Albert Cunningham v. Robert Wong

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALBERT CUNNINGHAM , No. 09-99008
Petitioner-Appellant,
D.C. No.
v. 2:02-CV-07170-
GHK
ROBERT K. WONG ,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding

Argued and Submitted
March 8, 2012—Pasadena, California

Filed January 8, 2013

Before: Harry Pregerson, Ronald M. Gould,
and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman;
Partial Concurrence and Partial Dissent by Judge Pregerson
2 CUNNINGHAM V . WONG

SUMMARY*

Habeas Corpus/Death Penalty

The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a
conviction and capital sentence for robbery/murder.

The panel first held that the state court’s rejection of
petitioner Cunningham’s prosecutorial misconduct claims
was not unreasonable. The panel explained that the
prosecutor did not violate Brady by suppressing either the
victim’s medical records or his autopsy report because
Cunningham’s attorneys possessed the salient facts that
would have allowed them to access this easily attainable
evidence. The panel held that Cunningham procedurally
defaulted on his claim that the prosecutor improperly
suggested to the jury that Cunningham had changed his
appearance for trial.

The panel next affirmed the denial of relief as to all of
Cunningham’s claims of ineffective assistance of counsel.
Cunningham claimed that his attorneys should have
investigated medical records that apparently contradicted the
second victim’s account of how his shooting injury occurred,
but the panel held that the evidence was cumulative of other
evidence and argument presented at trial that pointed out the
discrepancy. Cunningham also claimed that counsel should
have investigated an autopsy report documenting the
discovery of cash on the victim after the shooting, but the

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 CUNNINGHAM V . WONG 3

panel observed that other evidence still supported the robbery
conviction. Cunningham claimed that counsel should have
presented alibi evidence, but the panel observed that such
evidence was weak and consistent with Cunningham’s guilt.
Cunningham claimed that counsel should have objected to the
prosecutor’s comments denigrating the defense team during
closing argument, but the panel held that there was no
reasonable likelihood that the outcome would have been
different had counsel objected. Cunningham claimed that
counsel should have objected to the prosecutor’s comments
on his changed appearance, but the panel held that it was an
acceptable defense strategy to withhold objections to an
opponent’s opening statement, and Cunningham was not
prejudiced by counsel’s performance. Finally, Cunningham
claimed that counsel did not adequately investigate and
present further mitigating evidence at the penalty phase, but
the panel held that he was not prejudiced when the testimony
was cumulative and might have opened the door to
aggravating evidence.

The panel also held that the state court did not
unreasonably apply clearly established federal law or
unreasonably determine the facts when it found no Miranda
violation, and that any error in admitting Cunningham’s
statement into evidence was harmless because he did not
actually confess.

Finally, the panel held that Cunningham’s claims did not
result in cumulative error requiring reversal.

Judge Pregerson concurred in part and dissented in part.
He would grant habeas relief as to Cunningham’s claim of
ineffective assistance in failing to call an expert witness at the
penalty phase.
4 CUNNINGHAM V . WONG

COUNSEL

Jerry L. Newton, Carmel, California; Norman D. James,
Corvallis, Montana, for Petitioner-Appellant.

Edmund G. Brown Jr., Attorney General of California; Dane
R. Gillette, Chief Assistant Attorney General; Pamela C.
Hamanaka, Senior Assistant Attorney General; A. Scott
Hayward and Lance E. Winters, Deputy Attorneys General,
Los Angeles, California, for Respondent-Appellee.

OPINION

TALLMAN, Circuit Judge:

Petitioner-Appellant Albert Cunningham (“Cunningham”)
appeals the district court’s denial of his petition for a writ of
habeas corpus. 28 U.S.C. § 2254. Cunningham was
convicted of robbery/murder in California state court and was
sentenced to death in 1988. He raises ten individual claims
alleging error in both the guilt and penalty phases of his
California criminal proceedings. His claims generally fall
into three categories: 1) prosecutorial misconduct;
2) ineffective assistance of counsel; and 3) improper
admission of post-arrest statements. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.

I

A

At about 9:00 p.m. on December 1, 1985, Carmen Treto
(“Treto”), the murder victim, drove his white-over-black
 CUNNINGHAM V . WONG 5

Buick LeSabre to the Pair of Aces Bar in Pasadena,
California. Treto had just received $1,400 or $1,500 in cash
for a job, and he carried the money in various places on his
person. Juvenal Gallegos, the bar’s doorman, and Angel
Gallegos, the manager, both saw Treto at the bar that night,
recognizing that he was very drunk.

At about 11:00 p.m., Juan Cebreros (“Cebreros”), another
victim and the surviving eyewitness to the murder, arrived at
the Pair of Aces with his brother, Favio. Cebreros and Treto
played pool together.

Between 7:00 p.m. and 2:00 a.m., both Angel and Juvenal
Gallegos, as well as Cebreros, saw Cunningham at the bar.
They described Cunningham as an African-American male in
his forties, slender and about 5 feet 10 inches tall. The
witnesses said Cunningham was wearing a maroon three-
piece pinstripe suit and tie as well as thick glasses with dark
rims. He had a mustache and goatee, and his hair was
shoulder-length. He also had a distinctive gold front tooth.

Around 1:30 a.m., Cunningham left the Pair of Aces and
entered Rickey’s Lounge, another nearby bar. Witnesses at
Rickey’s recognized Cunningham as also having been there
earlier that evening. Cunningham started playing pool at
Rickey’s with the boyfriend of the bartender, who noticed
that Cunningham kept his left hand close to his body and
folded his arms to keep his coat from opening, as if to conceal
something. After about half an hour, Cunningham visited the
restroom and remained inside until the bartender announced
the bar was closing. He then left the restroom and the bar.

Cebreros left the Pair of Aces for home about the same
time, just before 2:00 a.m. Although other patrons urged
6 CUNNINGHAM V . WONG

Treto to go home and sober up, he was apparently the last
person to leave. As Treto finally staggered out of the bar,
Juvenal Gallegos saw about $400 in $100 and $50 bills
sticking out of Treto’s shirt pocket.

A short time later, Cebreros, worried for Treto’s safety,
returned to the Pair of Aces in his own vehicle to offer Treto
a ride home. Treto was standing by a lamppost in front of the
bar when Cebreros drove up. Cebreros parked in the lot
behind the bar, then walked to the front of the bar to speak
with Treto. Despite his obvious intoxication, Treto insisted
on driving he and Cebreros to Treto’s residence in Treto’s
Buick. Treto had reached the driver’s side door and had bent
down to insert the key when a man later identified as
Cunningham approached from the direction of Rickey’s
Lounge.

Cebreros, who was standing next to Treto, heard
Cunningham demand, “Hey amigo, give me the money.” He
saw Cunningham point a gun at Treto as he declared, “This
is a .357 magnum.” Treto turned to face Cunningham and
extended his hands. Without warning, Cunningham suddenly
fired, hitting Treto in the chest. Cebreros turned and ran but
was shot in the thigh as he fled. Despite his bullet wound,
Cebreros managed to reach a nearby fast-food restaurant
where he had someone call the police.

Shortly after the robbery occurred, two different officers
working in the neighborhood saw an African-American man
with long hair and glasses driving eastbound from the scene
in a white-and-black car with its headlights off. One of these
officers, Pasadena Police Officer Hal Edwards, was
dispatched to the scene of the shooting. On arrival, he found
Treto lying on his back in a pool of blood. One of Treto’s
 CUNNINGHAM V . WONG 7

shoes had been removed and a small amount of cash
remained on the ground. His car was also missing.

Another first responder, Officer John Thomas, was
instructed to collect evidence and photograph the scene. He
found some bills and coins on the ground and eight $1 bills in
Treto’s pants pocket, but he testified that Treto’s wallet,
shoes, shirt, and jacket were all empty.

Officers Carter and Ortiz arrived on the scene. Cebreros
spoke with Ortiz in Spanish. Pasadena firemen, including
Paramedic Sean English, treated Cebreros at the scene before
he was taken to Huntington Memorial Hospital. While at the
hospital, Cebreros described his assailant to Detective Lee
Baroni as having a brown suit, glasses, and a beard.

Treto died at the hospital from uncontrolled bleeding and
cardiac arrest. A bullet was recovered from his spine on
autopsy, and a forensic examination revealed that it was
capable of being fired from either a .38 special or .357
magnum revolver.

Approximately forty-two hours after the robbery/murder,
Treto’s car was discovered in Compton. The car had been
stripped and abandoned and contained no usable prints other
than those of Treto’s wife. It had rained between the shooting
and the discovery of the car.

On December 13, 1985, Cunningham returned to
patronize the Pair of Aces. Angel and Juvenal Gallegos
immediately recognized Cunningham as having been present
the night of the murder and called the police. Officer
Delgado arrived, arrested Cunningham, and took him to the
8 CUNNINGHAM V . WONG

Pasadena Police Station. Cebreros identified Cunningham as
the murderer from a photographic lineup.

B

After Cunningham’s arrest on December 13, 1985, the
Los Angeles County District Attorney filed a felony
complaint charging him with (1) murder of Treto during the
course of a robbery; (2) robbery of Treto; (3) attempted
murder of Cebreros by infliction of great bodily injury; (4)
attempted robbery of Cebreros; and (5) possession of a
firearm by a felon. Cunningham was arraigned in February
1986 and pleaded not guilty to all charges. In November
1986, before trial in the murder case, the District Attorney
filed a separate complaint against Cunningham for forcibly
sodomizing a fellow inmate in the Los Angeles County Jail.

The guilt phase of Cunningham’s trial began on July 27,
1988. The trial was held before Los Angeles County
Superior Court Judge Gilbert Alston. Cunningham was
represented by appointed counsel, Michael Udovic
(“Udovic”) and Terrence Bennett (“Bennett”). Assistant
District Attorney Susan Wondries (“Wondries”) handled the
prosecution. On August 17, 1988, the jury convicted
Cunningham on all counts.

In a separate proceeding from August 22–23, the jury
found as true that Cunningham had two prior felony
convictions. One of the felonies was Cunningham’s prior
conviction for second-degree murder for the killing of Ella
Mae Fellows in 1976. The other felony was Cunningham’s
assault with a deadly weapon on a police officer, a crime
discussed at length later in the penalty phase of the trial.
 CUNNINGHAM V . WONG 9

C

The penalty phase of Cunningham’s trial began on August
24, 1988. The defense chose to present its case in mitigation
first. The mitigating evidence demonstrated (1)
Cunningham’s terrible childhood; (2) family love for
Cunningham despite his misdeeds; (3) Cunningham’s
previous positive adjustment to prison life; and (4)
Cunningham’s version of his prior crimes, including the
murder of Ella Mae Fellows, his shootout with police officers
following his theft of a taxi cab, and the most recent
allegation of forced sodomy. The defense called as witnesses
(1) Cunningham’s mother, Rosa Vaughn; (2) Johnnie
Washington, a pastor at Cunningham’s church and former
boarder at Rosa Vaughn’s home; (3) Marilyn Cox, an
employee of Volt Temporary Services, Cunningham’s
employer; and (4) Cunningham himself.

Rosa Vaughn testified as to Cunningham’s difficult
personal history. She told the jury that Cunningham’s father,
Albert Sr., beat her while she was pregnant and caused her to
fall on her stomach. She also mentioned that Cunningham
suffered a “forceps delivery” at birth, causing holes in his
head that took months to heal. Rosa Vaughn left
Cunningham’s father when Cunningham was still an infant,
isolating the child from any positive male role models.

Cunningham showed intellectual promise in his early
years, moving up a grade in elementary school. But he
experienced ongoing psychological problems that plagued
him for the rest of his life; problems for which Rosa Vaughn
sought advice from neurologists, psychiatrists, and ministers.
10 CUNNINGHAM V . WONG

Cunningham had difficulties with Vaughn’s new husband,
Leland Young, whom she married in 1954 when Cunningham
was seven years old. Young “didn’t understand children,”
and often “strapped” Cunningham. Rosa said that Young had
no patience or understanding and was very negative toward
the young boy. Not surprisingly, Young’s beatings did not
correct Cunningham’s ongoing behavioral problems, and
Rosa Vaughn sent Cunningham off to live with Albert Sr.
when Cunningham was eight years old. Although the most
vivid descriptions of Albert Sr. came from Cunningham
himself, Rosa Vaughn explained that by the time she sent
Cunningham to live with his father, Albert Sr. was an
alcoholic, drug-dealer, pimp, and a gambler. She recalled
Albert Sr. once beating Cunningham so badly that blood
flowed from Cunningham’s penis.

Vaughn testified, and Cunningham later confirmed, that
when he was eight years old he stole his uncle’s car. Vaughn
did not discipline Cunningham for that particular foray into
joyriding, but did tell him it was wrong to steal. Nonetheless,
Cunningham began to steal property with increasing
frequency. He stole another child’s bicycle even though he
had a new one himself. A neurologist eventually told Vaughn
that Cunningham had a compulsion to steal from people.

Around this same time in Cunningham’s adolescence, he
began to show signs of violence. At age 12, he was placed in
juvenile hall for throwing rocks at a playmate’s mother. This
was Cunningham’s first incarceration, but certainly not his
last. He spent much of the remainder of his youth in
detention facilities, mostly for stealing cars.

Vaughn testified as to Cunningham’s difficulties
following his release from prison after serving a sentence for
 CUNNINGHAM V . WONG 11

auto theft in the early 1970s. Cunningham, by then an adult,
had met and married Sharon Spears, with whom he fathered
a daughter, Felicia. The marriage was an unhappy one,
however, and Spears decided to leave Cunningham. This sent
Cunningham into a deep depression, and he attempted suicide
in 1972 by shooting himself with either a rifle or a shotgun.
The gun moved as Cunningham pulled the trigger, and
instead of being struck in the chest, as planned, Cunningham
was wounded by a bullet in the abdomen. He required eight
hours of surgery and a year to recover, and the injury caused
him ongoing problems with gastritis and pancreatitis.

Vaughn spoke about Cunningham’s prior murder
conviction for the killing of Ella Mae Fellows. She also
spoke about Cunningham’s shootout with police in which he
shot an officer three times in the chest. She said that
Cunningham showed remorse for both crimes and explained
that he was hallucinating on drugs.

Vaughn spoke at length about Cunningham’s positive
contributions whenever he was in prison. She believed that
Cunningham had become “institutionalized” and that he
could help fellow prisoners if given a life sentence in lieu of
the death penalty. She testified about letters he had written to
her asking for books so he could help illiterate inmates learn
to read and write. He also completed bible and ministry
courses in prison, eventually becoming an ordained minister.
He helped his fellow prisoners find their own spirituality.

Vaughn also focused on the positive view guards and
other officers held of Cunningham. She read several
laudatory “chronos” that corrections officers had written.
These reports described Cunningham as a helpful,
conscientious inmate who was a positive influence on others.
12 CUNNINGHAM V . WONG

Vaughn read the name and rank of each officer who had
submitted these many positive prison reports.

Vaughn also testified about Felicia Cunningham and
Sharon Spears. Vaughn explained that Felicia had spent a
considerable amount of time living with her, and that Sharon
Spears also shared frequent stories about Felicia and her
accomplishments.

Finally, Vaughn wept, telling the jury that Cunningham
“is my only child,” and that without him, “I just would have
nobody left.” She pleaded with the jury to give Cunningham
a life sentence.

The next defense witness was Johnnie Washington, a
minister from Cunningham’s church who was living in a
rented room at Rosa Vaughn’s house on the night of the
murder. He testified that he loved Cunningham as a person
and as a brother in Christ. He told the jury of a powerful
sermon Cunningham had delivered to their congregation in
the months before the murder. He testified that Cunningham
had also taught Sunday school and organized a youth choir.

Marilyn Cox, a worker from Cunningham’s employer,
briefly testified that Cunningham had worked as a temp for a
few weeks. She confirmed that he was working at Kaiser
Permanente at the time of his arrest.

The final defense mitigation witness was Cunningham
himself. He testified about his terrible childhood, repeating
much of the testimony given by his mother.

Cunningham provided further details about the negative
role his father played in his childhood. Albert Sr., who had
 CUNNINGHAM V . WONG 13

also served time in prison, told Cunningham that being in jail
was “no thing.” He also showed Cunningham the guns he
kept in the house, eventually teaching Cunningham how to
shoot. Cunningham testified that, under his father’s tutelage,
he became an expert marksman and could easily shoot with
one hand. He described his father’s house as a brothel. His
father’s prostitutes would turn tricks while Cunningham was
present, and one of the women molested Cunningham
sexually when he was eight years old.

Cunningham explained that he was incarcerated for much
of his youth because of auto thefts, and this continued into
adulthood. In addition to the auto thefts, he discussed the
circumstances of his prior felonies. As to the murder of Ella
Mae Fellows in 1975, Cunningham claimed that he was not
her pimp but that he spent a lot of time with her, protecting
her. He claimed that the two of them had taken
hallucinogenic drugs and that he only pleaded guilty to
murder because he could not remember exactly what
happened at the time of her death.

As to the assault with a deadly weapon on a police officer
in 1980, Cunningham claimed to be confused as to the
officer’s identity as a peace officer. Cunningham told the
jury that he had slipped out a bathroom window of a
gambling house in order to secure his winnings after a card
game. When he was pulled over later that night, he thought
the officers were trying to rob him. He testified that he was
shot twelve times in the incident and only fired in self-
defense. He felt remorse for the officer he had shot and later
wrote him a letter of apology.

Cumulative to his mother’s testimony, Cunningham
focused as much as he could on the theory that he was
14 CUNNINGHAM V . WONG

institutionalized. He discussed the good works he had
performed during his quarter-century in prison, explaining
that he had written to thousands of people per month to give
them the word of God following his ordination as a minister.

On cross-examination, Cunningham admitted that he had
been disciplined in prison for storing marijuana in his rectum,
and for sharing a cell with a prisoner who had a weapon. He
also admitted to being dismissed from prison jobs and to
taking part in fights. When confronted with the recent
charges of forced sodomy, he explained that he had engaged
in consensual sex acts with other male prisoners, but that the
county jail allegations against him were false.

The prosecution’s case in aggravation painted a much
different picture. The prosecution offered evidence that (1)
Cunningham’s murder of Ella Mae Fellows was
premeditated; (2) Cunningham resisted arrest and
intentionally shot a police officer three times during the
pursuit and shootout following his cab theft; (3) Cunningham
was violent toward his family; and (4) Cunningham was not
a model prisoner.

As to the Fellows murder, the investigating officer and
coroner testified that Fellows’s body turned up in a vacant lot
several days after her murder. There were drag marks and
tire tracks, indicating that the body had been dumped there.
She was wearing a blue-gray pantsuit and had eight stab
wounds over her left breast, many of which would have been
instantly fatal. Officers searched Cunningham’s apartment
and found a bloody steak knife like the one used in the
killing, a box with Jesus Christ’s image on the cover
containing a Polaroid photo of Fellows wearing the exact
blue-gray pantsuit worn at her death, and a magazine
 CUNNINGHAM V . WONG 15

depicting a horror movie in which the fictional victim had
wounds similar to Fellows’s. Cunningham was later arrested
driving Fellows’s car.

As to Cunningham’s shootout with police, one of the
officers involved testified that he and his partner received a
description of a stolen cab while on patrol. They saw the cab,
pulled it over, and told the driver to “freeze.” The driver,
Cunningham, sped away in the cab, leading the officers on a
high-speed chase. He eventually collided with a parked car
before fleeing on foot. As the officers raced around a corner,
Cunningham turned and shot one of them three times,
propelling the officer fifteen feet backwards and causing him
to lose consciousness. Miraculously, Cunningham hit the
officer twice in his bullet-proof vest and once in his belt
buckle. The officer recovered, but suffered from depression
and eventually left the force.

While on parole from his assault with a deadly weapon
sentence, Cunningham had a violent clash with Sharon
Spears, his ex-wife. In the summer of 1985, just a few
months before the Treto murder, Spears became upset when
she caught Cunningham cheating. Cunningham reacted by
beating her with a paddle. Spears summoned the police and
Cunningham was sent back to prison.

Finally, as to his pre-trial behavior in the Los Angeles
County Jail, the prosecution presented evidence of
Cunningham’s forced sodomy charge. One of Cunningham’s
fellow inmates from the Los Angeles County “pill module”
testified that he saw Cunningham strike a fellow prisoner on
the head, force him to his knees, put him in a full-nelson
headlock, and insert his erect penis into the victim’s rectum.
The act did not appear consensual to the eyewitness.
16 CUNNINGHAM V . WONG

Based on all of this evidence, the jury rendered a verdict
of death on September 2, 1988. The trial judge denied
Cunningham’s post-trial motions and entered judgment in
June 1989.

D

On automatic direct appeal, the California Supreme Court
affirmed Cunningham’s conviction and death sentence. See
People v. Cunningham, 25 Cal. 4th 926 (2001). The U.S.
Supreme Court denied Cunningham’s petition for certiorari.
Cunningham v. California, 534 U.S. 1141 (2002).

In 1998, while his direct appeal was still pending before
the California Supreme Court, Cunningham also filed with
that court a petition for a writ of habeas corpus. The court
denied the petition in a summary order in 2002.

Cunningham filed his federal habeas petition on
September 10, 2004. The district court denied the petition on
May 1, 2009.1 Cunningham sought a Certificate of
Appealability for ten of the fifteen claims raised in his
petition, and the district court granted a Certificate for all ten.

II

We review de novo the district court’s denial of habeas
corpus relief. Estrella v. Ollison, 668 F.3d 593, 597 (9th Cir.

1
The district court held an evidentiary hearing on two of Cunningham’s
claims. The parties concede that under the Supreme Court’s decision in
Cullen v. Pinholster, 131 S. Ct. 1388 (2011), we may not consider
evidence raised for the first time during the district court’s evidentiary
hearing. Our decision thus rests solely on the record before the state court.
 CUNNINGHAM V . WONG 17

2011). We grant much greater deference, however, to the
underlying state court decisions in this case. Because
Cunningham filed his federal habeas petition in 2004, our
review is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214. Under AEDPA, we defer to the state court’s
merits-based disposition of Cunningham’s claims unless the
state’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 evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d). Under § 2254(d)(1), a decision is an
“unreasonable application” of clearly established federal law
if it “identifies the correct governing legal principle from [the
Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Holland v.
Jackson, 542 U.S. 649, 652 (2004) (per curiam) (internal
quotation marks omitted). Under § 2254(d)(2), a state court
makes “an unreasonable determination of the facts” when it
fails to consider and weigh relevant evidence that was
properly presented to it. Taylor v. Maddox, 366 F.3d 992,
1000–01 (9th Cir. 2004).

If the state court adjudicates the merits of a claim without
articulating its reasoning, a reviewing federal court must
examine the record supporting the decision under the same
18 CUNNINGHAM V . WONG

deferential AEDPA standard. See Greene v. Lambert,
288 F.3d 1081, 1088–89 (9th Cir. 2002) (citing Delgado v.
Lewis, 223 F.3d 976, 981–82 (9th Cir. 2000)). With this
deferential standard in mind, we turn to Cunningham’s ten
claims.

III

As stated above, Cunningham’s claims can be grouped
into three categories. First, Cunningham argues that Assistant
District Attorney Susan Wondries committed misconduct
during the guilt phase of his trial. Second, he argues that he
suffered ineffective assistance of counsel during both the
guilt and penalty phases of the trial. Third, he argues that his
arresting officer violated his rights under Miranda v. Arizona,
384 U.S. 436 (1966), and that his statement to the officer
should have been excluded.

A

We first address Cunningham’s claims of prosecutorial
misconduct. Cunningham argues that A.D.A. Wondries
failed to disclose evidence in violation of Brady v. Maryland,
373 U.S. 83 (1963). He also argues that she improperly
implied that he changed his appearance for trial to avoid
identification by witnesses.

1

In Brady, the Supreme Court held that the prosecution’s
failure to disclose material evidence to a criminal defendant
violates the defendant’s right to a fair trial. To state a claim
under Brady, a criminal defendant must establish that (1) the
withheld evidence was favorable to the defendant; (2) the
 CUNNINGHAM V . WONG 19

government suppressed the evidence; and (3) the
government’s suppression prejudiced the defendant. See
Smith v. Almada, 640 F.3d 931, 939 (9th Cir. 2011) (applying
the Brady test). Under Brady’s suppression prong, if “the
defendant is aware of the essential facts enabling him to take
advantage of any exculpatory evidence,” the government’s
failure to bring the evidence to the direct attention of the
defense does not constitute “suppression.” Raley v. Ylst,
470 F.3d 792, 804 (9th Cir. 2006) (quoting United States v.
Brown, 582 F.2d 197, 200 (2d Cir. 1978)).

The Brady rule was clearly established federal law in
2002 when the California Supreme Court denied
Cunningham’s state habeas petition. See Benn v. Lambert,
283 F.3d 1040, 1052 (9th Cir. 2002) (explaining Brady
constitutes clearly established Supreme Court precedent).
The California Supreme Court did not articulate its reasoning
for denying Cunningham’s Brady claims so we must review
the facts independently to determine whether the court’s
decision was unreasonable. We hold that it was not.

In Cunningham’s first Brady claim, he argues that A.D.A.
Wondries suppressed victim Cebreros’s medical records.
Cunningham’s claim is similar to the petitioner’s complaint
in Raley. 470 F.3d at 803–804. In that case, the petitioner
argued that the prosecutor suppressed the petitioner’s own
medical records. We held that, because the petitioner
“possessed the salient facts regarding the existence of the
records he claims were withheld” such that defense counsel
“could have sought the documents through discovery,” there
was no suppression under Brady. Id. at 804 (citing United
States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983)).
Applying Raley, Cunningham’s attorneys possessed the
“salient facts” that would have allowed them to access
20 CUNNINGHAM V . WONG

Cebreros’s medical records. They knew he had been shot and
was treated by medical personnel following the shooting.
There was no suppression of this easily attainable evidence.

In Cunningham’s second Brady claim, he argues that
A.D.A. Wondries suppressed Treto’s autopsy report. The
report inventoried $455.25 in cash found on Treto’s person
after the shooting. Cunningham’s attorneys were obviously
aware that Treto had been killed. They could have easily
sought his autopsy report through discovery. Moreover, the
record demonstrates that Wondries offered the autopsy report
as an exhibit at trial, and the report was admitted into
evidence with no objection from the defense. Because the
report was available to defense counsel and the jury as
admitted evidence, it was not suppressed under Brady. Thus,
the California Supreme Court did not unreasonably deny
Cunningham’s Brady claims.

2

Cunningham’s other prosecutorial misconduct claim
relates to Wondries’s argument about Cunningham’s changed
appearance.

On at least ten different occasions between September
1986 and April 1988, while Cunningham was incarcerated
awaiting trial, Cunningham’s attorneys requested that he be
able to see a dentist because of severe dental hygiene issues.
His teeth were so bad that a dentist eventually had to remove
them all. The resulting toothlessness prevented Cunningham
from eating properly for months until he finally received
dentures before trial. The dentures did not include a gold
front tooth.
 CUNNINGHAM V . WONG 21

During her opening statement, Wondries highlighted
Cunningham’s appearance, arguing that it was substantially
different from when he was arrested. She listed for the jury
that Cunningham “has shaved differently than the night of the
incident. And the hair is completely different now, very, very
short. And he’s had some dental work done.” She then
displayed photographs of Cunningham taken shortly after his
arrest, telling the jury that “[y]ou can see the difference. He’s
done a lot to try and change his appearance.” Cunningham
argues that this focus on his appearance was improper
because his dental work was medically necessary.

On direct appeal, the California Supreme Court denied
this claim on procedural grounds in a reasoned opinion.
People v. Cunningham, 25 Cal. 4th at 1000. The court
explained that “[a]s a general rule a defendant may not
complain on appeal of prosecutorial misconduct unless in a
timely fashion—and on the same ground—the defendant
[requested] an assignment of misconduct and [also] requested
that the jury be admonished to disregard the impropriety.” Id.
(internal quotation marks omitted) (brackets in original)
(quoting People v. Ayala, 23 Cal. 4th 225, 284 (2000)).
Cunningham’s attorneys did not object to Wondries’s
opening statement and failed to seek an admonition. Because
an admonition could have cured the error, the court held
Cunningham’s claim procedurally barred. Id.

As the Supreme Court explained in the line of federalism
cases beginning with Michigan v. Long, 463 U.S. 1032
(1983), federal courts “will not review a question of federal
law decided by a state court if the decision of that court rests
on a state law ground that is independent of the federal
question and adequate to support the judgment.” Coleman v.
Thompson, 501 U.S. 722, 729 (1991) (denying habeas relief).
22 CUNNINGHAM V . WONG

The rule “is based upon equitable considerations of
federalism and comity” and applies when a state court denies
a claim on procedural grounds. Lambrix v. Singletary,
520 U.S. 518, 523 (1997).

In this case, the California Supreme Court devoted two
full paragraphs to its holding that Cunningham’s claim was
procedurally barred. People v. Cunningham, 25 Cal. 4th at
1000–01. Given this adequate and independent state
procedural ground, see Rich v. Calderon, 187 F.3d 1064,
1070 (9th Cir. 1999), and because Cunningham has not
shown an exception to the procedural rule, see discussion of
ineffective assistance of counsel infra, we may not consider
this claim on federal habeas review. See Correll v. Stewart,
137 F.3d 1404, 1416–18 (9th Cir. 1998).

B

We now turn to Cunningham’s claims of ineffective
assistance of counsel. Cunningham argues that his attorneys
were ineffective for (1) failing to present evidence of
Cebreros’s medical records and Treto’s autopsy report; (2)
failing to present alibi evidence; (3) failing to object to
A.D.A. Wondries’s closing argument allegedly denigrating
defense counsel; (4) failing to object to evidence and
arguments about Cunningham’s changed appearance; and (5)
failing to present additional mitigating evidence at the penalty
phase. The California Supreme Court rejected these claims
in its summary denial of Cunningham’s state habeas petition.

The Supreme Court established the law state courts must
apply when reviewing ineffective assistance claims in
Strickland v. Washington, 466 U.S. 668 (1984). To prove
ineffective assistance under the familiar Strickland standard,
 CUNNINGHAM V . WONG 23

Cunningham had to demonstrate to the state court (1) “that
counsel’s representation fell below an objective standard of
reasonableness” and (2) “that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Williams v. Taylor,
529 U.S. 362, 390–91 (2000) (quoting Strickland, 466 U.S. at
688, 694) (internal quotation marks omitted).

Under Strickland’s first prong, Cunningham was required
to show that his counsels’ performance “fell below an
objective standard of reasonableness,” Strickland, 466 U.S.
at 688, or was “outside the wide range of professionally
competent assistance,” id. at 690. In reviewing counsels’
performance under this first prong, the state court must
“begin with the premise that ‘under the circumstances, the
challenged action[s] might be considered sound trial
strategy.’” Cullen v. Pinholster, 131 S. Ct. 1388, 1404 (2011)
(alteration in original) (quoting Strickland, 466 U.S. at 689).
The court must be “highly deferential,” and must evaluate the
challenged conduct from the perspective of defense counsel.
Strickland, 466 U.S. at 689.

Under Strickland’s second prong, Cunningham was
required to show a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the [trial] would
have been different.” Id. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Id. Cunningham would have had to show “a
‘substantial,’ not just ‘conceivable,’ likelihood of a different
result.” Pinholster, 131 S. Ct. at 1403 (quoting Harrington
v. Richter, 131 S. Ct. 770, 792 (2011)).

Because AEDPA’s standard of review applies here, we
take the already-deferential review of counsel’s performance
24 CUNNINGHAM V . WONG

mandated by Strickland and magnify it “through the
‘deferential lens of § 2254(d).’” Id. (quoting Knowles v.
Mirzayance, 556 U.S. 111, 121 n.2 (2009)). Our review of
Cunningham’s ineffective assistance claims “is thus ‘doubly
deferential.’” Id. (quoting Mirzayance, 556 U.S. at 123). To
prevail under this difficult standard, Cunningham “must
demonstrate that it was necessarily unreasonable for the
California Supreme Court to conclude: (1) that he had not
overcome the strong presumption of competence; and (2) that
he had failed to undermine confidence in the jury’s sentence
of death.” Id.

1

As an analogue to his Brady claims, Cunningham argues
that his attorneys were ineffective in failing to investigate (1)
Cebreros’s medical records indicating an entry wound to the
front of his thigh; and (2) Treto’s autopsy report documenting
the discovery of $455.25 on Treto’s person or in his effects
after the shooting. Because the state has conceded that
attorneys Udovic and Bennett were deficient in failing to
address this evidence, we need only decide whether
Cunningham was prejudiced.

As to the first claim regarding Cebreros’s medical
records, Cebreros testified at trial that he was shot in the back
of the leg as he ran away from Cunningham. He testified that
he was shot through the thigh with the bullet exiting the front
of his leg, known colloquially as a “through and through”
wound. Officer Thomas, one of the officers at the scene
shortly after the shooting, and Paramedic English, who was
also early to the scene, both originally noted in their reports
that the bullet entered the front and exited the back of
Cebreros’s leg, contrary to Cebreros’s testimony at trial.
 CUNNINGHAM V . WONG 25

Bennett presented this apparent inconsistency to the jury.
He read from Thomas’s report that “[Victim] No. 2 was
found to have single gunshot wound in upper right leg.
Possibly entry wound in the front of the leg, the exit wound
in the back of the same leg.” Likewise, Paramedic English
testified that “my report stated that the wound was—that
entered here and exited—well, entered in the front of his
thigh and exited in the back of his thigh.” Udovic presented
this report to the jury, highlighting the entry- and exit-wound
notations.

Sheriff’s Deputy Robert R. Hawkins, the prosecution’s
ballistics expert, was not at the scene of the crime and did not
examine Cebreros’s wound. He did view photos of
Cebreros’s leg, however. He concluded that “it would be
very difficult—impossible—for me to tell you which was
entry, which was exit.” He stated that “both the front and the
back look similar.” On cross-examination, Bennett asked
Hawkins if he could have determined an entry or exit wound
if he had examined Cebreros at the scene. Hawkins explained
that he would “probably rely more upon the clothing than the
leg itself,” presumably by looking for powder residue.
Bennett then asked if Hawkins was ever shown Cebreros’s
pants, and Hawkins stated that he was not.

In his closing argument, Bennett called attention to these
discrepancies in the entry- and exit-wound descriptions. He
specifically noted that Hawkins was never able to view
Cebreros’s pants to develop an expert opinion on the issue.
Bennett highlighted the fact that both English and Thomas
originally described the wound as entering the front of
Cebreros’s thigh. And he made plain the adverse inference
the jury could draw from the discrepancy: “Mr. Cebreros isn’t
really telling us what happened out there that night.” Bennett
26 CUNNINGHAM V . WONG

concluded his discussion of the entry and exit wounds by
telling the jury that “[t]hey don’t want you to know the real
answer to this because it might have thrown their case into a
tizzy.”

Cebreros’s medical charts were not discussed at trial.
Huntington Emergency Room physician Dr. Robert
Goldweber later stated in a declaration filed during
Cunningham’s state habeas proceedings that he made
notations on Cebreros’s chart indicating a possible entry
wound on the front of the thigh and an exit wound on the
back. Likewise, Nancy Rogers, R.N., the emergency room
nurse who also treated Cebreros after the shooting, stated in
a declaration filed during state habeas proceedings that her
notes indicated a frontal entrance wound and rear exit wound.
Cunningham argues that he was prejudiced by counsel’s
failure to present these reports at trial. The district court
correctly recognized that he was not.

Cebreros’s medical records would have been cumulative
of evidence already presented to the jury. Bennett discussed
the entrance- and exit-wound discrepancy at length during his
examinations of Officer Thomas, Paramedic English, and
Deputy Hawkins. And he hammered on the issue during
closing argument. Given all this evidence and argument, it is
highly doubtful that additional notations from non-experts
showing a “possible” frontal entry wound would have
discredited Cebreros’s testimony any further as to create a
reasonable probability that the outcome of the trial would
have been different.

As to the second claim regarding Treto’s autopsy report,
the report includes a notation that $455.25 was returned to
Treto’s wife by the Medical Examiner’s Office. Cunningham
 CUNNINGHAM V . WONG 27

argues that, had counsel properly presented this evidence, he
could have impeached Cebreros’s testimony that a robbery
had taken place. This claim also fails, however, because even
if the jury had known about the money, there was still ample
evidence supporting a robbery conviction.

First, it was not unreasonable for the California Supreme
Court to hold that, even if presented with evidence of $455.25
discovered on Treto’s person, the jury would still have found
that Treto had been robbed of money. Treto’s wife testified
at trial that, on the night of the murder, Treto left home with
around $1,400 or $1,500 in cash, and that he kept the money
hidden on various parts of his body, including his wallet.
Officer Thomas testified that he found two dollars and two
cents on the ground around Treto as well as eight $1 bills in
Treto’s front pants pocket. But he also explained that Treto’s
wallet, shirt, and jacket contained no money and that one of
Treto’s shoes had been removed while the other was left on.
Together, this evidence would indicate a partially successful
and hurried search for money by Treto’s killer. The jury
properly considered this evidence and reasonably found that
a robbery had been committed even though the robber did not
steal every last dollar. The jury could have reasonably
maintained this finding even if confronted with evidence of
additional money on Treto’s person.

Second, even if the jury had found that Treto was not
robbed of cash, it would have found that he was still robbed
of his automobile. Treto’s Buick was missing after his
murder. Cebreros testified that Cunningham shot Treto while
Treto was holding his keys at the driver’s side door. Two law
enforcement officers reported seeing a similar car being
driven away from the scene by a driver matching
Cunningham’s description. Given this substantial
28 CUNNINGHAM V . WONG

circumstantial evidence that a robbery had taken place—both
of cash and car—it was not unreasonable for the California
Supreme Court to rule that Cunningham was not prejudiced
by counsels’ failure to probe deeper into the remaining cash
on Treto’s person.

2

Cunningham also claims he suffered ineffective assistance
of counsel due to Udovic and Bennett’s failure to present alibi
evidence. At trial, Detective Baroni recounted that
Cunningham stated during his post-arrest interview that he
had gone home around 10:00 p.m. on the night of the murder,
arrived to a dark house where everyone was asleep, and went
straight to bed.

Cunningham argues that three important pieces of
supporting evidence were not presented to establish an alibi.
First, Cunningham’s mother, Rosa Vaughn, submitted a
declaration in Cunningham’s state habeas proceeding
explaining that Cunningham returned to her home “between
2:00 and 2:30 a.m.” on the night of the murder. She said she
was awake painting the den at the time. Rosa Vaughn was
not called to testify at the guilt phase of the trial.

Second, Aubrey Vaughn, Rosa Vaughn’s husband,
submitted a declaration during state habeas proceedings,
stating that he saw Cunningham early the next morning when
Cunningham was getting ready for work. Aubrey Vaughn
was not called to testify at trial.

Third, Cunningham’s ex-wife, Sharon Spears, submitted
a declaration in Cunningham’s state habeas proceedings
 CUNNINGHAM V . WONG 29

stating that Cunningham did not stay at her home the night of
the murder. Spears was not called to testify at trial.

As the district court observed, Cunningham’s proffered
alibi evidence is extremely weak. First, the evidence is
consistent with Cunningham’s guilt. Cunningham’s arrival
at his mother’s home two miles from the murder scene
shortly after the murder took place would seem to support the
notion that he drove directly home from the Pair of Aces after
robbing and murdering Treto and wounding Cebreros.
Aubrey Vaughn and Sharon Spears’s statements would also
support this finding. Second, Rosa Vaughn’s declaration
would tend to show that Cunningham lied to the police about
his whereabouts on the night in question. Thus, the
California Supreme Court reasonably determined that Udovic
and Bennett were not ineffective for failing to present this
evidence.

3

Cunningham also argues that he suffered ineffective
assistance of counsel when Udovic and Bennett failed to
object to Wondries’s comments denigrating the defense team
during her closing argument. Wondries’s allegedly improper
comments included:

You know, the judge told you earlier that you
have three very fine attorneys, and I have to
tell you it’s really been a pleasure being able
to work with Mr. Udovic and Mr. Bennett.
You have seen them in action. They are
extremely fine. And what is their job? Their
job is to create straw men. Their job is to put
up smoke, red herrings. And they’ve done a
30 CUNNINGHAM V . WONG

heck of a good job. And my job is to
straighten that out and show you where the
truth lies. So let’s do that.

As we explained in United States v. Necoechea, 986 F.2d
1273, 1281 (9th Cir. 1993), “[b]ecause many lawyers refrain
from objecting during opening statement and closing
argument, absent egregious misstatements, the failure to
object during closing argument and opening statement is
within the ‘wide range’ of permissible professional legal
conduct.” Under Necoechea, Udovic and Bennett’s decision
not to object to Wondries’s comments, possibly to avoid
highlighting them, was a reasonable strategic decision.

Under Strickland’s second prong, even if Udovic and
Bennett should have objected, there is no reasonable
likelihood that the outcome of Cunningham’s trial would
have been different had Wondries’s statement been stricken
from the record. The comments were a single paragraph of
a twenty-page argument and the trial judge explained to the
jury that closing arguments are not evidence. See
Featherstone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991)
(holding, on habeas review, that counsel’s failure to object to
improper argument at trial did not prejudice petitioner where
other evidence supported a guilty verdict and the jury was
told closing argument was not evidence).

Moreover, we have explained that “prosecutors must have
reasonable latitude to fashion closing arguments, and thus can
argue reasonable inferences based on the evidence, including
that one of the two sides is lying.” Necoechea, 986 F.2d at
1276. Thus, in prior cases, we have ruled that comments
similar to those made in this case did not constitute plain
error, meaning that they did not have “an impact on [the
 CUNNINGHAM V . WONG 31

defendant’s] substantial rights.” See United States v.
Matthews, 240 F.3d 806, 819 (9th Cir. 2001), rev’d on other
grounds, 278 F.3d 880, 882 (9th Cir. 2002) (en banc)
(upholding the parts of the original three-judge panel
pertaining to the defendant’s conviction, including the
discussion of prosecutorial misconduct). For these reasons,
we hold that the California Supreme Court did not
unreasonably apply Strickland in denying this particular
ineffective assistance claim.

4

As an analogue to another of his prosecutorial misconduct
claims, Cunningham argues that Udovic and Bennett were
ineffective for failing to object to Wondries’s opening
statement and follow-up evidence relating to Cunningham’s
changed appearance.

As stated above, Wondries noted for the jury
Cunningham’s changed hair, facial hair, and teeth during her
opening statement. Wondries also elicited testimony from
Cebreros, Keith Anderson (the man who played pool with
Cunningham at Riley’s bar), and Officers Delgado and
Baroni that Cunningham’s appearance had changed. The
men testified that: (1) Cunningham’s hair was shorter at trial
and had gray or white in it not present at the time of the
incident or arrest; (2) Cunningham’s facial hair was changed
in that he no longer had a goatee; (3) the rims of
Cunningham’s glasses were darker the night of the incident
than they were at trial; (4) Cunningham had lost weight since
his arrest; and (5) the gold ring or cap on Cunningham’s
upper tooth was no longer there. As to the missing gold
tooth, Wondries asked the court to direct Cunningham to
stand up and reveal his teeth to the jury. With no objection
32 CUNNINGHAM V . WONG

from Udovic or Bennett, Cunningham complied, showing that
he no longer had the gold cap.

In response to Wondries’s elicitation of testimony
concerning Cunningham’s changed appearance, Bennett
offered Cunningham’s county jail medical records into
evidence as Exhibit 25. Wondries did not object. The
medical records demonstrate that Cunningham had several
teeth removed for decay.

In his closing argument, Bennett directly addressed the
evidence of changed appearance. He told the members of the
jury that they could review Cunningham’s dental records to
see that his teeth, including his gold tooth, were only replaced
because they were “rotting out of his head.” Bennett
explained to the jury that:

Ms. Wondries would have you infer from the
changes in [Cunningham’s] appearance that
he’s, somehow, undertaken a conscious effort
to change his appearance. That’s not true.
T h e r ea s o n ab l e i n fe re n ce s f r om
[Cunningham’s] change in appearance have
nothing to do with [Cunningham’s] trying to
deceive you, somehow, but, rather, with the
fact he’s lost 35 pounds because jail food isn’t
wonderful . . . .

Under the first prong of the Strickland test, counsels’
conduct did not fall below an objective standard of
reasonableness. As explained above, withholding objections
to an opponent’s opening statement is acceptable defense
strategy. See Necoechea, 986 F.2d at 1281.
 CUNNINGHAM V . WONG 33

As to whether Cunningham was prejudiced by Udovic
and Bennett’s failure to object to Wondries’s statement and
follow-up evidence, we hold that he was not. Bennett
adequately addressed Wondries’s statement and all the
witness testimony about Cunningham’s dental work by
offering documentary evidence that Cunningham changed his
teeth due to medical necessity. He further highlighted the
point during closing argument.

Moreover, although the gold tooth was certainly an
important part of the changed appearance, Cunningham has
identified no medical necessity for cutting his hair short,
wearing different glasses, or shaving his goatee. Thus, even
without any reference to Cunningham’s teeth, Cunningham
still changed his appearance through strictly voluntary
measures from which the jury could have properly inferred
consciousness of guilt. See United States v. Foppe, 993 F.2d
1444, 1450 (9th Cir. 1993). It was thus not unreasonable for
the California Supreme Court to deny this claim under
Strickland.

5

Finally, Cunningham claims that Udovic and Bennett
were ineffective because they failed to adequately investigate
and present further mitigating evidence at the penalty phase.
Cunningham argues that the defense should have called as
witnesses (1) Sharon Spears, his ex-wife; (2) Felicia
Cunningham, his daughter; (3) Rudy Fehrenkamp and Art
Knoll, corrections officers at San Quentin State Prison; and
(4) Dr. William Vicary or Dr. Michael Coburn, psychiatrists
who had previously examined Cunningham.
34 CUNNINGHAM V . WONG

Udovic and Bennett appear to concede that their
performance was deficient at the penalty phase. We thus
choose to address the California Supreme Court’s application
of Strickland’s prejudice prong. Under this prong, “the
question is whether there is a reasonable probability that,
absent the errors, the sentencer . . . would have concluded that
the balance of aggravating and mitigating circumstances did
not warrant death.” Strickland, 466 U.S. at 695. This inquiry
requires us to “reweigh the evidence in aggravation against
the totality of available mitigating evidence.” Wiggins v.
Smith, 539 U.S. 510, 534 (2003).

The Supreme Court’s recent rejection of a penalty-phase
ineffective assistance claim in Cullen v. Pinholster is
instructive here. 131 S. Ct. 1388 (2011). In that case, the
petitioner presented mitigating testimony from his mother,
explaining his terrible childhood and his many periods of
incarceration. Id. at 1408–09. The state presented
aggravating evidence of the petitioner’s prior violent crimes,
his misbehavior in prison, and his history of domestic
violence. Id. at 1408. The jury returned a verdict of death.
In his state habeas proceedings, the petitioner presented
additional evidence of his abusive upbringing as well as
expert psychiatric evidence of his “psychopathic personality
traits.” Id. at 1405. The Supreme Court, applying AEDPA
deference, held that, because the new evidence (1) would
have been cumulative; and (2) would have opened the door to
aggravating evidence, “[t]here is no reasonable probability
that the additional evidence . . . would have changed the
jury’s verdict.” Id. at 1409. We reach the same conclusion
in this case.

Cunningham argues that he was prejudiced by not having
Sharon Spears and Felicia Cunningham testify on his behalf.
 CUNNINGHAM V . WONG 35

Both submitted declarations in the state habeas proceeding.
Sharon Spears would have testified that she loved Albert and
that, besides his unfaithfulness, he was a good husband.
Felicia Cunningham would have testified that she loved her
father and she would have pleaded for his life. She also
would have testified that her father “was never violent
towards me, my half-brother Uriah, or my mother.” The
California Supreme Court did not unreasonably deny this
claim.

First, this “new” testimony was cumulative of testimony
already presented describing familial love for Cunningham.
See Pinholster, 131 S. Ct. at 1399. Rosa Vaughn and Johnnie
Washington adequately showed that Cunningham was loved
and had family who would miss him. Rosa Vaughn discussed
Felicia and Sharon Spears, giving the impression that they
were a relatively close-knit family and demonstrating to the
jury that Cunningham was a loving husband and father.
Cunningham himself read many thoughtful cards and poems
he had created for Spears and Felicia, showing that he cared
deeply for them. Thus, the primary mitigation value of
Spears and Felicia Cunningham’s testimony was adequately
presented at the penalty phase.

Second, Spears and Felicia Cunningham would have been
subject to thorough cross-examination. Had Spears attempted
to testify that Cunningham was a good husband, the
prosecution would have certainly confronted her with the
recent police complaint she filed against him for beating her
with a paddle. Cf. Darden v. Wainwright, 477 U.S. 168, 186
(1986) (denying habeas claim of penalty-phase
ineffectiveness because “if defense counsel had attempted to
put on evidence that petitioner was a family man” it would
have opened the door to aggravating evidence of his
36 CUNNINGHAM V . WONG

transgressions). Likewise, if Felicia Cunningham testified
that Cunningham was never violent, the prosecution would
have asked her about his recent violence against her mother.
See id. (“Any attempt to portray petitioner as a nonviolent
man would have opened the door for the State to rebut with
evidence of petitioner’s prior convictions.”). Given this
inevitable aggravating evidence, it was not unreasonable for
the California Supreme Court to determine that Cunningham
was not prejudiced by the absence of Spears and Felicia
Cunningham’s testimony.

Cunningham next argues that his counsel should have
elicited testimony from Corrections Officers Rudy
Fehrenkamp and Art Knoll. The officers worked at San
Quentin while Cunningham was imprisoned there. Both
officers would have testified, as stated in their declarations in
the state habeas proceeding, that they found Cunningham to
be a very good inmate who made his unit “a pleasant
environment for everyone.”

The California Supreme Court reasonably determined that
Cunningham was not prejudiced by counsel’s failure to
present this testimony. First, the evidence would have been
cumulative of Rosa Vaughn’s testimony. Vaughn read at
least four laudatory reports from corrections officers, reports
that are practically identical to those filed by Fehrenkamp and
Knoll. Cunningham also spoke at great length about his
positive relationships with officers and his good behavior in
prison. The jury certainly considered that some corrections
officers had positive views of Cunningham, even without
Fehrenkamp and Knoll’s testimony.

Second, Fehrenkamp and Knoll would have been easy
targets for the prosecution on cross-examination. The two
 CUNNINGHAM V . WONG 37

had only known Cunningham for a few months out of his
decades of incarceration. They also had no knowledge of the
recent sodomy charge brought against Cunningham in 1986.

Finally, Cunningham argues that he was prejudiced by his
counsels’ failure to call Dr. William Vicary, a psychiatrist
who evaluated Cunningham in 1988, or Dr. Michael Coburn,
a psychiatrist who evaluated Cunningham in 1975.
Dr. Vicary would have (1) testified about Cunningham’s
nightmarish childhood; and (2) concluded that Cunningham
suffered from a “chronic underlying depressive mental
illness” for which alcoholism was “a major exacerbating
factor.” Dr. Coburn would have testified that Cunningham
was too intoxicated at the time of the Fellows murder to have
acted deliberately.

The California Supreme Court did not unreasonably apply
Strickland’s prejudice prong to Dr. Vicary’s testimony.2 As
to Cunningham’s childhood, Dr. Vicary’s testimony would
have “largely duplicated the mitigation evidence at trial”
presented personally by Cunningham and his mother.
Pinholster, 131 S. Ct. at 1409.

As to the evidence that was not presented to the jury,
namely Dr. Vicary’s expert opinion that Cunningham
suffered “chronic underlying depressive mental illness,” the
jury could have easily inferred on its own that such illness
plagued Cunningham. He testified personally to depression
so deep that it caused him to attempt suicide. A psychiatrist’s

2
The dissent incorrectly infers from this sentence that we “apparently
conced[e] that Cunningham’s counsel was deficient.” Dissent at 45. We
make no such concession. W e merely find that we can resolve
Cunningham’s claim on the prejudice prong alone.
38 CUNNINGHAM V . WONG

testimony furthering that description could have actually hurt
Cunningham by showing the jury that he was “simply beyond
rehabilitation.” Id. at 1410 (citation omitted). As to his
chronic alcoholism, Cunningham testified that he drank
consistently all through his life after his father gave him
alcohol when he was eight years old. The jury heard
Cunningham’s own admission that “I can do anything under
the influence of alcohol.”

Moreover, as was the case in Pinholster, Dr. Vicary’s
testimony “would have opened the door to rebuttal by a state
expert.” Id.; see also Wong v. Belmontes, 130 S. Ct. 383, 388
(2009) (explaining that “expert testimony discussing
[petitioner’s] mental state, seeking to explain his behavior, or
putting it in some favorable context would have exposed
[petitioner] to” damaging evidence in aggravation). Given
that the state could have called a rebuttal expert, “counsel
faced a serious risk that a mitigation case could turn out to be
aggravating.” Pinholster v. Ayers, 590 F.3d 651, 707 (9th Cir.
2009) (en banc) (Kozinski, C.J., dissenting), rev’d sub nom.
Cullen v. Pinholster, 131 S. Ct. 1388 (2011).

The principal flaw in the dissent’s analysis is its complete
failure to apply the “doubly deferential” standard of review
under 28 U.S.C. § 2254(d). Knowles v. Mirzayance, 556 U.S.
111, 123 (2009). Instead of asking whether it was objectively
unreasonable for the California Supreme Court to conclude
that Cunningham had not shown that Dr. Vicary’s opinion
would undermine confidence in the jury’s imposition of death
as the appropriate penalty, the dissent simply reweighs the
defense case as if reviewing the question on direct appeal.
Doing so ignores the Supreme Court’s admonition in
Harrington v. Richter, 131 S. Ct. 770 (2011), that we do not
grant habeas relief overturning the California Supreme
 CUNNINGHAM V . WONG 39

Court’s Strickland analysis unless we can say no “fairminded
jurists could disagree” that its application of Strickland was
objectively unreasonable. Id. at 786 (“It bears repeating that
even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable. If this standard is
difficult to meet, that is because it was meant to be.”)
(citation omitted)).

Dr. Coburn’s testimony about Cunningham’s mental state
at the time of the Fellows murder would also have been
cumulative. Cunningham and Rosa Vaughn both testified
that Cunningham was under the influence of drugs and could
not remember the details of Fellows’s death. Dr. Coburn’s
testimony would also have invited rebuttal testimony.

C

Cunningham argues that the trial court erred in admitting
Detective Baroni’s testimony about Cunningham’s post-arrest
interview in violation of Miranda v. Arizona, 384 U.S. 436
(1966), and Edwards v. Arizona, 451 U.S. 477 (1981). On
direct appeal, the California Supreme Court determined that
Cunningham suffered no such violation. Cunningham argues
that the court’s decision was both an unreasonable application
of clearly established law and was based on an unreasonable
determination of the facts.

On December 16, 1985, Detective Baroni and his partner
interviewed Cunningham in a Pasadena City Jail interview
room. The interview was not tape-recorded. At trial, Udovic
moved to exclude evidence of Cunningham’s interview and
the court conducted an evidentiary hearing out of the
presence of the jury.
40 CUNNINGHAM V . WONG

Detective Baroni testified that he advised Cunningham of
his Miranda rights and Cunningham signed a waiver form
recording Cunningham’s initialed responses to each warning.
After Cunningham was advised of his rights, he said, “I want
to have an attorney present. I will talk to you now until I
think I need one. I don’t need one present at this time.”
Baroni then asked him, “Do you want to talk to an attorney or
do you want to talk to me without an attorney?” to which
Cunningham replied, “I’ll talk to you until I think I need an
attorney.” Baroni then repeated the same question and
received the same answer. While Baroni conceded that he
may have said something to Cunningham immediately after
Cunningham said “I want an attorney,” his comments were
limited to assuring Cunningham he could have an attorney
present.

Cunningham testified to a much different sequence of
events. He said that after he requested an attorney, as much
as a minute passed before he said “I will talk to you now until
I think I need an attorney.” Cunningham said that during the
interim, Baroni told him not to worry about anything and said
“I believe you are innocent.” The trial court ultimately
credited Detective Baroni’s version of events and allowed
him to testify to these facts at trial.

The California Supreme Court concluded that
Cunningham validly waived his rights based on Baroni’s
version of the interview. See People v. Cunningham, 25 Cal.
4th at 993–94. The court determined that Cunningham’s
“initial statement”—the “I want an attorney” statement—was
“an unambiguous request for counsel.” People v.
Cunningham, 25 Cal. 4th at 993 (citing Davis v. United
States, 512 U.S. 452, 459 (1994)). The court reasoned that,
because Cunningham invoked his right to counsel, he “was
 CUNNINGHAM V . WONG 41

not subject to further interrogation by the police until counsel
was made available to him.” Id. Based on Baroni’s version
of events, however, Baroni’s only statement after
Cunningham invoked was a clarification that Cunningham
could have an attorney present if he wanted one. The court
reasoned that this statement did not amount to “interrogation”
under Rhode Island v. Innis, 446 U.S. 291 (1980), and thus no
Miranda violation occurred because Cunningham elected to
proceed without a lawyer present. Id. at 993–94. The court
did not unreasonably apply Miranda, Edwards, or Innis in
reaching this decision.

Cunningham’s alternative Miranda argument is that the
California Supreme Court’s reliance on Baroni’s version of
the events—as opposed to Cunningham’s own self-serving
testimony—resulted in a decision based on an unreasonable
determination of the facts.

Under AEDPA, we “must be particularly deferential to
our state-court colleagues” on questions of fact. Taylor,
366 F.3d at 999–1000. There are two sections of § 2254 that
govern state court findings of fact: §§ 2254(d)(2) and (e)(1).
In reviewing evidence presented to the state court, we rely on
§ 2254(d)(2). See Kesser v. Cambra, 465 F.3d 351, 358 n.1
(9th Cir. 2006). Under § 2254(d)(2), a federal court “may not
second-guess a state court’s fact-finding process unless, after
review of the state-court record, it determines that the state
court was not merely wrong, but actually unreasonable.”
Taylor, 366 F.3d at 999 (discussing § 2254(d)(2)).

Looking at the record before us, it was not unreasonable
for the trial court and the California Supreme Court to credit
Baroni’s testimony over Cunningham’s. A criminal
defendant’s vague testimony, standing alone, does not
42 CUNNINGHAM V . WONG

demonstrate that an officer’s contrary version of the facts was
wrong. Cf. Taylor, 366 F.3d at 1006 (holding that the state
court unreasonably credited the officer when the petitioner’s
attorney provided accurate corroboration of the petitioner’s
version of the post-arrest interview).

The California Supreme Court also reasonably held that,
even if there was a Miranda violation, the admission of the
unlawfully obtained evidence was harmless. People v.
Cunningham, 25 Cal. 4th at 994 (citing Arizona v.
Fulminante, 499 U.S. 279, 310 (1991) (Rehnquist, C.J.,
concurring)). Recognizing that Cunningham did not actually
confess to the crime during his post-arrest interview, the court
reasoned that the statements “at most revealed
[Cunningham’s] lack of veracity.” Id. In light of the entire
record and the other damaging evidence against him, the
court reasonably determined that Cunningham’s statement,
even if erroneously admitted, was harmless. See Brecht v.
Abrahamson, 507 U.S. 619 (1993).

D

Finally, Cunningham argues that cumulative error by the
prosecutor, his counsel, and the court requires reversal. A
petitioner may demonstrate that “even if no single error were
prejudicial, where there are several substantial errors, ‘their
cumulative effect may nevertheless be so prejudicial as to
require reversal.’” Killian v. Poole, 282 F.3d 1204, 1211 (9th
Cir. 2002) (quoting United States v. de Cruz, 82 F.3d 856,
868 (9th Cir. 1996)). Reviewing all of Cunningham’s claims
together as a whole, we fail to see cumulative error requiring
reversal.
 CUNNINGHAM V . WONG 43

The district court properly denied Cunningham’s petition
for a writ of habeas corpus.

AFFIRMED.

PREGERSON, Circuit Judge, concurring in part and
dissenting in part1:

The majority concludes that the California Supreme Court
was not unreasonable in holding that Cunningham was not
prejudiced by his counsel’s failure to present Dr. William
Vicary, M.D., a psychiatrist, as a mitigating witness during
the penalty phase of his trial. The majority reasons that Dr.
Vicary’s testimony would have been duplicative and would
have opened the door to a “damaging” rebuttal by a state
expert.

In doing so, the majority fails to consider that this
evidence would have gone directly to three of the eleven
factors the jury was required to consider in evaluating
whether death or life without the possibility of parole was the
appropriate sentence under California Penal Code § 190.3.
Furthermore, without Dr. Vicary’s testimony, the jury was
presented with no direct scientific testimony demonstrating
that “at the time of the offense the capacity of the defendant

1
Like the majority, I would affirm the district court’s denial of habeas
relief on Cunningham’s guilt-phase ineffective assistance of counsel
claims. Cunningham cannot establish “a reasonable probability that, had
the evidence been disclosed to the defense, the result of the [guilt-phase]
would have been different.” United States v. Bagley, 473 U.S. 667, 682
(1985). I also concur in the majority’s resolution of Cunningham’s non
penalty-phase ineffective-assistance claims.
44 CUNNINGHAM V . WONG

to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was impaired as a result
of mental disease or defect or the effects of intoxication.”
Cal. Penal Code § 190.3. Dr. Vicary’s testimony would have
filled that gap. He would have explained that as a result of
Cunningham’s horrific childhood, Cunningham was later
unable to “conform his behavior to society’s norms.” Thus,
Dr. Vicary’s testimony would have been the only scientific
evidence directly demonstrating the “causal nexus” between
Cunningham’s abusive childhood and his crime.

I would hold that, based on the record before it, the
California Supreme Court unreasonably applied Strickland v.
Washington, 466 U.S. 668 (1984). I would thus grant
Cunningham’s habeas relief on his penalty-phase ineffective
assistance claim.

I.

“An ineffective assistance of counsel claim has two
components: A petitioner must show that counsel’s
performance was deficient, and that the deficiency prejudiced
the defense.” Harrington v. Richter, 131 S. Ct. 770, 785
(2011).

Under 28 U.S.C. § 2254(d)(1), a federal court may only
grant a state prisoner habeas relief if the state court’s
adjudication of the prisoner’s claim “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). Section 2254(d)(1)’s
“unreasonable application” applies even where, like here,
there has been a summary denial by the California Supreme
Court. Harrington v. Richter, 131 S. Ct. 770, 784 (2011).
 CUNNINGHAM V . WONG 45

“Where a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met
by showing there was no reasonable basis for the state court
to deny relief.” Id. To satisfy this standard, the petitioner
must show that the state court decision was “objectively
unreasonable,” not just incorrect or erroneous. Id. at 785.

II. Deficient Performance of Cunningham’s Counsel

Cunningham claims that his counsel was deficient
because his attorneys failed to investigate or prepare a penalty
phase defense. Specifically, he alleges that his attorneys
failed to call a key expert witness, Dr. Vicary, to testify. The
majority fails to discuss the deficiency prong, apparently
conceding that Cunningham’s counsel was deficient. Thus,
the only questions before this court are whether
Cunningham’s counsel’s deficient performance prejudiced
Cunningham and if so whether the California Supreme Court
was unreasonable in finding a lack of prejudice

III. Prejudice & Unreasonable Application of
Strickland by the California Supreme Court

Because we find Cunningham’s counsel deficient, we
must determine whether the California Supreme Court
unreasonably applied Strickland in holding Cunningham was
not prejudiced by that deficiency. The prejudice prong of
Strickland requires a showing that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. In California, however, to impose a death
sentence, a jury must be unanimous; therefore, Cunningham
46 CUNNINGHAM V . WONG

need only demonstrate that, but for his counsel’s deficiency,
there was a “reasonable probability that at least one juror
would have” voted against sentencing Cunningham to death.
Wiggins v. Smith, 539 U.S. 510, 537 (2003); Cal. Penal Code
§ 190.4(b).

To assess that probability in a capital penalty phase
proceeding, we must “reweigh the evidence in aggravation
against the totality of available mitigating evidence.”
Wiggins, 539 U.S. at 534. That includes evidence “adduced
at trial, and the evidence adduced in the habeas
proceeding[s].” Williams v. Taylor, 529 U.S. 362, 397–98
(2000). However, “review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated the
claim on the merits.” Pinholster, 131 S. Ct. at 1398.
Accordingly, our review is limited to only the same evidence
that was available to the California Supreme Court.

A. Cunningham was prejudiced by his counsel’s
failure to call Dr. Vicary to testify because there is
a reasonable probability that his testimony would
have changed the jury’s verdict.

Had Cunningham’s attorneys called Dr. Vicary to testify
and submitted his report into evidence, there is a reasonable
probability that the testimony would have changed at least
one juror’s vote. Dr. Vicary is a Diplomate of the American
Board of Psychiatry and Neurology and a Diplomate of the
American Board of Forensic Psychiatry. Over the past
twenty-five years, he has been qualified as a scientific expert
and has testified at about 500 trials regarding the mental
health of criminal defendants. Scientific and expert
testimony contains an “aura of special reliability and
trustworthiness.” United States v. Amaral, 488 F.2d 1148,
 CUNNINGHAM V . WONG 47

1152 (9th Cir. 1973). Admissible expert testimony is meant
to provide the jury with “appreciable help” in their
determinations. Id. Here, Dr. Vicary’s testimony and report
would offer an illuminating medical perspective on
Cunningham’s behavior by shedding light on his prior
convictions, substance abuse, traumatic family background,
and mental illness. This evidence would have added
significant mitigating weight by appreciably helping the jury
to understand Cunningham’s mental capacity during his
crimes.

Prior to drafting his ten-page medical report, Dr. Vicary
met with Cunningham on six different occasions, spoke with
Cunningham’s mother, reviewed police, autopsy, and recent
psychological testing reports, and viewed Cunningham’s jail
medical chart. From all this information, Dr. Vicary
concluded that Cunningham suffered from a “chronic
underlying depressive mental illness” for which alcohol was
a “major exacerbating factor.” He further found that
Cunningham has “long-standing serious psychiatric
problems.” With regard to Cunningham’s traumatic family
experience, Dr. Vicary noted that those experiences “caused
a major impairment in his self-esteem.” He further found that
Cunningham’s problems in school “led to additional negative
experiences such as being rejected by peers.” Dr. Vicary
reported that Cunningham’s “sense of unworthiness appears
to have led him to sabotage his own success whether that
occurred in treatment, work or interpersonal relationships.”

Dr. Vicary further noted that Cunningham has “[f]or
many years… suffered from symptoms of anxiety and
depression” and that alcohol abuse “exacerbated his mental
deterioration.” He noted that Cunningham would keep his
“deeper thoughts and feelings to himself” and “store
48 CUNNINGHAM V . WONG

frustrations until rare, aggressive outbursts,” usually triggered
by alcohol, would occur.

Finally, although Dr. Vicary found that it “seems highly
likely that [Cunningham’s] future adjustment in prison will
be positive,” Dr. Vicary felt that without proper access to
psychiatric treatment and medication in prison,
Cunningham’s serious psychiatric problems “could culminate
in a psychotic breakdown or suicide attempt.”

Dr. Vicary made this determination without any prior
medical, psychological, social, or family history from
Cunningham’s trial counsel. Had Dr. Vicary known more
about Cunningham’s past, Dr. Vicary stated that he would
have done further inquiry into Cunningham’s potential brain
damage. He would have administered a Wexler Adult
Intelligence Test and Reitan test. Depending on the result, he
would have then ordered a “full battery of neuropsychological
testing.”

Nevertheless, if called as a witness, in addition to the
conclusions from his report noted above, Dr. Vicary would
have explained “the negative effects of experiencing such a
dysfunctional family life as a child and would have been able
to provide some context and explanation for Mr.
Cunningham’s later apparent inability to conform his
behavior to society’s norms.” He would have further testified
that “there is an increased chance of substance abuse in
families where there is a pattern of alcoholism . . . [and]
[w]ith [Cunningham’s] family history, [Dr. Vicary] would
have been able to put Mr. Cunningham’s alcoholism and
other substance abuse in a readily understandable family
context.” Dr. Vicary also would have explained from a
medical standpoint, Cunningham’s “violent behavior . . . as
 CUNNINGHAM V . WONG 49

being intimately and directly related to his chronic and acute
substance abuse.”

1. Dr. Vicary’s testimony would not have been
duplicative.

The majority concludes that this overwhelmingly
mitigating yet excluded testimony would have been
duplicative of testimony that was already presented to the
jury either by Cunningham personally or his mother. I
disagree.

First, the majority is incorrect that Dr. Vicary’s expert
opinion that Cunningham suffered from a “chronic
underlying depressive mental illness” could have been “easily
inferred” by the jury through Cunningham’s own testimony.

The idea that Cunningham in his own trial had the
sophistication to articulate his own diagnosis to the jury is
completely without merit. There is nothing to suggest that
Cunningham was even aware that he suffered from “chronic
underlying depressive mental illness.”

Moreover, an expert opinion is very different from a lay
opinion, especially a defendant’s opinion. An expert opinion
is one from an objective third party that carries an “aura of
special reliability and trustworthiness” and bestows upon the
jury “appreciable help” in understanding matters with which
they are unfamiliar. Amaral, 488 F.2d at 1152; See Ivkovic
& Hans, Jurors’ Evaluations of Expert Testimony: Judging
the Messenger and the Message, 28 Law & Soc. Inquiry 441,
445 (2003) (noting that the “majority of jurors” who
participated in a study “agreed that expert testimony was
crucial to the outcome of their cases” (citing Champagne et.
50 CUNNINGHAM V . WONG

al., Expert Witness in the Courts: An Empirical Examination,
76 Judicature 5–10 (1992))). A defendant’s testimony, on the
other hand, may be viewed by the jury as a desperate attempt
to save himself. In fact, in this case, Cunningham’s counsel
conceded during closing arguments that Cunningham did not
have much credibility with the jury. His counsel stated:
“[Cunningham] would have not much credibility with you.
I don’t think he has much credibility with you.”

Here, the majority assumes the jury is informed in the
field of psychiatry enough so that it could deduce from
Cunningham’s testimony that “such illness plagued” him.
The majority also assumes that the jury gave the same weight
to Cunningham’s testimony as it would Dr. Vicary’s
testimony. In a case where the result of its affirmation is a
death sentence, the majority sadly fails to perceive the impact
of its loose assumptions.

Finally, while Cunningham’s counsel and the state
prosecutor made Cunningham’s mental health a factor for the
jury to consider in deciding Cunningham’s punishment, their
arguments could not replace expert mental health testimony.
Cunningham’s counsel repeatedly implied during their
closing arguments that Cunningham was not mentally sound.
Cunningham’s counsel called him “twisted,” “strange,”
“crazy,” and “warped.” He said Cunningham’s actions did
not “make sense” and that “there’s something wrong” with
Cunningham. He stated that Cunningham, in fact, “needed
some psychological help at a very early age.” He noted
Cunningham took actions that were not justified by “most
rational minds.” He further stated that Cunningham had a
“problem from the git-go.”
 CUNNINGHAM V . WONG 51

Indeed, the prosecutor even put the question to the jury
whether Cunningham suffered from some mental illness that
would in some way account for his behavior. In her closing
argument, the prosecutor stated that: “Cunningham described
himself as being sick. He needs psychiatric help.” She told
the jury that Cunningham’s sentencing reports stated that
“psychological help” was recommended. She commented
that Cunningham himself described that he had been “in and
out of psychology in the jail system.” But, she also argued
that “[t]here isn’t a magic pill that makes somebody who is
this type of person into the type of person that you are.” She
then told the jury moments later, “If this isn’t a case that
deserves the death penalty, who does? Who deserves it if this
man does not?”

Despite Cunningham’s counsel’s and the prosecutor’s
statements that Cunningham had some type of mental
deficiency, the jury did not have the benefit of expert
testimony to provide direct evidence of such deficiencies. By
suggesting a “causal nexus” between Cunningham’s abusive
childhood and his crime, expert testimony could have
“impact[ed] the quality and strength of the mitigation
evidence” and offered a persuasive explanation of
Cunningham’s crimes. State v. Tucker, 160 P.3d 177, 201
(Cal. 2007); see also Douglas v. Woodford, 316 F.3d 1079,
1090 (9th Cir. 2003) (holding that counsel’s failure to present
expert testimony explaining a possible causal link between
defendant’s childhood and his crime was prejudicial).
Therefore, the testimony from Dr. Vicary would not be
cumulative, but instead highly probative in understanding the
effect of Cunningham’s childhood abuse and mental illness
on his crimes.
52 CUNNINGHAM V . WONG

2. There is no evidence in the record that we may
consider to conclude that Dr. Vicary’s
testimony would have “opened the door to
rebuttal.”

The majority concludes that even if Dr. Vicary had
presented evidence of Cunningham’s depressive mental
illness, such testimony “would have opened the door to
rebuttal by a state expert.”

As both parties concede in their supplemental briefs,
pursuant to Pinholster this court can now consider only the
evidence that was before the California Supreme Court,
including exhibits, declarations, deposition transcripts, and
evidentiary hearing testimony first introduced in the district
court habeas proceedings. The majority itself recognized
that, “we may not consider evidence raised for the first time
during the district court’s evidentiary hearing.” The decision
in this court must “rest[] solely on the record before the state
court.”

The California Supreme Court was only presented with
Dr. Vicary’s report and his additional declaration. As
described above, Dr. Vicary’s report would not have been
duplicative and would have provided valuable insight from a
medical perspective to help aid the jury in its weighty
decision whether to sentence Cunningham to death. As the
Supreme Court recently explained, even where a state expert
undermines a defense expert’s conclusions, “it [is] not
reasonable to discount entirely the effect that [the expert’s]
testimony might have had on the jury.” Porter v. McCullom,
130 S. Ct. 447, 455 (2009) (per curiam).
 CUNNINGHAM V . WONG 53

3. It was prejudicial to exclude Dr. Vicary’s
statements.

Even through the “deferential lens of § 2254(d),” there is
a reasonable probability that the testimony could have
changed at least one juror’s decision. See Pinholster, 131 S.
Ct. at 1403.

Dr. Vicary’s testimony would not only have provided
insight on Cunningham’s condition at trial, but it would have
also helped explain Cunningham’s past behavior and
culpability. The Supreme Court has recognized the
importance of evidence regarding the defendant’s limited
mental capacity for mitigation purposes. Smith v. Texas,
543 U.S. 37, 45 (2004); see also Penry v. Lynugh, 492 U.S.
302, 319 (1989) (“evidence about the defendant’s background
and character is relevant because of the belief, long held by
this society, that defendants who commit criminal acts that
are attributable to a disadvantaged background, or to
emotional or mental problems, may be less culpable than
defendants who have no such excuse”).

In addition, under California Penal Code § 190.3,
California jurors must consider specific factors in determining
whether to sentence a defendant to death, including mental
health factors. In Cunningham’s case, three of the eleven
factors jurors were instructed to consider directly related to
Cunningham’s mental health: 1) “whether or not the offense
was committed while the defendant was under the influence
of extreme mental or emotional disturbance”; 2) whether “at
the time of the offense the capacity of the defendant to
appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was impaired as a result
54 CUNNINGHAM V . WONG

of mental disease or defect or the effects of intoxication”; and
3) a “catch-all” factor, which required the jury to consider:

Any other circumstance which extenuates the
gravity of the crime even though it is not a
legal excuse for the crime and any other
sympathetic or other aspect of the defendant’s
character or record [that the defendant offers]
as a basis for a sentence less than death,
whether or not related to the offense for which
he is on trial. You must disregard any jury
instruction given to you in the guilt or
innocence phase of this trial which conflicts
with this principle].

Thus, it became crucial to have an expert corroborate
Cunningham’s own testimony that he suffered from a
traumatic childhood and some type of mental illness. See
Thomas v. Chappell, 678 F.3d 1086, 1105 (2012) (holding
that the failure of defense counsel to call a corroborating
witness resulted in prejudice to the defendant).

Dr. Vicary noted that as a result of Cunningham’s
“chronic underlying depressive mental illness,” Cunningham
had difficulty controlling his impulses, had aggressive
outbursts, and engaged in self-destructive acts. Significantly,
Dr. Vicary noted that alcohol was a “major exacerbating
factor.” On the night of Treto’s murder, evidence indicates
that Cunningham drank at multiple bars. Additionally,
evidence exists that Cunningham was under the influence of
alcohol during the murder of Ella Mae Fellows. Accordingly,
Dr. Vicary’s testimony would have significantly aided the
jury in highlighting Cunningham’s mental problems, which
 CUNNINGHAM V . WONG 55

may have rendered Cunningham less culpable in the eyes of
at least one juror.

The majority relies on Pinholster as instructive, but
certain factual differences between Pinholster and this case
allow for a more favorable finding for prejudice in this case.
In Pinholster, the defendant’s attorneys failed to call any
witness other than the defendant’s mother to testify at the
penalty phase of his capital case. 131 S. Ct. at 1396.
Pinholster’s attorney had previously consulted psychiatrist
Dr. John Stalberg who noted Pinholster’s “psychopathic
personality traits,” diagnosed him with antisocial personality
disorder, and concluded that he “was not under the influence
of extreme mental or emotional disturbance” at the time of
the murders. Id. In his state habeas petition, Pinholster
argued that his attorney was ineffective at the penalty phase
of his trial. He submitted a declaration of psychiatrist Dr.
George Woods who diagnosed Pinholster with bipolar mood
disorder and seizure disorders. Id. Pinholster also included
a declaration from Dr. Stalberg who stated that Pinholster’s
attorney only provided him with some police reports and a
1978 probation report. Id. Dr. Stalberg testified that had he
known about the additional material, he would have
conducted “further inquiry” before concluding that Pinholster
suffered only from a personality disorder. Id. Dr. Stalberg
did not, however, retract his earlier diagnosis.

Pinholster reveled in his criminal history, bragging about
being a “professional robber” and explaining that his
occupation was that of a “crook.” Id. at 1408, 1405. He also
testified that he was a white supremacist and that he
frequently carved swastikas into other people’s property as “a
sideline to a robbery.” Id. The state presented evidence
during the penalty phase that Pinholster had threatened to kill
56 CUNNINGHAM V . WONG

the State’s lead witness, assaulted a man with a straight razor,
and kidnapped another person with a knife. Id. at 1408. The
Supreme Court ultimately concluded that there was no
prejudice in failing to call Dr. Stalberg because there was “no
reasonable probability that the additional evidence Pinholster
presented in his state habeas proceedings would have changed
the jury’s verdict.” Id. at 1408–09.

This case presents a closer call than Pinholster. First,
unlike Pinholster, the State in this case possessed less
aggravating evidence pertaining to Cunningham. Although
the State described Cunningham’s previous crimes, including
second degree murder, sodomy, and an assault on a police
officer, Cunningham did not display the same callous lack of
remorse or desire for crime as Pinholster. Second, Dr. Vicary
would not only have discussed a social disorder, but would
have also explained that Cunningham suffered from “chronic
depressive mental illness” for which alcoholism was a “major
exacerbating factor.” This diagnosis would not only provide
insight into the crime for which he was sentenced to death,
but also explain Cunningham’s mental state during his prior
convictions. Finally, Pinholster did not concern the failure of
counsel to present evidence that would directly address
statutory mitigating factors that the jury was required to
consider. For these reasons, Dr. Vicary’s expert opinion
about Cunningham’s mental health could reasonably have
caused at least one juror to strike a different balance.

IV. Conclusion

Because Cunningham’s attorney failed to call Dr. Vicary,
the jury lacked a significant piece of mitigating evidence
when it decided to sentence Cunningham to death. Positive
and negative factors “might cause a sentencer to determine
 CUNNINGHAM V . WONG 57

that a life sentence, rather than death at the hands of the state,
is the appropriate punishment for the particular defendant.”
Lambright v. Schriro, 490 F.3d 1103, 1115 (9th Cir. 2007).
The court must “‘treat[ ] each defendant in a capital case with
that degree of respect due [to] the uniqueness of the
individual,’ and determin[e] whether or not he is deserving of
execution only after taking his unique life circumstances,
disabilities, and traits into account, [as] is constitutionally
required.” Id. (quoting Lockett v. Ohio, 438 U.S. 586, 605
(1978)). As such, “the Constitution requires that ‘the
sentencer in capital cases must be permitted to consider any
relevant mitigating factor.’” Porter, 130 S. Ct. at 454–55
(quoting Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)).

In this case, a different result was substantially likely.
See Pinholster, 131 S. Ct. at 1403. Cunningham has
demonstrated there is a reasonable probability that at least
one juror would have struck a different balance because of
new evidence provided by Dr. Vicary showing Cunningham’s
less culpable mindset. Mitigating mental health evidence
from a qualified expert witness holds strong weight in a death
penalty sentencing. It should not be brushed off as easily as
the majority has done.

Because Cunningham’s counsel’s deficiency deprived the
sentencing jury the opportunity to weigh this substantial piece
of mitigating evidence, the confidence of Cunningham’s
death sentence is sufficiently undermined. Cunningham was
prejudiced and the California Supreme Court’s contrary
finding was an unreasonable application of Strickland.