. First, the 'jury already knew that Petitioner was an armed robber, so this testimony would not have been surprising in context. Second, it showed that this woman who knew Petitioner very well maintained a favorable opinion of his character despite the occasional presence of guns in his life. That made her testimony more, not less, credible.
Third, in addition to presenting favorable mitigating evidence, defense counsel gave a closing argument. He asked the jury to spare his client’s life, pointing out that Petitioner would never be free (and thus would not be a danger to others) if they rejected the death penalty.
*880The majority has demonstrated that a different lawyer might have presented more, different, or better mitigating evidence, but that is not the test. Although defense counsel did not give an ideal presentation, the record does not establish that his performance was constitutionally inadequate.
B. Analysis of Prejudice
Even assuming that counsel’s performance was deficient, his imperfections do not undermine my confidence in the outcome of the trial. There is no “reasonable probability that, absent the errors, the senteneer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052; see also Williams v. Taylor, 529 U.S. 362, 396-97, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (applying Strickland to a penalty phase). That is so for two reasons.
First, much of the mitigating evidence on which the majority relies presented a double-edged sword, opening the door to harmful rather than helpful inferences.
• The majority faults counsel for failing to explore police reports evidencing Petitioner’s prior convictions for armed robbery. (Maj. op. at 874.) Counsel did argue on legal grounds that evidence of those convictions was inadmissible. Once those arguments failed (and the majority does not suggest that they should have succeeded), it is difficult to see how details of the robberies could have been more helpful to Petitioner than the bare fact of the convictions, which was the evidence admitted.
• Next, the majority relies heavily on the absence of detail that was presented to the jury about Petitioner’s “troubled childhood.” (Maj. op. at 875.) However, the whole picture . that emerges from the later-developed proffer is not nearly so dismal as the majority paints it. More accurately, what Petitioner experienced was a largely normal middle-class childhood with alcoholic parents and a troubled Air Force-officer father.2 The investigator noted the parents’ good intentions; although young when Petitioner was born, “they attempted to be good parents at that time.” Both Petitioner and his sister acknowledged that “their parents attempted to do a lot for the children in terms of taking them places and giving them material things.” Petitioner’s sister stated that, although their parents drank too much, the children “were never neglected.” Even when Petitioner began to get into trouble, he received family support; as Petitioner’s sister described it, their mother (a homemaker and bookkeeper) tried repeatedly to help Petitioner, paying his fines and getting him out of jail. Significantly, too, Petitioner’s “troubled childhood” did not stand in the way of his obtaining an education, *881working productively, and developing artistic talent when he was motivated to do so.
• The majority cites Petitioner’s military record as more evidence that counsel should have introduced. (Maj. op. at 875.) Is evidence of drug thefts, absences without leave, a psychiatric evaluation of “Antisocial Personality,” courts martial, and an undesirable discharge (following a civilian conviction for forgery) mitigating? Reasonable minds can differ, but I can see no prejudice from the absence of Petitioner’s military record.
• Lastly, the majority asserts that expert opinions regarding substance and other abuse could have turned the tide. (Maj. op. at 875-77.) However, the full record contains other evidence that casts doubt on the credibility of these experts’ views. I already have alluded to a different assessment of the conditions of Petitioner’s childhood. Moreover, when being released from prison shortly before committing the murder in this case, Petitioner was described as being “mature,” possessing “superior” intelligence, and having the skills to get along “well” with his family, to obtain work, and to “cope with problems of stress and drug usage.” In other words, these observations cast doubt on the experts’ views that he was or is unable to overcome the consequences of substance abuse and a difficult childhood.
Importantly, Petitioner never argued that he was under the influence of alcohol or drugs when he committed the murder. Instead, his defense was that he did not do it. Therefore, in the context of this trial, any evidence of substance abuse could not have mitigated the circumstances of the crime itself. For the evidence to be mitigating in this case, it would have had to persuade the jury to spare Petitioner’s life merely because of his substance abuse.
That brings me to the second reason why I believe there is no reasonable doubt that the jury would have come to the same result, even with this evidence. The additional mitigating evidence does not show prejudice because the murder itself was exceptionally cruel. Of course, every death-penalty case involves terrible facts, but juries can and do consider just how terrible the facts are when weighing the mitigating evidence.
For me, two facts stand out beyond all others. The first is what Petitioner said when he decided that the victim must die. During the 24 hours during which the victim whimpered and begged for help and mercy while she slowly bled to death, Petitioner’s accomplice urged him to take her for medical care or leave her where someone else might find her. Petitioner calculatedly refused because, he said, he had been in prison for robberies and did not want to go back. The second chilling fact is what Petitioner said when he decided to remove the victim’s sanitary napkin and rape her while she was dying: “Okay, you bitch, now is it.”3 In view of her injuries, *882a pathologist testified, the rape would have caused excruciating pain. These and other aspects of the crime were fresh in the minds of the jurors. I am confident that they would have been unmoved by an argument that Petitioner was a drug abuser.
C. Conclusion
The performance of defense counsel at the penalty phase of the trial in 1979 was, although not perfect, within the range of competent representation. Even if it was not, Petitioner suffered no actual prejudice as a result of counsel’s deficiencies. For those reasons, I would reverse the judgment of the district court, and I dissent from the majority’s contrary holding.
. Lack of recollection of details 12 or more years after the events in question is not, by itself, a reason to distrust counsel or counsel’s judgment. Petitioner’s memory, too, was quite hazy due to the passage of time. Indeed, when so much time has passed it is even more important to keep in mind the presumption of adequate assistance of counsel.
. The jury was informed that Petitioner’s father was troubled; Petitioner’s sister testified about their father’s suicide. The majority exaggerates even the father's history when it says that "on at least two occasions [he] attempted to kill the young boy.” (Maj. op. at 875.) When Petitioner was 13 years old, his father threw large chunks of cement at him, while drunk at a family outing at the beach. Petitioner was not injured. When Petitioner was about 16 years old, he was riding with his father in a truck, and his father tried to roll the truck. Again, he was uninjured. Petitioner did believe that his father was trying to kill him on both occasions, rather than acting out momentary drunkenness or depression, but there is no support for the majority's suggestions that there were other such occasions or that Petitioner was a "young boy” at the time.
. The majority suggests that it is inappropriate to rely on Bayles’ testimony about the rape. (Maj. op. at 870-71.) However, the very reason why the California Supreme Court held that the trial judge's error was harmless was that there was unrebutted physical evidence corroborating Bayles' account of the rape. People v. Ainsworth, 45 Cal.3d 984, 248 Cal.Rptr. 568, 755 P.2d 1017, 1031-32 (1988). The corroborating physical evidence included: the victim’s bra was found miles from her body; the body was naked from the waist down; and the victim’s car, which also was distant from the location *882where the body was dumped, contained a used sanitary napkin. Moreover, the California Supreme Court’s reason for holding that the trial court erred was technical: Although the trial judge would have considered the relative prejudice and probative value of the testimony in response to defense counsel's objection on that ground, the judge had not made a record detailing that balancing. Id. at 1031. Nothing in the court's opinion suggests that Bayles’ testimony was inaccurate, contradicted, or otherwise inadmissible.