concurring and dissenting:
I respectfully disagree with the Court’s conclusion that Pirtle’s constitutional rights were violated because of his counsel’s failure to request a diminished capacity jury instruction. Pirtle’s claim of diminished capacity was based on his voluntary use of illicit drugs hours before the murders in combination with the long-term effects of chronic drug abuse on his brain. Washington’s voluntary intoxication instruction provided an adequate vehicle for the jury to evaluate the evidence introduced by the defense. Both counsel argued extensively that the only issue for the jury to decide was Pirtle’s ability to form premeditated intent to kill. Under Washington law, the instruction Pirtle’s counsel requested provided sufficient guidance to the jury in its deliberations. Pirtle’s ineffective assistance of counsel claim fails under state and federal law and I would uphold his conviction and death sentence against all other claims contained in the habeas petition.
I
As a preliminary matter, I agree with the Court that there is no procedural bar to our consideration of this issue for the first time on appeal. Under Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), and our own case law, a state rule barring relitigation of claims during state habeas proceedings does not bar a federal court’s consideration of those claims during federal habeas review. See Calderon v. United States Dist. Court, 96 F.3d 1126, 1131 (9th Cir.1996) (citing Ylst, 501 U.S. at 806, 111 S.Ct. 2590).
II
On the merits, however, after reviewing the entire state criminal trial transcript and the evidence discovered in the federal habeas litigation, I cannot agree with the Court’s conclusions regarding Pirtle’s Sixth Amendment claim.
Under the first prong of the Strickland analysis, the Court articulates three premises for its holding that a reasonably competent attorney would have requested a diminished capacity instruction: (1) Washington recognizes a diminished capacity defense; (2) Pirtle’s defense theory was that he suffered a seizure or explosive dyscontrol at the time of the murders; and (3) Pirtle was not intoxicated at the time of the murders. The record fails to support the conclusion reached by the Court.
The totality of the record adduced at trial shows that Pirtle was intoxicated, as defined in the jury instructions,1 at the *1176time of the murders. The defendant’s experts relied heavily on the fact that, while Pirtle’s chronic drug use rendered Pirtle mentally ill and prone to seizures, it was his acute drug use just hours before the murders that induced the seizure or explosive dyscontrol. In other words, drug and alcohol abuse was the catalyst that triggered the mental or bodily impairment created by years of chronic substance abuse by Pirtle, matóng premeditation impossible.
For example, defense expert Dr. Dennis Pollack, a clinical psychologist, testified on direct:
Q Do you have an opinion, Dr. Pollack, based upon reasonable, medical ■ probability, whether or not Mr. Pir-tle’s mental disorder would have been affected by a significant use of drugs or alcohol within three to four hours preceding the incident at the Burger King restaurant?
A Well, given the fact that he kind of just recently used drugs, it would increase the difficulties in controlling behavior with regard to the Axis II diagnosis, the personality problems, but also the prolonged history of the drug abuse and the alcohol. It basically takes a long time to come down from the influence of those drugs when you have been doing to the brain what he had been doing.
Q How would Mr. Pirtle’s mental disorder, particularly speaking of the Axis I diagnosis you have made, be affected by the ingestion of drugs and/or alcohol of a considerable quantity three- to four hours prior to—
A I think it would be in—
Q (Continuing) — the incident
A (Continuing) — would increase the pathological behavior you find under the Axis II diagnosis, so Axis I, obviously if you ingest alcohol and you . have been a sober alcoholic, you are no longer a sober alcoholic and you are going to drink a lot....
Q Assuming that Mr. Pirtle consumed drugs or alcohol, cocaine, possibly crystal meth, speed and alcohol within a three- to four-hour time frame prior to the incident, do you have an opinion based upon a reasonable degree of medical certainty whether or not Mr. Pirtle lacked the ability to form premeditated intent to kill on May 17th, 1992?
A I have an opinion.
Q And what is that opinion?
A I don’t think that at the time he was capable of premeditation, planned, organized act.
Q And was that mental disorder affected by the consumption of those drugs and/or alcohol?
A Yes.
(Emphasis added).
Similarly, another defense expert, clinical psychologist Dr. Karen Sheppard, testified on direct:
*1177Q Doctor, you would agree basically, and isn’t it your testimony, that the effect of drugs on people who abuse drugs is bad?
A Well, there are several things that you need to take into consideration. You are looking at the length for which they have been doing .it and the type of chemical that they have ingested over time, and in Mr. Pir-tle’s case, we are looking at intoxication, as well as long-term effects of his drug usage.
(Emphasis added).
Dr. Phillip Murphy, another clinical psychologist hired by the defense, provided even more testimony regarding the effects of Pirtle’s acute drug use on his mental condition at the time of the murders:
Q You have indicated that certain parts of the brain have a lower threshold for seizures than others.
A Uh-huh.
Q And you spoke of that when I asked you a question about drugs affecting the limbic system. Are there other factors that suggest or that appear to correlate between the proneness to a seizure or not?
A In general, when you have somebody with a seizure disorder, you want to make sure that they don’t become excessively fatigued, that they don’t become excessively stressed, and that they stay off drugs and alcohol. Those are the three factors which are going to lower their seizure threshold.
Q If a person was on — if there was evidence that a person had used cocaine, methamphetamine, would that be the kind of drugs you refer to when you say there is a correlation?
A Yes, definitely.
Q' Now, what I want to ask you is, there is the factors and there is the sequence. What could trigger such a seizure?
A Okay, one — one, we would have to imagine that we’ve got some irrita-tive focus, meaning based upon the neuropsychologicals that we are saying that he has a focal right hemisphere deficit: Now that’s at a functional level. What that would translate to potentially is either a biochemical lesion,’ okay, which is one you may not be able to see, for example, like on an MRI or CAT scan, or an anatomical lesion which you could see ■ on those. In cases similar to Mr. Pirtle’s, I would predict that you probably would see some anatomic or biochemical lesion on either an MRI or a SPECT or something like that.- Given that ir-ritative focus, then when it’s assaulted, especially by stimulant drugs, it is going to increase the probability of those deficient and more epileptic-type cells kicking out at high discharge rates. Then you look at the factors of fatigue, stress, and the other' effects of those drugs.... So those would be factors you would imagine as going to, you know, let the seizure occur, and that would be true with any type of seizure, but temporal lobe, certainly.
(Emphasis added). Dr. Murphy offered his explanation of the relationship between Pirtle’s acute drug use and the condition caused by chronic drug use at the time his crime spree was interrupted by a customer whose car triggered the drive-through signal inside the Burger King:
Then what occurs is that the car comes through the drive-through, signals whatever that device is and it’s a sound' — it’s *1178a beep, okay? Now, this man [Pirtle] at the time, because of the amount of stimulant drugs he is on, is extremely paranoid. The beep again, temporal lobe, right temporal encoding, sets up even greater paranoia. That’s when he rushes to get the female victim, okay, and then takes her out.
(Emphasis added). Dr. Murphy explained further on cross-examination, using a ear as an analogy to Pirtle’s brain, the effects the acute drug use had on Pirtle:
With — in Mr. Pirtle’s case there is no evidence of him having significant enduring frontal lobe problems. Okay? Except for to the right. However, when he is under the influence of substances that wipe out his frontal. lobe function, then you are looking at something more wrong than simply one stuck valve, because basically there is no gas in the tank or no oil in the engine.
(Emphasis added). Dr. Jonathan Lipman, a. neuropharmacologist2 called by the defense, testified similarly, indicating that chronic use causes brain sensitivity to seizures, and thus “perverts” the normal symptoms of acute use into mental illness.
This defense expert testimony refutes the Court’s conclusion that Pirtle was not intoxicated.- The only reasonable conclusion when the record is viewed as a whole is that Pirtle was “impaired” and thus “intoxicated” at the time of the murders. Under State v. Hansen, 46 Wash.App. 292, 730 P.2d 706 (1986), amended by 737 P.2d 670 (Wash.Ct.App.1987), the determination to seek a voluntary intoxication instruction to match the defense expert testimony mandates a holding that counsel’s performance was not deficient. In Hansen, the defendant suffered from a mental condition caused by chronic drug use, and was under the influence of drugs at the time of the crime. 730 P.2d at 708. Rejecting a claim that the trial court erred by giving only a voluntary intoxication instruction, and not an additional diminished capacity instruction, for the jury’s consideration of the defendant’s asserted lack of capacity, the Washington Court of Appeals held:
[W]e find that the instructions given by the trial court were sufficient to permit Hansen to argue, based on the evidence, his theory of the case. The court did not err, therefore, by refusing to give the additional instructions on diminished capacity that Hansen proposed.
Id. at 711.
The Court tries to distinguish the rule in Hansen on the ground that Pirtle was not intoxicated and concludes Hansen is a “very different case.” But that ignores the extensive evidence the defense itself offered to explain Pirtle’s behavior when he eliminated the two eye-witnesses to his robbery.
The Court notes that Pirtle said he was “coming down” from the drugs and that his sister testified similarly. ■ Despite the testimony from Pirtle’s experts who considered the amounts and types of drugs Pirtle ingested, and consistently concluded Pirtle’s acute drug use affected him at the time of the murders, the Court nonetheless finds it reasonable to conclude Pirtle was not intoxicated. The Court ignores what common sense dictates: one can be “coming down” from drugs and still be “impaired” and thus “intoxicated.” To assert otherwise imposes an unrealistic result: under the Court’s logic once the effects of drugs have reached their height and begun to dissipate, one is now “coming down” and thus is no longer “intoxicated.” I wonder how many DUI defendants have made the *1179same argument to other juries and — not surprisingly — to no avail.
Nevertheless, the Court errs by resting its conclusion on two portions of testimony from Pirtle and his sister, thus discounting the in-depth testimony of Pirtle’s own experts, not to mention a common sense interpretation of Pirtle’s own testimony. The only reasonable conclusion from the entire record is that Pirtle was intoxicated, as defined in the jury instructions, at the time of the murders, and any seizure was at least in part caused by this intoxication. Pirtle’s counsel cannot be said to have acted deficiently under Washington criminal defense standards by failing to request a diminished capacity instruction, since, under Hansen and on this evidence, the voluntary intoxication instruction provided an adequate vehicle for guiding the jury’s examination of the evidence. Indeed, examining the language of the two instructions set forth in footnote 1, supra, it is hard to see what difference inclusion of the other instruction would have made based on this record.
But assuming for the sake of argument that counsel erred by failing to seek a diminished capacity instruction, under the second Strickland prong there is no reasonable probability that this error affected the jury’s verdict.
First, the jury received a total of twenty-one instructions, including an instruction that defined premeditation, another on intent, and one that allowed the jury to convict on the lesser crime of Second Degree Murder, which does not require proof of premeditation. When the instructions are viewed as a whole, it is apparent that had the jury accepted Pirtle’s theory of the case, it could have found him guilty of Second Degree Murder instead of Aggravated First Degree Murder. Another instruction stating the jury could consider Pirtle’s diminished capacity through some chemically induced “temporal or frontal lobe sensitivity” would have made no difference. Both sides presented this case to the jury responding to Pirtle’s claimed lack of capacity to premeditate triggered by his drug use, both chronic and acute.
Second, even assuming that Washington’s diminished capacity instruction somehow encompasses more on these facts than the voluntary intoxication instruction, to say that the missing instruction would have made a difference' also ignores the prosecution’s evidence, and Pirtle’s own damaging admissions when he testified in his defense — testimony the jury obviously credited. The defense put on five experts saying Pirtle could not premeditate; the jury found that he did.
Pirtle testified to the following: on the morning of the murders he took a knife from his mother’s kitchen and drove to a church next to the Burger King. He parked and staked out the restaurant for three to five minutes. He lay in wait for a male co-worker to depart, and then, in order to gain admittance, he pushed the buzzer and falsely told victim Tod Folsom that he was the recently departed employee. After tying up both of the victims on duty inside and robbing the restaurant, he had the presence of mind to answer the drive-through signal and tell the customer that the restaurant was not yet open. He then murdered the victims one at a time using another knife he obtained at the restaurant. He took several steps to immediately cover up the crimes, including hiding his soiled clothes in a neighbor’s compost pile, leaving the car at a bus station, and then writing the chilling “Joe” letters from jail which contained lurid threats3 against the lives of other Burger King employees.
*1180Pirtle’s claim that he only intended to rob the Burger King for drug money was belied by his admission that on the morning of the crimes his mother had a sizable amount of money on hand at the house where he lived. ■ He also testified that of five fast food restaurants in the area, the Argonne Road Burger King was the only one where he would be recognized, and yet he did not wear a disguise. Pirtle also had a motive: he had been fired from his Burger King job for sexual harassment, and victim Dawnya Calbreath had been one of two women present to witness his termination.
The Court’s conclusion, that Pirtle’s actions are consistent with only an intent to rob and not an intent to kill, is puzzling. For instance, the Court recites Pirtle’s explanation for why, after the robbery was complete, Pirtle went back to the freezer holding the victims. According to Pirtle, he brought Dawnya Calbreath out of the freezer in order to “intimidate” her into not telling the police that he robbed the store. Only then, after Calbreath grabbed his knife and Pirtle saw blood on her hand, did he “snap”, and kill her.
What the jury obviously concluded in rejecting this analysis is why he would try to “intimidate” only Calbreath? Tod Folsom could identify Pirtle, yet Pirtle did not try to “intimidate” Folsom. In fact, after Pirtle knocked Calbreath unconscious and repeatedly slashed her throat, he went back to Folsom. Did he attack Folsom in a furious rage, indiscriminately stabbing him to death? No. By his own admission at trial Pirtle had the presence of mind to ask Folsom to take off his glasses, lay face down on the floor'so Pirtle, as he instructed Folsom, could knock Folsom out. Once Folsom complied, Pirtle crushed his skull with a fire extinguisher, and then cut Folsom’s throat. As ’was obvious to the jury by its verdict, these facts are entirely consistent with a premeditated intent to kill.
As if this were not enough, the jury heard Pirtle describe in his own words how, after slashing both victims, he “heard Dawnya’s body making noises” and went back to cut her throat some more, nearly decapitating her. “A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.” Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quotation marks and citation omitted). In view of these facts, I respectfully disagree with the Court’s conclusion that, had there been a diminished capacity instruction given as well, there is a reasonable probability that the jury’s verdict might have been different. There was no prejudice under Strickland.
Ill
The voluntary intoxication instruction was sufficient to guide the jury in evaluat*1181ing the defense theory regarding lack of premeditation. Moreover, in light of the totality of the record before us, Pirtle cannot establish that his counsel’s failure to request a diminished capacity instruction amounted to prejudice “so serious as to deprive [him] of a fair trial....” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Because the jury obviously considered Pir-tle’s theory that due to his drug use he could not premeditate, and rejected it based on ample evidence showing premeditated intent to kill, I respectfully dissent from the Court’s decision approving issuance of the writ.
. Washington's Voluntary Intoxication Instruction (given to jury):
No act committed by a person while in a state of voluntaiy intoxication by alcohol or *1176drugs is less criminal by reason of that condition. However, evidence of intoxication by alcohol or drugs may be considered in determining whether the defendant acted with intent or premeditated intent to kill.
The term intoxication refers to an impaired mental and bodily condition which may be produced either by alcohol, which is a drug, or by any other drug.
Washington's Diminished Capacity Instruction (not requested or given):
Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant has the capacity to form ___ [Fill in the requisite mental state (which here would 'be "the premeditated intent to kill the two victims”)].
. According to Dr. Lipman, ''[n]europharma-cology is that expertise dealing with our understanding of the effects of drugs on the brain.”
. Four months after his arrest, in an apparent attempt to implicate another person named *1180“Joe” as the person responsible for the murders, Pirtle sent letters ostensibly from "Joe” to other Burger King employees. The following is an excerpt from one of these letters read to the jury:
My hands are the ones that took the lives of these two worthless employees there. Just so you don’t think this is some kind of bullshit, here are some things you can check out that only I could know. Check and see if they ever located tire male victim's wristwatch and ask if his glasses were broken or not, or how close the fucking female’s head was from being completely cut off,... I really loved taking those two lives that day.
You see, Phil, I love to take human life. It is so fucking easy to viciously kill people for me and it makes me want to come all over myself.
The jury was certainly entitled to weigh this revolting evidence in concluding that Pirtle formed the premeditated intent to kill his victims during the robbery.