Richard Montiel v. Kevin Chappell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICHARD GALVAN MONTIEL, No. 15-99000
Petitioner-Appellant,
D.C. No.
v. 1:96-cv-05412-
LJO-SAB
KEVIN CHAPPELL, Warden, San
Quentin State Prison,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted April 16, 2021
San Francisco, California

Filed August 5, 2022

Before: William A. Fletcher, Andrew D. Hurwitz, and
Michelle T. Friedland, Circuit Judges.

Opinion by Judge Friedland
2 MONTIEL V. CHAPPELL

SUMMARY *

Habeas Corpus/Death Penalty

The panel affirmed the district court’s judgment denying
Richard Galvan Montiel’s habeas corpus petition in which
he challenged his California conviction and capital sentence
for a 1979 robbery and murder.

The California Supreme Court affirmed Montiel’s
conviction and sentence on direct appeal and later summarily
rejected “on the merits” Montiel’s state habeas petition.
Montiel argued primarily that he was denied his Sixth
Amendment right to effective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), at his 1986
penalty-phase trial. The district court certified two issues for
appeal: first, whether his penalty-phase attorney, Robert
Birchfield, rendered ineffective assistance of counsel by
failing to present independent expert testimony from a
psychopharmacologist that Montiel’s intoxication with
phencyclidine (“PCP”) prevented him from being fully
culpable for the crimes; and, second, whether Birchfield
rendered ineffective assistance by failing to prepare defense
witness Dr. Louis Nuernberger to testify regarding Montiel’s
mental health. In addition to pressing those certified issues,
Montiel argued that Birchfield was ineffective for failing to
investigate and challenge the factual foundation for the
opinion of prosecution expert Dr. Robert Siegel, and for
failing to investigate and present evidence of Montiel’s
psychosocial and family history to explain why he abused
PCP and other drugs.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 MONTIEL V. CHAPPELL 3

Applying Browning v. Baker, 875 F.3d 444 (9th Cir.
2017), the panel expanded the certificate of appealability to
include the latter two claims, and considered whether
Birchfield’s performance, considered as a whole, amounted
to ineffective assistance of counsel at the 1986 penalty trial.

Montiel argued that this court should review his
Strickland claims de novo, because the California Supreme
Court’s four-sentence denial of his claims “on the merits,”
without issuing an order to show cause, signifies that the
court concluded only that his petition did not state a prima
facie case for relief such that there is no “adjudication on the
merits” to which this court owes deference under the
Antiterrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. § 2254(d). The panel disagreed, citing Cullen v.
Pinholster, 563 U.S. 170 (2011), in which the Supreme
Court afforded AEDPA deference to the California Supreme
Court’s summary denial of a habeas petition raising a
Strickland claim—even though the state court had not issued
an order to show cause. The panel therefore applied the
deferential AEDPA standard, asking whether the denial of
Montiel’s claims “involved an unreasonable application of”
Strickland.

The panel assumed, for the sake of argument, that the
alleged errors constitute deficient performance under the
first prong of Strickland. The panel held, however, under
AEDPA's highly deferential standard of review, that the
California Supreme Court could reasonably have concluded
that Montiel's claim fails under the second prong of
Strickland. The panel wrote that, comparing the mitigation
evidence that was offered with what would have been
offered but for Birchfield’s alleged errors, the state court
could reasonably have decided that there was not a
substantial likelihood that the jury would have returned a
4 MONTIEL V. CHAPPELL

different sentence if Birchfield had not performed
deficiently.

The panel addressed uncertified issues in a memorandum
disposition.

COUNSEL

David A. Senior (argued) and Matthew L. Weston, McBreen
& Senior, Los Angeles, California; Saor E. Stetler, Mill
Valley California; for Petitioner-Appellant.

Julie A. Hokans (argued), Supervising Deputy Attorney
General; Sean M. McCoy and Ivan P. Marrs, Deputy
Attorneys General; Kenneth N. Sokoler, Supervising Deputy
Attorney General; Michael P. Farrell and James William
Bilderback II, Senior Assistant Attorneys General; Rob
Bonta, Attorney General; Office of the Attorney General,
Sacramento, California; for Respondent-Appellee.

OPINION

FRIEDLAND, Circuit Judge:

In 1979, Richard Galvan Montiel was convicted by a
California jury of the robbery and murder of Gregorio Ante,
as well as the robbery of Eva Mankin. He was sentenced to
death in 1986, following a penalty-phase retrial. The
California Supreme Court affirmed Montiel’s conviction
and sentence on direct appeal and later summarily rejected
“on the merits” Montiel’s state habeas petition. Montiel
filed a petition in federal district court for a writ of habeas
corpus, which was denied.
 MONTIEL V. CHAPPELL 5

Montiel appeals the district court’s decision, arguing
primarily that he was denied his Sixth Amendment right to
effective assistance of counsel at his 1986 penalty-phase
trial. The district court certified two issues for appeal: first,
whether his penalty-phase attorney, Robert Birchfield,
rendered ineffective assistance of counsel by failing to
present independent expert testimony from a
psychopharmacologist that Montiel’s intoxication with
phencyclidine (“PCP”) prevented him from being fully
culpable for the crimes; and, second, whether Birchfield
rendered ineffective assistance by failing to prepare defense
witness Dr. Louis Nuernberger to testify regarding Montiel’s
mental health. In addition to pressing those certified issues,
Montiel argues that Birchfield was ineffective for failing to
investigate and challenge the factual foundation for the
opinion of prosecution expert Dr. Robert Siegel, and for
failing to investigate and present evidence of Montiel’s
psychosocial and family history to explain why he abused
PCP and other drugs. We expand the certificate of
appealability (“COA”) to include those issues and therefore
consider all arguments Montiel raises concerning whether he
received ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668 (1984), at his 1986 penalty trial.

We address all four arguments related to Birchfield’s
performance at the 1986 penalty trial as a single issue of
ineffective assistance of counsel, in compliance with
Browning v. Baker, 875 F.3d 444 (9th Cir. 2017). We
address that issue in this opinion. We decline to certify other
issues for which Montiel seeks certification. We address
those uncertified issues in a memorandum disposition that
accompanies this opinion.

We review the California Supreme Court’s denial of
Montiel’s Strickland claims under the deferential standard
6 MONTIEL V. CHAPPELL

required by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). We may grant relief only if “the state
court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v.
Richter, 562 U.S. 86, 103 (2011). Although there is merit to
Montiel’s Strickland claims, we conclude that the California
Supreme Court’s ruling denying relief was not so lacking in
justification that it meets that demanding standard. We
therefore affirm the district court’s denial of habeas relief.

I.

A.

At his 1979 trial, Montiel was represented by Eugene
Lorenz. The focus of the defense was not to contest that, on
January 13, 1979, Montiel had robbed Eva Mankin and
killed Gregorio Ante. Rather, the defense’s primary
argument was that Montiel’s intoxication with PCP and
alcohol precluded him from forming the specific intent to
commit the crimes.

The following facts are consistent with the California
Supreme Court’s summary in its decision on direct appeal
from the 1979 guilt- and penalty-phase trials. See People v.
Montiel (Montiel I), 39 Cal. 3d 910, 916–20 (1985).

1. Prosecution’s Case

On the morning of January 13, 1979, Montiel was sitting
on the stairs outside his house when a neighbor who lived
directly across the street, Eva Mankin, drove up to her home.
Mankin began unloading grocery bags from her car, placing
them on her front porch and setting her purse down next to
 MONTIEL V. CHAPPELL 7

them. As she returned to her car to close the doors, she saw
Montiel approaching through her front yard accompanied by
two small children. Montiel reached the porch before
Mankin could enter the house. He told her that he had come
over to help her carry the groceries inside. Mankin thanked
him, refused, and asked him to leave, but Montiel repeated
himself two more times and the final time “lowered his
voice” and “said it in such a tone that [she] knew he meant
it.” Mankin then opened the front door, and Montiel told
each child to bring a bag into the house.

After bringing the bags inside, the children left, but
Montiel remained, standing about six feet inside the home.
Mankin noticed that his eyes were “staring” and “glassy.”
She asked him several times to leave but received no
response, so she took him by the shirt and slowly led him
outside. She went back inside the house and locked the door.

Montiel then broke the glass in the door and reached in
to unlock it. He re-entered the house as Mankin was calling
the police. Montiel demanded her purse, grabbed it, and ran
out of the house. The police later found Mankin’s purse in
her car, missing two checkbooks, three bank books, and
eight dollars in cash.

Later that morning, Montiel arrived at the home of Victor
Cordova. Victor lived with his wife, Maury Cordova,
Maury’s sister Lisa Davis, and Lisa’s boyfriend, Tom
Stinnett, among others. 1 Stinnett was in the front yard when

1
In Montiel I, the California Supreme Court spelled the Cordovas’
last name as “Cardova” and spelled Maury’s name as “Maruy.” See, e.g.,
39 Cal. 3d at 917. We use the spellings supplied by Victor Cordova at
the 1986 penalty trial and adopted by the California Supreme Court in
People v. Montiel (Montiel II), 5 Cal. 4th 877 (1993). See, e.g., id.
at 899.
8 MONTIEL V. CHAPPELL

Montiel arrived and walked into the house. Although Maury
was acquainted with Montiel, Stinnett did not know him and
followed him inside. Stinnett noticed that Montiel had a cut
on his left arm by the wrist, and he helped Montiel clean and
bandage the wound. In the process, he removed a piece of
skin from Montiel’s arm with a razor blade. According to
Stinnett, Montiel told him that he “did a purse snatch and
went through a window.” Stinnett observed that Montiel
seemed “jittery” and “shaky” and appeared to be under the
influence of drugs. Montiel gave a checkbook to Maury,
asking her to cash some checks and buy him some clothing.
Maury refused, so Victor gave Montiel a change of clothes.

Maury noted that Montiel was acting strange that
morning. She testified that Montiel entered the house
without knocking, which was unusual. She said that he was
“more rowdy” than normal, “acted meaner,” and was “giving
orders,” whereas before he had been “polite.”

Lisa Davis did not know Montiel but testified that he
acted “kind of weird.” At one point, Montiel tried to wipe a
mole under her eye without explanation, and, later, he
grabbed her arm and her purse and told her to get him some
beer. 2

2
The prosecution’s witnesses gave varying responses about
Montiel’s speech and movements that morning. Mankin noted that “[h]e
walked slow” but said that she did not notice slurring in his speech or
unevenness in his walk. Stinnett noted that Montiel was “talking fast,
half of it was Spanish, half of it was English” but said that he noticed
nothing unusual about Montiel’s walk or other movements, other than
that Montiel appeared “nervous” and “shaky.” Maury did not notice
anything unusual about Montiel’s eyes or the way he walked, and she
said that his speech was not slurred. She did, however, note that he
appeared to be under the influence of PCP. Victor testified that Montiel
 MONTIEL V. CHAPPELL 9

Eventually, Victor Cordova took Montiel by motorcycle
to Montiel’s brother’s house. On the way, Victor’s
motorcycle broke down. The men dismounted, and Victor
pushed the motorcycle toward a nearby gas station. Victor
called Maury from a payphone, asking her to pick them up,
and began working on the motorcycle. At the same time,
Montiel walked up the driveway of a nearby house. About
ten minutes later, Montiel returned and told Victor that “he
just killed a man,” and Victor testified that Montiel “made
an expression like he killed him, like, you know, like you do
a goat.” Montiel told Victor that he had left two beer cans
in the man’s house and, in a threatening manner, asked
Victor to retrieve them. Victor refused, so Montiel left and
soon returned carrying a can of beer and a sack. 3

About fifteen minutes later, Maury Cordova and Tom
Stinnett arrived in a pickup truck. Victor and Stinnett loaded
the motorcycle into the back of the pickup. Victor rode in
the back with the motorcycle, and Montiel rode in the cab
with Maury and Stinnett. According to Stinnett, Montiel
said that “he cut some man’s head off” and that “he was the
devil and a ride with him would be on top.” When they
arrived at the Cordova’s house, Victor and Montiel went into

“wasn’t making no sense” and “was high tempered,” and that Victor
“knew he was messed up on PCP.” When asked about Montiel’s
movements, Victor said that he “was walking different” and that “his
coordination was off a little.” Davis said that “[h]is words were kind of
stuttering, and they didn’t come out right.”

3
When asked to describe whether Montiel showed signs of PCP
intoxication shortly after the murder, Victor described Montiel’s actions
as “more or less the same” as before but said that “[h]e was talking more
clearly.”
10 MONTIEL V. CHAPPELL

a bedroom, where Montiel produced over $300 in twenty-
dollar bills, as well as some pennies.

Victor told Montiel to leave the house and called a taxi.
Montiel “was still flipping out, still talking,” saying “[h]e
was the devil.” When no taxi arrived, Victor drove Montiel
to a motel and dropped him off. Later that day, Maury
discovered a sack in her bedroom containing Mankin’s
checkbooks, a large number of pennies, and a 12-inch
“butcher knife” that was “covered in blood and had a broken
handle.” 4 Maury and Stinnett washed off the knife and threw
it into a nearby canal. Later that night, Montiel returned to
the Cordovas’ house to ask about the knife, and Victor and
Maury told him not to worry about it.

The next day, the police contacted Victor. When Victor
saw Montiel later that day and asked if he knew what he had
done, Montiel nodded his head. Subsequently, Montiel told
Victor that he was worried he might have left fingerprints on
the telephone in the man’s house. Soon after, Victor left
California to avoid testifying. He was arrested about two
months later in Arizona as an accessory after the fact and
returned to California to testify in exchange for immunity.

The murder victim was a 78-year-old man named
Gregorio Ante. At trial, his relatives testified to the
following events. On the morning of the murder, Gregorio’s
son Henry Ante arrived at his father’s house to help with
some repairs and to help his daughter, who arrived soon
after, move a piano that she was purchasing from Gregorio.

4
Stinnett also described seeing the paper sack containing “three or
four dollars[’] worth of pennies, checkbooks, some bank statements,
[and an] old rusted[-]up knife.” Davis also saw the items and testified
that she later rolled up the pennies, counting seven dollars’ worth.
 MONTIEL V. CHAPPELL 11

Henry’s daughter paid Gregorio $200, and Henry saw
Gregorio place the money in his left shirt pocket. Henry’s
daughter drove away with the piano. Gregorio then gave
Henry a twenty-dollar bill from the shirt pocket, after
looking through his pants pockets and finding only a ten-
dollar bill in the left pocket and two one-dollar bills in the
right. Henry left, and as he went out the front door, he saw
two men on a motorcycle in front of the house.

David Ante, Gregorio’s grandson, arrived a short time
later and found his grandfather’s body on the floor. The
body was found in a pool of blood, with the left pocket of
Gregorio’s pants pulled out. There was $180 in the left
pocket of Gregorio’s “inside shirt,” which he wore
underneath another layer, and no other money was found on
his person. In his bedroom, the mattress had been moved off
the bedframe, and the pennies that Gregorio collected were
missing.

The autopsy revealed two superficial wounds on
Gregorio’s right cheek, two on the side of his neck, one on
the lower neck, and one large, deep wound mid-neck,
probably caused by at least two separate thrusts. The large
wound was about seven inches wide and three inches deep.
The cause of death was a hemorrhage with obstruction of the
airway.

A few days after Gregorio Ante’s death, Montiel was
arrested and placed in a cell with an inmate named Michael
Palacio. Palacio testified at trial that Montiel admitted to
him that he had entered a man’s house to use a telephone.
When Montiel hung up the telephone, an old man appeared
and asked what he was doing. The man sat down in a chair,
and Montiel saw money in the man’s shirt pocket. Montiel
retrieved a knife from the kitchen, cut the man’s throat, and,
according to Palacio, took approximately $200. In exchange
12 MONTIEL V. CHAPPELL

for Palacio’s testimony, the State dismissed a felony charge
against him for possession of marijuana while in state
prison. 5

Dr. Ronald Siegel testified at trial as an expert for the
prosecution. 6 He was a psychologist and
psychopharmacologist who worked with PCP and had
published papers about its effect on behavior, and
specifically on criminal behavior. Dr. Siegel explained that
PCP was a drug that could have “a combination of different
effects”—it could act as a stimulant, cause a loss of response
to pain, produce an anesthetic reaction in sufficient doses,
produce “extreme sensory reactions” like seizures, cause
hallucinations, and trigger changes in perceptions, thinking,
and mood. Dr. Siegel agreed that the effects of PCP are
“extremely individualized.” While he acknowledged that it
would be helpful to know how much of the drug someone
had ingested to assess its effect on that person’s behavior,
Dr. Siegel explained that “in the field of
psychopharmacology, which is my field, the most important
thing that we use is the actual behavior of the person as
observed or witnessed by the people or themselves.”

Dr. Siegel described the difference between PCP
intoxication and PCP-induced psychosis. He explained that
PCP psychosis refers to a mental state characterized by rapid
changes in mood, paranoia, and a preoccupation with death
or death-like thoughts, which can include a fixation on

5
Palacio admitted on cross-examination that he had read accounts
of the crime in the newspaper before he approached the deputy sheriff
with his offer to testify about Montiel’s confession.
6
The California Supreme Court gave only a brief summary of
Dr. Siegel’s testimony in Montiel I. See 39 Cal. 3d at 919. We expand
on that summary here.
 MONTIEL V. CHAPPELL 13

religious concepts like God or the devil. He testified that
people in a state of PCP psychosis might also suffer from
paranoid delusions or grandiose delusions (e.g., believing
that they are capable of performing, and attempting to
perform, “unrealistic feats of strength or other types of
powers”).

Dr. Siegel reviewed transcripts of the earlier trial
testimony of Victor and Maury Cordova, Stinnett, Davis,
and Palacio; the police reports containing interviews with the
witnesses; the preliminary hearing transcript; and
background psychological and counseling reports about
Montiel. He also interviewed Maury, Stinnett, and Davis.

Dr. Siegel opined that Montiel’s behavior was consistent
with a low to moderate level of PCP in the blood but not
consistent with PCP-induced psychosis. Dr. Siegel based his
opinion on Montiel’s behavior at the time of the crimes,
which indicated that Montiel was experiencing a state of
hyper-excitation characterized by difficulty talking or
slurred or stuttering speech, demanding and impulsive
behavior, and glassy or dilated eyes. Dr. Siegel noted that
most witnesses described Montiel as walking somewhat
normally and that no one observed Montiel with two of the
“signposts” of a high level of PCP intoxication—a flushed
complexion (hypertension) and oscillation of the eyeballs
(nystagmus). Dr. Siegel observed that Montiel was able to
describe the killing of Gregorio Ante and recalled leaving
beer cans in the house, which indicated that any amnesia was
not severe, and noted that Montiel retained enough motor
coordination to use the telephone and retrieve a large number
of pennies without dropping them on the floor. Dr. Siegel
further noted that, before the murder, Montiel was
responsive to Maury Cordova’s directions as she and
Stinnett assisted him with the cut on his arm and that, after
14 MONTIEL V. CHAPPELL

the murder, Montiel insisted that he knew what was going
on. In Dr. Siegel’s view, those statements suggesting
Montiel’s lucidity further negated a conclusion of PCP
psychosis.

Dr. Siegel rejected the idea that Montiel’s statements
about being the devil indicated that he was in a PCP-induced
psychotic state. He noted that Montiel made those
statements only after killing Gregorio Ante. According to
Dr. Siegel, the timing suggested that the killing might have
triggered an association causing Montiel to describe himself
as the devil, but there was little to suggest that Montiel
believed he was the devil before the killing or that such a
hallucination caused him to kill.

Dr. Siegel concluded that although Montiel was under
the influence of PCP, his level of intoxication was not
sufficient to diminish his capacity to form specific intent or
to premeditate. Based on Palacio’s testimony, Dr. Siegel
testified that Montiel had formed the intent to kill when he
saw money in Gregorio Ante’s pocket. Finally, he opined
that Montiel’s flight from the scene and expressions of
concern the following day about possible evidence that he
had left behind demonstrated his ability to reflect on the
nature and consequences of his actions.

2. Defense’s Case

Montiel took the stand on his own behalf and testified to
the following. Around the time of the events, he had been
smoking three to four PCP cigarettes per day. On January
13, 1979, he woke up, bought a six-pack of beer, and smoked
a PCP joint. He felt a floating sensation from the PCP.
When he saw Eva Mankin arrive at her house, something
told him to help her with her groceries, so he ran to her house
and carried the bags inside. His memory was spotty, but he
 MONTIEL V. CHAPPELL 15

recalled that he put his hand through the glass in her door
and did not feel any pain. Mankin yelled and swung her
purse at him, and he grabbed it. He walked away from the
house and dropped the purse, and when various items fell
out, he picked them up and placed the purse in her car. As
he jogged away, he noticed checkbooks in his hand and
decided to return them later.

Montiel walked to the Cordovas’ house with a bloody
arm, and as he approached, he saw three people out front,
two of whom appeared to be wearing white uniforms. He
said to them, “oh, you’re waiting for me, huh,” and then
walked into the house. When Stinnett used the razor to cut
the piece of skin off his arm, Montiel felt no pain.

Montiel asked Victor to take him to his brother’s house.
Before they left, he and Victor smoked a joint of PCP. On
the way, they stopped at the liquor store, and Montiel bought
two cans of beer. After the motorcycle broke down, Montiel
walked to a house to use the telephone, and he remembered
that his feet felt heavy. When he reached the door, he
knocked but got no answer. He looked in through a window
in the front door and saw a man lying in blood. He then
returned to Victor and said that he had seen someone with
his throat cut, not that he had cut someone’s throat.

Montiel said that he relayed the same story to Stinnett,
but Montiel testified that he did not remember telling anyone
that he was the devil. According to Montiel, when Victor
asked him the following day if he recalled what he had done,
Montiel nodded “yes” because he assumed that Victor was
asking about how he injured his arm. As to Palacio’s
testimony regarding Montiel’s confession in jail, Montiel
asserted that he only repeated to Palacio what the public
defender had read him from the police report.
16 MONTIEL V. CHAPPELL

Dr. Ronald Linder testified as an expert for the defense. 7
Dr. Linder held a doctorate in education and health science
and wrote his doctoral dissertation on drug abuse. He was
involved in PCP research and had written numerous articles
on PCP toxicity. Before testifying, Dr. Linder interviewed
Montiel for two and a half hours and read transcripts of the
earlier witnesses’ testimony at trial. Montiel described to
Dr. Linder his extensive history of drug abuse, which began
at a young age.

Dr. Linder noted that many people experience a mind-
body separation while using PCP and may feel that they have
no control over what they see their body doing, even though
their actions are dangerous to themselves or others. He said
that the effects of PCP on behavior and mental state fluctuate
rapidly and have only an attenuated relationship to the
amount of the drug in the bloodstream. Dr. Linder opined
that, as a result, Dr. Siegel could not reliably infer from
Montiel’s behavior at one moment that Montiel had a low,
moderate, or high level of PCP intoxication at another
moment.

According to Dr. Linder’s assessment, Montiel was
significantly intoxicated before and during the crimes. He
pointed to Montiel’s inability to feel pain after putting his
hand through a glass window, his aggressive and impulsive
behavior, and the killing itself and concluded that Montiel
was in a “delusional state.” Dr. Linder noted that Montiel’s
claims to be the devil were similar to other cases where PCP
users had committed violent acts and described themselves
or the victim as the devil. Dr. Linder discounted the absence
of observed signs of hypertension or nystagmus, explaining

7
The California Supreme Court did not summarize Dr. Linder’s
testimony in Montiel I. See 39 Cal. 3d at 919–20. We do so here.
 MONTIEL V. CHAPPELL 17

that moderate hypertension might not cause an obviously
flushed appearance and that nystagmus might not be
noticeable to the untrained observer. In Dr. Linder’s
opinion, Montiel’s level of intoxication would have
prevented him from premeditating or weighing the
considerations for and against killing.

On cross-examination, Dr. Linder conceded that, if
Montiel said that he had stolen a purse and taken checkbooks
from it, one could infer from those facts that Montiel had an
intent to steal. Dr. Linder clarified, however, that the effects
of PCP were so unpredictable that a user could act rationally
one minute and irrationally the next. Based on his judgment
and knowledge of PCP, Dr. Linder opined that Montiel was
not in a state that would “consistently allow him to
premeditate.” Dr. Linder could assume only that Montiel
was intoxicated with PCP but said he doubted that Montiel
could have formed an intent to steal.

3. Prosecution’s Rebuttal

On rebuttal, prosecution witnesses testified that there
was no window in Gregorio Ante’s front door and that an
observer looking through an adjacent window could not have
seen that Gregorio Ante’s throat was cut. The public
defender testified that he had represented Montiel at his
arraignment and acknowledged that he normally would not
have supplied a defendant with a police report at the time
indicated, and the prosecution’s investigator described how
Palacio’s version of events contained information that was
not in the police reports anyway.

4. Verdict, First Penalty Re-trial, and Appeal

The jury convicted Montiel of all counts and found two
special circumstances that made Montiel eligible for the
18 MONTIEL V. CHAPPELL

death penalty: that the murder occurred in the commission
of a robbery (the felony-murder special circumstance) and
that the murder was intentional and carried out for financial
gain (the financial-gain special circumstance). The jury
hung on the penalty. At a penalty re-trial, a second jury
sentenced Montiel to death. On direct appeal, the California
Supreme Court set aside the financial-gain special
circumstance and reversed the death sentence because of two
instructional errors. See Montiel I, 39 Cal. 3d at 927–29.

B.

At a second penalty re-trial in 1986, Montiel was
represented by Robert Birchfield. The Strickland claims
certified for appeal in our court concern Birchfield’s
performance. The following facts are consistent with the
California Supreme Court’s summary in its decision on
direct appeal from the 1986 trial. See Montiel II, 5 Cal. 4th
877, 898–904 (1993).

1. Evidence of Gregorio Ante’s Murder

Victor Cordova’s 1986 testimony was mostly consistent
with his 1979 testimony, albeit with some differences. 8 For
example, at the 1986 penalty trial, Victor admitted, contrary
to what he said in 1979, that he and Montiel had shared a
PCP joint between the Mankin robbery and their departure
from the Cordovas’ house on Victor’s motorcycle. While
Victor had described Montiel’s eyes only as “beady” and
“glossy” at the 1979 trial, this time he remembered that
“[t]hey were shifting back and forth real funny like” and
8
Eva Mankin and Henry Ante had died by the time of the 1986
penalty trial, so their 1979 testimony was read to the jury. See Montiel
II, 5 Cal. 4th at 898 n.2 & 899 n.3. David Ante and Victor Cordova
testified live.
 MONTIEL V. CHAPPELL 19

“wiggling” “in every direction.” Victor echoed his
testimony from 1979 that, after the killing, Montiel “said he
did it just like you would do a goat,” but this time he recalled
that Montiel had said the day before that he had recently been
“slaughtering sheep[] or cows or something” at a ranch. And
in the 1986 trial, Victor testified that, after the killing,
Montiel had produced not only twenty-dollar bills but ones
and fives as well. On cross-examination, Victor admitted
that Montiel had recently asked him to lie on the stand to say
that Montiel had smoked more PCP the morning of the
crimes than he actually did.

2. Evidence of Montiel’s Mental State and Intoxication

Both parties introduced expert evidence about Montiel’s
mental state and degree of intoxication on the morning of
January 13, 1979.

As it had done in the 1979 trial, the State presented
expert testimony from Dr. Siegel. He testified that, in
addition to the preparation he had conducted for Montiel’s
first trial, he had since interviewed Montiel “to address the
issue of his intoxication at the time of the commission of the
offense.” 9 In that interview, Dr. Siegel obtained Montiel’s
account of his history of drug use, his consumption of
alcohol and PCP immediately before the crimes, and the
crimes themselves. Dr. Siegel described Montiel’s account
as follows: Montiel started sniffing glue and drinking around
age twelve. He sniffed ten to fifteen tubes of glue per day
until age seventeen or eighteen. By age nineteen, he would

9
Although Montiel had refused to speak with Dr. Siegel before his
first trial, Dr. Siegel interviewed him in preparation for the first penalty
re-trial in 1979 and relied on that interview for the opinions that he
offered in the second penalty re-trial in 1986.
20 MONTIEL V. CHAPPELL

drink all day. From age thirteen to his early twenties,
Montiel reported heavy use of amphetamines, barbiturates,
tranquilizers, cocaine, LSD, and heroin, resulting in
addiction, hallucinations, overdoses, blackouts, and
amnesia. He started smoking PCP at age twenty-three. By
age twenty-nine, Montiel recounted drinking alcohol and
smoking two to three joints of PCP daily.

Dr. Siegel reviewed Montiel’s psychological reports
from 1972 to 1978 and testified that they showed no gross
psychopathology but did mention aggression, a potential for
violence, false bravado, manipulation, and grandiosity.
Montiel admitted during the interview that he had a quick
temper and would get violent when he was intoxicated,
“when provoked,” or “when it’s called for.” Montiel also
admitted that he engaged in verbal arguments and fights
when under the influence of alcohol, but he denied getting
into serious fights or using weapons.

Through Dr. Siegel, Montiel’s version of events and his
reported confession to Michael Palacio were relayed to the
jury. Dr. Siegel noted that Montiel reported drinking
approximately one case of beer and smoking four to five
PCP joints every day in January 1979. Montiel also reported
that, on the morning in question, he woke up, smoked two
PCP joints, and drank eight beers, after drinking alcohol and
smoking PCP for most of the previous afternoon and
evening. Dr. Siegel narrated the events of January 13 for the
jury based on Montiel’s account, his interviews with
witnesses, and the testimony of Palacio. This version of
events included Palacio’s testimony that Montiel had
confessed to killing Gregorio Ante after seeing money in the
man’s pocket.

Dr. Siegel opined that at the time of the crimes, there was
no question that Montiel was “grossly intoxicated” from
 MONTIEL V. CHAPPELL 21

PCP and alcohol. Dr. Siegel acknowledged that PCP has
unpredictable effects and that it can reduce impulse control,
cause hallucinations and delusions, produce episodic partial
amnesia, and exaggerate aggressive or violent tendencies.
He further recognized that extended use of PCP can lead to
a chronic mental disorder. Nonetheless, Dr. Siegel observed
that Montiel appeared capable of goal-directed activity, as
demonstrated by his response to certain events, such as being
concerned about having left fingerprints on Gregorio Ante’s
telephone, remembering the beer he left in Ante’s house, and
searching the house for money. Dr. Siegel noted that
Montiel knew he was smoking PCP and drinking alcohol,
was aware he killed an old man, described the manner of
killing, and identified the salient events accurately.
Dr. Siegel concluded that, on the day and at the time of the
murder, Montiel was not hallucinating or experiencing PCP-
induced psychosis. Dr. Siegel confirmed that his opinion
was the same as it had been in 1979: Montiel appeared to be
aware of his actions even though he was intoxicated.

The defense presented expert testimony from Dr. Louis
Nuernberger, a psychiatrist formerly employed by the
California Department of Corrections. Dr. Nuernberger had
responsibility for inmate mental health concerns at San
Quentin State Prison, and through his prison duties, acquired
a familiarity with the drug and criminal histories of the
inmates, which often included PCP use. Dr. Nuernberger
had evaluated Montiel in 1979 or 1980, when Montiel first
arrived on death row, to assess whether Montiel understood
the nature of his sentence and the reasons for it.
Dr. Nuernberger based his evaluation on an interview with
Montiel, a report prepared by a psychologist, and a review
of Montiel’s prison file.
22 MONTIEL V. CHAPPELL

Dr. Nuernberger concluded that Montiel had a lifelong
history of depression that led to his extensive drug abuse.
Montiel’s progression fit into a pattern that Dr. Nuernberger
observed in many inmates at San Quentin—glue-sniffing as
a young teenager that progressed to PCP use, caused by
depression in childhood. Dr. Nuernberger testified that, as a
free man, Montiel engaged in drug abuse and violence, but
when institutionalized, Montiel conformed his behavior to
the expectations of the prison and was compliant.
Dr. Nuernberger testified that Montiel’s use of PCP and
alcohol likely eroded his faculties of judgment and self-
control and that he was likely in a delirious state around the
time of the crimes. In Dr. Nuernberger’s estimation,
Montiel’s extended intoxication with PCP and alcohol were
“directly responsible for the homicide,” and his sanity at the
time of the offense was “severely impaired if not totally
lacking.” Based on Montiel’s progression of drug use and
the combination of alcohol and PCP he had consumed,
Dr. Nuernberger questioned whether Montiel was capable of
deliberate action at the time of the offenses.

3. Prosecution’s Aggravating Evidence of Montiel’s
Previous Crimes

The prosecution introduced evidence in aggravation
showing that Montiel had previously committed five other
violent crimes, two of which resulted in convictions.

• First, law enforcement officers testified that,
in 1968, they responded to a call about a fight
at the Montiel household. According to the
officers, Montiel and his brother Antonio
fought after Montiel tried to hit his mother,
Hortencia, in the head with a telephone, and
Montiel then cut Antonio in the chest with a
butcher knife. Montiel’s parents testified that
 MONTIEL V. CHAPPELL 23

they did not recall the incident and denied
statements attributed to them in the police
report. Antonio testified that he did not know
whether Montiel had cut him.

• Second, another officer testified that, in 1969,
Montiel’s then-wife, Rachel, reported that
Montiel had hit her and had struck her sister
in the abdomen while the sister was six
months pregnant. Rachel testified, however,
that her sister attacked Montiel and that
Montiel never retaliated.

• Third, officers testified that, in 1971, they
responded to an incident at the Kern County
Fair when Montiel wrestled a stuffed animal
from an older woman. After he failed to
evade arrest, Montiel threatened to kill the
officers’ wives and children and burn their
homes.

• Fourth, two employees of a restaurant
testified that, in 1972, Montiel brandished a
small handgun or starter pistol, demanded
money, fled with thirty dollars, and fired
several shots at an employee who followed
him outside. Montiel pleaded guilty to
second degree robbery, without
enhancements for firearm or weapon use.

• Finally, a victim testified that, in 1973, he
arrived home and caught Montiel stealing a
television from his apartment. Montiel
brandished a knife at him. Montiel pleaded
guilty to misdemeanor burglary.
24 MONTIEL V. CHAPPELL

Officers testified that it was customary to indicate in the
police report whether the suspect appeared to be under the
influence of drugs or alcohol, and that none of the reports of
those prior crimes referred to any suspicion of intoxication.

4. Montiel’s Mitigating Evidence

The defense put on eighteen witnesses in addition to
Dr. Nuernberger. The defense’s theory was that Montiel had
a relatively normal upbringing but became unstable and
erratic when he became a heavy PCP user. The defense
argued that Montiel’s behavior was completely different
when he was not under the influence of drugs, as
demonstrated by his good conduct and rehabilitation in
prison.

Members of Montiel’s family testified that his family life
was happy and that he was well-behaved and a good student
until he started hanging out with the wrong crowd in high
school and using drugs and alcohol. These witnesses
indicated that Montiel was always respectful and nonviolent
toward his parents, that family members visited him and
exchanged letters with him while he was incarcerated, and
that his family loved him. Rachel testified that, during their
marriage, Montiel would sometimes become violent when
drinking but said that he was a good father to their children,
even after their separation.

Montiel presented evidence of his history of drug abuse.
Family members recounted a pattern of substance abuse
beginning with glue sniffing in his teenage years and
progressing to regular use of alcohol and PCP during
adulthood. Regarding the events of January 13, 1979,
Montiel’s sister Irene testified that he had smoked two PCP
joints that morning. Other family members testified that he
 MONTIEL V. CHAPPELL 25

had been hallucinating and talking incoherently in the days
leading up to the murder.

Montiel presented evidence of his rehabilitation on death
row. A prison chaplain testified that Montiel regularly
attended voluntary religious services. A prison teacher said
Montiel tried to improve his reading, writing, and
mathematics skills and had made progress. A guard
supervisor testified that Montiel presented no behavioral
problems in San Quentin prison. A guard gave similar
testimony about Montiel’s conduct in the Kern County jail.

Montiel testified on his own behalf. He indicated that he
had qualified for privileges on death row based on his good
behavior. He confirmed the religious, educational, and
artistic interests that he had developed in prison, and one of
his paintings was admitted into evidence. Montiel indicated
that, over time, he had developed empathy and remorse
about Gregorio Ante’s murder, saying that he knew “what it
feels like to lose a family member.” Montiel said that he
would give his life to bring the victim back if that were
possible.

5. Penalty Verdict

With the parties’ agreement, the trial court took judicial
notice and advised the jury that the 1979 guilt-phase jury had
found two special circumstances in connection with the
murder: that the murder was intentional and carried out for
financial gain (the financial-gain special circumstance) and
that the murder was committed while Montiel was engaged
in the commission of a robbery (the felony-murder special
circumstance). The trial court did so despite the California
Supreme Court’s decision in Montiel I that the financial-gain
special circumstance was inapplicable. See Montiel II, 5 Cal.
26 MONTIEL V. CHAPPELL

4th at 925–26. After three days of deliberations and five
ballots, the jury sentenced Montiel to death.

C.

After the 1986 penalty trial, Montiel filed a timely notice
of appeal. In 1993, the California Supreme Court affirmed
his death sentence. Id. at 947. The court rejected, among
other arguments, Montiel’s claim that Birchfield was
ineffective for failing to prepare Dr. Nuernberger to testify,
finding neither deficient performance nor prejudice. Id.
at 923–25. In dissent, Justice Mosk concluded that
Birchfield rendered ineffective assistance of counsel when
he “egregiously failed to prepare his case for life” without
parole. Id. at 948 (Mosk, J., dissenting).

Montiel filed a state habeas petition in the California
Supreme Court. See People v. Romero, 8 Cal. 4th 728, 737
(1994) (explaining that California’s constitution grants
original jurisdiction in habeas corpus to the California
Supreme Court). After requesting and receiving an informal
response to the petition from the State and a reply from
Montiel, the California Supreme Court denied the petition in
1996. The four-sentence order stated: “The motion for
judicial notice of the records in the underlying appeals is
granted. The petition for writ of habeas corpus is denied.
The delay in presentation of claims has been adequately
explained. All claims are denied on the merits.” 10 In re

10
The order concluded with an unexplained citation to Harris v.
Reed, 489 U.S. 255, 264 n.10 (1989) (stating that when a state court
invokes a state procedural bar as a separate basis for its decision, a
federal court may not review the state’s alternative holding on the merits
of a federal claim). The State does not argue that the California Supreme
Court rested its decision on a finding of procedural default, and we
discern no reason to conclude that it did.
 MONTIEL V. CHAPPELL 27

Montiel, No. S033108, 1996 Cal. LEXIS 1048, at *1 (Cal.
Feb. 21, 1996).

In 1997, Montiel filed a 28 U.S.C. § 2254 habeas petition
in the United States District Court for the Eastern District of
California. The district court denied the petition in 2014.
Montiel timely appealed.

II.

We review de novo the district court’s denial of
Montiel’s habeas petition. Sanders v. Cullen, 873 F.3d 778,
793 (9th Cir. 2017). Our review is circumscribed, however,
by AEDPA. 11 Lambert v. Blodgett, 393 F.3d 943, 965 (9th
Cir. 2004). AEDPA establishes a highly deferential standard
for reviewing claims that a state court has “adjudicated on
the merits.” 28 U.S.C. § 2254(d). In such cases, a federal
court may not grant habeas relief unless the state court’s
merits adjudication was “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,”
id. § 2254(d)(1), or was “based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding,” id. § 2254(d)(2).

Montiel argues that the California Supreme Court’s
summary denial of his habeas petition means that his
Strickland claims were not “adjudicated on the merits,” as
that phrase is used in § 2254(d). His argument relies on the
specifics of California’s habeas procedures. Under
California law, a habeas petitioner bears the initial burden of

11
Montiel filed his federal habeas application after April 24, 1996,
so AEDPA applies to his case. Sully v. Ayers, 725 F.3d 1057, 1067 (9th
Cir. 2013).
28 MONTIEL V. CHAPPELL

pleading adequate grounds for relief and must support the
factual allegations in his petition with any “reasonably
available documentary evidence supporting the claim.”
People v. Duvall, 9 Cal. 4th 464, 474 (1995). “An appellate
court receiving such a petition evaluates it by asking
whether, assuming the petition’s factual allegations are true,
the petitioner would be entitled to relief.” Id. at 474–75. “If
no prima facie case for relief is stated, the court will
summarily deny the petition. If, however, the court finds the
factual allegations, taken as true, establish a prima facie case
for relief, the court will issue an [order to show cause].” Id.
at 475. When an order to show cause issues, “the custodian
of the confined person shall file a responsive pleading, called
a return, justifying the confinement.” Id. The petitioner then
files a reply, called a traverse. Id. at 476–77. If there are
disputed factual issues to resolve, the court may order an
evidentiary hearing. Id. at 478. “Conversely, ‘[w]here there
are no disputed factual questions as to matters outside the
trial record, the merits of a habeas corpus petition can be
decided without an evidentiary hearing.’” Id. (alterations in
original) (quoting People v. Karis, 46 Cal. 3d 612, 656
(1988)).

Montiel argues that the California Supreme Court’s four-
sentence denial of his claims “on the merits,” without issuing
an order to show cause, signifies that the court concluded
that his petition did not state a prima facie case for relief.
Montiel contends that, because the state court evaluated only
whether he had stated a prima facie case, it never reached a
decision on the underlying merits of his Strickland claims.
Accordingly, he argues, there is no “adjudication on the
merits” to which we owe AEDPA deference under
§ 2254(d), and we should review his Strickland claims de
novo.
 MONTIEL V. CHAPPELL 29

We disagree. In Cullen v. Pinholster, 563 U.S. 170
(2011), the Supreme Court afforded AEDPA deference to
the California Supreme Court’s summary denial of a habeas
petition raising a Strickland claim. Id. at 187–88. In that
case, as here, the state court denied the petition without
issuing an order to show cause. 12 The Supreme Court
acknowledged California’s procedural rules for state habeas
petitioners, id. at 188 n.12, but held that “[s]ection 2254(d)
applies even where there has been a summary denial,” id.
at 187. The Court then undertook a full merits evaluation of
the Strickland claim, which included “a thorough review of
the state-court record,” id. at 188; see also id. at 189–203,
asking whether the California Supreme Court had
“unreasonably applied clearly established federal law to
[Pinholster’s] penalty-phase ineffective-assistance claim on
the state-court record.” Id. at 187. 13

12
In Pinholster, the California Supreme Court had summarily
denied two separate state habeas petitions—one filed in 1993 and the
other in 1997. See 563 U.S. at 177–78 (referring to both petitions). In
ruling on the 1993 petition, the California Supreme Court issued an order
to show cause, but then vacated that order as “improvidently issued” and
summarily denied the petition “on the substantive ground that it is
without merit.” In re Pinholster, No. S034501, 1995 Cal. LEXIS 4500,
at *1 (Cal. July 19, 1995). In ruling on the 1997 petition, the California
Supreme Court summarily denied the petition “on the substantive ground
that it is without merit” without issuing an order to show cause. In re
Pinholster, No. S063973, 1997 Cal. LEXIS 6194, at *1 (Cal. Oct. 1,
1997).

13
Pinholster argued to the Supreme Court that the state court’s
implicit determination—in summarily denying his petition without
issuing an order to show cause—that Pinholster had not even made out
a “prima facie” case for relief was contrary to, or an unreasonable
application of, clearly established federal law. See Brief for Respondent
at 52–53, Pinholster, 563 U.S. 170 (No. 09-1088), 2010 WL 3738678
(“[T]he California Supreme Court’s determination that Pinholster’s
30 MONTIEL V. CHAPPELL

We therefore must decide whether the denial of
Montiel’s claim “involved an unreasonable application of”
Strickland. 14 See 28 U.S.C. § 2254(d)(1). Under that
standard, Montiel must show “that ‘there was no reasonable
basis’ for the California Supreme Court’s decision.”
Pinholster, 563 U.S. at 188 (quoting Harrington v. Richter,
562 U.S. 86, 98 (2011)). In other words, Montiel must show
that the state court’s ruling on the claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” 15 Richter, 562 U.S. at 103.

allegations, taken as true, failed even to make out a prima facie claim
was not only wrong, it was objectively unreasonable. It follows that
§ 2254(d) does not prohibit a grant of relief on the ground that trial
counsel rendered constitutionally ineffective assistance at the penalty
phase of Pinholster’s capital trial.”). Yet, rather than evaluate only
whether Pinholster had made out a prima facie case in his state habeas
petition, the Supreme Court evaluated the full merits of Pinholster’s
claims to assess whether the California Supreme Court could reasonably
have denied habeas relief. See Pinholster, 563 U.S. at 189–203. To the
extent that Montiel makes a similar argument to the one Pinholster made,
we must reject it. Pinholster teaches that we must evaluate Montiel’s
Strickland claims in their entirety to determine whether the California
Supreme Court could reasonably reject those claims on the merits.

14
Cannedy v. Adams, 706 F.3d 1148 (9th Cir. 2013), does not
support Montiel’s position. In Cannedy, we treated a summary denial
from the California Supreme Court as an “adjudication on the merits”
under § 2254(d) and therefore applied AEDPA to our review of the
petitioner’s Strickland claim, evaluating the claim in light of the record
before the California Supreme Court. Id. at 1155–57, 1162.

15
To the extent that Montiel also argues that de novo review is
warranted because the California Supreme Court failed to hold an
evidentiary hearing, we reject the argument. See Sully, 725 F.3d at 1067
n.4 (holding that the California Supreme Court “does not fail to render
an ‘adjudication on the merits,’” as contemplated by § 2254(d), “just
because it does not grant an evidentiary hearing”). Montiel has not
 MONTIEL V. CHAPPELL 31

When reviewing a summary denial, we “look through” that
judgment and apply the deferential standard to the last
reasoned state court decision. See Wilson v. Sellers, 138 S.
Ct. 1188, 1194–95 (2018); Ylst v. Nunnemaker, 501 U.S.
797, 803–04 (1991). Where there is no reasoned state court
decision addressing a claim, we must consider what
arguments or theories could have supported the state court’s
summary denial, and then ask whether it is possible that fair-
minded jurists could conclude that those arguments or
theories are consistent with Strickland. Richter, 562 U.S.
at 96, 102.

III.

A.

We begin by addressing the scope of the issues that we
will consider. The district court certified two issues for
appeal: first, whether Birchfield rendered ineffective
assistance of counsel by failing to present independent
expert testimony that Montiel’s intoxication with PCP
prevented him from harboring the mens rea necessary for the
crimes; 16 and, second, whether Birchfield rendered

pointed to any disputed factual issues in his state habeas petition that he
claims necessitated an evidentiary hearing, so he has not shown any flaw
in the fact-finding process or unreasonable determination of the facts.
16
Although the guilt-phase jury necessarily found, by convicting,
that Montiel harbored the necessary mens rea for the crimes, Montiel’s
mental state was still a relevant consideration for the 1986 penalty-phase
jury. Under California law, a defendant is permitted to present evidence
to the penalty-phase jury that there is lingering doubt as to his guilt, as a
mitigating factor for consideration in sentencing. See People v. Terry,
61 Cal. 2d 137, 147 (1964), overruled on other grounds by People v.
Laino, 32 Cal. 4th 878, 893 (2004). The 1986 penalty-phase jury was
also instructed under California’s death penalty law, which requires the
32 MONTIEL V. CHAPPELL

ineffective assistance by failing to prepare Dr. Nuernberger
to testify regarding Montiel’s mental health. Montiel also
asks us to expand the COA to include two additional issues
related to Birchfield’s performance at the 1986 penalty trial:
whether Birchfield was ineffective for failing to challenge
the factual foundation underlying Dr. Siegel’s expert
opinion (specifically, Dr. Siegel’s reliance on Palacio’s
testimony about Montiel’s confession) and whether
Birchfield rendered ineffective assistance by failing to
investigate and present evidence of Montiel’s psychosocial
and family history to explain why he used PCP and other
drugs.

We expand the COA to include those issues. In
Browning v. Baker, we held that a district court errs by
limiting a COA to individual ineffective-assistance
subclaims corresponding to particular instances of an
attorney’s conduct within a single trial. 875 F.3d. 444, 471
(9th Cir. 2017). Because the Sixth Amendment right “is a
guarantee of effective counsel in toto,” we must “consider[]
counsel’s conduct as a whole to determine whether it was
constitutionally adequate.” Id. Under Browning, therefore,
we must consider the additional alleged errors in our
analysis. With the COA so expanded, we consider the
broader issue whether Birchfield’s performance, considered

jury to consider certain enumerated mitigating circumstances in selecting
between sentences of death and life without parole. See Cal. Penal Code
§ 190.3. Evidence of Montiel’s mental state would have been relevant
to several mitigating factors. Most relevant here, “factor (h) mitigation”
requires the jury to consider “[w]hether or not at the time of the offense
the capacity of the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law was impaired as a
result of mental disease or defect, or the [e]ffects of intoxication.” Id.
§ 190.3(h).
 MONTIEL V. CHAPPELL 33

as a whole, amounted to ineffective assistance of counsel at
the 1986 penalty trial.

For reasons we explain in a memorandum disposition
filed concurrently with this opinion, we decline to expand
the COA to include the other issues that Montiel advances in
his opening brief.

B.

We now turn to whether Birchfield provided ineffective
assistance of counsel at the 1986 penalty trial. To prove a
Strickland claim, Montiel must show (1) “that counsel’s
performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish
deficient performance, “the petitioner must show that
counsel’s representation ‘fell below an objective standard of
reasonableness’ under ‘all the circumstances.’” Sully v.
Ayers, 725 F.3d 1057, 1068 (9th Cir. 2013) (quoting
Strickland, 466 U.S. at 688). “To establish prejudice from
counsel’s errors during the penalty phase of a capital case,
the petitioner must show that ‘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.’” Id.
(quoting Strickland, 466 U.S. at 695). “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Cullen v. Pinholster, 563 U.S.
170, 189 (2011) (quoting Strickland, 466 U.S. at 694). “That
requires a ‘substantial,’ not just ‘conceivable,’ likelihood of
a different result.” Id. (quoting Harrington v. Richter,
562 U.S. 86, 112 (2011)). “If the state court reasonably
concluded that [Montiel] failed to establish either prong of
the Strickland test, then we cannot grant relief.” Cannedy v.
34 MONTIEL V. CHAPPELL

Adams, 706 F.3d 1148, 1157 (9th Cir. 2013) (footnote
omitted).

Montiel alleges that Birchfield’s performance at the
1986 penalty trial was deficient because he failed to
(1) present independent expert testimony from a
psychopharmacologist that PCP prevented Montiel from
forming a specific intent to commit robbery or murder;
(2) adequately prepare Dr. Nuernberger to testify regarding
Montiel’s mental health; (3) challenge Dr. Siegel’s reliance
on Michael Palacio’s testimony that Montiel formed the
intent to kill Gregorio Ante after seeing money in his shirt
pocket; and (4) investigate and present evidence of Montiel’s
psychosocial and family history. 17 We assume, for the sake
of argument, that these alleged errors constitute deficient
performance under the first prong of Strickland. We hold,
however, under AEDPA’s highly deferential standard of
review, that the California Supreme Court could reasonably
have concluded that Montiel’s claim fails under the second
prong of Strickland. Comparing the mitigation evidence that
was offered with what would have been offered but for
Birchfield’s alleged errors, the state court could reasonably
have decided that there was not a substantial likelihood that
the jury would have returned a different sentence if
Birchfield had not performed deficiently. See Richter,
562 U.S. at 102 (holding that, when a state court issues a

17
The State argues that the sub-issue regarding Dr. Siegel’s reliance
on the Palacio confession is not exhausted because it was not presented
to the California Supreme Court and that, in any event, Montiel forfeited
the claim by failing to raise the allegations in his federal habeas
application. We need not decide whether the claim is unexhausted or
forfeited because we conclude below that it fails. See 28 U.S.C.
§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”).
 MONTIEL V. CHAPPELL 35

summary denial of a habeas claim on the merits, a federal
habeas court must consider “what arguments or theories . . .
could have supported[] the state court’s decision”).

1.

When a defendant has been convicted of first-degree
murder with a special circumstance, California law allows a
jury to impose a death sentence if it concludes that “the
aggravating circumstances outweigh the mitigating
circumstances.” Cal. Penal Code § 190.3. The statute
enumerates factors that the jury must consider, including the
circumstances of the crime; the defendant’s involvement in
previous criminal activity that involved the use of force or
violence; any prior felony convictions; whether the
defendant was under the influence of an “extreme mental or
emotional disturbance”; and other circumstances that
extenuate the gravity of the crime. Id. § 190.3(a), (b), (c),
(d), (k). Most relevant to this case, those factors also include
so-called “factor (h) mitigation”: “Whether or not at the time
of the offense the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental
disease or defect, or the [e]ffects of intoxication.” Id.
§ 190.3(h).

In support of his state habeas petition, Montiel submitted
mitigating evidence to the California Supreme Court that had
not been presented at the 1986 penalty-phase trial.
Specifically, he submitted declarations from his siblings
Irene and Gilbert Montiel; his mother, Hortencia Montiel;
clinical psychologist and psychosocial historian
Dr. Gretchen White; clinical neuropsychologist Dr. Dale
Watson; and psychiatrist Dr. Ferris Pitts. Below, we
summarize the information provided in the declarations,
36 MONTIEL V. CHAPPELL

which we assume could have been introduced at the 1986
penalty-phase trial.

a. Early Life

Dr. White’s declaration provided an account of
Montiel’s childhood. Montiel is from a family of migrant
agricultural workers. Neither of his parents was educated
past elementary school, and both grew up in poverty, in
families with significant histories of alcoholism. His
mother, Hortencia, suffered from paranoid delusions and
believed strongly in hexes, witchcraft, and the supernatural.
His father, Richard, suffered from alcoholism, was rarely
home, would disappear for months at a time, and often ended
up in jail for alcohol-related crimes. When Richard drank,
he was verbally and physically abusive to Hortencia.

Montiel spent much of his early life in the fields where
he and his family worked. Hortencia worked in the fields
while pregnant with Montiel “until the last minute before
[she] gave birth.” As a toddler, Montiel would stay in the
car or play in the fields while his parents were working.
When Montiel was four or five years old, he started working
in the fields with Richard from before dawn until the
evening. They routinely worked in areas heavily sprayed
with pesticides but were given no protective clothing or
gloves, even when picking cotton, which left numerous cuts
on their hands. Montiel and his siblings frequently returned
home covered in pesticides—Montiel’s job was “to shake
the trees so the fruit fell,” which left him “covered with the
dust they put on the trees.” Montiel also harvested crops in
fields adjacent to ones being sprayed and often would enter
a field to continue working before the spray had settled;
sometimes he worked as a “flagger,” standing in the field
and signaling to the crop-dusting planes where to begin and
end their runs, which also exposed him to the pesticides.
 MONTIEL V. CHAPPELL 37

Montiel often came home with irritated eyes, rashes, and
headaches. In elementary school, Montiel started the school
year late and was taken out of school for several weeks each
fall to help pick fruit. He was embarrassed that everyone at
school knew that he worked in the fields, and he was teased
for being so poor.

Montiel’s family lived in extreme poverty. Every
summer, they lived in labor camps near the fields, in a tent
with a dirt floor and no electricity or running water. When
Montiel was almost four years old, the family moved into a
one-bedroom house in Bakersfield next door to a cattle yard
and slaughterhouse. The stench was overwhelming, and the
house was infested with flies. It had no electricity and had
running water only from a faucet in the front yard. The
family sometimes went several days without food, subsisting
on a mixture of flour, sugar, and water. Hortencia eventually
received welfare assistance, on which the family depended.
Montiel had one older half-sibling and five younger siblings,
all but one of whom suffered from serious substance abuse,
failed in school, and later spent time in jail or prison.

Montiel’s drug abuse started early and progressed to
dangerous levels by early adulthood. He began sniffing glue
around age ten and used five or six tubes every day. He
sniffed glue whenever he did not want to deal with “bad
times,” as when his father was gone or when the family ran
out of money. By the time Montiel was sixteen or seventeen,
he was sniffing glue less frequently, but he drank more
alcohol and began abusing other drugs, including LSD and
various prescription pills sold on the streets. When Montiel
was twenty, he was taking about ten prescription pills per
day. By 1972, at twenty-three years old, Montiel was
injecting heroin four times a day and had been hospitalized
three times for drug overdoses. In his late twenties, Montiel
38 MONTIEL V. CHAPPELL

started using PCP. His siblings Gilbert and Irene, both of
whom also used drugs heavily, remarked that Montiel acted
like a different person on PCP, noting, among other strange
behaviors, that PCP would cause him to talk about magic and
the supernatural.

Montiel’s drug abuse caused him to struggle in school
and eventually led to repeated arrests and incarceration.
Montiel first went to juvenile hall when he was eleven years
old for breaking into school and stealing ice cream and fruit
cocktail. He was sent to a juvenile camp at age twelve for
sniffing glue. He rarely received good grades and failed 9th
and 10th grades before dropping out of school. From 1972
through 1977, during his twenties, Montiel was never out of
state custody for more than a sixty-day period.

Montiel never learned to cope with depression or
feelings of abandonment. His parents did not model
constructive ways of dealing with stressors or difficulties;
rather, to deal with psychological pain, Montiel’s father
turned to alcohol or left the home, and his mother turned to
magic and witchcraft. From childhood through early
adulthood, Montiel experienced loss and abandonment not
only as a result of his father’s disappearances and his
mother’s inability “to provide minimal parenting for [him],”
but also due to the deaths of his infant daughter, two of his
brothers, and several friends.

b. Mental Health

After his arrest for the 1979 offenses, Montiel was
evaluated by several mental health professionals. One
psychiatrist observed that Montiel was “chronically
depressed and ‘mind damaged,’ if not brain damaged, by his
extensive drug use.” The evaluations reflected that
Montiel’s “serious depression manifested as a cyclical
 MONTIEL V. CHAPPELL 39

pattern of poor behavioral control” and that he had
“deficits[] in judgment, self-control, and social skills as a
consequence of toxic substance abuse, especially glue-
sniffing, paint sniffing, and the continued use of PCP.”

In 1993, Dr. Watson, the clinical neuropsychologist,
evaluated Montiel and opined that he “suffers from cognitive
and neuropsychological deficits and probable brain
dysfunction,” that he “functions at the level of borderline
intelligence,” and that he “is impaired by significant learning
disabilities and very severe attention/concentration deficits
(in the mildly retarded range).” Dr. Watson concluded that
the onset of these deficits “dates at least from adolescence,”
based on Montiel’s inability to perform at age-appropriate
levels in reading and arithmetic. Dr. Watson concluded that
Montiel’s chronic inhalation of the neurotoxin toluene
(found in glue) likely caused diffuse brain damage. Related
impairments and neuropsychological deficits resulted in
“poor planning skills,” being “vulnerable to misinterpreting
his environment with consequent manifestations of
inappropriate and ill-modulated behavior,” and having
“difficulty in making judgments that require deliberation and
consideration of abstract consequences.” These deficits
would be further exacerbated by alcohol or drug
intoxication.

c. Effects of PCP

Dr. Pitts, the psychiatrist, stated that PCP is a
“dissociative anesthetic, which means that it impairs normal
cognitive brain function” and causes bizarre and impulsive
behaviors, including spontaneous violence. Dr. Pitts opined
that when Montiel took Mankin’s purse, he was acting on
“sheer impulse” because the PCP prevented him from
evaluating his behavior or making any moral judgments.
Dr. Pitts noted that the fact that Montiel remained close to
40 MONTIEL V. CHAPPELL

Gregorio Ante’s house and in plain sight immediately after
the killing illustrated Montiel’s “lack of cognitive
functioning at the time of the homicide.” Dr. Pitts also
placed greater significance than Dr. Siegel had on Montiel’s
reported statements, following the murder, that he was the
devil. According to Dr. Pitts, those statements strongly
suggested that Montiel actually believed himself to be the
devil, particularly when viewed in the context of his
mother’s beliefs in the supernatural and the evidence that
Montiel had spoken of being the devil or talking to the devil
in the two weeks before the murder. Contrary to Dr. Siegel’s
opinion, Dr. Pitts believed that Montiel was unable to harbor
specific intent to steal or murder or to premeditate because
he was in a dissociative animated state and was behaving “at
the level of primitive reflex.”

2.

To assess prejudice under Strickland’s second prong in a
capital case, we must “reweigh the evidence in aggravation
against the totality of available mitigating evidence.”
Pinholster, 563 U.S. at 198 (quoting Wiggins v. Smith,
539 U.S. 510, 534 (2003)). That analysis requires us to
“compare the evidence that actually was presented to the
jury with the evidence that might have been presented had
counsel acted differently.” Clark v. Arnold, 769 F.3d 711,
728 (9th Cir. 2014) (quoting Murtishaw v. Woodford,
255¸F.3d 926, 940 (9th Cir. 2001)).

We consider first the new evidence from the declaration
of Dr. Pitts regarding Montiel’s diminished capacity from
the effects of PCP at the time of the crimes. Some of that
evidence would have been cumulative of the concessions
that Birchfield extracted from Dr. Siegel and the testimony
that Birchfield elicited from Dr. Nuernberger. For example,
the jury knew from the expert testimony presented at trial
 MONTIEL V. CHAPPELL 41

that PCP was a dissociative drug with unpredictable effects
that could erode faculties of judgment and self-control.
Dr. Siegel acknowledged that chronic use of PCP could
cause delusional episodes. Dr. Nuernberger opined that
Montiel was likely in a state of “toxic delirium” around the
time of the crimes, considered Montiel’s intoxication with
PCP and alcohol to be “directly responsible for the
homicide,” and believed that Montiel’s sanity at the time of
the offense was “severely impaired if not totally lacking.”
The jury also knew—from the testimony of Montiel, his
family members, and Dr. Siegel—that Montiel had
consumed a significant amount of PCP in the days leading
up to and on the morning of the murder, and that he had been
hallucinating and behaving strangely. The primary
contribution of the declaration from Dr. Pitts was his bottom-
line conclusion that Montiel’s use of PCP made him unable
to harbor the specific intent for robbery or murder, but given
Dr. Siegel’s concessions, a reasonable jurist could view that
conclusion as a relatively marginal addition to Montiel’s
case for “factor (h) mitigation.”

The new expert testimony must also be viewed in light
of the considerable evidence suggesting that Montiel was
aware of his actions. As the California Supreme Court
observed in rejecting one of Montiel’s challenges to his
sentence on direct appeal:

The manner of killing suggested calculation
and awareness. It was also clear that
[Montiel] had ransacked Gregorio’s
residence and taken money. Moreover,
Victor testified that moments after the crime,
[Montiel] described it several times in
graphic and coherent terms. Victor also
indicated that [Montiel] carried away the
42 MONTIEL V. CHAPPELL

murder weapon and immediately returned to
the house to retrieve other evidence which
might link him to the homicide. [Montiel]
continued to boast about the killing as he was
driven away from the scene. He later asked
Victor to lie about the extent of his
intoxication.

Montiel II, 5 Cal. 4th at 921. The evidence concerning the
Mankin robbery was similarly suggestive: Montiel fled
Mankin’s home with her stolen purse and apparently had the
presence of mind to remove the items of value—a
checkbook, several bank books, a knife, and some cash—
before discarding the purse. A reasonable jurist could
conclude that Dr. Pitts’s opinion that Montiel was acting on
the level of “primitive reflex” would have been unlikely to
sway the jury, considering the circumstantial evidence that
Montiel was making decisions that reflected awareness and
at least some degree of rationality.

For similar reasons, a reasonable jurist could discount
the prejudicial impact of Birchfield’s failure to challenge
Dr. Siegel’s partial reliance, in forming his opinion, on the
apparently erroneous testimony of Michael Palacio. In his
1986 penalty-phase trial testimony, Dr. Siegel narrated the
events of January 13 as he understood them, based on his
interviews with witnesses and his review of the 1979 guilt-
phase trial transcripts. At the end of Dr. Siegel’s narrative,
the prosecution asked whether he had considered Palacio’s
testimony about Montiel’s confession in jail. Dr. Siegel
responded affirmatively and stated:

A: According to testimony from Michael
Palacio, Mr. Montiel had entered the
house, wanted to use the telephone and
 MONTIEL V. CHAPPELL 43

noticed some money sticking out of this
old man’s pocket. At that point went into
the kitchen to get a knife.

Q: For what purpose?

A: With the intent to kill him, according to
Michael Palacio, that he formed the intent
to kill him when he saw the old man with
the money.

Palacio’s version of events was inaccurate—the $180
that Gregorio Ante received from the piano sale and placed
in his front shirt pocket was recovered on his body,
suggesting that Montiel did not form the intent to kill Ante
after deciding to steal that money. Montiel now contends
that Palacio’s false testimony formed the predicate for
Dr. Siegel’s conclusion that Montiel was capable of “goal-
directed activity,” and that Birchfield’s failure to object or to
effectively cross-examine Dr. Siegel prejudiced Montiel’s
defense.

The California Supreme Court rejected a similar
argument on direct appeal, noting that, even without
Palacio’s testimony, there was a wealth of circumstantial
evidence that Montiel knew what he was doing. Montiel II,
5 Cal. 4th at 921. Indeed, Palacio’s testimony was only one
of several factors that led Dr. Siegel to conclude that Montiel
had the capacity to understand the nature of his conduct—
other factors included, for example, Montiel’s concern that
he had left behind evidence connecting him to the crime and
his search of the house for money.

Besides, Birchfield did take steps to undermine the
narrative offered by Dr. Siegel, prompting the prosecution to
present an alternative theory of the robbery-murder.
44 MONTIEL V. CHAPPELL

Specifically, Birchfield presented testimony from an
investigator with the Kern County Sheriff’s Office, who
clarified for the jury that $180 was found on Ante’s body, in
a front T-shirt pocket that was concealed by an outer layer.
On cross-examination, the prosecution showed the jury a
close-up photograph of Ante’s pants pockets—which,
according to Ante’s son Henry, had contained $12 in bills of
small denominations on the morning of the murder—and the
investigator confirmed that those pants pockets were found
empty when investigators arrived at the scene. A reasonable
jurist could conclude, therefore, that the jury was aware of
the flaw in the narrative offered by Palacio and repeated by
Dr. Siegel—but that the jury nonetheless concluded that
Montiel had intentionally killed Ante in the process of
robbing him of the money in his pants pockets, even if not
for the money in his shirt pocket.

That leaves Montiel’s psychosocial history and mental
health evidence. Some of this evidence would have been
cumulative. For example, the jury already knew that
Montiel started sniffing glue at a young age before turning
to heavier drugs. In addition, Dr. Nuernberger had offered
the opinion, albeit without much substantiating detail, that
Montiel’s drug use stemmed from a deep-seated, lifelong
depression and had described Montiel’s compliant behavior
in the controlled, drug-free prison environment.

Still, much of the psychosocial history was new, and that
history presented a starkly different narrative than the story
of a relatively normal childhood that Birchfield presented to
the jury. A complete picture of Montiel’s childhood would
have helped the jury understand that Montiel’s behavior as
an adult was not, as the prosecution put it, “a conscious
choice for his life, for violence, greed, and drug use.”
Rather, the jury would have understood that Montiel’s
 MONTIEL V. CHAPPELL 45

criminal behavior was rooted in early traumatic experiences
and the impoverished conditions of his upbringing. 18 The
new mental health evidence also offered a non-cumulative
and more robust assessment of Montiel’s cognitive and
neuropsychological deficits, which the jury could have
considered in mitigation. See Boyde v. California, 494 U.S.
370, 382 (1990) (“[E]vidence about [a] defendant’s
background and character is relevant [at sentencing] because
of the belief, long held by this society, that defendants who
commit criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems, may be
less culpable than defendants who have no such excuse.”
(emphasis omitted) (quoting Penry v. Lynaugh, 492 U.S.
302, 319 (1989), abrogated on other grounds by Atkins v.
Virginia, 536 U.S. 304, 320 (2002))).

We assume that Birchfield’s failure to present to the jury
this more sympathetic picture of Montiel’s childhood
suffering constituted deficient performance. But we cannot
say that the California Supreme Court would have been
unreasonable in holding that the error did not prejudice the
defense sufficiently to undermine confidence in the outcome
of the penalty-phase trial. The prosecution’s case in
aggravation was relatively strong, showing that Montiel had
engaged in a prior pattern of violence, with one incident
resulting in a felony conviction. The jury was also aware of
the gruesome nature of the murder and was instructed that

18
In support of his state habeas petition and this appeal, Montiel
provided a declaration from Dr. Thomas Milby about the medical effects
of pesticide exposure. Montiel does not dispute that he failed to present
this declaration to the district court, and his arguments on appeal do not
appear to rely on the declaration. We therefore do not consider it.
46 MONTIEL V. CHAPPELL

the 1979 guilt-phase jury had found felony-murder and
financial-gain special circumstances. 19

Montiel relies on Rompilla v. Beard, 545 U.S. 374
(2005), Wiggins v. Smith, 539 U.S. 510 (2003), and Bean v.
Calderon, 163 F.3d 1073 (9th Cir. 1998), but we are not
persuaded by his comparisons. In all three of those cases,
the court was not bound to apply AEDPA deference in its
prejudice analysis and thus conducted its inquiry de novo
before granting habeas relief. Rompilla, 545 U.S. at 390;
Wiggins, 539 U.S. at 534; Bean, 163 F.3d at 1077. The issue
before us is not whether we would have reached a different
conclusion in this case on de novo review, but rather whether
we can reach such a conclusion under AEDPA’s standard of
review. “Even if we would grant federal habeas relief upon
de novo review, § 2254(d) precludes such relief if there are
‘arguments that would otherwise justify the state court’s
result.’” Sully, 725 F.3d at 1067 (quoting Richter, 562 U.S.
at 102). For the reasons above, we conclude that such
arguments exist here.

19
As previously noted, the California Supreme Court had set aside
the financial-gain special circumstance on direct appeal before reversing
Montiel’s death sentence from the first penalty re-trial on other grounds.
Montiel I, 39 Cal. 3d 910, 927–29 (1985). Notwithstanding that
decision, the trial court, with the parties’ consent, improperly instructed
the 1986 penalty-phase jury that the guilt-phase jury had found the
financial-gain special circumstance. See Montiel II, 5 Cal. 4th at 925–
26. The California Supreme Court addressed the prejudicial impact of
the error in Montiel II, concluding that the mistake did not undermine
confidence in the judgment. Id. at 925–26 & 926 n.20. The court
explained that nothing in its previous decision striking the financial-gain
special circumstance “precluded this penalty jury from learning that its
predecessor found an intentional killing.” Id. The California Supreme
Court’s conclusion that the error probably had a minimal impact on the
prosecution’s case in aggravation was reasonable.
 MONTIEL V. CHAPPELL 47

Montiel also cites Porter v. McCollum, 558 U.S. 30
(2009) (per curiam), in which the Supreme Court found
prejudice under AEDPA’s deferential standard. But that
case is distinguishable. In Porter, the prosecution’s case for
aggravation consisted only of the circumstances surrounding
the crimes themselves—Porter had no other criminal history.
The defense put on virtually no case for mitigation: “The
judge and jury at Porter’s original sentencing heard almost
nothing that would humanize Porter or allow them to
accurately gauge his moral culpability.” Id. at 41. A proper
investigation would have uncovered evidence that Porter
was a decorated war hero who suffered from PTSD as a
result of his combat experience, that Porter’s childhood
included a history of physical abuse, and that Porter suffered
from neurological deficits that impaired his ability to
conform his conduct to the law. Id. at 33–37. Here, by
contrast, the prosecution’s case for aggravation was
substantial, and, notwithstanding the alleged errors made by
Birchfield, the jury did hear substantial mitigation
presentation, including testimony from nineteen witnesses.

In short, weighing the aggravating circumstances against
the totality of the mitigating evidence—and applying, as we
must, AEDPA’s very deferential standard of review—we
hold that a reasonable jurist could conclude that Montiel
failed to establish prejudice from Birchfield’s errors.

IV.

For the foregoing reasons, we conclude that the
California Supreme Court’s summary denial of Montiel’s
ineffective assistance of counsel claims was not an
unreasonable application of Strickland. We therefore
AFFIRM the judgment of the district court denying
Montiel’s application for a writ of habeas corpus.