FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THEODORE WASHINGTON, No. 05-99009
Petitioner-Appellant,
D.C. No.
v. CV-95-02460-JAT
DAVID SHINN, Director, ORDER AND
Respondent-Appellee. AMENDED
OPINION
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted September 8, 2021
San Francisco, California
Filed December 20, 2021
Amended August 29, 2022
Before: Ronald M. Gould, Consuelo M. Callahan, and
Lawrence VanDyke, Circuit Judges.
Order;
Opinion by Judge Callahan;
Concurrence by Judge Gould
2 WASHINGTON V. SHINN
SUMMARY *
Habeas Corpus/Death Penalty
The panel (1) filed an amended opinion along with Judge
Gould’s separate concurrence, (2) denied a petition for panel
rehearing, and (3) denied on behalf of the court a petition for
rehearing en banc, in a case in which the panel affirmed the
district court’s denial of Theodore Washington’s habeas
corpus petition challenging his Arizona conviction and death
sentence for first-degree murder.
Washington asserted that he is entitled to relief on
several grounds, the majority of which the panel addressed
in a memorandum disposition filed on January 15, 2021. In
this opinion, as amended, the panel addressed Washington’s
certified claim for ineffective assistance of trial counsel—
that counsel did not investigate and present mitigating
evidence at the penalty phase, including evidence of diffuse
brain damage, childhood abuse, and substance abuse.
Because Washington filed his habeas petition before the
enactment of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), the panel reviewed the claim under
the standard set out in Strickland v. Washington, 466 U.S.
668 (1984), and its progeny, without the added deference
required under AEDPA.
The panel recognized that certain forms of investigation
such as readily available school, employment, and medical
records are fundamental to preparing for virtually every
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
WASHINGTON V. SHINN 3
capital sentencing proceeding, but wrote that there is a strong
presumption that counsel’s representation was within the
wide range of reasonable professional assistance. This
presumption of reasonableness means that not only does the
court give the attorneys the benefit of the doubt, but the court
must also affirmatively entertain the range of possible
reasons counsel may have had for proceeding as they did.
Accordingly, in reviewing specific claims of ineffective
assistance of counsel based on counsel’s alleged failure to
investigate, the court must consider what information was
readily available to trial counsel at the time and whether
there is any evidence that undermines counsel’s decisions at
that time not to conduct further investigations.
The panel held that Washington did not meet his burden
under the first Strickland prong of showing constitutionally
deficient performance by failing to obtain and review
Washington’s education and incarceration records, where
counsel did not ignore Washington’s education and
correction records, but believed that his interviews with
Washington, Washington’s common law wife, and others
were sufficient; where counsel presented testimonial
evidence of Washington struggling in school and dropping
out in the tenth or eleventh grade; and where there was no
showing that those records contained meaningful mitigation
evidence.
The panel held that Washington did not meet his burden
of showing that trial counsel erred by not further
investigating Washington’s childhood abuse, to the extent
that he could have, or by not presenting the information he
did not have regarding abuse at sentencing hearing.
The panel held that Washington’s allegation that trial
counsel erred by not investigating and presenting evidence
4 WASHINGTON V. SHINN
of his substance abuse fails because counsel was not timely
informed of Washington’s substance abuse.
The panel held that Washington also did not show that
trial counsel erred by not seeking a psychological evaluation,
where (1) counsel testified that nothing in his extensive
interviews with Washington’s family and friends triggered
any red flags signaling that further investigation of
Washington’s mental condition would have been fruitful;
(2) counsel for the most part knew neither of later assertions
of diffuse brain damage, a dysfunctional family background,
and alcohol and cocaine addiction, nor of evidence
supporting the assertions; and (3) the record of post-
conviction review (PCR) proceedings does not contain any
medical records substantiating Washington’s claims of head
injuries.
The panel concluded that under the deferential standard
required by Strickland and its progeny, counsel’s
investigation was more than adequate, and his performance
was reasonable.
The panel held that even if trial counsel’s performance
had been deficient, Washington would not be entitled to
relief because he cannot show prejudice, where the
sentencing judge said that Washington’s new evidence in the
PCR hearing would not have made a difference, and a fair
evaluation of the evidence in light of Supreme Court
precedent confirms the soundness of the sentencing judge’s
finding of no prejudice.
The panel wrote that it is not insensitive to the fact that
Washington is the only one of the three perpetrators who
continues to face the death penalty. The panel emphasized,
however, that the critical questions—whether counsel’s
WASHINGTON V. SHINN 5
performance was constitutionally deficient and whether any
deficiency resulted in prejudice—must be individually
considered and separately considered in each case.
The panel rejected Washington’s argument that trial
counsel was ineffective because he allowed the state court to
require a nexus between his proffered mitigating evidence
and the crime. The panel wrote that the sentencing judge did
consider the evidence of substance abuse, and that the
judge’s conclusion that the evidence of substance abuse
lacked a causal nexus to the crime was appropriate because
a court is free to assign less weight to mitigating factors that
did not influence a defendant’s conduct at the time of the
crime.
Judge Gould concurred in part and concurred in the
judgment. He joined the opening paragraph (except for the
language on page 7 stating that “Washington has not shown
either that his trial counsel’s performance was
constitutionally deficient or”), Sections I, II, III, V, VI, and
VII, but did not join Sections IV and VIII, which he
concluded are unnecessary to resolve the Strickland
ineffective assistance of counsel issue.
COUNSEL
Nathaniel C. Love (argued), Grace L.W. St. Vicent, Andrew
F. Rodheim, and Julia G. Tabat, Sidley Austin LLP,
Chicago, Illinois; Jean-Claude André, Sidley Austin LLP,
Los Angeles, California; Gilbert H. Levy, The Law Offices
of Gilbert H. Levy, Seattle, Washington; Mark E. Haddad,
University of Southern California Gould School of Law, Los
Angeles, California; for Petitioner-Appellant.
6 WASHINGTON V. SHINN
Laura P. Chiasson (argued), Assistant Attorney General;
Lacey Stover Gard, Acting Chief Counsel, Capital Litigation
Section; Mark Brnovich, Attorney General; Office of the
Attorney General, Tucson, Arizona; for Respondent-
Appellee.
ORDER
The opinion filed on December 20, 2021, is amended by
the opinion along with Judge Gould’s separate concurrence
filed concurrently with this order.
With these amendments, the panel has voted to deny the
petition for panel rehearing and the petition for rehearing en
banc. The full court has been advised of the petition for
rehearing en banc, and no judge of the court has requested a
vote on it. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for
rehearing en banc are otherwise DENIED, and no further
petitions will be accepted.
OPINION
CALLAHAN, Circuit Judge:
Arizona state prisoner Theodore Washington appeals the
district court’s denial of his petition for a writ of habeas
corpus under 28 U.S.C. § 2254. In 1987, a jury convicted
Washington for the murder of Sterleen Hill and the
attempted murder of Ralph Hill, and the trial court judge
sentenced him to death.
WASHINGTON V. SHINN 7
In his habeas corpus petition, Washington challenges his
conviction and sentence on the first-degree murder charge.
He asserts that he is entitled to habeas relief on several
grounds, the majority of which we addressed in our
memorandum disposition filed on January 15, 2021,
Washington v. Ryan, 840 F. App’x 143 (9th Cir. 2021). In
this opinion we again address Washington’s certified claim
for ineffective assistance of trial counsel. 1 Washington
contends that his counsel did not investigate and present
mitigating evidence at the penalty phase, including evidence
of diffuse brain damage, childhood abuse, and substance
abuse. Applying the standard for evaluating ineffective
assistance of counsel set forth in Strickland v. Washington,
466 U.S. 668 (1984), 2 we conclude that Washington has not
shown either that his trial counsel’s performance was
constitutionally deficient or that the deficiencies were
prejudicial. Accordingly, we affirm the district court’s
denial of his habeas petition.
I
At around 11:45 p.m. on the night of June 8, 1987, at
least two men forced their way into Ralph and Sterleen Hill’s
home in Yuma, Arizona. The men forced the Hills to lie face
down on the floor of the master bedroom with their hands
bound in preparation to be shot execution-style. One of the
men intermittently “screwed” a pistol in Ralph’s ear while
1
Our previous opinion, Washington v. Ryan, 922 F.3d 419 (9th Cir.
2019), was withdrawn on January 15, 2021. Washington v. Ryan, 840 F.
App’x 143 (9th Cir. 2021). In that order we requested that the parties
file supplemental briefs addressing the significance of Shinn v. Kayer,
141 S. Ct. 517 (2020). Following the submission of supplemental briefs,
we heard re-argument on September 8, 2021.
2
This opinion omits parallel citations.
8 WASHINGTON V. SHINN
both men yelled at the couple demanding that the Hills give
them drugs or money. Ralph glimpsed one of the assailants
as he ransacked the drawers and closets in the room.
Sterleen was forced to listen helplessly as her husband was
shot first and then wait as the shotgun was reloaded,
knowing that she would be next. Had the Hills’ teenage son,
LeSean, not run off, it is evident that he would have suffered
the same fate. (Ralph testified he heard a voice in the
background say, “We better get the kid.”). The Hills were
discovered lying face down in their bedroom. Ralph
survived the horrendous shot to his head, but was seriously
injured. Sterleen did not survive the shooting.
Police arrested Fred Robinson shortly after the incident.
Robinson was the common law husband of Susan Hill, Ralph
Hill’s daughter from a prior marriage. Police also arrested
Jimmy Mathers and Theodore Washington in connection
with the crimes. Arizona charged the three men with first-
degree murder for the death of Sterleen Hill, attempted first
degree murder, aggravated assault causing serious physical
injury, aggravated assault using a deadly weapon, burglary
in the first degree, and armed robbery. The three men were
tried together, and the jury convicted on all counts.
A.
The penalty phase of the trial commenced on January 8,
1988. Washington’s trial counsel, Robert Clarke, called
three witnesses to testify on Washington’s behalf:
Washington’s friend, Steve Thomas; Washington’s mother,
Willa Mae Skinner; and Washington’s half-brother, John
Mondy.
Steve Thomas testified that he knew Washington for two
years. He testified that Washington was easily influenced
but not violent. He also testified that Washington was a
WASHINGTON V. SHINN 9
dedicated father. When asked if Washington had a drug
problem, Thomas testified that he had not noticed one.
Skinner testified that Washington was a good child and that
he dropped out of school when he was in high school. She
also testified that Washington was a good father, and that he
was gentle and “liked to party.” Finally, Mondy reiterated
that Washington was affable but easily led. He also
confirmed that Washington had trouble in school as a child.
During closing argument, Clarke focused primarily on
attacking the sufficiency of the court’s findings under
Enmund v. Florida, 458 U.S. 782 (1982), and Tison v.
Arizona, 481 U.S. 137 (1987). Regarding mitigation, Clarke
urged the court to consider Washington’s age, his relatively
minor criminal record, his good relationship with his son,
and his general demeanor as a caring individual.
The trial court found that the state had established two
aggravating factors beyond a reasonable doubt: (1) that the
murder was committed in an especially cruel, heinous, or
depraved manner, and (2) that the murder was committed
for, or motivated by, pecuniary gain. With respect to
mitigation, the court found that Washington’s age was not a
mitigating factor and that the remaining mitigating factors
did not outweigh the aggravating factors. The court
sentenced all three defendants to death on the first-degree
murder charges.
B.
Washington, Robinson, and Mathers each appealed his
conviction and sentence to the Arizona Supreme Court. The
state high court affirmed Washington and Robinson’s
convictions and sentences, State v. Robinson, 796 P.2d 853
(Ariz. 1990), but found insufficient evidence to convict
10 WASHINGTON V. SHINN
James Mathers and vacated his conviction, State v. Mathers,
796 P.2d 866 (Ariz. 1990).
Following the direct appeal process, Washington and
Robinson challenged their convictions and sentences on
post-conviction review (“PCR”). The trial court held a joint
PCR hearing on September 8, 1993. The Honorable Stewart
Bradshaw, the same judge who presided over the trial,
presided over the post-conviction review proceeding.
Washington, through his appellate counsel, argued that
Clarke was ineffective at the penalty phase due to his failure
to present mitigating evidence. Specifically, Washington
argued that Clarke erred by failing to conduct a more
thorough review of his school, medical, and incarceration
records. Washington also argued that Clarke should have
obtained a psychological evaluation and presented the
results to the court.
The bulk of the new evidence presented at the PCR
hearing was elicited through the testimony of Dr. Tod Roy,
the defense counsel’s retained psychologist. Dr. Roy
evaluated Washington in 1992. He conducted clinical
interviews and several psychological tests. Dr. Roy’s
interviews with Washington revealed that he suffered abuse
as a child in the form of daily whippings with straps and belts
and that adults in the home used alcohol to sedate him as a
child. Dr. Roy’s review of Washington’s school and
Department of Corrections (“DOC”) records revealed that
Washington was placed in classes for the “educable mentally
retarded” when he was five years old and that he had been
marked as low-IQ while incarcerated. However, Dr. Roy
testified that these records conflicted with his own clinical
findings because Washington tested at a low-to-average IQ
of 96.
WASHINGTON V. SHINN 11
Dr. Roy’s interviews with Washington also disclosed
that Washington had substance abuse problems relating to
cocaine and alcohol use. Washington told Dr. Roy that he
began drinking recreationally at age eight and was a
functional alcoholic by age fourteen. He also told Dr. Roy
that he was heavily intoxicated on the night of the murder.
Washington also said that he was a heavy cocaine user and
that he used about $175 in cocaine per day at the time of the
crime.
Finally, Dr. Roy testified that he believed that
Washington suffered from diffuse brain damage resulting
from early and prolonged drug and alcohol use and
numerous traumatic head injuries. Dr. Roy testified that
diffuse brain damage can result in disinhibition and poor
social judgment as well as poor impulse control and an
inability to appreciate the long-term consequences of one’s
actions. Dr. Roy testified that, in his opinion, Washington’s
cocaine addiction and his impaired impulse control likely
contributed to his ability to be manipulated by others into
making poor decisions.
The state called Dr. Eva McCullars, a psychiatrist who
also evaluated Washington. Dr. McCullars reviewed
Dr. Roy’s report and conducted clinical interviews with
Washington in June 1993. Dr. McCullars testified that she
did not review Washington’s DOC records, school records,
or adult incarceration records. Dr. McCullars agreed that
Washington suffered from diffuse brain damage, but
concluded that Washington also suffered from antisocial
personality disorder. On direct examination, the state asked
Dr. McCullars whether diffuse brain damage could cause
hyperkinesis (hyperactive behavior or attention deficit
disorder). Dr. McCullars explained that “[hyperkinesis] is
one example of diffuse brain damage.” She went on to
12 WASHINGTON V. SHINN
explain that several prominent individuals including Walt
Disney and Thomas Edison exhibited hyperkinetic behavior
as children. When questioned on cross examination,
Dr. McCullars acknowledged that Washington came from a
“significantly dysfunctional family.” She also admitted that
several of the markers for antisocial personality disorder,
such as early truancy and an inability to maintain
employment, were more frequently associated with lower
socio-economic status Black adolescents, such as
Washington, when compared to the general population.
Clarke, Washington’s trial counsel, also testified at the
PCR hearing. He testified that he did not request
Washington’s education or corrections records because he
believed his interviews with Washington, Skinner, Mondy,
and Washington’s common law wife, Barbara Bryant, were
sufficient. Clarke testified that he had “very extensive
discussions” with Washington about what his life was like
and any possible substance abuse issues. Clarke also
testified that he had “relatively extensive” discussions with
Washington’s mother, half-brother, and girlfriend. Clarke
testified that, based on these interviews, “there wasn’t
anything that clued me in that there was a special problem
that would suggest I should obtain those types of records.”
With respect to Washington’s drug use, Clarke testified that
Washington never told him that he was addicted to cocaine
or that he was using cocaine on the night of the murder.
When questioned on the matter, Clarke acknowledged that
Bryant had told him that Washington had a “cocaine
problem,” but that he did not investigate further.
In a written order, Judge Bradshaw held that Washington
was not entitled to relief for ineffective assistance of counsel
at the penalty phase. Judge Bradshaw credited
Dr. McCullars’s findings that Washington had antisocial
WASHINGTON V. SHINN 13
personality disorder and was poorly adjusted to living in
society. However, Judge Bradshaw concluded that “there is
nothing . . . which lessened his ability to differentiate right
from wrong or conform his actions with the law.” Judge
Bradshaw also explained that he had been aware at the time
of sentencing that Washington had been doing well while
incarcerated. Judge Bradshaw further reasoned that any
drug and alcohol dependency “taken separately or with any
other mitigating circumstance or circumstances would [not]
have mitigated against the sentence [Washington] has
received.”
On April 25, 1995, the Arizona Supreme Court
summarily denied Washington’s petition for review of the
PCR court’s decision.
C.
Washington then commenced his habeas action in the
federal district court, culminating in this appeal. In his
amended federal habeas corpus petition, Washington raised
seventeen claims. The district court determined that certain
claims were procedurally barred, and on April 22, 2005, the
district court rejected the remaining claims on their merits
and dismissed the petition. Washington filed a motion to
alter the judgment on May 5, 2005, which the district court
denied on June 8, 2005.
On July 11, 2005, Washington filed an untimely notice
of appeal from the district court’s denial of habeas relief. A
three-judge panel of this court held that it lacked jurisdiction
and affirmed the district court’s denial of Rule 60(b) relief.
Washington v. Ryan, 789 F.3d 1041 (9th Cir. 2015). We then
granted Washington’s motion for en banc rehearing.
Washington v. Ryan, 811 F.3d 299 (9th Cir. 2015). In a 6–5
decision, we held that Washington was entitled to relief
14 WASHINGTON V. SHINN
under Rule 60(b)(1) and (6) from his untimely notice of
appeal and ordered the district court to “vacate and reenter
its judgment denying Washington’s petition for writ of
habeas corpus, nunc pro tunc, June 9, 2005,” to render the
notice of appeal timely. Washington v. Ryan, 833 F.3d 1087,
1102 (9th Cir. 2016). The U.S. Supreme Court denied the
state’s petition for writ of certiorari. Ryan v. Washington,
137 S. Ct. 1581 (2017) (mem.).
Meanwhile, in 2005, the district court issued a 48-page
memorandum and order denying Washington’s habeas
petition. In his PCR proceedings, Washington had “alleged
that Clarke rendered ineffective assistance of counsel by
failing to interview him regarding potential mitigation and
by failing to present evidence of good behavior during
incarceration, his unstable family background, and the
absence of a violent history or propensity.”
In rejecting Washington’s claims of ineffective
assistance of counsel, the district court held that Washington
had to “identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional
judgment.” It further noted that Washington had to
“overcome the presumption that under the circumstances,
the challenged action might be considered sound trial
strategy,” and that it must “judge the reasonableness of
counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.”
The district court recognized that counsel had a duty to
conduct a reasonable investigation and that a failure to
adequately investigate and present mitigating evidence can
constitute deficient performance. However, the district court
concluded that while Clarke could have conducted
additional investigation of Washington’s background for
potential mitigation, it could not conclude “that Clarke
WASHINGTON V. SHINN 15
performed deficiently by failing to do so.” The court noted
that Clarke was an experienced attorney who had worked
both as a prosecutor and as defense counsel, had tried thirty
to fifty jury trials, and had tried three or four capital cases
before he was appointed to represent Washington. The
district court stated that Clarke had “began investigating
possible mitigation as he investigated the facts of the case,”
had very extensive discussions with Washington “regarding
what his life was like from when he was a young man to the
present,” and had rather extensive discussions with
Washington’s common-law wife (Bryant), brother, and
mother. The court observed that Clarke testified that he had
questioned Washington very closely about his drug use and
alcohol intake and about possible physical abuse during his
childhood.
Clarke acknowledged that he did not seek Washington’s
school records because he relied on family members to
provide information regarding Washington’s education.
Clarke did not seek Washington’s incarceration records
because they were “unlikely to have records relevant to
potential mitigation, such as psychological records, because
Petitioner had only been incarcerated for two years for
burglary and was not ‘a hardened criminal.’” Clarke also
explained that he did not seek a mental health evaluation of
Washington because “he had not observed anything from his
many lengthy meetings with Petitioner, or interviews of
Petitioner’s family, that suggested that such an evaluation
was warranted.” Clarke also testified that he had questioned
family members about any “medical problems” or “anything
out of the ordinary” in Washington’s background, but had
not requested his medical history. Finally, Clarke
acknowledged that Bryant had told him that Washington had
a “cocaine problem,” but noted that Washington had never
told Clarke that Washington was addicted to cocaine or had
16 WASHINGTON V. SHINN
used cocaine the day of the crime; he had only stated that he
had been intoxicated.
The district court noted that Washington “presented no
evidence at the state PCR evidentiary hearing to contradict
Clarke’s testimony.” Although Washington in his affidavit
averred that Clarke did not discuss the penalty phase with
him until twenty minutes before the hearing, the district
court determined that “Clarke’s presentation of three
witnesses at sentencing, each of whom had traveled to Yuma
from at least as far away as Banning[,] is alone sufficient to
discredit the implication that Clarke failed to prepare for the
sentencing until minutes before the aggravation/mitigation
hearing.” The district court further found at his PCR hearing
in state court, Washington had not presented any evidence
from Bryant or family members that contradicted Clarke’s
testimony and that the PCR court “clearly found Clarke more
credible than Petitioner’s affidavit on these points.”
Furthermore, Washington presented no evidence that his
school records or his incarceration records would have
revealed potential mitigation. Rather, the single reference in
Washington’s school records that he was “educable mentally
retarded” was contradicted by Dr. Roy’s own testing of
Washington, which showed that he had average or low-
average intelligence and “was not retarded.”
The district court determined that Washington had not
shown that Clarke acted unreasonably in not seeking a
mental health evaluation. The court observed that there was
“scant evidence” that Washington had been treated for any
prior mental illness or had any mental health history, and that
there was no evidence that Washington, his family members,
or friends ever disclosed any concerning incidents to Clarke
or suggested that such incidents would have led to relevant
WASHINGTON V. SHINN 17
mitigation. 3 The district court noted that there was no
evidence that anyone had told Clarke that Washington had
suffered several head injuries during his childhood and
adolescence.
The district court further credited Clarke’s statements
that Washington only told him that he was intoxicated the
night of the crime and never said that he had also used
cocaine and was an alcoholic and a drug addict. The court
concluded that Clarke had little reason to further investigate
Washington’s substance abuse and that Clarke had not
“conducted an unreasonable investigation.” The district
court concluded that “Clarke’s investigation and
presentation of mitigation was reasonable and that he did not
perform deficiently.”
The district court further found that even if Clarke had
performed deficiently, Washington had not shown that he
was prejudiced. Again citing Strickland, the court noted that
“an error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment,” that
the petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different,” and that
a reasonable probability is a probability sufficient to
3
In his affidavit Washington reported that after he got into trouble
when he was fifteen, he received psychiatric counseling as part of his
rehabilitation. He told Dr. Roy that the psychologist concluded that the
death of Washington’s father had left him without a male figure in his
life and this was responsible for the difficulties he experienced.
Washington also told Dr. Roy that in 1981 he was taken to the
Sacramento County Hospital after overdosing on LSD and passing out,
and was admitted to the psychiatric unit, but Dr. Roy noted that there
was no evidence regarding the length of his stay, treatment, or diagnosis.
18 WASHINGTON V. SHINN
undermine confidence in the outcome. The court noted that
it is “asked to imagine what the effect might have been upon
a sentencing judge, who was following the law, especially
one who had heard the testimony at trial.” 4
The district court noted that the state PCR court (Judge
Bradshaw), “before whom Petitioner was tried, heard all of
the additional mitigation evidence proffered by Petitioner,
. . . credited Dr. McCullars’s finding of antisocial
personality disorder and concluded that Petitioner had not
demonstrated a reasonable probability that his sentence
would have been different if that mitigation had been
presented at trial.”
Addressing Washington’s intoxication on the night of
the crime, the district court noted that under Arizona law,
intoxication at the time of a crime can constitute a statutory
mitigation if the defendant establishes that his capacity to
appreciate the wrongfulness of his conduct or his ability to
conform his conduct to the requirements of law was
significantly impaired, but not so impaired as to constitute a
defense to prosecution. The burden is on the defendant to
establish this mitigation. See State v. Woratzeck, 657 P.2d
870, 870–71 (Ariz. 1982) (holding “appellant had failed to
4
The district court noted that “[a]t the time [Washington] was
sentenced, Arizona’s death penalty statute required a judge to impose a
death sentence if one or more aggravating circumstance were proven
beyond a reasonable doubt and the mitigation established by a
preponderance of the evidence was not sufficiently substantial to call for
leniency.” In Ring v. Arizona, 536 U.S. 584, 609 (2002), the Supreme
Court ruled that a sentencing judge, sitting without a jury, may not find
an aggravating factor necessary for imposition of the death penalty.
However, in Schriro v. Summerlin, 542 U.S. 348, 358 (2004), the
Supreme Court held that Ring does not apply retroactively to cases such
as Washington’s that were already final on direct review at the time Ring
was decided.
WASHINGTON V. SHINN 19
show as a mitigating circumstance that intoxication caused
significant impairment of his capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirement of law”). The district court noted that under
Arizona case law, “self-reports of voluntary intoxication at
the time a crime was committed are subject to searching
skepticism because of the obvious motive to fabricate,” “a
defendant’s claim of alcohol or drug impairment may be
rebutted by evidence that he took steps to avoid detection
shortly after the murder or when it appears that intoxication
did not overwhelm the defendant’s ability to control his
physical behavior,” and “a long history of drug dependence,
absent evidence that a defendant was actually impaired at the
time of the crime, does not constitute mitigation.”
The district court concluded that the newly proffered
evidence of impairment would be accorded little weight. It
noted that the only evidence, other than self-reporting, “was
Bryant’s testimony that Petitioner sounded intoxicated when
he called her at least two hours after the offense.” The court
noted that although Washington told the experts that he was
intoxicated the night of the crime, neither expert opined as
to Washington’s capacity to appreciate the wrongfulness of
his conduct. Moreover, “evidence supports that Petitioner
fled from the Hills’ home immediately after they were shot,
that he called Bryant, and ultimately purchased a bus ticket
to return to Banning.”
Addressing the proffered evidence of mental
impairment, the district court noted that under Arizona law,
“major mental impairments, such as mental illness or brain
damage, carry far more mitigating weight than does a
personality disorder if such impairments demonstrate a
defendant’s inability to control his conduct or to appreciate
the differences between right and wrong.” See Ariz. Rev.
20 WASHINGTON V. SHINN
Stat. § 13-703(G)(1) (2008). The court noted that although
Dr. Roy concluded that Washington had diffuse brain
damage, he did not find that such damage significantly
impaired Washington’s capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirement of law. Dr. McCullars found no indication that
diffuse brain damage impaired Washington’s capacity. The
district court concluded that the proffered evidence of mental
impairment was entitled to minimal weight.
Addressing evidence of a dysfunctional family
background, the district court noted that under Arizona law
“while a difficult family background, including childhood
abuse, may be relevant mitigation at the penalty phase,
dysfunctional family history is entitled to significant
mitigating weight only if it had a causal connection to the
offense-related conduct.” Moreover, the weight accorded a
difficult family background may be discounted for an adult
offender. The district court concluded that the additional
evidence of Washington’s family background was entitled to
little weight because neither expert identified any causal
connection to Washington’s participation in the murder and
Washington was 27 years old at the time of the crime.
The district court concluded that there was no reasonable
probability that the additional mitigation proffered by
Washington would have altered his sentence. The court
noted that even if Washington “was not the actual shooter,”
there was evidence that he “went into the Hills’ home
seeking drugs and money and that he knew before entering
the home that one or more of its occupants might be shot, ‘if
things [got] rough,’” and that he “participated in forcing
entry into the home, tying up the elderly occupants (face
down on the floor) and ransacking their bedroom for
valuables.” The district court concluded that Washington’s
WASHINGTON V. SHINN 21
proffered evidence of voluntary intoxication at the time of
the crime, a chronic substance abuse problem, diffuse brain
damage, an antisocial personality disorder, and a
dysfunctional family background, did not, separately or
combined, impair “his capacity to control his conduct to the
law’s requirements or know the difference between right and
wrong.” Moreover, Washington had failed to show any
causal connection between these factors and the crime that
might help explain and thus mitigate his role in the murder.
Accordingly, the district court found that Washington had
not demonstrated that he was prejudiced by counsel’s
alleged deficient performance.
II
We review de novo a district court’s decision to grant or
deny a habeas petition under 28 U.S.C. § 2254. See Bean v.
Calderon, 163 F.3d 1073, 1077 (9th Cir. 1998). Because
Washington filed his habeas petition before the enactment of
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the provisions of AEDPA do not apply to this
case. Id. (citing Jeffries v. Wood, 114 F.3d 1484, 1495–96
(9th Cir. 1997) (en banc)). Instead, we review the claim
under the familiar standard set out in Strickland and its
progeny without the added deference required under
AEDPA. 5
5
Although we held this appeal for the Supreme Court’s opinion in
Shinn, 141 S. Ct. 517, its treatment of AEDPA is not applicable to this
appeal. However, the Supreme Court reaffirmed that Strickland provides
the framework for assessing claims of ineffective assistance of counsel.
Id. at 522.
22 WASHINGTON V. SHINN
III
Although the principles underlying and governing a
claim of ineffective assistance of counsel are familiar, they
bear repeating. “The right to counsel is a fundamental right
of criminal defendants; it assures the fairness, and thus the
legitimacy, of our adversary process.” Kimmelman v.
Morrison, 477 U.S. 365, 374 (1986). “[T]he right to counsel
is the right to the effective assistance of counsel.” Strickland,
466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)). Under Strickland’s two-part test for
claims of ineffective assistance of counsel, a convicted
defendant must show (1) constitutionally deficient
performance by counsel (2) that prejudiced the defense. Id.
at 687.
“The essence of an ineffective-assistance claim is that
counsel’s unprofessional errors so upset the adversarial
balance between defense and prosecution that the trial was
rendered unfair and the verdict rendered suspect.”
Kimmelman, 477 U.S. at 374. “As is obvious, Strickland’s
standard, although by no means insurmountable, is highly
demanding.” Id. at 382; see also Padilla v. Kentucky,
559 U.S. 356, 371 (2010) (“Surmounting Strickland’s high
bar is never an easy task.”). “Only those habeas petitioners
who can prove under Strickland that they have been denied
a fair trial by the gross incompetence of their attorneys will
be granted the writ . . . .” Kimmelman, 477 U.S. at 382.
“When counsel focuses on some issues to the exclusion
of others, there is a strong presumption that he did so for
tactical reasons rather than through sheer neglect.”
Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (citing
Strickland, 466 U.S. at 690). Even if inadvertence (not
tactical reasoning) results in non-pursuit of a particular issue,
“relief is not automatic. The Sixth Amendment guarantees
WASHINGTON V. SHINN 23
reasonable competence, not perfect advocacy judged with
the benefit of hindsight.” Id.
To prevail on his claim for ineffective assistance of
counsel, Washington must establish that Clarke’s
performance was deficient and that Washington suffered
prejudice as a result. See Strickland, 466 U.S. at 687. To
establish deficient performance, Washington must show that
“counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. To establish prejudice,
Washington must show that there is “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id.
at 694.
In articulating the standard against which counsel’s
performance should be judged, Strickland emphasized the
deference due to a lawyer’s decisions both as to scope of
investigation and decisions made after investigation:
“[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable . . . .” Strickland, 466 U.S. at 690. We have
likewise recognized the wide latitude to be given to
counsel’s tactical choices. See, e.g., United States v.
Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986)
(“Review of counsel’s performance is highly deferential and
there is a strong presumption that counsel’s conduct fell
within the wide range of reasonable representation.”). Yet
our deference to counsel’s performance is not unlimited. As
the Court explained in Strickland, counsel’s strategic choices
made after less than complete investigation are reasonable
only to the extent that “reasonable professional judgments
support the limitations on investigation.” 466 U.S. at 690–
91.
24 WASHINGTON V. SHINN
IV
Washington has not met his burden under the first
Strickland prong of showing that Clarke provided
constitutionally deficient performance by failing to obtain
and review Washington’s education and incarceration
records, failing to investigate possible child abuse and
substance abuse, and not seeking a psychological
explanation for Washington’s conduct.
We recognize that “certain forms of investigation” such
as “readily available . . . school, employment, and medical
records” “are fundamental to preparing for virtually every
capital sentencing proceeding.” Robinson v. Schriro,
595 F.3d 1086, 1108–09 (9th Cir. 2010). However, we are
required to engage in a “‘strong presumption’ that counsel’s
representation was within the ‘wide range’ of reasonable
professional assistance.” Harrington v. Richter, 562 U.S.
86, 104 (2011) (quoting Strickland, 466 U.S. at 689). This
presumption of reasonableness means that not only do we
“give the attorneys the benefit of the doubt,” we must also
“affirmatively entertain the range of possible” reasons
counsel may have had for proceeding as they did. Cullen v.
Pinholster, 563 U.S. 170, 196 (2011) (cleaned up); McGill
v. Shinn, 16 F.4th 666, 689 (noting that we begin our analysis
with a “strong presumption” that counsel’s decisions reflect
“reasonable professional judgment”) (quoting Cullen,
563 U.S. at 190)); Gallegos v. Ryan, 820 F.3d 1013, 1025
(9th Cir. 2016) (holding that “[w]e are ‘highly deferential’
in reviewing counsel’s performance and must be careful not
to ‘conclude that a particular act or omission of counsel was
unreasonable’ simply because the defense was ultimately
unsuccessful”) (quoting Strickland, 466 U.S. at 689).
Accordingly, in reviewing specific claims of ineffective
assistance of counsel based on counsel’s alleged failure to
WASHINGTON V. SHINN 25
investigate, we must consider what information was “readily
available,” Robinson, 595 F.3d at 1109, to trial counsel at the
time and whether there is any evidence that undermines
counsel’s decisions at that time not to conduct further
investigations.
A.
Clarke did not ignore Washington’s education and
correction records. Rather he believed that his interviews
with Washington, Bryant, and others were sufficient. Clarke
presented testimonial evidence of Washington struggling in
school and dropping out in the tenth or eleventh grade.
Moreover, there is no showing that the education records
themselves contain meaningful mitigation evidence. The
single proffered item of mitigation in Washington’s
education records is a 1965 comment (from when
Washington was five years old) that he should be placed in
special classes for the “educable mentally retarded.” But
that single, decades-old notation is inconsequential when
compared with more than ten additional years of schooling
in the general population. Also, any suggestion that the
school records showed a meaningfully low IQ is
contradicted by later IQ testing by Washington’s own expert,
Dr. Roy. Indeed, Washington has never even suggested the
possibility of intellectual disability. Thus, the sufficiency of
Clarke’s investigation of Washington’s educational records
is affirmed by the district court’s observation that
Washington “presented no evidence that his school records
. . . would have revealed potential mitigation.”
Similarly, Clarke reasonably thought that Washington’s
incarceration records were unlikely to contain “records
relevant to potential mitigation” because he “had only been
incarcerated for two years for burglary and was not a
‘hardened criminal.’” Washington has not countered that
26 WASHINGTON V. SHINN
assertion by showing that his California incarceration
records contained any meaningful mitigating materials.
Furthermore, Judge Bradshaw stated that he was aware at the
time of sentencing of Washington’s good behavior during
his incarceration.
B.
Washington has also not met his burden of showing that
Clarke erred by not investigating and presenting evidence of
his childhood abuse. In his conversations with Dr. Roy,
Washington revealed that he suffered physical abuse as a
child in the form of daily whippings and beatings. Roy was
also told that Washington was given alcohol as a child to
control his behavior. Both psychological experts who
testified at the PCR hearing agreed that Washington’s
childhood was significantly dysfunctional. However, none
of this information had come to Clarke’s attention before or
during the trial. Clarke, at least initially, had to rely on
representations by Washington and his family members in
determining the extent to which Washington suffered
childhood abuse. At the time of his trial, neither Washington
nor his family members had indicated to Clarke that
Washington had suffered extreme abuse growing up.
Accordingly, Clarke did not err by not further investigating
Washington’s childhood abuse, to the extent that he could
have, or by not presenting at the sentencing hearing
information he did not have regarding abuse. See Strickland,
466 U.S. at 691 (“[W]hen a defendant has given counsel
reason to believe that pursuing certain investigations would
be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as
unreasonable.”).
WASHINGTON V. SHINN 27
C.
Similarly, Washington’s allegation that Clarke erred by
not investigating and presenting evidence of Washington’s
substance abuse fails because Clarke was not timely
informed of Washington’s substance abuse. Clarke
reasonably relied on his conversations with Washington and
his friends and family, which did not indicate any substance
abuse. Washington had told Clarke that he was heavily
intoxicated on the night of the crimes, but he did not mention
any ongoing problems with drugs or with alcohol. Similarly,
Washington’s mother described him as someone who “liked
to party,” but also did not say that Washington had problems
with addiction. Perhaps the single clue Clarke had that
might have raised his suspicions about substance abuse was
the statement of Washington’s common-law wife that
Washington had a “cocaine problem.” However, when set
against Washington’s own statements and those of his family
members, Clarke’s decision not to further investigate
Washington’s drug addiction was not objectively
unreasonable.
D.
Finally, Washington has not shown that Clarke erred by
not seeking a psychological evaluation. Clarke’s
investigation included extensive discussions with
Washington and Washington’s family and friends. Clarke
asked Washington and his family members about whether
Washington “had any propensity to violence,” “about his
drug use,” “about his alcohol intake,” “about whether or not
he was abused, growing up,” about “what discipline was
like,” and “things of that nature.” At the PCR hearing,
Clarke testified that, in all the interviews with Washington
and his family, nothing triggered any red flags signaling that
further investigation of his mental condition would have
28 WASHINGTON V. SHINN
been fruitful. There does not appear to have been anything
in Washington’s education and incarceration records which
contradicts this conclusion. Washington’s later assertions of
diffuse brain damage, a dysfunctional family background,
and alcohol and cocaine addiction, if supported by evidence,
might lead competent counsel to seek a psychological
evaluation, but Clarke, for the most part, knew neither of the
assertions nor of evidence supporting the assertions. At the
PCR hearing, the experts disagreed as to whether diffuse
brain damage was disabling 6 and the proffered evidence of
head injuries was less than compelling. Dr. McCullars found
that Washington’s historical reporting varied from one
interviewer to another. Indeed, the record of the PCR
proceedings does not contain any medical records
substantiating Washington’s claims of head injuries. Also,
Clarke had extensive discussions with Washington and his
family and friends about whether he had been abused
growing up, and reasonably determined that Washington’s
family members would make better witnesses than a
psychologist who might examine Washington for a
relatively brief period (and might not offer any mitigating
conclusions). In addition, Washington’s claims of addiction,
for the most part, were self-reported well after his trial and
do not square with his prior statements to Clarke only that he
had been drinking on the day of the crime.
Under the deferential standard required by Strickland
and its progeny, Clarke’s investigation was more than
adequate, and his performance was reasonable.
6
Dr. McCullars stated that diffuse brain damage was present in
approximately ten to fifteen percent of the population and did not
necessarily impair an individual’s functioning.
WASHINGTON V. SHINN 29
V
A.
But even if Clarke’s performance had been deficient,
under Strickland, Washington would not be entitled to relief
unless he could also show that the deficiency was
prejudicial. “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686. Strickland “requires
showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.”
Id. at 687. To prove prejudice, a defendant must show “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694.
“It is not enough ‘to show that the errors had some
conceivable effect on the outcome of the proceeding.’
Counsel’s errors must be ‘so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.’”
Harrington, 562 U.S. at 104 (citations omitted) (quoting
Strickland, 466 U.S. at 687). Although the reasonable
probability standard “does not require a showing that
counsel’s actions ‘more likely than not altered the outcome,’
. . . the difference between Strickland’s prejudice standard
and a more-probable-than-not standard is slight and matters
‘only in the rarest case.’” Id. at 111–12 (quoting Strickland,
466 U.S. at 693, 697); see id. at 112 (“The likelihood of a
different result must be substantial, not just conceivable.”).
To determine whether Washington has met his burden of
showing prejudice, we must “reweigh the evidence in
30 WASHINGTON V. SHINN
aggravation against the totality of available mitigating
evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).
This comparison cannot be made without first clearly
identifying the evidence in mitigation that would have been
offered at the penalty phase of trial but for counsel’s grossly
incompetent performance. As noted in our prior retracted
opinion, perhaps Washington’s best argument is that Clarke
was incompetent in failing to present “evidence concerning
Washington’s potentially impaired cognitive functions.”
This refers to Dr. Roy’s assertions that Washington had
symptoms of diffuse brain damage, likely caused by multiple
head injuries incurred when Washington was young, and that
diffuse brain damage contributes to a “lack of judgment” and
an “inability to establish stability in life.”
In reweighing this evidence, we must take as our baseline
the evidence of aggravation and mitigation offered at trial
and the resulting sentence. After considering the details of
the brutal, execution-style murder and attempted murder,
and weighing it against the mitigation evidence
Washington’s counsel presented, Judge Bradshaw sentenced
Washington to death. With that starting point in mind, we
undertake the theoretical inquiry of determining whether it
is reasonably likely that Washington would have received a
different sentence if the new mitigation evidence were to be
added to the mix of mitigation evidence that was presented
at trial.
Of course, no guesswork is needed here. We know that
Washington’s new evidence would not have made a
difference because the sentencing judge said so. See Cook v.
Ryan, 688 F.3d 598, 612 (9th Cir. 2012) (finding no
prejudice where “the same trial judge who sentenced” the
petitioner to death stated that the new evidence “would not
have made any difference”). Judge Bradshaw “considered
WASHINGTON V. SHINN 31
all of [the new] information in the post-conviction hearing
and” definitively “held that none of it would have altered his
judgment as to the proper penalty for” Washington.
Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997).
B.
A fair evaluation of the evidence in light of Supreme
Court precedent confirms the soundness of Judge
Bradshaw’s finding of no prejudice. Because of Strickland’s
“highly demanding” standard, Kimmelman, 477 U.S. at 382,
it is no surprise that petitioners have historically found little
success bringing ineffective assistance of counsel claims.
However, beginning in 2000, the Supreme Court found
Strickland’s “high bar” satisfied in four cases involving
claims of ineffective assistance of counsel at the penalty
phase of a capital trial: Williams v. Taylor, 529 U.S. 362
(2000); Wiggins, 539 U.S. 510; Rompilla v. Beard, 545 U.S.
374 (2005); and Porter v. McCollum, 558 U.S. 30 (2009).
These decisions serve as guideposts for determining when
relief is warranted in such cases.
In Williams, the jury fixed the punishment at death after
hearing evidence of a long history of criminal conduct
including armed robbery, burglary and grand larceny, auto
thefts, violent assaults on elderly victims, and arson.
529 U.S. at 368–70. At sentencing, defense counsel offered
very little evidence. Id. at 369. In addressing Williams’
Strickland claim, the Supreme Court cited “graphic” details
“of Williams’ childhood, filled with abuse and privation,”
evidence that Williams was “borderline mentally retarded,”
and other significant mitigation evidence that was not
unearthed only because of counsel’s deficient performance:
[C]ounsel did not begin to prepare for that
phase of the proceeding until a week before
32 WASHINGTON V. SHINN
the trial. They failed to conduct an
investigation that would have uncovered
extensive records graphically describing
Williams’ nightmarish childhood, not
because of any strategic calculation but
because they incorrectly thought that state
law barred access to such records. Had they
done so, the jury would have learned that
Williams’ parents had been imprisoned for
the criminal neglect of Williams and his
siblings, that Williams had been severely and
repeatedly beaten by his father, that he had
been committed to the custody of the social
services bureau for two years during his
parents’ incarceration (including one stint in
an abusive foster home), and then, after his
parents were released from prison, had been
returned to his parents’ custody.
Id. at 395, 398 (citation and footnote omitted). In concluding
that Williams had shown prejudice, the Court noted that the
same judge who presided over the criminal trial heard
Williams’ post-conviction review claims. Id. at 396. That
trial judge, who initially “determined that the death penalty
was ‘just’ and ‘appropriate,’ concluded that there existed ‘a
reasonable probability that the result of the sentencing phase
would have been different’” if evidence developed in the
post-conviction proceedings had been offered at sentencing.
Id. 396–97.
In Wiggins, trial counsel focused their strategy at
sentencing on arguing that the defendant was not directly
responsible for the murder, and they did not present any
other mitigation evidence, despite knowledge of at least
some of the defendant’s troubled background. 539 U.S.
WASHINGTON V. SHINN 33
at 515–16. The Court cited “powerful” mitigation evidence
that counsel either had, or should have, discovered. Id.
at 534–35. When Wiggins was a young child, his alcoholic
mother frequently left him and his siblings home alone for
days without food, “forcing them to beg for food and to eat
paint chips and garbage.” Id. at 516–17. The mother beat
Wiggins and his siblings and had sex with men while her
children slept in the same bed. Id. at 517. On one occasion,
the mother forced Wiggins’ hand against a hot stove burner,
resulting in his hospitalization. Id. After being removed
from his mother’s custody and placed in foster care, Wiggins
was physically abused and “repeatedly molested and raped”
by one foster father, and gang-raped on multiple occasions
by a foster mother’s sons. Id. He ran away from one foster
home and began living on the streets. Id. The Court held
that had the jury been presented with Wiggins’ “excruciating
life history,” rather than virtually no mitigation evidence,
“there is a reasonable probability that at least one juror
would have struck a different balance.” Id. at 537.
In Rompilla, trial counsel undertook a number of efforts
to investigate possible mitigating evidence, “including
interviews with Rompilla and some members of his family,
and examinations of reports by three mental health experts
who gave opinions at the guilt phase,” but none of these
sources was helpful. 545 U.S. at 381. Notwithstanding these
efforts, the Court found one “clear and dispositive” error by
counsel. Id. at 383. Defense counsel knew the prosecution
intended to seek the death penalty and would hinge its
penalty case on Rompilla’s prior conviction for rape and
assault. Id. Counsel nevertheless failed to even look at the
court file for the prior conviction; had they done so “they
would have found a range of mitigation leads that no other
source had opened up.” Id. at 384, 390. The mitigation
34 WASHINGTON V. SHINN
evidence that would have been available from simply
looking at the files included, among other things:
Rompilla’s parents were both severe
alcoholics who drank constantly. His mother
drank during her pregnancy with Rompilla,
and he and his brothers eventually developed
serious drinking problems. His father, who
had a vicious temper, frequently beat
Rompilla’s mother, leaving her bruised and
black-eyed, and bragged about his cheating
on her. His parents fought violently, and on
at least one occasion his mother stabbed his
father. He was abused by his father who beat
him when he was young with his hands, fists,
leather straps, belts and sticks. All of the
children lived in terror. There were no
expressions of parental love, affection or
approval. Instead, he was subjected to
yelling and verbal abuse. His father locked
Rompilla and his brother Richard in a small
wire mesh dog pen that was filthy and
excrement filled. He had an isolated
background, and was not allowed to visit
other children or to speak to anyone on the
phone. They had no indoor plumbing in the
house, he slept in the attic with no heat, and
the children were not given clothes and
attended school in rags.
Id. at 391–92. All the evidence counsel failed to discover
simply by failing to look at the court file of the prior
conviction “add[ed] up to a mitigation case that bears no
relation to the few naked pleas for mercy actually put before
the jury.” Id. at 393. The Court thus concluded there was a
WASHINGTON V. SHINN 35
reasonable probability of a different result had counsel
performed adequately. Id.
In Porter, penalty phase counsel offered scant evidence
on behalf of Porter. “The sum total of the mitigating
evidence was inconsistent testimony about Porter’s behavior
when intoxicated and testimony that Porter had a good
relationship with his son.” Porter, 558 U.S. at 32. Post-
conviction review proceedings revealed several facts about
Porter’s “abusive childhood, his heroic military service and
the trauma he suffered because of it, his long-term substance
abuse, and his impaired mental health and mental capacity.”
Id. at 33.
Porter routinely witnessed his father beat his
mother, one time so severely that she had to
go to the hospital and lost a child. Porter’s
father was violent every weekend, and by his
siblings’ account, Porter was his father’s
favorite target, particularly when Porter tried
to protect his mother. On one occasion,
Porter’s father shot at him for coming home
late, but missed and just beat Porter instead.
Id. Porter’s company commander in the Army also offered
a “moving” account of Porter’s heroic efforts “in two of the
most critical—and horrific—battles of the Korean War,” for
which Porter “received two Purple Hearts and the Combat
Infantryman Badge, along with other decorations.” Id. at 30,
34–35, 41. A neuropsychologist “concluded that Porter
suffered from brain damage that could manifest in
impulsive, violent behavior.” Id. at 36. The expert also
testified that “[a]t the time of the crime . . . Porter was
substantially impaired in his ability to conform his conduct
to the law and suffered from an extreme mental or emotional
36 WASHINGTON V. SHINN
disturbance,” which would have provided a basis for two
statutory mitigating circumstances. Id.
In concluding Porter established prejudice, the Court
reasoned that “[t]he judge and jury at Porter’s original
sentencing heard almost nothing that would humanize Porter
or allow them to accurately gauge his moral culpability.
They learned about Porter’s turbulent relationship with [the
victim], his crimes, and almost nothing else.” Id. at 41. The
Court emphasized the significance of Porter’s military
service, both because “he served honorably under extreme
hardship and gruesome conditions” and because “the jury
might find mitigating the intense stress and mental and
emotional toll that combat took on Porter.” Id. at 43–44
(footnote omitted).
A comparison of the failures by counsel in Williams,
Wiggins, Rompilla, and Porter, with Washington’s situation
confirms the adequacy of counsel’s representation of
Washington and that Washington was not prejudiced by any
alleged shortcoming on Clarke’s part. First, Porter is
distinguishable because of the Court’s emphasis on the
unique significance of military service in potentially
mitigating against aggravating factors. See Porter, 558 U.S.
at 43 (“Our Nation has a long tradition of according leniency
to veterans in recognition of their service, especially for
those who fought on the front lines as Porter did.”).
Likewise, Rompilla is distinguishable because there is no
analog here to the “dispositive” failure of trial counsel in
Rompilla to look at the records that prosecution had
indicated would serve as the basis for its case for the death
penalty.
Second, although the evidence of Washington’s head
injuries suggests a difficult childhood and perhaps might
provide a more complete picture of his background than was
WASHINGTON V. SHINN 37
presented at trial, that evidence is not nearly as substantial or
extreme as the mitigating evidence in the four Supreme
Court decisions. The possible head injuries and the
suggested harsh discipline of Washington’s mother are not
comparable to the outright beatings and criminal neglect of
Williams’ parents, the starvation, neglect, physical abuse,
molestation and rape, and gang-rape Wiggins suffered at the
hands of his mother and foster families, Rompilla being
locked up with his brother “in a small wire mesh dog pen
that was filthy and excrement filled,” deprived of clothing,
and beaten by his alcoholic father, or the other harrowing
facts in those cases. See Rhoades v. Henry, 638 F.3d 1027,
1051 (9th Cir. 2011) (“Even the more complete picture
portrayed in the proffer of Rhoades’s dysfunctional family
with its alcoholism, abuse, aberrant sexual behavior, and
criminal conduct does not depict a life history of Rhoades
himself that is nightmarish as it was for the petitioners in
cases such as Rompilla, Wiggins, and Williams . . . .”).
Thus, even if Judge Bradshaw’s finding of no prejudice
were not dispositive, we would nonetheless find that
Washington has not met his burden of showing that his
counsel’s failure to present additional evidence at sentencing
was prejudicial.
VI
We are not insensitive to the fact that Washington is the
only one of the three perpetrators who continues to face the
death penalty. All three were initially sentenced to death.
On appeal, the Arizona Supreme Court affirmed Washington
and Robinson’s convictions and sentences, State v.
Robinson, 796 P.2d 853 (Ariz. 1990), but found insufficient
evidence to convict James Mathers and vacated his
conviction, State v. Mathers, 796 P.2d 866 (Ariz. 1990).
Even though the record suggests that Mathers was the
38 WASHINGTON V. SHINN
shooter, and Judge Bradshaw thought that the evidence
against Washington was no greater than the evidence against
Mathers, Judge Bradshaw nonetheless denied Washington’s
PCR petition.
In 2010, in a split decision, we granted a writ of habeas
corpus vacating the sentence of Washington’s co-defendant
Fred Robinson in large part because he received ineffective
assistance of counsel. Robinson, 595 F.3d at 1086. 7 As
noted, Washington and Robinson were tried and sentenced
together, and their convictions and sentences were affirmed
in state court following joint PCR proceedings, in nearly
identical written orders. Like Washington, Robinson alleged
that he received ineffective assistance of counsel based on
his trial counsel’s failure to present mitigation evidence at
the penalty phase. Id. at 1108–10. As he did with
Washington, Judge Bradshaw concluded that the mitigation
evidence Robinson produced in the state PCR proceeding
would not have made a difference.
7
Judge Rawlinson dissented. She concluded:
The state post-conviction court fully considered the
mitigation evidence presented by Robinson. Its
subsequent emphatic ruling that the mitigation
evidence would not have affected the sentence
imposed compels a conclusion of no prejudice under
the rationale of Van Hook and Wong. For that reason
and because Robinson’s challenge to the cruelty prong
of the statutory aggravating factors is procedurally
barred, I respectfully dissent.
595 F.3d at 1118–19. Robinson was resentenced to 67 years to
life. Robinson has since passed away. Ariz. Dep’t of Corrections,
Inmate Death Notification – Robinson (Mar. 7, 2016),
https://corrections.az.gov/article/inmate-death-notification-robinson.
WASHINGTON V. SHINN 39
However, the sharing of a procedural history does not
make two cases analogous. Rather, the critical questions—
whether counsel’s performance was constitutionally
deficient and whether any deficiency resulted in prejudice—
must be individually considered and separately considered
in each case. See, e.g., Strickland, 466 U.S. at 705 (Brennan,
J. concurring in part and dissenting in part) (“In the
sentencing phase of a capital case, ‘[w]hat is essential is that
the jury have before it all possible relevant information about
the individual whose fate it must determine.’”) (alteration in
original) (citing Jurek v. Texas, 428 U.S. 262, 276 (1976)
(opinion of Stewart, Powell, and Stevens, J.J.). Indeed,
Judge Bradshaw commented: “[h]owever one may view the
reversal of Mathers’ conviction, it does not follow, either
legally or logically, that this petitioner is entitled to the same
treatment as his co-defendant, James Mathers. It most
certainly does not mandate a change in his sentence.” He
instructed the jury in Washington’s case at the trial court to
“consider the charge against each defendant separately.”
Thus, even though the record suggests that Robinson was the
mastermind of the crime, in reviewing the Washington’s
state conviction and sentence we are limited to considering
the facts and legal arguments particular to his case.
On the issues of attorney competence and prejudice, the
facts of Robinson differ starkly from the facts here.
Robinson’s trial counsel “engaged in virtually no
investigation” and “did not call a single witness or introduce
any evidence” at the sentencing hearing. Robinson, 595 F.3d
at 1109. In contrast, here, Clarke investigated potential
mitigation evidence by having “very extensive” discussions
with Washington about his background and by
interviewing—both before trial and after the verdict—
Washington’s mother, brother, and common-law wife.
Clarke also called three witnesses, each of whom offered
40 WASHINGTON V. SHINN
testimony supporting a cogent narrative that Washington
was friendly yet gullible, non-violent, and a loving father
(and son) and that he desired to make something of his life.
In Robinson, the utter failure of Robinson’s counsel was
critical. We based our finding of prejudice on counsel’s non-
performance because, under Arizona’s death penalty statute
at the time of sentencing, the “failure to present a mitigation
defense all but assured the imposition of a death sentence.”
Robinson, 595 F.3d at 1111 (quoting Summerlin v. Schriro,
427 F.3d 623, 640 (9th Cir. 2005)). We also distinguished
two Supreme Court cases—Bobby v. Van Hook, 558 U.S. 4
(2009) and Wong v. Belmontes, 558 U.S. 15 (2009)—on the
basis that Robinson’s counsel failed to put on any mitigation
evidence. Robinson, 595 F.3d at 1111 n.21 (stating that in
both Van Hook and Wong “defense counsel presented a
significant amount of mitigating evidence”). Here, Clarke
presented substantial mitigating evidence and Washington
has not shown that the evidence proffered in his PCR was
likely to make a difference.
VII
Washington also argues that counsel was ineffective
because he allowed the state court to require a nexus between
his proffered mitigating evidence and the crime. A similar
issue was raised in Robinson. The state had argued that the
new evidence should be disregarded altogether because it
lacked a “causal connection” to the crime. See id. at 1111–
12. We rejected that argument based on Supreme Court
precedent holding that evidence of a defendant’s background
and mental capacity is relevant to mitigation and cannot be
ruled inadmissible simply because the defendant fails to
show a causal connection between the evidence and the
crime. Id. at 1112; see Smith v. Texas, 543 U.S. 37, 45
(2004) (reaffirming the holdings of Eddings v. Oklahoma,
WASHINGTON V. SHINN 41
455 U.S. 104 (1982), and Tennard v. Dretke, 542 U.S. 274
(2004)).
Washington argues that in his PCR proceeding the state
court failed to consider his proffered mitigating evidence
because of a lack of causal nexus. We do not agree. There
is a critical difference between the admissibility of evidence
and the weight given to that evidence. Although a court must
allow a defendant to present any mitigation evidence, see
Smith, 543 U.S. at 44–45, Eddings, 455 U.S. at 114, and
Tennard, 542 U.S. at 284–85, “the failure to establish . . . a
causal connection may be considered in assessing the quality
and strength of the mitigation evidence,” State v. Newell,
132 P.3d 833, 849 (Ariz. 2006). See McKinney v. Ryan,
813 F.3d 798, 817–18 (9th Cir. 2015) (en banc) (referring to
Newell’s rule as “proper[]”).
In discussing Washington’s evidence of substance abuse,
Judge Bradshaw concluded that the asserted drug and
alcohol dependence did not affect Washington’s “ability to
conform his actions to the demands of society.” This could
be construed as echoing Arizona’s former improper causal
nexus test. See McKinney, 813 F.3d at 810; Ariz. Rev. Stat.
§ 13-703(G)(1) (2008). Had Judge Bradshaw said nothing
more, it might be inferred that he failed to consider
Washington’s evidence for purposes of non-statutory
mitigation. But Judge Bradshaw didn’t stop there; the very
next sentence in his order shows that he in fact considered
the evidence. He concluded that the evidence of substance
abuse, considered alone or together with other mitigation
evidence, would not “have mitigated against the sentence
[Washington] has received.”
The district court recognized that the state court properly
considered Washington’s mitigating evidence. It
commented that the state court “neither [mis]understood
42 WASHINGTON V. SHINN
state law to preclude consideration of relevant proffered
mitigation, nor to impose a minimum threshold before such
mitigation could be considered.” The district court
understood Judge Bradshaw to have “considered the
mitigation [evidence] proffered to show prejudice, but
[Judge Bradshaw] determined that it carried insufficient
weight to alter the sentence.”
Thus, the conclusion that the evidence of substance
abuse lacked a causal nexus to the crime was appropriate
because “a court is free to assign less weight to mitigating
factors that did not influence a defendant’s conduct at the
time of the crime.” Hedlund v. Ryan, 854 F.3d 557, 587 n.23
(9th Cir. 2017). The state court’s weighing of Washington’s
evidence of substance abuse does not support his claims of
ineffective assistance of counsel. 8
VIII
Washington and his two co-defendants were convicted
and sentenced to death for the murder of Sterleen Hill and
the attempted murder of Ralph Hill. Over the past 30 years,
one of Washington’s co-defendants had his conviction
overturned and the other had his sentence vacated (and has
died). Under these circumstances, there may be a temptation
to bend the governing legal standards to equalize the
outcomes for the three defendants in an effort “to achieve
what appears a just result.” Holland v. Florida, 560 U.S.
631, 673 (2010) (Scalia, J., dissenting). However enticing
the impulse, that is not our role. Although Judge Bradshaw
had the power to temper justice with mercy, in our role as a
8
Washington’s able and zealous habeas counsel does not contend
Judge Bradshaw committed an Eddings error as to the psychological
evidence.
WASHINGTON V. SHINN 43
federal court on habeas review, we do not. Ours is the duty
to determine whether Washington has met his high burden
of showing pursuant to Strickland that his attorney
performed deficiently to his prejudice. The Supreme Court
reiterated in Harrington, 562 U.S. at 104, that to be entitled
to relief, the petitioner “had to show both that his counsel
provided deficient assistance and that there was prejudice as
a result.” A failure to heed this standard would constitute
“an improper intervention in state criminal processes,” and
violate “the now well-settled meaning and function of
habeas corpus in the federal system.” Id. at 104.
Accordingly, we may not ignore this exacting standard to
“remedy” Judge Bradshaw’s choice against leniency.
Rather, applying the familiar standard articulated in
Strickland, we assess the state court record to determine
whether Washington’s counsel was constitutionally
deficient and whether the deficient performance resulted in
prejudice. See Van Hook, 558 U.S. at 7 (applying the
Strickland analysis in a pre-AEDPA case). We conclude that
Washington has not met his burden of showing that his
counsel performed deficiently or that the alleged deficiency
was prejudicial. He has not shown that the omission of the
new mitigation evidence deprived him of “a fair trial,” see
Strickland, 466 U.S. at 687, or that the omission undermines
our confidence that the trial “produced a just result,” see id.
at 686. Accordingly, the district court’s denial of
Washington’s habeas petition is AFFIRMED.
GOULD, Circuit Judge, concurring in part and concurring in
the judgment:
I concur in part, joining the opening paragraph (except
for the language on page 7 stating that “Washington has not
44 WASHINGTON V. SHINN
shown either that his trial counsel’s performance was
constitutionally deficient or”), Sections I, II, III, V, VI, and
VII, but do not join Sections IV and VIII, which I conclude
are unnecessary to resolve the Strickland ineffective
assistance of counsel issue. I also concur in the judgment.