Detrich v. Ryan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DAVID SCOTT DETRICH, 
Petitioner-Appellant, No. 08-99001
v.
 D.C. No.
4:03-cv-00229-DCB
CHARLES L. RYAN,* OF ARIZONA
DEPARTMENT OF CORRECTIONS, OPINION
Respondent-Appellee.

On Remand From The United States Supreme Court

Filed May 2, 2012

Before: Harry Pregerson, M. Margaret McKeown, and
Richard A. Paez, Circuit Judges.

Opinion by Judge Paez;
Dissent by Judge McKeown

*Charles L. Ryan is substituted for his predecessor Dora B. Schriro as
Director of the Arizona Department of Corrections. Fed. R. App. P.
43(c)(2).

4543
 DETRICH v. RYAN 4549

COUNSEL

Jennifer S. Bedier (argued), Arizona Capital Representation
Project, and Gregory J. Kuykendall, Kuykendall & Asso-
ciates, Tucson, Arizona, for petitioner-appellant David Scott
Detrich.

Terry Goddard, Attorney General; Kent E. Cattani (argued),
Chief Counsel; and Donna J. Lam, Assistant Attorney Gen-
eral, Tucson, Arizona, for respondent-appellee Charles Ryan.

OPINION

PAEZ, Circuit Judge:

An Arizona judge sentenced David Scott Detrich to death
after a jury convicted him of murder, kidnapping, and sexual
abuse. After exhausting his state remedies, Detrich filed a
petition for a writ of habeas corpus in federal district court
alleging, among other things, that his trial counsel was uncon-
stitutionally ineffective at the penalty phase for failing to
investigate and present substantial mitigating evidence and for
failing to rebut the state’s arguments that aggravating circum-
stances warranted a death sentence.1 Applying the standards

1
Detrich also raised claims relating to the guilt phase of his trial. We
addressed those claims in a memorandum disposition that we filed simul-
taneously with our prior opinion. When the Supreme Court granted certio-
rari in this case, it did not disturb our separate memorandum.
4550 DETRICH v. RYAN
of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, the district
court denied relief.

In our opinion reported at 619 F.3d 1038 (9th Cir. 2010),
we reversed the district court’s denial of Detrich’s habeas
petition. We concluded that the state court’s decision that Det-
rich’s counsel, Harold Higgins, performed competently
involved an unreasonable application of federal law, as deter-
mined by the Supreme Court. We next held that the state
court’s decision that Detrich was not prejudiced by Higgins’s
errors resulted from an unreasonable determination of the
facts. Finally, considering the prejudice inquiry de novo, we
concluded that there was a reasonable probability that Detrich
would have received a sentence less than death but for Hig-
gins’s deficient representation.

The United States Supreme Court granted certiorari,
vacated our judgment, and remanded this case for further con-
sideration in light of Cullen v. Pinholster, 563 U.S. ___, 131
S. Ct. 1388 (2011). See Ryan v. Detrich, 131 S. Ct. 2449
(2011) (Mem.). Having reconsidered the facts and issues of
this case in light of Pinholster, see discussion infra at p. 4584,
we again conclude that Detrich is entitled to habeas relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Crime

As recounted in the Arizona Supreme Court’s opinion on
direct appeal, Detrich and a co-worker, Alan Charlton, left
work on November 4, 1989, and went to a local bar in Ben-
son, Arizona, where the two consumed between 12 and 24
beers each, according to Charlton’s estimate. State v. Detrich
(Detrich II), 932 P.2d 1328, 1331 (Ariz. 1997). The men then
drove to Tucson, where they drank more beer at more bars.
Id. Later that night, they picked up Elizabeth Souter, the even-
tual victim, who was walking along the road. Id. At Detrich’s
 DETRICH v. RYAN 4551
request, Souter directed him to a “roadhouse” where he could
buy cocaine. Id. The two men and Souter then drove to Sou-
ter’s home, where Detrich attempted to cook the cocaine in a
spoon so that it could be injected. Id. When the syringe would
not pick up the cocaine, Detrich began screaming that “the
needle wasn’t any good, or the cocaine wasn’t any good” and
told Souter that she would have to pay for the bad drugs by
having sex with him. Id. Three witnesses—Charlton and two
others—reported that Detrich was holding a knife against
Souter’s throat. Id.

Detrich then told Souter they were going for a ride, and
Detrich, Charlton, and Souter left in Charlton’s car. Id. Charl-
ton drove, Detrich sat in the middle, and Souter sat on the pas-
senger side, against the door. Id. Charlton testified that, while
stopped at a red light, he saw Detrich “humping” Souter and
asking her how she liked it. Id. Soon thereafter, Charlton
looked again and saw that Souter’s throat was slit. Id. Charl-
ton further testified that Detrich then hit Souter and asked her
who gave her the drugs, and that Souter only gurgled in
response. Id. at 1331-32. Detrich asked twice more, and Sou-
ter again responded with only a gurgle. Id. at 1332. Charlton
claims that he never saw Detrich actually stab Souter, but that
he himself was poked in the arm with a knife several times.
Id. A pathologist established that Souter was stabbed forty
times. Id.

Charlton testified that, at this point, Detrich said to him,
“It’s dead but it’s warm. Do you want a shot at it?” Id. Charl-
ton declined. Id. The two pulled over in a remote area approx-
imately fifteen minutes from Souter’s home, and Detrich
dragged Souter’s body into the desert. Id. The two men then
drove to a friend’s house in Tucson. Id. The friend testified
that the men showed up at his house at 4 a.m., that Detrich
was covered in blood, and that Charlton had blood only on his
right side. Id. About an hour later, Detrich told the friend that
he had killed a girl by slitting her throat because she had
given them bad drugs. Id.
4552 DETRICH v. RYAN
Several days later, the friend called in an anonymous tip to
the police. Id. Based on the tip, the police arrested Charlton,
who confessed to his involvement in the crime. Id. Several
days later, Detrich was arrested in New Mexico with a folding
knife in his possession. Id. Although Charlton admitted the
knife was his, he explained that it often fell out of his pants,
and that Detrich had the knife on the night of the murder and
the next morning, when it was covered in blood. Id.

Charlton entered into a plea bargain under which he
pleaded guilty to kidnapping and agreed to testify against Det-
rich in exchange for the prosecution dropping the capital mur-
der charge against him. Charlton was sentenced to ten and a
half years’ imprisonment.

B. 1990-1991 Trial, Sentencing, and Appeal

Detrich was charged with first-degree murder, kidnapping,
and sexual assault. State v. Detrich (Detrich I), 873 P.2d
1302, 1304 (Ariz. 1994). Detrich’s first trial ended in a mis-
trial when a prosecution witness mentioned that Detrich had
invoked his right to remain silent at one point during the
investigation. Id. After a retrial, the jury convicted Detrich of
first-degree murder and kidnapping, acquitted him of sexual
assault, and convicted him of the lesser-included offense of
sexual abuse. Id. The state sought the death penalty. See id.
at 1303.

Pursuant to Arizona law, the sentencing judge held a hear-
ing to determine whether aggravating and mitigating circum-
stances were present. See Ariz. Rev. Stat. § 13-703(B) (1995),
invalidated by Ring v. Arizona, 536 U.S. 584 (2002).2 Under
Arizona law at the time, if the sentencing judge found one or
more of ten enumerated aggravating circumstances, he had to
impose the death penalty unless mitigating circumstances out-
2
Unless otherwise indicated, all citations to Arizona Revised Statutes
§ 13-703 are to the 1995 version of the law.
 DETRICH v. RYAN 4553
weighed the aggravating factors. Id. § 13-703(E). At the sen-
tencing hearing, the prosecution urged the court to find as an
aggravating circumstance that the crime was “especially cruel,
heinous, or depraved.”

In response, defense counsel noted that a doctor had testi-
fied that he could not tell whether the victim had actually
experienced conscious, physical pain and suffering and urged
the court to find several mitigating circumstances. First, coun-
sel argued that Detrich did not have the capacity to appreciate
the wrongfulness of his acts or to conform his conduct to the
law due to his extreme intoxication, and possible black-out, at
the time of the murder. In support of this argument, counsel
noted that Detrich had no known pattern of aggressive behav-
ior and that Detrich’s problems with alcohol had existed since
he was nine years old. Further, defense counsel urged the
court to find as mitigating circumstances Detrich’s co-
defendant’s mere ten-and-a-half-year sentence and Detrich’s
remorse.

Three days after this hearing, the trial judge sentenced Det-
rich to death, concluding that the murder had been committed
in an “especially cruel, heinous, and depraved” manner, and
that no mitigating circumstances were proven.

Detrich appealed his conviction and sentence to the Ari-
zona Supreme Court. See Detrich I, 873 P.2d at 1303. That
court reversed his kidnapping and murder convictions because
of a defective jury instruction and remanded for a new trial on
those charges. Id. at 1306 07.

C. 1994-1995 Trial, Sentencing, and Appeal

New counsel, Harold Higgins, was appointed for Detrich’s
retrial. The jury convicted Detrich of kidnapping and first-
degree murder, but did not unanimously agree on a single the-
ory of first-degree murder: nine jurors found premeditation;
eleven found felony murder; and eight found both.
4554 DETRICH v. RYAN
The prosecution sought the death penalty and filed a sen-
tencing memorandum alleging as an aggravating circumstance
that the crime was especially cruel, heinous, and depraved,
and arguing that this aggravating factor outweighed the miti-
gating factors. In response, Detrich’s counsel filed a three-
page sentencing memorandum that did not challenge the
state’s aggravation case, and instead argued that the court
should not impose the death penalty because the jury’s lack
of unanimity about whether Detrich had committed premedi-
tated murder or just felony murder indicated that the jury was
not convinced that Detrich actually committed the murder. In
addition, the memorandum pointed to new evidence presented
at the second trial that suggested that Charlton, not Detrich,
may actually have killed Souter.

The sentencing memorandum also listed five mitigating
factors, with little elaboration or argument: Detrich’s dimin-
ished capacity due to voluntary intoxication, his “abusive
background,” his lack of previous convictions involving seri-
ous injury or threat thereof, his remorse, and the minimal sen-
tence received by his co-defendant. The only elaboration on
any of these factors was a note that Detrich’s “abusive back-
ground” was “[f]ully detailed in” an October 18, 1994, letter
from Detrich’s sister, and an explanation that “[t]he evidence
was clear that Defendant Detrich was highly intoxicated due
to alcohol at the time of the incident, and perhaps had also
ingested cocaine. In addition, [the sister’s letter] makes it
clear Defendant has a lengthy history of alcohol abuse and
was encouraged into same by his parent-figures.”

Higgins did little to bolster these arguments. He did not
employ a mitigation investigator, nor did he ask his investiga-
tor, James Williams, to investigate mitigating evidence. In
any event, Williams was not qualified to do a life history
investigation. At most, Williams made phone calls to family
members, but no one responded. According to Detrich’s sis-
ter, Diana Jo Stevens, someone from the defense team con-
tacted her shortly before the sentencing hearing and asked her
 DETRICH v. RYAN 4555
to write a letter “about David.” She wrote the letters not
knowing what to include or for what purpose they would be
used. In all, Higgins spent only ten and a half hours on the
penalty phase of Detrich’s trial, including the time spent at the
penalty-phase hearings themselves.

In February 1995, the court held an aggravation/mitigation
hearing. At the beginning of the hearing, Higgins gave the
sentencing judge two more letters, totaling ten hand-written
pages, from Detrich’s sister, Diana Jo Stevens. One letter pro-
vided information about Detrich’s abusive childhood, and the
other letter simply made a plea for mercy. To give himself
time to consider these newly submitted letters, the trial judge
scheduled the sentencing for two days later.

At the aggravation/mitigation hearing, the prosecution
argued that the crime was “especially cruel, heinous, [and]
depraved,” an aggravating circumstance that could authorize
a death sentence under Arizona Revised Statutes § 13-
703(F)(6). The prosecution argued that the crime was “espe-
cially cruel” because Souter suffered a slit throat and forty-
five knife injuries, some of which were defensive; because
she was conscious during some of the attack, as indicated by
her gurgling attempts to respond to Detrich’s questions; and
because she suffered mentally when she was held at
knifepoint and threatened with sexual assault. In addition, the
prosecution argued that the crime was “especially heinous or
depraved” because it involved gratuitous violence, “well
beyond that required to accomplish the killing”; because Det-
rich apparently relished the murder, as evidenced by his ask-
ing Charlton if he “want[ed] a shot” at the dead body and his
telling a friend the next morning that he slit her throat because
she had gotten him bad drugs; because the killing was sense-
less; and because the victim was helpless.

Higgins responded with three arguments: (1) Detrich was
not death-eligible under Tison v. Arizona, 481 U.S. 137
(1987), because he did not actually commit the murder, (2)
4556 DETRICH v. RYAN
the crime was not especially cruel, heinous, or depraved, and
(3) mitigating circumstances called for leniency. First, Hig-
gins argued that Detrich was not death-eligible under Tison v.
Arizona, given the “many uncertainties that now exist as to
what specifically happened, and as to who did what.” In sup-
port of this argument, Higgins pointed to new evidence pre-
sented in Detrich’s second trial suggesting that Detrich may
not actually have committed the murder. Higgins argued that
the jurors’ failure to reach unanimous agreement that Detrich
had committed premeditated murder reflected their doubt
about Charlton’s testimony that Detrich had murdered the vic-
tim. According to Higgins, if Detrich was not the perpetrator,
he was not death-eligible under Tison.

Second, to rebut the prosecution’s aggravation case, Hig-
gins argued that the uncertainty about who actually committed
the murder prevented finding that Detrich had acted in a cruel,
heinous, or depraved manner. In addition, Higgins argued that
many of the knife wounds were “minor”; that it was unclear
whether Souter lived, and suffered, after the first of the most
serious wounds was inflicted; and that Charlton’s statement
that Detrich had asked him if he “want[ed] a shot at” the dead
body was of questionable credibility.

Third, Higgins argued that mitigating circumstances war-
ranted leniency. In support of his mitigation case, Higgins cal-
led no witnesses, introduced as evidence only the three letters
from Detrich’s sister, Diana Jo Stevens, and made a short
argument spanning only five transcript pages.

In his mitigation argument, Higgins first contended that
Detrich’s intoxication at the time of the crime diminished his
capacity to appreciate the wrongfulness of his conduct. Hig-
gins explained that Detrich had a longstanding problem with
alcohol, as he had been “encouraged by a parent at a very,
very early age to engage in this type of alcohol abuse,” and
that, given this history, Detrich’s intoxication should not be
considered fully “voluntary.” As the pre-sentence report
 DETRICH v. RYAN 4557
(“PSR”) and letters from Detrich’s sister reported, Detrich
had begun using alcohol at age eight or nine at the encourage-
ment of his step-father, Skip. When Skip and Detrich’s
mother would fight, Skip would take Detrich and leave, and
the two would stay out drinking all night long. When Detrich
was about fifteen years old, he could guzzle a half-pint of
whiskey in one drink for Skip’s friends. Once, Skip and Det-
rich went on a week-long drinking spree and ended up three
hundred miles away.

Higgins next briefly pointed to abuse Detrich suffered as a
child as a mitigating factor. According to the letters from Det-
rich’s sister, Detrich had suffered physical and mental abuse
and had been introduced to drinking by his parents. Although
Higgins did not present any live witnesses or other evidence
that would compellingly portray Detrich’s abusive childhood,
the sentencing judge was aware of the basic facts of Detrich’s
upbringing from the PSR, psychological reports (none of
which Higgins had provided the court), and the letters from
Detrich’s sister.

In particular, the sentencing judge knew that Detrich was
born with a cleft palate that was surgically corrected, that his
parents divorced when he was young, and that he and his sib-
lings began living with their father after their father and step-
mother refused to let them return to their mother’s home after
a two-week visit. The sentencing judge also knew that Detrich
was “severely mistreated and frequently physically abused”
by his step-mother, Jean, who frequently told the children
how much she hated them and did not want them around,
once held Detrich underwater in the bathtub, and once tied
him to a post outside, telling him he was no better than a dog.
Detrich sometimes wet the bed at night, and Jean would spank
him with a belt, make him wash the sheets before school, and
publicly humiliate him about it. Once, Jean pushed Detrich’s
brother, Danny, down the basement steps and then put a pistol
to Danny’s head, screaming that she would kill the kids if
they told their father what happened. After five years with
4558 DETRICH v. RYAN
their father, Detrich and his siblings moved back with their
mother and Skip. Skip was verbally and physically abusive to
Detrich’s mother, who abused drugs and was “just there.” As
a child, Detrich would sometimes leave for two or three
weeks, and his mother would never ask him where he had
been.

At the aggravation/mitigation hearing, Higgins next pointed
out that Detrich had no prior criminal record involving vio-
lence and that he had exhibited remorse about having been
involved in the crime. Additionally, Higgins suggested that
the short sentence given to Charlton should constitute a miti-
gating circumstance. Finally, Higgins urged the court to con-
sider as mitigation the fact that Detrich had a ten-year-old
son, “who ought to have some contact with some fatherly
influence.”

The prosecutor then rebutted defense counsel’s arguments
that there was residual doubt about who actually committed
the murder and that mitigating circumstances warranted a sen-
tence less than death. The prosecutor dismissed the evidence
of Detrich’s abusive childhood because “there has to be some
kind of causal connection between the abuse or the dysfunc-
tional family background and the conduct.” Higgins did not
respond to this, or any other, argument.

Two days later, the court sentenced Detrich to death. The
court found that Detrich was death-eligible under Tison and
that the prosecution had proved the statutory aggravating cir-
cumstance that the crime was especially cruel, heinous, and
depraved.

The court also found five mitigating circumstances to be
present, but ascribed them little weight. Specifically, the court
found as mitigating circumstances the fact that Detrich’s
intoxication significantly impaired his capacity to appreciate
the wrongfulness of his conduct or to conform his conduct to
the law, his abusive background, his remorse, his lack of prior
 DETRICH v. RYAN 4559
convictions involving violence, and the fact that his intoxica-
tion on the night of the murder stemmed from a longstanding
history of alcohol and substance abuse. The court found that
these mitigating factors were “not sufficiently substantial to
outweigh the aggravating circumstances [sic] of having com-
mitted this offense in an especially cruel, heinous or depraved
manner” and accordingly sentenced Detrich to death.

Detrich again appealed his conviction and sentence to the
Arizona Supreme Court. See Detrich II, 932 P.2d at 1331. The
Supreme Court affirmed Detrich’s sentence and convictions.
Id. at 1340.

D. State Petition for Post-Conviction Relief

Detrich filed a petition for post-conviction relief in state
court, alleging, among other things, that his trial counsel was
ineffective for failing to present mitigating evidence and for
failing to present an expert witness to rebut the state’s aggra-
vation case. Detrich’s post-conviction counsel repeatedly
requested funding for an investigator to assist in preparing
Detrich’s petition for post-conviction relief or, in the alterna-
tive, an evidentiary hearing on this request. The court denied
the requests and ultimately ruled on the petition without
appointing an investigator or holding an evidentiary hearing.

The post-conviction court, however, did grant funding for
a neuropsychological expert, Dr. Robert Briggs, who pro-
duced a report on Detrich’s neuropsychological functioning.
The report concluded that Detrich’s decision-making, espe-
cially when compromised by alcohol, “was not based on any
consequence-driven thought process, but rather a leaned [sic]
behavior that bypassed right or wrong.” According to Dr.
Briggs, Detrich’s abuse led him to develop a “mindset . . . in
which instinct took over and reason could not be accessed.”
On neuropsychological testing, Detrich performed “in the nor-
mal range of psychological function,” earning a score of 25
on a scale for which scores between 0 and 26 were normal.
4560 DETRICH v. RYAN
Dr. Briggs’s report explained, however, that this represented
“a recovered picture,” and that “improvement in function
occurs as time (and sobriety) from the incidents [of head inju-
ries and drug use] increase.” Dr. Briggs further opined that an
interaction between Detrich’s emotional status and mild
neuropsychological deficits likely caused a greater overall
impairment in function. Finally, the report concluded, among
other things, that, as would be expected given his abusive
childhood, Detrich was immature, alienated, self-indulgent,
aggressive, impulsive, hostile, resentful, and irritable; that his
abusive childhood could have taught him to use violence; and
that he may have antisocial or paranoid personality or para-
noid disorder. Detrich’s post-conviction counsel requested an
evidentiary hearing on the neuropsychological findings,
explaining that Dr. Briggs could testify that Detrich was brain
damaged and impulsive, and that his impulsiveness, combined
with the effects of alcohol, constituted mitigating circum-
stances. The state court denied the request.

This report supplemented other new evidence that counsel
presented to the state post-conviction court. As exhibits to the
petition for relief, counsel attached statements by Detrich’s
mother, sister, and step-father that provided additional details
about the abuse Detrich suffered as a child, the custody battle
between his mother and father, his history of drinking alcohol
with his step-father beginning at a young age, and car and
motorcycle accidents that he had when he was younger.

In his petition for post-conviction relief, Detrich also con-
tended that his trial counsel was ineffective for failing to pre-
sent expert pathologist testimony that would have rebutted the
state’s argument that the crime was especially cruel, heinous,
or depraved by showing that Souter did not actually suffer.

After considering Detrich’s arguments and the new mitigat-
ing evidence, the court summarily denied all of Detrich’s
claims. The state moved for reconsideration to clarify the
court’s findings in order to “insulate [them] from unwarranted
 DETRICH v. RYAN 4561
federal review.” The state submitted a proposed order, which
the court adopted as its ruling on the petition for post-
conviction relief. The order—the last and only reasoned state-
court judgment—dismissed in one paragraph Detrich’s claim
of ineffective assistance of counsel for failure to present miti-
gating evidence at the sentencing phase:

Petitioner has not presented a colorable claim that
trial counsel was ineffective at the sentencing stage
of the proceedings for failing to have Dr. Briggs, a
neuropsychologist, testify on Petitioner’s behalf, or
to present additional evidence of Petitioner’s abusive
background. After considering the initial psychologi-
cal report, the presentence report, a sentencing mem-
orandum, and written statements from Petitioner’s
sister citing multiple examples of both physical and
mental abuse suffered by Petitioner as a child, this
Court found statutory and non-statutory mitigating
circumstances. Dr. Briggs’ report was not signifi-
cantly different from the report considered by this
Court. Indeed Dr. Briggs found that Petitioner’s gen-
eral neuropsychological functioning was normal and
showed an absence of cognitive dysfunction. There-
fore, there is no reasonable probability that this testi-
mony would have compelled this Court to impose a
sentence less than death. Moreover, additional evi-
dence of Petitioner’s dysfunctional childhood would
have been merely cumulative and was not “newly
discovered.” This claim is summarily dismissed.

The court similarly dismissed, in one short paragraph, Det-
rich’s claim that his counsel was ineffective for failing to
rebut the state’s aggravation case:

Petitioner failed to present a colorable claim that his
trial counsel was ineffective in failing to retain an
expert to rebut the State pathologist’s testimony that
the victim could have made “gurgling” sounds in
4562 DETRICH v. RYAN
response to questioning by Petitioner, after sustain-
ing knife wounds to her throat. Contrary to an affida-
vit submitted by Petitioner, there was no testimony
that the victim “engaged in conversation” or was
conscious for a long period of time. The victim sus-
tained four serious wounds to the neck, and it is
merely speculative to assume that the victim’s
attempt to respond occurred after the most serious
wound. No prejudice accrued to Petitioner, in any
event, because evidence other than Charlton’s testi-
mony regarding the “gurgling” sounds independently
supported a finding of cruelty at sentencing. Petition-
er’s claim that expert rebuttal testimony would have
discredited Charlton’s credibility is unavailing,
where overwhelming evidence apart from Charlton’s
testimony supported the finding that Petitioner com-
mitted the murder. This claim is summarily dis-
missed.

In its conclusion, the court further clarified that “the Court
finds that neither prong of the Strickland v. Washington test
has been met as to any claims of ineffective assistance of
counsel.” Detrich appealed, but the Arizona Supreme Court
denied review.

E. Federal Habeas Petition

Detrich filed a habeas petition in federal district court on
April 29, 2003. The district court dismissed most of Detrich’s
claims without an evidentiary hearing, including his claim
that his counsel was unconstitutionally ineffective at sentenc-
ing for failing to present expert evidence to rebut the state’s
aggravation case. The district court did, however, hold a four-
day evidentiary hearing on Detrich’s claim of ineffective
assistance of counsel at sentencing for failure to investigate
and present mitigating evidence. At the hearing, Detrich’s
new counsel presented eighty-seven exhibits and called six
witnesses.
 DETRICH v. RYAN 4563
The district court concluded that Detrich’s counsel per-
formed deficiently by failing to investigate and present miti-
gating evidence. The court nonetheless denied relief because
it found that Detrich suffered no prejudice from his trial coun-
sel’s deficient performance. According to the district court,
“despite extensive additional investigation into [Detrich’s]
background and mental health, [Detrich] has not discovered
significant new or more weighty mitigation than was consid-
ered by the sentencing judge.” Detrich appealed, and the dis-
trict court granted a certificate of appealability on his claim
that trial counsel was ineffective for failing to investigate and
present mitigating evidence. We later also granted a certifi-
cate of appealability on his claim that trial counsel was inef-
fective for failing to rebut the state’s aggravation case and on
the two guilt-phase claims that we addressed in our previously
filed memorandum disposition. See 392 F.App’x 580 (9th Cir.
2010).

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 2253. We review
de novo the district court’s denial of Detrich’s petition for
habeas corpus, and we review the district court’s findings of
fact for clear error. Brown v. Ornoski, 503 F.3d 1006, 1010
(9th Cir. 2007). Because Detrich filed his federal habeas peti-
tion after 1996, the AEDPA governs his action. Id.

The AEDPA requires that we defer to the last reasoned
state court decision. Id. Specifically, 28 U.S.C. § 2254 pro-
vides that a federal court may grant a state prisoner’s habeas
petition with respect to a claim that was “adjudicated on the
merits in State court proceedings” only if the state court’s
adjudication: (1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evi-
4564 DETRICH v. RYAN
dence presented in the State court proceeding. 28 U.S.C.
§ 2254(d).

For purposes of § 2254(d)(1), “clearly established Federal
law” consists only of the holdings, and not the dicta, of
Supreme Court opinions as of the time of the state court adju-
dication on the merits. Terry Williams v. Taylor, 529 U.S.
362, 412 (2000); Greene v. Fisher, 132 S. Ct. 38, 44-45
(2011). However, we can also consider circuit precedent in
assessing what constitutes “clearly established” Supreme
Court law and whether the state court applied that law unrea-
sonably. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.
2003), overruled on other grounds by Lockyer v. Andrade,
538 U.S. 63 (2003). Our analysis under § 2254(d)(1) “is lim-
ited to the record that was before the state court that adjudi-
cated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct.
1388, 1398 (2011).3

A state court decision is “contrary to” federal law under
§ 2254(d)(1) if it applies a rule that contradicts the governing
law set forth in Supreme Court cases or if it “confronts a set
of facts that are materially indistinguishable from a decision
of [the Supreme Court] and nevertheless arrives at a result dif-
ferent from [Supreme Court] precedent.” Terry Williams, 529
U.S. at 405-06.

A state court decision involves an “unreasonable applica-
tion” of federal law under § 2254(d)(1) if “the state court
identifies the correct governing legal rule from this Court’s
cases but unreasonably applies it to the facts of the particular
3
Detrich argues for the first time in his supplemental briefing that
because the state court ruled on his post-conviction claims without holding
an evidentiary hearing, the state court decision necessarily was based on
an “unreasonable determination of the facts” under § 2254(d)(2). Because
we conclude—using only the state court record—that the state court’s
decision involved an unreasonable application of federal law and an unrea-
sonable determination of the facts, we do not consider the merits of this
argument or whether it was waived.
 DETRICH v. RYAN 4565
state prisoner’s case” or if it “either unreasonably extends a
legal principle from [Supreme Court] precedent to a new con-
text where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply.”
Id. at 407. The Supreme Court need not have applied a spe-
cific legal rule to a closely analogous fact pattern for the state
court’s decision to constitute an unreasonable application of
clearly established federal law because “even a general stan-
dard may be applied in an unreasonable manner.” Panetti v.
Quarterman, 551 U.S. 930, 953 (2007). A state court decision
will involve an “unreasonable application” of clearly estab-
lished federal law, however, only if the state court’s decision
was “objectively unreasonable,” and not merely incorrect.
Terry Williams, 529 U.S. at 409-10.

Finally, a state court’s determination of the facts is “unrea-
sonable” under § 2254(d)(2) only if we are “convinced that an
appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is sup-
ported by the record [before the state court].” Taylor v. Mad-
dox, 366 F.3d 992, 1000 (9th Cir. 2004).

In certain circumstances a federal court may also consider
new evidence presented for the first time in the federal pro-
ceeding. See 28 U.S.C. § 2254(e)(2).4 As we explain below,
4
Section 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previ-
ously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense.
4566 DETRICH v. RYAN
if we make an antecedent determination—relying solely on
evidence before the state court—that the state court’s adjudi-
cation “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law,” id. § 2254(d)(1), or that the state court’s decision “was
based on an unreasonable determination of the facts,” id.
§ 2254(d)(2), we proceed to evaluate the petitioner’s claim de
novo and may then consider evidence that was properly pre-
sented for the first time in federal court. Cf. Pinholster, 131
S. Ct. at 1401 (“Section 2254(e)(2) continues to have force
where § 2254(d)(1) does not bar federal habeas relief.”).

III. DISCUSSION

Detrich contends that his trial counsel was ineffective
because he failed to investigate and present mitigating evi-
dence including social background and expert neuropsy-
chological testimony at the penalty phase.5 In reviewing this
claim, we apply the “clearly established” standard for analyz-
ing ineffective assistance claims that the Supreme Court set
forth in Strickland v. Washington, 466 U.S. 668 (1984). See
Terry Williams, 529 U.S. at 391 (“It is past question that the
rule set forth in Strickland qualifies as ‘clearly established
Federal law, as determined by the Supreme Court of the
United States.’ ”). Under Strickland, to prevail on his ineffec-
tive assistance of counsel claim, Detrich must show (1) “that
counsel’s performance was deficient,” and (2) “that the defi-
cient performance prejudiced the defense.” Strickland, 466
U.S. at 687.

As the Supreme Court recently explained in Richter v. Har-
5
Detrich also contends that his counsel was unconstitutionally ineffec-
tive because he failed to offer expert forensic testimony to rebut the state’s
argument that the crime was especially cruel, heinous, and depraved.
Because we conclude that Detrich is entitled to relief based on his coun-
sel’s failure to investigate and present mitigating evidence, we do not
reach this second claim of ineffective assistance.
 DETRICH v. RYAN 4567
rington, 131 S. Ct. 770 (2011), however, when a habeas court
reviews an ineffective assistance of counsel claim under the
AEDPA, the “state court must be granted a deference and lati-
tude that are not in operation when the case involves review
under the Strickland standard itself.” Id. at 785. “The pivotal
question is whether the state court’s application of the Strick-
land standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strick-
land’s standard.” Id. at 786. Accordingly, “[u]nder § 2254(d),
a habeas court must determine what arguments or theories
supported . . . the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding
in a prior decision of this Court.” Id. At the second step, “a
state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justi-
fication that there was an error well understood and compre-
hended in existing law beyond any possibility for fairminded
disagreement.” Id. at 786-87.

A. Deficient Performance

We first consider whether the state court unreasonably
applied Strickland when it concluded that Detrich’s counsel
did not perform deficiently by failing to investigate and pre-
sent mitigating evidence at sentencing.6 Under Strickland,
counsel’s performance is deficient if, considering all the cir-
cumstances, it “fell below an objective standard of reason-
ableness . . . under prevailing professional norms.” Id. at 788.
In evaluating counsel’s performance as compared to these
“prevailing professional norms,” we may refer to American
6
Although the state court provided no reasoning to support its conclu-
sion that Detrich failed to establish deficient performance under Strick-
land, its decision nonetheless is entitled to AEDPA deference. See Richter,
131 S. Ct. at 784; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003)
(applying AEDPA deference to a state court decision issued without
explanation).
4568 DETRICH v. RYAN
Bar Association (“ABA”) guidelines in effect at the time of
the representation “as evidence of what reasonably diligent
attorneys would do.” Bobby v. Van Hook, 130 S. Ct. 13, 17
(2009); see also Strickland, 466 U.S. at 688.7 Our review of
counsel’s representation is “highly deferential,” as we apply
“a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance” and that
counsel’s challenged omission “might be considered sound
trial strategy.” Strickland, 466 U.S. at 689. To “satisfy the
‘unreasonable application’ prong of § 2254(d)(1),” Detrich
must “show[ ] that there was no reasonable basis for the [state
court’s] decision.” Pinholster, 131 S. Ct. at 1402 (quoting
Richter, 131 S. Ct. at 784) (internal quotation marks omitted).

[1] Strickland establishes that, although counsel enjoys
“wide latitude . . . in making tactical decisions,” counsel also
“has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.” Id. at 689, 691. The Supreme Court has since
made clear that this duty includes an obligation to “conduct
a thorough investigation of the defendant’s background.”
Terry Williams, 529 U.S. at 396; see also Porter v. McCol-
lum, 130 S. Ct. 447, 452 (2009) (per curiam) (finding it “un-
questioned” that counsel had this duty “under the prevailing
professional norms” in 1989). Detrich’s trial counsel, Harold
Higgins, made no such reasonable investigation here, nor did
he make any reasonable strategic decision that made a thor-
ough investigation unnecessary. Indeed, applying AEDPA
deference, the Supreme Court has found deficient perfor-
mance in cases where sentencing counsel did more than Hig-
gins. We accordingly conclude that the Arizona post-
7
The Supreme Court has consistently recognized the utility of consider-
ing ABA Guidelines in evaluating the reasonableness of attorney perfor-
mance in ineffective assistance claims. See, e.g., Rompilla v. Beard, 545
U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 524 (2003) (charac-
terizing ABA Guidelines as “well-defined norms” and “standards to which
we long have referred as ‘guides to determining what is reasonable’ ”)
(quoting Strickland, 466 U.S. at 688); Terry Williams, 529 U.S. at 396.
 DETRICH v. RYAN 4569
conviction court unreasonably applied the clearly established
federal law of Strickland when it concluded that Detrich’s
sentencing counsel’s performance was not deficient.

1. No reasonable investigation

Detrich contends that Higgins devoted unreasonably little
time to penalty phase preparations, failed to seek reasonably
available mitigating evidence, and unreasonably failed to
enlist the assistance of a mental health expert. We agree.

[2] Higgins did not begin work on Detrich’s penalty phase
until after the jury’s guilty verdict and two weeks before the
sentencing hearing. Higgins thus began preparing for the pen-
alty phase even later than the counsel whom the Supreme
Court found ineffective in Terry Williams v. Taylor, who had
delayed penalty phase preparations until a week before trial.
Terry Williams, 529 U.S. at 395. And Higgins’s delayed initi-
ation of penalty-phase preparations fell even further below the
standards reflected in the ABA guidelines in place at the time,
which provided that counsel should begin conducting an
investigation relating to the penalty phase of a capital trial
immediately upon taking the case. Am. Bar. Ass’n, Guide-
lines for the Appointment and Performance of Defense Coun-
sel in Death Penalty Cases 11.4.1 (1989), available at http://
www.americanbar.org/content/dam/aba/uncategorized/Death_
Penalty_Representation/Standards/National/1989Guidelines
.authcheckdam.pdf [hereinafter 1989 ABA Guidelines]. With
preparations delayed for so long, Higgins then spent only ten
and a half total hours on the penalty phase of Detrich’s case.

[3] Higgins also did not employ a mitigation investigator,
nor did he ask his investigator, who in any event was not
qualified to do a life history investigation, to investigate miti-
gating evidence. At most, the investigator made phone calls
to family members, with no response. According to Detrich’s
sister, Diana Jo Stevens, someone from the defense team con-
tacted her shortly before the sentencing hearing and asked her
4570 DETRICH v. RYAN
simply to write a letter “about David.” This fell below the pre-
vailing professional standards as reflected in the 1989 ABA
guidelines, which provided that the penalty-phase investiga-
tion for a capital trial should “comprise efforts to discover all
reasonably available mitigating evidence,” by drawing on
sources including an interview with the accused, interviews
with potential witnesses familiar with the defendant’s life his-
tory, and expert assistance. 1989 ABA Guidelines at
11.4.1(C), (D).

[4] Higgins’s minimal investigation cannot be justified by
any reasonable reliance on the previous investigation con-
ducted by Detrich’s counsel at his first sentencing in 1991
because the first trial counsel’s mitigation presentation had
proven decidedly ineffective. After considering the minimal
mitigating evidence that Detrich’s first trial counsel presented,
the trial judge found no mitigating factors to be present and
accordingly sentenced Detrich to death.

[5] Higgins’s extremely limited mitigation investigation
was all the more unreasonable in light of the indications in the
PSR, letters from Detrich’s sister, and 1985 and 1991 psycho-
logical reports—all of which Higgins had seen8—that Det-
rich’s past likely contained many mitigating circumstances.
These documents put Higgins on notice that Detrich had an
extremely troubled childhood involving abuse by his step-
mother, alcohol abuse encouraged by his step-father starting
at a very young age, a prolonged custody battle between his
parents, drug abuse by his mother, and frequent absences
from school. Despite this evidence that Detrich’s background
contained many mitigating circumstances, Higgins did not
investigate further.

[6] In this way, Higgins’s performance was indistinguish-
8
The 1985 psychological report was attached to the PSR, and Higgins
acknowledged at the sentencing hearing that he had seen the 1991 psycho-
logical report.
 DETRICH v. RYAN 4571
able from the counsel’s performance that the Supreme Court
found deficient in Wiggins v. Smith. In Wiggins, the capital
defendant’s attorneys had failed to investigate thoroughly
their client’s background, even though their limited investiga-
tion had revealed that the defendant’s mother was an alco-
holic, that the defendant was shuttled from foster home to
foster home as a child, that the defendant frequently missed
school, and that, at least once, his mother had left him and his
siblings alone for days without food. 539 U.S. at 525. Apply-
ing AEDPA deference, the Supreme Court held that the state
court unreasonably applied Strickland in finding counsel’s
performance adequate. Id. at 528-29. According to the
Supreme Court, “any reasonably competent attorney would
have realized that pursuing these leads was necessary to mak-
ing an informed choice among possible defenses.” Id. at 525.
Similarly, here, “any reasonably competent attorney” would
have pursued an investigation into Detrich’s childhood and
the effects his childhood traumas had on him. Higgins’s fail-
ure to do so fell below professional standards under any rea-
sonable application of Strickland.

[7] Compounding this deficiency, Higgins’s failure to con-
sult a mental health expert also fell below professional stan-
dards. The 1989 ABA guidelines provided that an attorney
“should secure the assistance of experts where it is necessary
or appropriate for . . . presentation of mitigation.” 1989 ABA
Guidelines at 11.4.1(D)(7)(D). According to the 1989 guide-
lines, counsel should consider enlisting experts “to provide
medical, psychological, sociological or other explanations for
the offense(s) for which the client is being sentenced [and] to
give a favorable opinion as to the client’s capacity for rehabil-
itation.” Id. at 11.8.3(F)(2). In addition, counsel should con-
sider presenting expert testimony concerning the defendant’s
medical, family, and social history “and the resulting impact
on the client, relating to the offense.” Id. at 11.8.6(B)(8).

[8] Higgins did not provide any expert mental health eval-
uations to the court, much less use them to bolster his mitiga-
4572 DETRICH v. RYAN
tion case; he presented no live testimony by any mental health
expert, court-appointed or otherwise; and he admits that he
did not enlist the assistance of any mental health professional.
Indeed, the only expert mental health reports before the sen-
tencing judge were two 1985 evaluations by a state psycholo-
gist and psychiatrist that were attached to the PSR and a 1991
court clinic psychologist’s evaluation that the state had pro-
vided the court.9 In other words, Detrich’s counsel presented
no expert mental health evidence at all. The fact that the sen-
tencing judge had the 1985 and 1991 reports to consider did
not excuse this failure; Higgins could not reasonably rely on
these reports because they were not conducted by partisan
experts. Lambright v. Schriro, 490 F.3d 1103, 1120-21 (9th
Cir. 2007) (“Counsel may not rely for the development and
presentation of mitigating evidence on the probation officer
and a court appointed psychologist. . . . The responsibility to
afford effective representation is not delegable to parties who
have no obligation to protect or further the interests of the
defendant.”). What is more, those reports were not based on
a full account of Detrich’s background and thus could not pro-
vide an “accurate profile of the defendant’s mental health.”
Caro v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002) (not-
ing that counsel have “an affirmative duty” to provide back-
ground information to mental health experts).

[9] Detrich’s counsel’s performance thus was strikingly
similar to, or even worse than, the performances found defi-
cient even after applying AEDPA deference in Terry Williams
and Wiggins.10 We are mindful of the considerable deference
9
The 1985 reports had been produced in connection with Detrich’s ear-
lier incarceration for writing worthless checks. The 1991 report was pro-
duced by a psychologist at a state-run clinic at the request of the attorney
who represented Detrich in his first trial for Souter’s murder.
10
Higgins’s performance was also considerably worse than the perfor-
mance found competent in Pinholster. Unlike Higgins, Pinholster’s attor-
ney “investigated mitigating evidence . . . [l]ong before the guilty verdict”
and employed a mitigation investigator who “researched epilepsy and also
 DETRICH v. RYAN 4573
that we must apply to the state court’s decision that Detrich’s
counsel performed adequately. On the other hand, however,
we can not ignore the Supreme Court’s holdings in Terry Wil-
liams and Wiggins. In light of this precedent, we must con-
clude that Detrich’s counsel’s failure to conduct a more
thorough mitigation investigation and to enlist the assistance
of a mental health expert constituted deficient performance
under Strickland, and that the state court decision to the con-
trary constituted “an error well understood and comprehended
in existing law beyond any possibility for fairminded dis-
agreement,” Richter, 131 S. Ct. at 786-87, unless special con-
siderations made a thorough mitigation investigation
unnecessary in this particular case.

2. No reasonable decision that made a thorough
investigation unnecessary

[10] In some circumstances, a less-than-thorough mitiga-
tion investigation can nonetheless satisfy constitutional
requirements if it is based on “a reasonable decision that
makes particular investigations unnecessary.” Strickland, 466
U.S. at 691. The state contends that Higgins reasonably
decided not to pursue a mitigation investigation here (1)
because Detrich did not want to involve his family, and (2)
because Higgins reasonably chose to pursue a residual doubt
strategy that did not require a thorough mitigation investiga-
tion. We conclude that neither of these considerations justi-
fied limiting the mitigation investigation.

interviewed Pinholster’s mother [and] prepar[ed] Pinholster’s brother . . .
who provided some mitigation testimony during the guilt phase.” 131 S.
Ct. at 1404-05 (footnotes omitted). Moreover, Pinholster’s attorney’s
timesheets indicated that—unlike Higgins—Pinholster’s attorney worked
consistently for several months prior to the penalty phase. Finally, unlike
Higgins, Pinholster’s attorney obtained a psychiatric expert to testify on
Pinholster’s behalf. Id. at 1405.
4574 DETRICH v. RYAN
a

[11] Detrich’s purported desire not to involve his family,
and his family’s alleged unavailability, did not justify limiting
the mitigation investigation for three reasons. First, the record
does not show that Detrich in fact discouraged Higgins from
contacting his family. While the PSR and a letter from Det-
rich’s sister indicate that Detrich did not want to involve his
family in the first sentencing, nothing indicates that Detrich
felt the same way during his second sentencing, after having
received one death sentence.

Second, even if Detrich did not want to involve his family,
or if his family was uncooperative, that would not excuse
Higgins’s failure to seek expert assistance to explain the miti-
gating evidence that was known or his failure to seek evi-
dence from other sources, such as medical records and records
from Detrich’s parents’ custody battle. Indeed, even where a
defendant is “actively obstructive,” counsel must investigate
available records. See Rompilla, 545 U.S. at 381, 383, 389
(holding that the state court’s conclusion that counsel did not
perform deficiently was “objectively unreasonable” under the
AEDPA).

Third, even if Detrich’s desire not to involve his family in
his first sentencing could reasonably be understood as an
instruction not to present any mitigation case at all—which
we doubt it could—such an instruction would not excuse
counsel from conducting a thorough mitigation investigation.
“A defendant’s insistence that counsel not call witnesses at
the penalty phase does not eliminate counsel’s duty to investi-
gate mitigating evidence or to advise the defendant of the
potential consequences of failing to introduce mitigating evi-
dence, thereby assuring that the defendant’s decision regard-
ing such evidence is informed and knowing.” Williams v.
Woodford, 384 F.3d 567, 622 (9th Cir. 2004). Although a
defendant’s informed wishes can justify failing to present mit-
igating evidence, it cannot justify failing to investigate such
 DETRICH v. RYAN 4575
evidence because counsel retains a duty to inform his client
about the risks and potential benefits of presenting a mitiga-
tion case. See id.

b

[12] Detrich’s counsel’s sentencing-phase strategy of
emphasizing residual doubt about whether Detrich had actu-
ally committed the murder likewise did not make a thorough
mitigation investigation unnecessary. First, the record reveals
that Higgins made no strategic choice to emphasize residual
doubt to the exclusion of a classic mitigation presentation
here. The fact that Higgins presented a limited mitigation case
to the sentencing court corroborates this claim. See Wiggins,
539 U.S. at 526 (reasoning that counsel’s presentation of a
“halfhearted mitigation case” demonstrated that the failure to
put on a stronger mitigation case was not a strategic choice).

Second, even if Higgins had made such a strategic choice,
that choice would not have been reasonable. The Supreme
Court has made clear that the investigation supporting a deci-
sion not to introduce mitigating evidence must be reasonable
because a thorough investigation is necessary to make “a fully
informed decision with respect to sentencing strategy.” Wig-
gins, 539 U.S. at 523, 527. Where a strategic choice is made
“ ‘after less than complete investigation,’ ” a court must defer
to that choice “only to the extent that ‘reasonable professional
judgments support the limitations on investigation.’ ” Id. at
533 (quoting Strickland, 466 U.S. at 690-91). As explained
above, Higgins did not reasonably limit the investigation here
because the information that Higgins knew about Detrich’s
past would have led “any reasonably competent attorney” to
pursue further investigation. See id. at 525. Because it would
not have been supported by a reasonable investigation, a strat-
egy focusing on residual doubt to the exclusion of a classic
mitigation defense would not have been reasonable.
4576 DETRICH v. RYAN
[13] Moreover, we doubt that such a strategy would have
been reasonable here, even if supported by an adequate inves-
tigation. Where a judge is likely to find an aggravating factor
that would make the death penalty mandatory in the absence
of sufficient counterbalancing mitigating evidence, counsel’s
failure to make a strong mitigation case falls short of profes-
sional standards. Summerlin v. Schriro, 427 F.3d 623, 640
(9th Cir. 2005). Here, in light of the fact that the previous sen-
tencing judge had found that the crime was especially hei-
nous, cruel, or depraved, it was likely that the sentencing
judge would find such an aggravating factor. And under Ari-
zona law at the time, the presence of this factor required
imposition of the death penalty unless the sentencing court
found mitigating circumstances substantial enough to out-
weigh it. Ariz. Rev. Stat. § 13-703. Under Summerlin, profes-
sional standards therefore required Higgins to present a strong
mitigation case. He did not. Indeed, he did little to supplement
the mitigation case from Detrich’s first sentencing that had
led the first sentencing judge to find no mitigating factors,
much less sufficiently weighty ones. The only new evidence
Higgins offered in support of leniency were the three letters
from Detrich’s sister.11

[14] For these reasons, no special consideration justified
Higgins’s failure to pursue a thorough mitigation investiga-
tion here. Neither Detrich’s purported wish not to involve his
family nor his counsel’s purported strategic choice to pursue
a residual doubt strategy at sentencing made a thorough miti-
gation investigation unnecessary. Higgins’s performance was
11
The state argues that Higgins’s performance was adequate because
“[t]he main thrust of Higgins’s mitigation strategy . . . was residual
doubt.” We disagree. Even assuming that Higgins employed a reasonable
strategy in focusing his sentencing argument on residual doubt, it was
clearly established in Strickland that Higgins was nonetheless required to
make a reasonable mitigation investigation or to make the determination
that such an investigation was unnecessary. Pinholster, 131 S. Ct. at 1407
(quoting Strickland, 466 U.S. at 691).
 DETRICH v. RYAN 4577
therefore deficient under Strickland, and the state court’s
decision to the contrary was objectively unreasonable.

B. Prejudice

[15] Having concluded that the state court unreasonably
held that Detrich’s counsel did not perform deficiently, we
must next determine whether the deficient performance preju-
diced Detrich’s defense. See Strickland, 466 U.S. at 687.
Under Strickland, counsel’s performance is prejudicial if
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. A “reasonable probability” of prej-
udice exists “even if the errors of counsel cannot be shown by
a preponderance of the evidence to have determined the out-
come”; indeed, a “reasonable probability” need only be “a
probability sufficient to undermine confidence in the out-
come.” Id. In other words, Detrich suffered prejudice if “there
is a reasonable probability that, absent the errors, the sen-
tencer . . . would have concluded that the balance of aggravat-
ing and mitigating circumstances did not warrant death.” Id.
at 695. In assessing that probability, we “consider ‘the totality
of the available mitigation evidence . . .’ and ‘reweig[h] it
against the evidence in aggravation.’ ” Porter, 130 S. Ct. at
453-54 (quoting Terry Williams, 529 U.S. at 397-98). In so
doing, we do not consider the “idiosyncracies of the particular
decisionmaker, such as unusual propensities toward harshness
or leniency.” Strickland, 466 U.S. at 695.

Though “[s]urmounting Strickland’s high bar is never an
easy task, . . . [e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more
difficult. The standards created by Strickland and § 2254(d)
are both highly deferential, and when the two apply in tan-
dem, review is doubly so.” Richter, 131 S. Ct. at 788 (internal
quotation marks and citations omitted). A federal habeas court
must therefore determine that “[t]he likelihood of a different
4578 DETRICH v. RYAN
result [is] substantial, not just conceivable.” Id. at 792 (citing
Strickland, 466 U.S. at 693).

Detrich presented volumes of new evidence of his
extremely abusive childhood and new expert assessments of
his brain damage and neuropsychological deficits for the first
time in federal district court. Without considering this com-
pelling new evidence, however, we first conclude that the
state court’s determination that Detrich was not prejudiced by
Higgins’s deficient performance resulted from an unreason-
able determination of the facts. We next conduct a de novo
prejudice assessment and conclude that there is a reasonable
probability that the sentencing judge would have imposed a
sentence less than death had Detrich’s counsel obtained and
presented an expert evaluation of Detrich’s neuropsychologi-
cal functioning.

1. State Court Decision

[16] The only evidence of Detrich’s mental health before
the sentencing judge was a 1991 psychological evaluation by
a court clinic psychologist conducted at the request of Det-
rich’s first counsel and two 1985 reports, one by a state psy-
chologist and the other by a state psychiatrist, from when
Detrich was incarcerated for writing worthless checks. These
reports provided only a snapshot of Detrich’s psychological
profile. The 1985 reports mentioned in passing that Detrich
was impulsive, noting that he was “an impulsive individual”
and that he had “occasional impulsive responses,” while the
1991 report indicated to the contrary that a test that could
reflect impulsivity was “not elevated.” The reports concluded
that he had above-average intelligence, with cognitive func-
tioning largely intact. The 1985 reports contradictorily noted
that he had poor judgment and that his judgment was “grossly
intact.” They noted that he externalized problems, was sensi-
tive to rejection, had an impaired ability to relate to others,
and had a low tolerance for frustration. The 1991 report con-
cluded that he exhibited antisocial attitudes, beliefs, and
 DETRICH v. RYAN 4579
behaviors, and that he had probable antisocial personality dis-
order.

Had Detrich’s trial counsel enlisted the assistance of a
neuropsychological expert, he would have been able to offer
an evaluation with much greater mitigating weight. The eval-
uation by neuropsychologist Dr. Briggs that Detrich presented
to the state post-conviction court indicated that Detrich suf-
fered neuropsychological deficits and opined that his crime
was driven by instinct that grew out of his abusive childhood,
not by consequence-driven thought or reason.

[17] The state post-conviction court concluded that there
was no “reasonable probability” that this neuropsychological
evaluation “would have compelled this Court to impose a sen-
tence less than death.” In support of this conclusion, the state
court reasoned, “Dr. Briggs’ report was not significantly dif-
ferent from the report considered by this Court. Indeed, Dr.
Briggs found that Petitioner’s general neuropsychological
functioning was normal and showed an absence of cognitive
dysfunction.”

[18] This conclusion was “based on an unreasonable deter-
mination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). To be sure,
Dr. Briggs’s report did state that Detrich earned scores on two
neuropsychological tests that were “in the normal range of
neuropsychological functioning.” These results, however, in
isolation, do not represent Dr. Briggs’s medical opinion of
Detrich’s overall psychological presentation.

To the contrary, the report indicates that Detrich’s “normal
. . . performance” reflected a “recovered picture,” as “im-
provement in function occurs as time (and sobriety) from the
incidents [of head injuries and drug use] increase.” Signifi-
cantly, the report indicated that Detrich scored 25 on the Gen-
eral Neuropsychological Deficit Scale (GNDS), a
psychological measure used to differentiate brain-damaged
4580 DETRICH v. RYAN
from normal subjects. The GNDS produces a summary score
based on 42 variables that identify the major areas of neurop-
sychological functioning. Zero to 25 represents “normal”
neuropsychological functioning, while a score of 26-40 repre-
sents mild impairment. See Deborah Wolfson & Ralph M.
Reitan, Cross-Validation of the General Neuropsychological
Deficit Scale (GNDS), 10 Archives Clinical Neuropsychol.
125, 125-26 (1995). In other words, more than ten years after
the crime, at the time of these tests, Detrich’s neuropsy-
chological functioning was just one point shy of abnormal.
Thus, considering Dr. Briggs’s finding of “normal” function-
ing in context, along with his statement that this represented
a “recovered picture,” the only reasonable inference is that
Detrich’s neuropsychological functioning was not normal at
the time of the crime. Moreover, the report states that Det-
rich’s “mild neuropsychological deficits” represent a “very
significant psychological factor” that, when combined with
his “emotional status,” and when impaired by the effects of
alcohol, would cause an “overall greater impairment in func-
tion” than Detrich’s testing results would indicate.

Dr. Briggs described Detrich’s emotional status as the
“most significant factor” in his psychological presentation,
and noted that his childhood history of abuse and “being
taught to fear and hate . . . create[d] an atmosphere where the
problem solving process is more ‘take advantage of the per-
son before the person does it to me.’ ” Dr. Briggs commented
that “this stance makes perfect sense in the world where
adults have and teach no boundaries and no respect, much less
sympathy and feelings other than inappropriate touch and
abuse.”

Dr. Briggs described Detrich’s profile as “a natural pro-
gression of undersocialized abilities, fear, and action based on
instinct.” He concluded that, “[g]iven the history,” Detrich’s
“decision-making, especially when compromised by alcohol,
was not based on any consequence-driven thought process,
 DETRICH v. RYAN 4581
but rather a learned behavior that bypassed right or wrong.
. . . [T]he mindset was developed in which instinct took over
and reason could not be accessed.”

[19] As the foregoing reveals, the state court’s failure to
acknowledge all but an isolated statement in Dr. Briggs’s
report, and its failure to assess the overall significance of Dr.
Briggs’s medical opinion, resulted in an unreasonable deter-
mination of the facts. We have previously made clear that a
state court unreasonably determines the facts when it “over-
look[s] or ignore[s] evidence [that is] highly probative and
central to petitioner’s claim.” Taylor, 366 F.3d at 1001. Evi-
dence is sufficiently “probative” and “central” if it is “suffi-
cient to support petitioner’s claim when considered in the
context of the full record bearing on the issue presented in the
habeas petition.” Id. Dr. Briggs’s conclusion that Detrich was
functioning within a “mindset” that “bypassed right or wrong”
and “in which instinct took over and reason could not be
accessed” is central to Detrich’s claim. As we explain at
length below, if an expert would have testified about such
abnormality at the sentencing, there is a reasonable probabil-
ity that Detrich would not have received the death penalty.
The “state court’s failure to consider, or even acknowledge”
this highly probative evidence therefore “casts serious doubt
on the state-court fact-finding process and compels the con-
clusion that the state-court decision[ ] [was] based on an
unreasonable determination of the facts.” Id. at 1005.12
12
The dissent suggests that since the state habeas court “stated that it
considered the Briggs report . . . we should accept that representation at
face value.” Dissent at 4612. We disagree. As we have discussed at length,
Dr. Briggs’s report was qualitatively different than the psychological evi-
dence before the trial court, and indicated that Detrich suffered from
neuropsychological deficits that contributed to his crime. In endorsing the
state habeas court’s conclusion that Dr. Briggs’s report was cumulative,
the dissent commits the same fatal error as that court: it seizes on an iso-
lated statement to justify its conclusion. While we would not, as the dis-
sent suggests, require state habeas courts to list every piece of evidence
present in the record, we do expect that, where conflicting material evi-
dence is present, state habeas courts will not ignore such evidence entirely.
We believe that our conclusion is consistent with our duty to defer to our
state court colleagues. See Richter, 131 S. Ct. at 786-88.
4582 DETRICH v. RYAN
2. De Novo Prejudice Assessment

[20] We proceed to consider whether there is a reasonable
probability that Detrich’s sentencing counsel’s failure to seek
and introduce expert neuropsychological evidence prejudiced
Detrich’s defense. As an initial matter, we must first deter-
mine whether we must continue to apply AEDPA deference
after having concluded that the state court’s decision was
“based on an unreasonable determination of the facts” under
§ 2254(d)(2). We conclude that the AEDPA imposes no such
requirement.

The Supreme Court has made clear that “[w]hen a state
court’s adjudication of a claim is dependent on an antecedent
unreasonable application of federal law, the requirement set
forth in § 2254(d)(1) is satisfied[, and a] federal court must
then resolve the claim without the deference AEDPA other-
wise requires.” Panetti, 551 U.S. at 953. In Panetti, the
Supreme Court considered a post-AEDPA habeas petition by
a prisoner alleging that he was incompetent to be executed. Id.
at 934-35. In reviewing this claim, the Court first concluded
that the state court had unreasonably applied clearly estab-
lished law in implicitly concluding that it had offered consti-
tutionally adequate procedures to resolve the prisoner’s claim
of incompetence. Id. at 952-53. Because the state court’s
determination of the merits of the prisoner’s competency
claim depended on those clearly inadequate procedures, the
Supreme Court did not defer to that determination, but rather
considered the merits de novo. See id. at 954.

We see no reason why our approach should differ where a
state court’s adjudication of a claim is dependent on an ante-
cedent unreasonable determination of fact. Under § 2254(d),
the unreasonable determination of fact alone authorizes a fed-
eral court to grant habeas relief—provided, of course, that the
petitioner’s constitutional rights were in fact violated. Section
2254(d) is phrased in the disjunctive: we may grant relief only
if the state court decision was contrary to or involved an
 DETRICH v. RYAN 4583
unreasonable application of clearly established Supreme
Court law or if the state court decision was based on an unrea-
sonable determination of fact. See 28 U.S.C. § 2254(d). Sec-
tion 2254(d)’s plain language therefore does not require that
a state court decision involve both an unreasonable determina-
tion of fact and an unreasonable application of law before we
may grant relief.

[21] We therefore hold that, when a state court adjudica-
tion is based on an antecedent unreasonable determination of
fact, the requirement set forth in § 2254(d) is satisfied, and we
may proceed to consider the petitioner’s claim de novo. The
Eleventh Circuit, in a recent en banc decision with only one
judge dissenting on an unrelated issue, agrees, and we have
found no case from any other circuit that holds otherwise. See
Jones v. Walker, 540 F.3d 1277, 1288 & n.5 (11th Cir. 2008)
(en banc); Cooper v. Secretary, Dept. of Corrections, 646
F.3d 1328, 1352-53 (11th Cir. 2011) (“When a state court
unreasonably determines the facts relevant to a claim, we do
not owe the state court’s findings deference under AEDPA,
and we apply the pre–AEDPA de novo standard of review to
the habeas claim.”) (citing Jones, 540 F.3d at 1288 n. 5)
(internal quotation marks omitted); Green v. Nelson, 595 F.3d
1245, 1251 (11th Cir. 2010) (finding that state court unrea-
sonably determined the facts under § 2254(d)(2) and applying
de novo review).

This understanding is consistent with the principle of defer-
ence. Because we do not know what the state court would
have decided had it applied the law to the correct facts, there
is no actual decision to which we can defer. Continuing to
apply AEDPA deference even after concluding that the state
court had unreasonably determined the facts to which it
applied the law would therefore require us to assess the rea-
sonableness of a decision that the state court never actually
reached. Yet it is beyond question that the AEDPA does not
require us to defer to such hypothetical decisions. For
instance, on several occasions, the Supreme Court has consid-
4584 DETRICH v. RYAN
ered ineffective assistance of counsel claims under the
AEDPA in cases where the relevant state courts had not
reached one of the two Strickland prongs. See Porter, 130 S.
Ct. at 452; Rompilla, 545 U.S. at 390. In those cases, the
Supreme Court did not ask whether it would have been objec-
tively unreasonable for the state court to decide the unreached
Strickland prong adversely to the habeas petitioner, but rather
reviewed that prong de novo, as there was no actual state
court decision to which it could defer. Porter, 130 S. Ct. at
452; Rompilla, 545 U.S. at 390. Like the state courts that
never reached one of the Strickland prongs in those cases, the
state court here similarly never considered whether Detrich’s
defense was prejudiced by his counsel’s failure to present
expert evidence of Detrich’s abnormal neuropsychological
functioning. We therefore likewise examine this question de
novo.

As another threshold matter, we must determine whether
we may consider evidence that Detrich presented for the first
time in federal court in analyzing whether Higgins’s deficient
performance prejudiced the defense. The Supreme Court has
explained that 28 U.S.C. § 2254(e)(2), which constrains the
federal courts’ discretion to conduct evidentiary hearings on
habeas claims, “continues to have force where § 2254(d)(1)
does not bar federal habeas relief.” Pinholster, 131 S. Ct. at
1401, 1400 n.5 (“[Section] 2254(e)(2) should be interpreted in
a way that does not preclude a state prisoner, who was dili-
gent in state habeas court and who can satisfy § 2254(d), from
receiving an evidentiary hearing.”). We see no reason to take
a different approach where, as here, § 2254(d)(2) does not bar
federal habeas relief. We therefore conduct our prejudice
inquiry by considering all of the evidence that was properly
before the district court.

[22] Evaluating Detrich’s claim of prejudice de novo, we
conclude that, had his trial counsel presented expert neuropsy-
chological evidence, there is a “reasonable probability” that
Detrich would have received a sentence less than death, par-
 DETRICH v. RYAN 4585
ticularly in light of the sentencing scheme in effect at the
time. Under Arizona law at the time of Detrich’s sentencing,
the sentencing judge had to “weigh the mitigating circum-
stances against the aggravating circumstances to determine if
leniency is required.” State v. Gretzler, 659 P.2d 1, 13 (Ariz.
1983) (internal quotation marks and citation omitted). The
law enumerated ten aggravating factors whose presence
would require imposition of the death penalty unless the judge
also found “mitigating circumstances sufficiently substantial
to call for leniency.”13 Ariz. Rev. Stat. § 13-703(E), (F). In
weighing the aggravating and mitigating factors, “the number
of aggravating and mitigating circumstances is not disposi-
tive, but rather their gravity.” Gretzler, 659 P.2d at 13. In Det-
rich’s case, expert evidence demonstrating that he suffered
from neuropsychological dysfunctions would have affected
the “gravity” of the circumstances on both sides of the bal-
ance: it would have not only strengthened the mitigating cir-
cumstances, but also weakened the aggravating factor—that
the crime was especially cruel, heinous, and depraved—that
authorized Detrich’s death sentence. We are therefore con-
vinced that there is a reasonable probability that Detrich
would have received a more lenient sentence had his trial
counsel presented such evidence.

a

In analyzing Detrich’s claim of prejudice, we may rely on
Dr. Briggs’s report—which was presented as part of Detrich’s
state post-conviction record—as well as any new evidence
that Detrich properly presented for the first time in federal
court. In particular, we may consider new evidence so long as
13
The statute enumerated five mitigating circumstances, but also autho-
rized sentencing judges to consider other, non-statutory mitigating factors.
Ariz. Rev. Stat. § 13-703(G); accord State v. Castaneda, 724 P.2d 1, 12
(Ariz. 1986) (“[The statute] lists some mitigating circumstances though
the court is not limited to those listed but must set forth any mitigating fac-
tor which might call for leniency.”).
4586 DETRICH v. RYAN
two conditions are met: First, Detrich must have been “dili-
gent in his efforts” to develop the evidence in state court.
Michael Williams v. Taylor, 529 U.S. 420, 435 (2000); accord
Holland v. Jackson, 542 U.S. 649, 652-53 (2004) (per curiam)
(holding that new evidence can be considered so long as the
petitioner “was not at fault in failing to develop that evidence
in state court”). Second, the new evidence must not so “funda-
mentally alter the legal claim already considered by the state
courts” as to render it unexhausted. Vasquez v. Hillery, 474
U.S. 254, 260 (1986).

Here, Detrich exercised diligence by presenting the state
court with evidence of neuropsychological impairment and
requesting a hearing to develop that evidence further. See
Michael Williams, 529 U.S. at 437 (“Diligence will require in
the usual case that the prisoner, at a minimum, seek an evi-
dentiary hearing in state court in the manner prescribed by
state law.”). He is not to blame for the state court’s denial of
that request.

Nor does the new evidence render Detrich’s ineffective
assistance of counsel claim unexhausted. “[N]ew factual alle-
gations do not render a claim unexhausted unless they ‘funda-
mentally alter the legal claim already considered by the state
courts.’ ” Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.
1999) (internal quotation marks and citation omitted). The
new evidence that Detrich presents does not. Detrich provided
the state court with a neuropsychological expert’s initial anal-
ysis indicating that his neuropsychological deficits, emotional
state, and substance abuse resulted in a mindset where instinct
controlled his actions and reason could not be accessed.
Moreover, his post-conviction counsel specifically informed
the state court that “complete” testing could show a biological
cause of Detrich’s impairments, and requested a hearing at
which evidence of Detrich’s brain damage could be devel-
oped. The new evidence presented in federal court simply
offers details about Detrich’s brain damage, the biological
causes of his impairments, and his impaired ability to func-
 DETRICH v. RYAN 4587
tion. The new evidence thus does not “fundamentally alter”
Detrich’s claims, and the state court had “a meaningful oppor-
tunity to consider” them. Vasquez, 474 U.S. at 257. Particu-
larly because the failure to present the new evidence to the
state court “stemmed from the state courts’ refusal to grant
[the petitioner] an evidentiary hearing on the matter, rather
than from any failure of diligence on his part,” the new evi-
dence does not render Detrich’s claim unexhausted. Weaver,
197 F.3d at 364.

We therefore consider, in addition to Dr. Briggs’s report,
the new evidence that Detrich presented in the district court,
which included eighty-seven exhibits and the testimony of six
witnesses.

b

As discussed at length above, Dr. Briggs’s report provided
qualitatively new information that the sentencing judge did
not consider. That evidence indicated for the first time that the
crime may have been driven by an instinctive, learned behav-
ior that stemmed from Detrich’s abusive past and neuropsy-
chological deficits. This expert evidence would have added
significant mitigating weight. As noted, Dr. Briggs explained
that Detrich’s abusive background, neuropsychological defi-
cits, and substance abuse caused him to develop a mindset “in
which instinct took over and reason could not be accessed.”
Dr. Briggs’s analysis thus explains both the mindset that led
Detrich to commit this crime and the cause of that mindset.

By suggesting a “causal nexus” between Detrich’s abusive
childhood and the crime, this expert analysis could “impact
‘the quality and strength of the mitigation evidence.’ ” State
v. Tucker, 160 P.3d 177, 201 (Ariz. 2007) (quoting State v.
Newell, 132 P.3d 833, 849 (Ariz. 2006)). We have repeatedly
noted that expert testimony like this can offer a powerful
explanation of a defendant’s crimes, and that the failure to
introduce such evidence can therefore prejudice a defendant.
4588 DETRICH v. RYAN
In Douglas v. Woodford, we held that counsel’s failure to
present expert testimony explaining the possible causal link
between the defendant’s childhood and his crime was prejudi-
cial. Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir.
2003). Although counsel had argued that the defendant’s dis-
advantaged childhood had created a “demon” within him that
had contributed to the crimes, that argument “lacked force
without some expert testimony to back it up.” Id. Similarly,
in Caro v. Calderon, we held that counsel may have preju-
diced the defendant where he failed to present expert testi-
mony “to explain the ramifications” of the defendant’s life
experiences on his behavior. Caro v. Calderon, 165 F.3d
1223, 1227 (9th Cir. 1999). There is a reasonable probability
that Detrich’s counsel’s failure to provide available expert tes-
timony about how Detrich’s abusive childhood influenced his
psychological development and contributed to his crime like-
wise prejudiced Detrich’s defense.

Second, Dr. Briggs’s report not only offers an expert expla-
nation of the causal link between Detrich’s horrific childhood
and his crime, but also indicates that his neuropsychological
deficits contributed to the crime. In addition to revealing that
Detrich’s neuropsychological functioning was almost cer-
tainly deficient at the time of the crime, Dr. Briggs’s report
also explains that Detrich’s neuropsychological deficits inter-
acted with his emotional status to cause “a greater overall
impairment in function” and that being under the influence of
drugs and alcohol further inhibited Detrich’s abilities. These
findings underscored Dr. Briggs’s conclusion that Detrich’s
mindset was such that his actions were instinctual, not rea-
soned. The neuropsychological deficits Dr. Briggs described
would likely have had greater mitigating weight than the diag-
noses reflected in the psychological reports that the sentenc-
ing judge considered, which reached conflicting conclusions
about Detrich’s impulsivity. See State v. Walton, 769 P.2d
1017, 1034 (Ariz. 1989) (explaining that “some types of
[mental] impairments clearly bear more weight than others,”
and that “personality disorders have not sufficed to tilt the
 DETRICH v. RYAN 4589
balance in favor of leniency”). There is therefore a reasonable
probability that the failure to introduce such expert evidence
prejudiced Detrich’s defense.14

[23] Moreover, expert analyses presented to the federal
district court confirm that Detrich’s neuropsychological defi-
cits may have contributed to Detrich’s crime in this way. The
expert testimony that Detrich presented to the federal district
court provides significant new details about Detrich’s neurop-
sychological deficits, their behavioral effects, and their
causes. Particularly considering this new evidence, we are left
with no doubt that, had Detrich’s trial counsel enlisted the
assistance of a mental health expert, there is a reasonable
probability that Detrich would have received a sentence less
than death.

[24] In the district court, Detrich presented the expert opin-
ion of neuropsychiatrist Dr. Amezcua-Patiño, who diagnosed
Detrich with cognitive disorder secondary to congenital defi-
cits and concluded that Detrich has “severe Neuro Psychiatric
conditions that he acquired at birth, most likely as a result of
Congenital malformations, worsened by significant abuse and
neglect, and eventually further deteriorated by the use of
drugs and alcohol.” Dr. Amezcua-Patiño opined that Detrich’s
abnormal cognitive functioning “directly affected [his] ability
to problem solve and control his actions . . . , including during
14
The dissent suggests that we have attempted to shoehorn Detrich’s
claim into § 2254(d)(2) to avoid the doubly deferential review we must
apply under § 2254(d)(1). See Richter, 131 S. Ct. at 788. Not so. The dis-
sent concedes that “had the state court mischaracterized [Dr. Briggs’s]
report or fatally misinterpreted it . . . it would have been unreasonable.”
Dissent at 4609-10. This is precisely what the state habeas court did in this
case. Dr. Briggs’s report was qualitatively different than the psychological
reports before the trial court. The report stated, in no uncertain terms, that
Detrich “could not” form reasoned decisions at the time he committed his
crime. There is no escaping the fact that the state habeas court’s utter dis-
regard for all but an isolated statement in Dr. Briggs’s report therefore
resulted in an unreasonable determination of fact.
4590 DETRICH v. RYAN
the commission of [his] crimes,” and “affected his ability to
appreciate the wrongfulness of his actions.” Another doctor,
Dr. Froming, similarly noted damage in the frontal-
subcortical areas of functioning, which resulted in impul-
sivity, impulsive errors, and problems in self-monitoring. Dr.
Froming also described Detrich as “very fast responding with
an inability to stop once he had started on something.” Dr.
Cuniff, a medical geneticist, similarly noted that when Detrich
attempted a difficult task, he often would not abandon an inef-
fective strategy. According to Dr. Froming, when “[u]nder the
influence of alcohol and other drugs, Mr. Detrich’s ability to
inhibit, plan ahead, make decisions, and perform in an error-
free fashion would be significantly reduced, especially given
his neurological damage.” Dr. Froming even remarked that
Detrich’s behavior during the testing “was so extraordinary
that I have not witnessed it in any of my previous evaluations
since 1979.” Finally, she opined that Detrich’s functioning
would have improved over time as he remained sober, indicat-
ing that Detrich’s functioning would have been even more
impaired at the time of the crime.

[25] All of these expert analyses indicate how Detrich’s
deficits could have affected his behavior in a way that could
explain his crime: cognitive deficits caused him to act impul-
sively and impaired his ability to control his actions. Such an
explanation could have significant mitigating weight. As the
Supreme Court has recognized, evidence that a defendant’s
“violent behavior was a compulsive reaction rather than the
product of cold-blooded premeditation” could alter the selec-
tion of a penalty. Terry Williams, 529 U.S. at 398. Evidence
that such a compulsive reaction stemmed from neuropsy-
chological deficits would have even greater mitigating force.
Cf. Caro, 280 F.3d at 1258 (holding that the failure to intro-
duce evidence of physiological defects that can cause “im-
pulse discontrol” can prejudice a defendant because such
evidence could reduce a defendant’s “moral culpability”).

Dr. Amezcua-Patiño also offered more detail on how Det-
rich’s abusive childhood could have led to his neuropsy-
 DETRICH v. RYAN 4591
chological deficits. The development of the prefrontal cortex
—which controls reasoning, problem solving, motivation, and
response flexibility—is “vitally dependent on reciprocal inter-
actions with an emotionally attuned caregiver.” Abuse
impedes the normal development of the brain and likely leads
to an underdeveloped cortex and a hyperactive response to
stress. Extreme stress interferes with the functioning of the
thinking part of the brain that is “particularly important in
inhibiting the stress response.” By establishing another causal
link between Detrich’s abusive childhood and his crime, this
evidence would have increased the mitigating weight of Det-
rich’s horrific childhood. See Tucker, 160 P.3d at 201.

In sum, had Detrich’s sentencing counsel consulted a men-
tal health expert to assist in the penalty phase of Detrich’s
second trial, he would have been able to present expert analy-
ses showing how both neuropsychological deficits and Det-
rich’s abusive childhood contributed to his crime. Had the
sentencing judge heard such testimony, there is a reasonable
probability that he would have afforded more weight to the
mitigating circumstances.

The fact that the state has presented experts who disagree
with Detrich’s experts’ analyses does not alter our conclusion.
As the Supreme Court recently recognized, even where state
experts identify problems with the tests and conclusions of
defense experts, “it [is] not reasonable to discount entirely the
effect that [the expert’s] testimony might have had on the jury
or the sentencing judge.” Porter, 130 S. Ct. at 455.

Further, this is not a case where expert testimony is unnec-
essary because laypeople can easily understand the mitigating
evidence without assistance. Recently, in Wong v. Belmontes,
the Supreme Court held that a defendant did not suffer preju-
dice from his attorney’s failure to introduce expert testimony
about how the defendant’s childhood could have contributed
to his crimes because “the body of mitigating evidence . . .
was neither complex nor technical. It required only that the
4592 DETRICH v. RYAN
jury make logical connections of the kind a layperson is well
equipped to make.” Wong v. Belmontes, 130 S. Ct. 383, 388
(2009). In Belmontes, however, the mitigating evidence was
not about brain development and cognitive impairments, but
rather about how traumas the defendant experienced as a child
“caused him to ‘los[e] ground in comparison with his peers
[both] academically [and] socially’ and ‘intensified [his]
sense of himself as defective, something from which he never
recovered.’ ” See Belmontes v. Ayers, 529 F.3d 834, 853 (9th
Cir. 2008), rev’d, 130 S. Ct. 383. Whereas a jury can use “its
common sense or own sense of mercy,” Belmontes, 130 S. Ct.
at 588, to understand the psychological impact of an abusive
childhood, a sentencer would likely need expert testimony to
understand how a traumatic childhood could shape brain
development in a way that would lead to impulsive behavior.
Because expert testimony would provide additional explana-
tions beyond a layperson’s understanding of Detrich’s inabil-
ity to curb his impulses, there is a reasonable probability that
this testimony would have increased the weight of the mitigat-
ing evidence.

c

[26] In addition to strengthening the mitigating evidence,
the expert evidence of Detrich’s neuropsychological dysfunc-
tions would have weakened the statutory aggravating factor
that the sentencing court found to authorize imposition of the
death penalty, i.e., that Detrich’s crime was especially cruel,
heinous, and depraved. Under Arizona law, “cruelty involves
the pain and distress visited upon the victims, and . . . heinous
and depraved go to the mental state and attitude of the perpe-
trator as reflected in his words and actions.” Gretzler, 659
P.2d at 10. Based on the evidence before it, the sentencing
court found that the number and severity of wounds, some of
which were defensive, showed that the crime was especially
cruel, and that Detrich’s words and actions at the time of the
crime evidenced a heinous and depraved state of mind. For
the reasons we explain below, evidence of Detrich’s neurop-
 DETRICH v. RYAN 4593
sychological deficits could have provided an alternative
explanation of Detrich’s words and actions and accordingly
could have decreased the weight of the “especially cruel, hei-
nous, and depraved” aggravating factor.

To be sure, evidence of Detrich’s neuropsychological dys-
functions would not bear on the cruelty of the crime, which
focuses on the victim’s suffering. See id. at 10. Because there
is therefore no reasonable probability that this expert evidence
would have led the sentencing court to find no aggravating
circumstances whatsoever, the death penalty would have
remained an option. See Ariz. Rev. Stat. § 13-703(E), (F).
Nonetheless, under Arizona law, sentencing judges look not
only to whether an aggravating circumstance is present, but
also to the weight of that aggravating circumstance. See State
v. Canez, 42 P.3d 564, 596 (Ariz. 2002) (assessing the weight
of the (F)(6) aggravating circumstance after reversing the
finding of heinousness and depravity but upholding the find-
ing of cruelty); State v. Gulbrandson, 906 P.2d 579, 604
(Ariz. 1995) (noting that “[t]he (F)(6) aggravating circum-
stance would have even more weight if defendant had relished
the murder”). Thus, even assuming that Detrich could not suc-
cessfully rebut the state’s argument that the murder was espe-
cially cruel, the neuropsychological evidence could diminish
the weight of the aggravating factor by showing that the crime
was not especially heinous and depraved.

Contrary to the district court’s understanding, the hei-
nous/depraved inquiry turns on the defendant’s subjective
state of mind, not on his mere words and acts. The Arizona
Supreme Court has made clear that, to determine whether a
crime was committed in an especially heinous or depraved
manner, a court must consider “the killer’s state of mind at the
time of the offense,” which “may be shown by his behavior.”
State v. Lujan, 604 P.2d 629, 636 (Ariz. 1979); accord State
v. Fulminante, 778 P.2d 602, 620 (Ariz. 1988) (“The terms
‘heinous’ and ‘depraved’ focus upon a defendant’s state of
mind at the time of the offense, as reflected by his words and
4594 DETRICH v. RYAN
acts.”); State v. Martinez-Villareal, 702 P.2d 670, 680 (Ariz.
1985) (“In order to determine depravity the court must focus
on defendant’s state of mind. Defendant’s state of mind may
be inferred from behavior at or near the time of the offense.”
(citation omitted)). Because this factor focuses on a defen-
dant’s subjective state of mind, expert psychiatric evidence
can demonstrate that a defendant’s crime was not especially
heinous or depraved. See Summerlin, 427 F.3d at 641-42
(holding that counsel’s failure to present psychiatric evidence
of a defendant’s “lack of impulse and emotional control and
organic brain dysfunction” prejudiced the defendant because
that evidence “could directly counter . . . that the crime had
been committed in a ‘heinous, cruel, or depraved manner’ ”).

The Arizona Supreme Court has identified five factors that
can lead to a finding of heinousness or depravity: the defen-
dant’s relishing of the murder, infliction of gratuitous vio-
lence, mutilation of the victim, senselessness of the crime, and
helplessness of the victim. Gretzler, 659 P.2d at 11. In Det-
rich’s case, the sentencing judge found that four of the five
factors—all but mutilation—were present. According to the
sentencing judge, Detrich’s asking Charlton if he wanted “a
shot” at the “dead” but “warm” body indicated that Detrich
relished the crime. The forty wounds evidenced gratuitous
violence. And the crime was senseless in that the victim posed
no threat to Detrich, and the victim was helpless. These fac-
tors led the sentencing judge to conclude that the crime was
especially heinous and depraved.

[27] Expert testimony could have rebutted the finding that
the gratuitous violence and Detrich’s apparent relishing of the
crime evidenced a heinous and depraved state of mind. First,
expert testimony that Detrich exhibited an “inability to stop
once he had started on something,” and that his “ability to
inhibit, plan ahead, [and] make decisions . . . would be signifi-
cantly reduced, especially given his neurological damage,”
could have provided the sentencing judge with a different
understanding of the victim’s forty wounds. Rather than evi-
 DETRICH v. RYAN 4595
dencing a “shockingly evil state of mind,” Gretzler, 659 P.2d
at 11, the sheer number of wounds reflected Detrich’s impul-
sive and persistent behavior, which was caused by his neuro-
logical deficits. The state argues that Detrich’s brain
dysfunctions do not explain the gratuitous violence because
there is no evidence that he was out of control, as Detrich
apparently directed Charlton to drive out of town, told him to
pull over, and later lied that he had been in a fight when his
friend asked why he was covered in blood. That Detrich may
have regained control after committing the murder, however,
does not indicate that he also had control over his impulses
while inflicting the wounds.

Second, given the neuropsychological evidence, there is a
reasonable probability that the sentencing judge would have
concluded that Detrich’s comment offering Charlton “a shot”
at the dead body evidenced impulsivity and immaturity, not
relishing of the killing. Indeed, the Arizona Supreme Court
has acknowledged that “post-murder statements suggesting
indifference, callousness, or a lack of remorse constitute ‘rel-
ishing,’ only when they indicate, beyond a reasonable doubt,
that the killer savored or enjoyed the murder at or near the
time of the murder.” State v. Greene, 967 P.2d 106, 115-16
(Ariz. 1998). The Arizona Supreme Court has, for example,
found that a defendant’s statement that he had “clubbed” a
“faggot,” while callous, did not establish relishing. Id. at 115.
Similarly, that court rejected a finding of relishing where a
defendant bragged that his victim had “squealed like a rabbit.”
State v. Graham, 660 P.2d 460, 463 (Ariz. 1983). In that case,
the court attributed the defendant’s statement not to his savor-
ing of the crime, but to his immaturity and need to impress his
peers, which a psychological report had noted. Id. Similarly,
here, expert analyses would have reported that Detrich was
“very immature” and impulsive. These neuropsychological
characteristics, explained in part by Detrich’s brain develop-
ment and abusive childhood, could have provided an alterna-
tive explanation of Detrich’s callous statement to Charlton:
4596 DETRICH v. RYAN
his statement reflected immaturity and impulsivity, not his
enjoyment of the act of killing Souter.

Thus, expert testimony about Detrich’s neuropsychological
dysfunctions could have shed a different light on Detrich’s
words and actions at the time of the crime. Had the sentencing
judge heard expert testimony about Detrich’s impulsivity,
inability to change a course of action once started, and imma-
turity, there is a reasonable probability that he would have
concluded that the callous statement to Charlton and the num-
ber of wounds reflected these neuropsychological characteris-
tics, not relishing or knowing infliction of gratuitous violence
that reflected a heinous and depraved state of mind. And there
is more than a reasonable probability that this expert evidence
would have at least precluded the sentencing judge from find-
ing beyond a reasonable doubt that Detrich’s actions reflected
a heinous and depraved state of mind. See State v. Jordan,
614 P.2d 825, 828 (Ariz. 1980) (holding that aggravating cir-
cumstances must be proven beyond a reasonable doubt).
Moreover, had the sentencing judge not found gratuitous vio-
lence or relishing, he almost certainly would not have found
the crime to have been especially heinous or depraved,
because the other two factors urged by the state—
senselessness of the crime and helplessness of the victim—
rarely support a finding of heinousness and depravity on their
own. See State v. Hyde, 921 P.2d 655, 684 (Ariz. 1996).

[28] There is therefore a reasonable probability that expert
evidence of Detrich’s neuropsychological deficits would have
changed the aggravation side of the sentencing balance.
Because there is a reasonable probability that the sentencing
judge would not have found Detrich’s crime to be especially
heinous and depraved, there is a reasonable probability that he
would have afforded less weight to the aggravating factor that
authorized imposition of the death penalty here. If the aggra-
vator had less weight, it would of course take less mitigating
evidence to outweigh it.
 DETRICH v. RYAN 4597
d

Had Detrich’s trial counsel presented expert evidence of
Detrich’s neuropsychological dysfunction, there is a reason-
able probability that the sentencing judge would have ascribed
more weight to the mitigating circumstances and less weight
to the aggravating circumstance that the crime was especially
heinous, cruel, or depraved. Critically, there is a reasonable
probability that these changes in weights on both sides of the
sentencing balance would have resulted in a sentence less
than death.

[29] This is not a case where the aggravating factors are so
overwhelming that a death sentence was all but assured. First,
even for very gruesome crimes, the death penalty is not neces-
sarily unavoidable. Douglas, 316 F.3d at 1091. Second, we
have found that aggravating circumstances are so significant
as to preclude a finding of prejudice only where the aggravat-
ing circumstances were worse, and the omitted mitigating evi-
dence weaker, than those here. For example, in Bible v. Ryan,
we held that the severity of the aggravating factors precluded
a finding of prejudice where the defendant had kidnaped,
stripped, molested, tied up, and murdered a nine-year-old girl,
and where the omitted mitigating evidence showed only that
the defendant had high fevers as a child that theoretically
could have resulted in organic brain damage. Bible v. Ryan,
571 F.3d 860, 863-64, 870 (9th Cir. 2009). Here, not only are
the aggravating circumstances of Detrich’s crime less egre-
gious, but he has offered evidence that he actually suffers
organic brain damage that could help explain his crime. Cf.
Bible, 571 F.3d at 871 (emphasizing that the defendant did not
contend that he actually had organic brain damage in conclud-
ing that the failure to introduce this evidence did not prejudice
him). The aggravating factors similarly far outweighed the
omitted mitigating evidence in Woodford v. Visciotti, where
the Supreme Court held that the state court was not objec-
tively unreasonable in finding no prejudice where a defen-
dant, who had previously knifed a man and stabbed a
4598 DETRICH v. RYAN
pregnant woman, had committed a pre-planned armed robbery
that involved an execution-style killing and another attempted
killing. Woodford v. Visciotti, 537 U.S. 19, 26-27 (2002).
There, the mitigating evidence that counsel failed to present
was far weaker than that here: the defendant had been berated
as a child, had no self-esteem, moved twenty times growing
up, was born with club feet, and suffered from depression,
feelings of inadequacy and incompetence, and a possible sei-
zure disorder. Id. at 26. Similarly, in Cox v. Ayers, we
recently found no prejudice where the “weight of the aggra-
vating factors was staggering,” as the petitioner had “set out
to kill everyone in [a] house, including children sleeping in
their beds, . . . for money.” Cox v. Ayers, 613 F.3d 883, 900
(9th Cir. 2010). Balanced against these “staggering” aggravat-
ing factors was “mostly cumulative” evidence of the petition-
er’s abusive childhood, but no evidence, new or otherwise, of
any neuropsychological deficiencies that could explain the
crime. Id.

[30] Because the mitigating evidence that Detrich’s coun-
sel failed to present is powerful, and because the aggravating
circumstances surrounding Detrich’s crime are not so severe
as practically to preclude a finding of prejudice, there is a rea-
sonable probability that the new evidence of Detrich’s
neuropsychological dysfunctions would have led the sentenc-
ing judge to conclude that the mitigating circumstances out-
weighed the aggravating circumstances and accordingly to
impose a sentence less than death.15

[31] In sum, Detrich’s trial counsel’s failure to conduct an
adequate penalty phase investigation, and the resulting failure
to present powerful available mitigating evidence, deprived
15
Because we conclude that the failure to introduce such expert mental
health evidence alone prejudiced Detrich’s defense, we need not decide
whether Detrich’s counsel’s additional failure to introduce evidence of
Detrich’s abusive childhood, his successful adaptation to prison, or the
impact that his execution would have on his family also prejudiced him.
 DETRICH v. RYAN 4599
Detrich of his Sixth Amendment right to the effective assis-
tance of counsel. The state court unreasonably applied Strick-
land in concluding that counsel’s performance was not
deficient. Moreover, the state court’s conclusion that Det-
rich’s counsel’s performance did not prejudice Detrich’s
penalty-phase defense was based on an unreasonable determi-
nation that Dr. Briggs’s report indicated that Detrich’s
neuropsychological functioning was normal. Because avail-
able expert neuropsychological evidence that Higgins failed
to obtain and present would have provided a powerful expla-
nation of Detrich’s crime, we conclude that there is a reason-
able probability that Detrich would have received a sentence
less than death if Higgins had provided adequate representa-
tion.16 We therefore hold that Detrich is entitled to habeas
relief on his penalty phase ineffective assistance of counsel
claim.

IV. CONCLUSION

For the reasons explained above, we reverse the district
court’s denial of habeas relief on Detrich’s penalty phase inef-
fective assistance of counsel claim. The case is remanded for
16
We reach this conclusion mindful of the Supreme Court’s recent deci-
sion in Richter. In that case, the Court found that the petitioner had not
suffered prejudice where he offered expert evidence that “established
nothing more than a theoretical possibility” that his version of events was
more plausible than the government’s, and “offered no evidence directly
challenging” conclusions reached by the government’s experts. 131 S. Ct.
at 792. Detrich, by contrast, offers expert evidence regarding the nature
and extent of his neuropsychological impairments which goes far beyond
suggesting a mere theoretical possibility that his impairments contributed
to his crime. He also, as we have noted, offers evidence that directly con-
tradicts psychological assessments presented by the government’s experts.
In short, Detrich presents a markedly different case than Richter, and we
do not believe that the same result must inhere. Thus, bearing in mind
Richter’s strong rebuke of our prior failure to give insufficient deference
to our state court colleagues, we remain firm in our conviction that it is
reasonably likely that Detrich would have received a sentence less than
death had he received adequate representation.
4600 DETRICH v. RYAN
the district court to issue a writ of habeas corpus vacating
Detrich’s death sentence unless the state re-sentences Detrich
within a reasonable time set by the district court. If the state
chooses not to re-sentence, Detrich’s sentence will automati-
cally be converted to life in prison in accordance with Arizona
law.

REVERSED and REMANDED.

McKEOWN, Circuit Judge, Dissenting:

I respectfully dissent. I join the majority’s conclusion in
§ III.A that trial counsel was ineffective because he failed to
investigate and present sufficient mitigation evidence. I dis-
agree with the majority that Detrich was prejudiced by this
failure and that the state court made an unreasonable factual
determination. In my view, this case should be analyzed under
the legal prong of the Antiterrorism and Effective Death Pen-
alty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1), rather than
§ 2254(d)(2), the factual prong. Either way, Detrich cannot
overcome the prejudice bar in Strickland v. Washington, 466
U.S. 668, 687 (1984). And, even if Detrich could pass through
§ 2254(d)’s strict requirements, and we were permitted to
consider the expansive new evidence, he nonetheless fails to
establish prejudice.

Detrich’s appeal focuses on the state post-conviction
court’s alleged under-weighing of the mitigation evidence that
was before that court. This opportunity for another review has
caused me to reevaluate our prior conclusion. Upon reconsid-
eration of the facts and in the face of recent Supreme Court
decisions, I conclude that the state post-conviction court’s
prejudice evaluation was not contrary to established federal
law. The court appropriately concluded that Detrich could not
overcome the aggravating circumstance through his claims of
impulsivity, drug and alcohol abuse, and a dysfunctional
 DETRICH v. RYAN 4601
childhood. Although his mitigation evidence was presented to
the state court, now he wants a “do over” with more extensive
psychological and familial evidence. Though in no way do I
discount the problems Detrich experienced, they are insuffi-
cient in the face of an extraordinarily cruel and heinous mur-
der to establish a reasonable probability that the outcome
would have been different had counsel effectively represented
Detrich.

The Supreme Court’s recent decisions in Cullen v. Pinhol-
ster, 131 S. Ct. 1388 (2011), and Harrington v. Richter, 131
S. Ct. 770 (2011), both decided after our initial opinion was
issued, provide the framework for our analysis. With respect
to new evidence and evidentiary hearings in federal habeas
petitions challenging state court convictions, Pinholster dra-
matically changed the landscape. The central premise of Pin-
holster is that our review of Detrich’s claims under § 2254(d)
is circumscribed by the state court record—review “is limited
to the record that was before the state court that adjudicated
the claim on the merits.” 131 S. Ct. at 1398; see also id. at
1413 (Sotomayor, J., dissenting) (“New evidence adduced at
a federal evidentiary hearing is now irrelevant to determining
whether a petitioner has satisfied § 2254(d)(1).”). Since Pin-
holster, courts have grappled with defining the circumstances
in which new evidence may be considered. For example, our
court reviewed post-Pinholster the admissibility of new evi-
dence that was previously unavailable, such as when prosecu-
tors withhold vital information in violation of their
obligations under Brady v. Maryland, 373 U.S. 83 (1963).
See, e.g., Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011)
(remanding petitioner’s Brady claim to the district court with
instructions to stay the proceedings so that petitioner could
return to state court because, despite petitioner’s diligence,
some exculpatory evidence was not turned over until the fed-
eral habeas proceeding).

To be sure, the Supreme Court did not completely close the
door on new evidence or evidentiary hearings under 28 U.S.C.
§ 2254(e)(2). As I wrote in Stokley v. Ryan:
4602 DETRICH v. RYAN
Pinholster leaves open the question of how to distin-
guish between a claim that was exhausted in state
court and a claim that is transformed by new evi-
dence into a different and novel contention presented
for the first time in federal court. The Court in Pin-
holster also had no occasion to speak to the role that
new evidence plays in federal habeas proceedings on
those rare occasions when an evidentiary hearing is
proper.

659 F.3d 802, 808 (9th Cir. 2011). See also Pinholster, 131
S. Ct. at 1411 n.20 (noting that because Pinholster did not
meet § 2254(d)(1) on the state court record alone, “we need
not decide whether § 2254(e)(2) prohibited the District Court
from holding the evidentiary hearing or whether a district
court may ever choose to hold an evidentiary hearing before
it determines that § 2254(d) has been satisfied.”)

Regardless of the fissures left open after Pinholster, the
Court made abundantly clear that our review under § 2254(d)
is limited to the record before the state court. On the state
court record, Detrich fails to show that he can surmount the
barriers imposed by § 2254(d).

Recognizing that Pinholster requires initial review on the
basis of the state court record alone, the majority concludes,
under § 2254(d)(2), that the state court’s prejudice analysis
rested on an unreasonable determination of the facts. Maj. Op.
at 4577-81. With that conclusion on the table, the majority
then goes on to incorporate into its analysis the “volumes” of
new evidence offered in the federal habeas proceeding.

I part ways with the majority at this initial juncture. Unlike
the majority, I view Detrich’s claim as most properly falling
within the purview of § 2254(d)(1), and, even if it is viewed
as a factual misstep under § 2254(d)(2), Detrich cannot satisfy
the prejudice standard. Although restricting itself to the state
court record in its analysis of Detrich’s claims under
 DETRICH v. RYAN 4603
§ 2254(d), the majority inordinately focuses on Dr. Briggs’s
neuropsychological report. Detrich’s appellate counsel
obtained funding for the report and, before the state court,
advanced the argument that Detrich’s impulsivity, coupled
with his abusive childhood and substance abuse, were mitigat-
ing factors that should have changed the trial judge’s mind on
sentencing. But the post-conviction court, which was the same
judge as the trial court, flatly rejected this argument: “[T]here
is no reasonable probability that this testimony [regarding
neuropsychological functioning] would have compelled this
Court to impose a sentence less than death.” The additional
evidence of a dysfunctional childhood was deemed cumula-
tive.

In the end, this case mirrors Pinholster: As the Court wrote,
“There is no reasonable probability that the additional evi-
dence Pinholster presented in his state habeas proceedings
would have changed the jury’s verdict. The ‘new’ evidence
largely duplicated the mitigation evidence at trial.” Pinhol-
ster, 131 S. Ct. at 1409. Substitute Detrich for Pinholster and
the result is the same. This conclusion is compelled by the
Court’s opinion in Harrington. As to prejudice, the Court
explained: “In assessing prejudice under Strickland, the ques-
tion is not whether a court can be certain counsel’s perfor-
mance had no effect on the outcome or whether it is possible
a reasonable doubt might have been established if counsel
acted differently.” Harrington, 131 S. Ct. at 791. The Court
went on to reiterate its clear standard, explaining that
“[i]nstead, Strickland asks whether it is ‘reasonably likely’ the
result would have been different.” Id. at 792 (citation omit-
ted). Finally, because Detrich cannot overcome the § 2254(d)
bar, the circumstances of this case do not permit the extensive
new evidence taken into account by the majority.

A. NO UNREASONABLE APPLICATION OF CLEARLY
ESTABLISHED FEDERAL LAW UNDER § 2254(D)(1)

Detrich has consistently argued that he is entitled to habeas
relief because the state post-conviction court unreasonably
4604 DETRICH v. RYAN
applied the Strickland standard. Given the fact-intensive
nature of the Strickland inquiry, it is understandable that the
majority desires to fit its analysis under § 2254(d)(2)—the
“unreasonable determination of the facts” prong of the
AEDPA. On reflection and careful review of the record, how-
ever, I conclude that this case simply does not present the sit-
uation where the state court’s factual finding was unsupported
by sufficient evidence, where the process employed by the
state court was defective, or where the state court made no
factual finding at all. Taylor v. Maddox, 366 F.3d 992, 999
(9th Cir. 2004). Rather, the post-conviction court’s decision
turns on the “application of” the prejudice prong of Strick-
land, which constitutes “clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1).

The majority’s ultimate conclusion rests on its disagree-
ment with the state court’s determination that Detrich was not
prejudiced by his counsel’s ineffective assistance. To prevail
on his ineffective assistance of counsel claim, Detrich must
show both (1) “that counsel’s performance was deficient,”
and (2) “that the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687. Under the prejudice
analysis, there must be “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Further, our review is
“doubly deferential” under the AEDPA, and Detrich must
show that it was necessarily unreasonable for the state court
to conclude that: (1) he had not overcome the strong presump-
tion of competence; and (2) he had failed to undermine confi-
dence in the outcome of the state court proceeding.
Pinholster, 131 S. Ct. at 1403 (citation omitted). Detrich
makes no such showing.

Our debate centers on the second prong of Strickland. Ulti-
mately, I read the majority’s position to be that, given the
information before the state post-conviction court, the major-
ity would have reached a different outcome. But that is not the
 DETRICH v. RYAN 4605
standard imposed by the AEDPA. Even if we disagree with
the state court and might have reached a different conclusion
as an initial matter, the state post-conviction court’s conclu-
sion that Detrich did not establish prejudice was not an unrea-
sonable application of Strickland. See Harrington, 131 S. Ct.
at 786 (reiterating that “even a strong case for relief does not
mean the state court’s contrary conclusion was unreason-
able”).

In assessing the prejudice to Detrich, we reweigh the evi-
dence in aggravation against the totality of the available miti-
gation evidence. Wiggins v. Smith, 539 U.S. 510, 534 (2003).
The sole aggravating circumstance of the murder—that it was
“especially heinous, cruel, or depraved” under Arizona
Revised Statute § 13-703(F)(6)—is entitled to significant
weight. Explaining its conclusion that the murder was espe-
cially cruel, the state court noted that Souter, the victim, suf-
fered a slit throat and forty knife injuries to her face, hands,
chest, neck, abdomen and thigh, some of which were defen-
sive. State v. Detrich, 932 P.2d 1328, 1338-39 (Ariz. 1997).
She also suffered blunt force trauma injuries, including
bruises on her nose, jaw, and scalp, and scraping and tearing
of the lining of her mouth. Id. at 1339. That Souter was con-
scious during some of the attack was evidenced by her gur-
gling attempts to respond to Detrich’s questions. Id. at 1338-
39. This evidence demonstrated that Souter must have suf-
fered excruciating pain before she died. The court also noted
that Souter suffered mentally when she was held at knifepoint
and threatened with sexual assault. Id. at 1339.

The state court further found that the crime was “especially
heinous or depraved” because of the gratuitous violence
beyond that necessary to cause death; because Detrich rel-
ished in the murder, asking Charlton if he “want[ed] a shot”
at the dead body; because the killing was senseless; and
because the victim was helpless. Id. at 1339. Despite the
majority’s conclusion to the contrary, nothing before the state
4606 DETRICH v. RYAN
post-conviction court (including Dr. Briggs’s report) alters the
significance of these facts. Maj. Op. at 4587-89.

The state trial court gave full credence to Detrich’s sub-
stance abuse problems and dysfunctional childhood. As miti-
gating factors, the state court found, under Arizona Revised
Statute § 13-703(G)(1), that Detrich’s capacity to appreciate
the wrongfulness of his conduct or conform it to the law was
significantly impaired, based on testimony that he was drink-
ing heavily and possibly using cocaine at the time of the
crime. The court also found the following non-statutory miti-
gation: physically and mentally abusive background; remorse;
and history of alcohol and drug abuse.

According to Pinholster, we look only to the state court
record, which includes the following evidence of Detrich’s
mental health: (1) the 1985 evaluations, one by a state psy-
chologist and the other by a psychiatrist, that were attached to
the presentence report; (2) a 1991 court psychologist’s evalua-
tion that the state provided to the trial court; and (3) Dr.
Briggs’s report on neuropsychological functioning, which
Detrich’s habeas counsel presented in the state post-
conviction proceeding. The 1985 psychological report noted
Detrich’s impulsivity, immaturity, poor judgment, and low
tolerance for frustration. Similarly, the 1985 psychiatric eval-
uation found Detrich’s judgment to be grossly intact “with
occasional impulsive responses,” and remarked that Detrich
appeared to become frustrated quickly. Despite these observa-
tions, both reports stated that Detrich did not suffer from a
thought disorder or from delusional thinking. The 1991 report
confirms these conclusions, noting that Detrich did not exhibit
any symptoms of a major mental disorder or any other signifi-
cant psychiatric disturbance and his thought processes were
logical and coherent. However, unlike the 1985 reports, the
1991 evaluation did not reflect a high tendency toward impul-
sivity. Tellingly, together these reports noted that Detrich did
not have a history of prior felony convictions or a known sig-
nificant history of aggressive behavior. As the district court
 DETRICH v. RYAN 4607
aptly noted, Detrich’s lack of a violent history before the mur-
der undercuts his argument that he could not conform his con-
duct to the law.

The addition of Dr. Briggs’s report did not alter the signifi-
cance of the other psychological evidence. In line with the
other doctors’ observations, Dr. Briggs noted Detrich’s impul-
sivity in several areas of the testing session. His examination
also revealed no pattern of cognitive dysfunction and that
Detrich’s neurological functioning was in the normal range,
which was a “recovered picture from the reported head trau-
mas and toxic abuse.” Dr. Briggs acknowledged that Detrich’s
appearance of greater overall impairment of function was
“likely an interaction between his emotional state and his mild
neuropsychological deficits.” He ultimately concluded that
“decision-making, especially when compromised by alcohol,
was not based on any consequence-driven thought process,
but rather a learned behavior that bypassed right and wrong.”

The majority asserts that “Dr. Briggs’s report not only
offers an expert explanation of the causal link between Det-
rich’s horrific childhood and his crime, but also indicates that
his neuropsychological deficits contributed to the crime.”
Maj. Op. at 4588. This reading of the report is the majority’s
gloss on Dr. Briggs’s explanation, not what the report actually
says. Although Dr. Briggs acknowledges that Detrich devel-
oped a mindset “in which instinct took over and reason could
not be accessed,” Dr. Briggs makes no specific findings as to
Detrich’s mindset at the time of Souter’s murder. More
importantly, the Briggs report does not provide a reasonable
probability that a factfinder would make such a connection.
While Dr. Briggs’s report may shed some additional light on
Detrich’s abusive background and mental health and provide
generalized statements about Detrich’s impulsive or instinc-
tive behaviors, it does not establish that Detrich could not
conform his behavior to the law when he murdered Souter
nearly ten years earlier. See State v. Johnson, 133 P.3d 735,
750 (Ariz. 2006) (“[T]he weight to be given [to] mental
4608 DETRICH v. RYAN
impairment should be proportional to a defendant’s ability to
conform or appreciate the wrongfulness of his conduct.”
(alteration in original) (internal quotation marks and citation
omitted)).

Whatever the specific impairments that Detrich may suffer,
I agree with the district court’s determination that they are
“entitled to only minimal mitigating weight because [Detrich]
has no history of violence or evidence that the impairments
cause aggression, the crime was not impulsive, and the
experts agree that [Detrich] is largely cognitively normal with
at least an average IQ.” Ultimately, as the district court con-
cluded, Detrich “has not proven that he suffers from a mental
impairment which is a ‘major contributing cause’ to his con-
duct at the time of the crime.”

The additional letters from Detrich’s family presented in
the state habeas proceedings also do not alter the mitigation
calculus. Although these letters recount a truly sad story and
more fully develop Detrich’s abusive childhood and his his-
tory of drug and alcohol abuse, this evidence was cumulative
and known by the trial court at sentencing. More than one of
the mental health evaluations before the state trial court noted
the considerable abuse and neglect he suffered, specifically
chronicling that Detrich had been chained up, pushed down
stairs, held under water in the bathtub, and encouraged to
drink alcohol and use drugs as early as eight or nine years old.
The sentencing judge specifically accounted for the abuse
Detrich suffered and found both statutory and non-statutory
mitigating circumstances.

None of the additional documentation made any connection
between Detrich’s inability to conform his conduct to the
requirements of the law at the time of the murder and his trou-
bled childhood, the alcohol and drug abuse, the accidents he
suffered, and his psychological or neurological challenges.
See State v. Stanley, 809 P.2d 944 (Ariz. 1991) (holding that
drug and alcohol abuse could not be considered a mitigating
 DETRICH v. RYAN 4609
factor where the defendant did not prove by a preponderance
of the evidence that his drug and alcohol problem signifi-
cantly impaired his capacity to appreciate the wrongfulness of
his conduct or to conform his conduct to the requirements of
the law). Looking at the evidence before the state court, as
Pinholster requires us to do, it was not unreasonable for the
state post-conviction court to hold there was no reasonable
probability that, if Detrich’s counsel had fully investigated
and presented the available mitigation evidence, Detrich
would not have been sentenced to death. This conclusion was
not an unreasonable application of federal law.

B. NO UNREASONABLE DETERMINATION OF FACT UNDER
§ 2254(D)(2)

Rather than analyzing the appeal under § 2254(d)(1), the
majority rests its decision on a purported unreasonable deter-
mination of fact—i.e., that any defect in the state court deter-
mination is more properly cognizable under § 2254(d)(2). I
disagree. Nonetheless, were this case more appropriately ana-
lyzed under § 2254(d)(2), the state court did not make an
unreasonable determination of fact. And finally, even if that
were so, on a de novo review, Detrich still falls short on the
prejudice requirement.

To begin, as we emphasized in Taylor, the “unreasonable
determination” standard of § 2254(d)(2) is a “daunting
standard—one that will be satisfied in relatively few cases.”
366 F.3d at 1000. It would, of course, be unreasonable for the
state court to fail to account for, or even acknowledge, Dr.
Briggs’s report en toto. “A rational fact-finder might discount
[highly probative evidence] or, conceivably, find it incredible,
but no rational fact-finder would simply ignore it.” Id. at
1006. Had the state court not considered the Briggs report, it
would have inappropriately diminished the weight of the psy-
chological evidence, which would reveal a major fault in that
court’s fact-finding process. Or, had the state court mischarac-
4610 DETRICH v. RYAN
terized the report or fatally misinterpreted it, likewise it would
have been unreasonable. But that is not what happened here.

At the request of Detrich’s counsel, Dr. Briggs provided an
extensive, seven-page single-spaced report covering every-
thing from “General Neuropsychological Functioning” to
“Symptomatic Patterns” and “Diagnostic Impressions and
Neurological Implications.” In the face of the extensive
report, the majority concludes that because the state court did
not explicitly cite to or acknowledge statements in Dr.
Briggs’s report that could be construed as favorable to Detrich
and failed to highlight the finding that Detrich had developed
a “mindset” that “bypassed right or wrong” and “in which
instinct took over and reason could not be accessed,” that
court made an unreasonable determination of fact. Such a
characterization does not give the state court’s determination
the deference to which it is entitled. See Taylor, 366 F.3d at
999-1000 (“What the ‘unreasonable determination’ clause
teaches us is that, in conducting this kind of intrinsic review
of a state court’s processes, we must be particularly deferen-
tial to our state-court colleagues.”) The state court’s determi-
nation must stand unless we are satisfied that “any appellate
court to whom the defect is pointed out would be unreason-
able in holding that the state court’s fact-finding process was
adequate.” Id. at 1000.

I don’t want to say the majority is nitpicking, but it cer-
tainly could be characterized that way. At a minimum, it is
fair to say that the majority opinion does cherry pick. See e.g.,
Wetzel v. Lambert, 132 S. Ct. 1195, 1198-99 (2012) (vacating
and remanding grant of habeas where circuit court, in finding
the state court’s determination “patently unreasonable,” over-
looked some determinations of the state court and “focused
solely” on one portion of the state court decision). As for the
“recovered picture,” Dr. Briggs actually said, “This is a recov-
ered picture from the reported head traumas and toxic abuse.”
Of course, the head trauma took place long before both the
crime and the trial, and the post-conviction court acknowl-
 DETRICH v. RYAN 4611
edged the alcohol abuse and credited it as a mitigating factor.
The state habeas court’s reference that “[Detrich’s] neuropsy-
chological functioning was normal,” is hardly a misstatement
since that is what Dr. Briggs found. The court did not attempt
to link that finding with the time of the crime. Overall, the
court simply found that “Dr. Briggs’[s] report was not signifi-
cantly different” from the other reports considered at trial.
And it was not, although it added more texture and detail.

The district court reached the same conclusion; it is worth
quoting the entire analysis:

Petitioner alleges that the PCR court’s decision was
unreasonable because it ignored evidence in con-
cluding that Dr. Briggs’s report was not “signifi-
cantly different” from the report considered at
sentencing. The significant difference that Petitioner
points to is Dr. Briggs’s conclusion that Petitioner
has neuropsychological deficits. Dr. Briggs stated in
his report that Petitioner had a few impaired perfor-
mances on his testing “which do not appear to have
major clinical significance.” (Pet. Ex. 22 at 2, 6.)
While Dr. Briggs noted that Petitioner’s functioning
was recovered since the time of his head injuries and
substance abuse, he concluded that Petitioner’s
neuropsychological function was normal and that
there was no cognitive dysfunction. (Id. at 6, 3.) He
also stated that Petitioner’s psychological and emo-
tional profile was the most significant factor in his
behavior. (Id. at 6.) Similarly, Dr. Boyer concluded
in 1991 that Petitioner’s cognitive functioning was
grossly intact, that he was of at least average intelli-
gence, that he did not have any major mental disor-
der or psychiatric disturbance, but that his ability to
relate emotionally was impaired and he had antiso-
cial attitudes. (Pet. Ex. 58 at 3, 7, 9.) Dr. Briggs’s
report is in conformance with all of these findings.
In light of the fact that Dr. Briggs indicated that Peti-
4612 DETRICH v. RYAN
tioner’s impaired performances were not of clinical
significance and emphasized other issues as the
major contributing forces in his behavior, the PCR
court’s conclusion that his report was not “signifi-
cantly different” than Dr. Boyer’s is not objectively
unreasonable.

Detrich v. Schriro, No. CV-03-229-TUC-DCB, 2007 WL
4024551, at *22 (D. Ariz. Nov. 15, 2007).

Here, the state court’s reference to the Briggs report is a
question of reasonable interpretation and nuance, which does
not meet § 2254(d)(2)’s strict standards. Such a formulation
not only does not reasonably lead us to “merely doubt
whether [the state court’s fact-finding] process operated prop-
erly,” Taylor, 366 F.3d at 1000, but it is also insufficient to
support the majority’s conclusion that the state court unrea-
sonably determined the facts. The majority’s efforts to recon-
stitute Dr. Briggs’s findings do not change this conclusion.
Extracting isolated morsels from Dr. Briggs’s report, the
majority leaves much of the context behind. Though Detrich’s
scored a 25 on the General Neuropsychological Deficit Scale,
a score of 26-40 would only represent mild impairment. This
score is in line with Dr. Briggs’s observations that Detrich
suffered from “mild neuropsychological deficits.” Even
acknowledging that his assessment represented a “recovered
picture,” Dr. Briggs concluded that “Detrich‘s brain is intact
and he has good abilities when he accesses it.” Dr. Briggs’s
comments regarding Detrich’s emotional status as the “most
significant factor” relate to Detrich’s presentation at the time
of evaluation and provide minimal insight regarding Detrich’s
mental state at the time of the crime. The report is hardly as
direct and conclusive as the majority would like to believe.

Giving in to such post hoc interpretation and reconfigura-
tion of the facts is not in accord with the AEDPA. The state
court stated that it considered the Briggs report and we should
accept that representation at face value. That the court did not
 DETRICH v. RYAN 4613
quote the entire seven-page report is hardly an AEDPA sin.
In fact, Dr. Briggs made multiple findings, including those
related to impulsivity, substance abuse, dysfunctional child-
hood, and severe abuse that support the court’s conclusion
that, at bottom, the report was “not significantly different”
than the earlier reports. The added detail did not change the
inevitable conclusion that the mitigation evidence was simply
insufficient to overcome the aggravation factor in the view of
the state habeas court. For example, the Briggs report
acknowledged multiple deficiencies, such as: “His basic prob-
lem seems to be that he is impulsive and insists on having his
own way regardless of the law or the feelings of other peo-
ple”; “Residual effects from earlier peripheral hand [sic head]
injuries are seen to contribute to some of the impaired perfor-
mances”; and “[I]t is believe[d] that the mindset was devel-
oped in which instinct took over and reason could not be
accessed.” But it was not necessary for the court to reference
or quote each of those findings to reach its conclusion nor
should we impose such a burden. Would the majority reach
the same conclusion had the state court simply attached or
reproduced the language of the report in full? I trust that form
should not trump substance. In sum, I conclude that the state
court did not make an unreasonable determination of fact.

Whether the majority’s conclusion as to an unreasonable
factual finding is correct does not change the result. It simply
triggers a de novo review that requires us to consider all of the
psychological reports, including that of Dr. Briggs, along with
the other evidence of mitigation. Reviewing the state record
de novo, I agree with the state post-conviction court: in light
of the especially heinous, cruel and depraved nature of the
crime, coupled with the mitigation evidence—which was not
overwhelming but ranged from childhood abuse, alcoholism,
neurological deficit, remorse, and lack of a criminal record—
there was no reasonable probability that the new evidence
presented to the state post-conviction court “would have com-
pelled [the trial court] to impose a sentence less than death.”
4614 DETRICH v. RYAN
C. ROLE OF NEW EVIDENCE

Post-trial, Detrich developed the record through Dr. Briggs
plus additional, though essentially duplicative, evidence from
his family. Now, in this habeas proceeding, he not only wants
a “redo” and brush up on Dr. Briggs’s testimony, he wants to
bring in a host of other experts on a claim that he already
presented to the state post-conviction court. In light of my
analysis as to Detrich’s inability to pass through the § 2254(d)
bar, I would not proceed with new evidence.

But even with the benefit of the new evidence that the dis-
trict court permitted before having the benefit of Pinholster,
the district court concluded after extensive analysis that Det-
rich did not “prove[ ] that he suffers from a mental impair-
ment which [was] a ‘major contributing cause’ to his conduct
at the time of the crime,” that he “ha[d] not discovered signifi-
cant new or more weighty mitigation than was considered by
the sentencing judge,” and that “[e]ven if Petitioner is correct
that no deference is owed under the AEDPA, the Court finds
that Petitioner has failed to demonstrate prejudice under
Strickland.” I agree. Ultimately, Detrich does not present a
new claim, previously undiscoverable evidence, suppressed
evidence, evidence ignored by the state court, or a myriad of
other circumstances that could qualitatively strengthen his
assertions of prejudice. His piling on of new evidence does
not alter either the weight or the conclusions drawn from the
state court record.

I respectfully dissent.