Stanley v. Schriro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MILO MCCORMICK STANLEY,  No. 06-99009
Petitioner-Appellant, D.C. No.
v.  CV-98-00430-PHX-
DORA B. SCHRIRO, MHM
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding

Argued and Submitted
September 9, 2008—Pasadena, California

Filed March 11, 2010

Before: Betty B. Fletcher, Andrew J. Kleinfeld, and
Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Rawlinson;
Concurrence by Judge B. Fletcher;
Partial Concurrence and Partial Dissent by Judge Kleinfeld

4145
4150 STANLEY v. SCHRIRO

COUNSEL

Gilbert H. Levy (briefed), Seattle, Washington, and Paula K.
Harms (briefed and argued) and Sylvia Lett (briefed), Assis-
tant Federal Public Defenders, Phoenix, Arizona, for the
petitioner-appellant.

Kent Cattani (briefed and argued), Chief Counsel, and J.D.
Nielsen (briefed), Assistant Attorney General, Phoenix, Ari-
zona, for the respondent-appellee.
 STANLEY v. SCHRIRO 4151
OPINION

RAWLINSON, Circuit Judge:

Petitioner Milo Stanley (Stanley) was convicted by a jury
of first-degree murder of his wife and five-year-old daughter.
The court sentenced Stanley to life in prison for the murder
of his wife and to death for the murder of his daughter. Stan-
ley’s conviction and sentence were affirmed by the Arizona
Supreme Court on direct appeal and his state petitions for
post-conviction relief were denied. He subsequently filed a
petition for writ of habeas corpus in the district court and now
appeals the district court’s denial of that petition.

Stanley asserts three grounds for relief. First, Stanley con-
tends that his Miranda1 rights were violated when officers
ignored his attempted invocation of those rights and continued
interrogating him until they secured a confession. Second,
Stanley posits that trial counsel rendered ineffective assis-
tance during the guilt phase of trial by failing to present read-
ily available evidence to support an insanity defense and a
lack of premeditation defense. Third, Stanley argues that trial
counsel rendered ineffective assistance during the penalty
phase of trial by failing to investigate and present readily
available mitigating evidence. It is the last ground that gives
us pause, as we take note of Justice O’Connor’s remarks in
2001 that prompted the New York Times to editorialize that
the “legal representation afforded most indigent defendants in
capital cases” is woefully inadequate. See Editorial, Justice
O’Connor on Executions, N.Y. Times, July 5, 2001, at A16.

Because we are convinced that defense counsel’s perfor-
mance did not prejudice Stanley during the guilt phase of the
trial, we AFFIRM the district court’s denial of Stanley’s
habeas petition as to the first two grounds. However, because
Stanley’s allegations raise serious questions and a colorable
1
See Miranda v. Arizona, 384 U.S. 436 (1966).
4152 STANLEY v. SCHRIRO
claim regarding the adequacy of counsel during the penalty
phase of the trial, we REVERSE and REMAND that portion
of the decision to allow the district court to conduct an evi-
dentiary hearing. We simply cannot in good conscience con-
tinue to send men to their deaths without ensuring that their
cases were not prejudiced by inadequate legal representation
at any phase of the proceedings.

I.

BACKGROUND

A. Stanley’s Interrogation and Confession

Stanley contacted the police on the evening of June 19,
1986, to report his wife and five-year-old daughter missing.
See State v. Stanley, 809 P.2d 944, 946 (Ariz. 1991). The next
afternoon, with the consent of both Stanley and his father,
officers searched the pair’s auto repair shop, where Stanley’s
wife’s sisters had reported discovering bloodstains and a spent
shell casing in the wife’s car. See id. at 946-47. While officers
searched the shop, Stanley was asked and agreed to accom-
pany Officer Saravo (an investigator) to his office at the
county building to be interviewed regarding the disappearance
of his wife and daughter. See id. at 947. Stanley was specifi-
cally informed that he was not under arrest and was not a sus-
pect.

Saravo initially approached the interview as a follow-up to
a missing persons report, asking questions to reconstruct the
family’s activities on the night of the disappearance. He also
asked questions to determine where they might have gone.
However, there were indications early in the hour-long inter-
view that Saravo suspected Stanley’s involvement.

Approximately fifteen minutes into the interview, Saravo
began to ask Stanley questions related to the officers’ discov-
ery of blood in his wife’s car. Approximately twenty minutes
 STANLEY v. SCHRIRO 4153
into the interview, Saravo turned to questions directed toward
Stanley’s use of his gun in connection with the car. Approxi-
mately twenty-five minutes into the interview, Saravo
increased the pressure, but still did not reveal his suspicions.
(“Can you tell me any reason why there would be blood on
the outside of your vehicle?”); (“Can you tell me any reason
why there would be blood on the inside of your vehicle?”); (“I
want to tell you right now that there is blood on the vehicle.”).

About thirty minutes into the interview, after advising Stan-
ley of his Miranda rights, Saravo sought permission to search
Stanley’s apartment, to which Stanley consented. Before read-
ing the Miranda warnings, Saravo assured Stanley, “You
weren’t under arrest and you’re not under arrest at this time
. . .” He explained that the rights were being read “just
because we’re going to ask you for a consent to search at this
point.” After reading Stanley his rights, Saravo again stated,
“you’re not under arrest at this time . . .”

Stanley granted consent to the search approximately thirty-
six minutes into the interview and was allowed to leave to get
a drink. When Stanley returned, Saravo began to point out the
holes he saw in the story Stanley had related. Finally, approxi-
mately forty-five minutes into the interview, Saravo con-
fronted Stanley with his suspicion: “Do you really think
somebody actually surprised you (sic) wife at the shop, took
your gun and put her in that car and took her out and killed
her and brought the car back?” After Stanley answered in the
affirmative, Saravo replied, “I don’t think that could have
happened,” and then continued, “I think if that happened, if
that in fact is what happened, that person almost had to have
been you.” When Saravo then asked Stanley who the perpe-
trator would have “had to have been,” Stanley answered,
“[m]e.” At that point Stanley said, “I think I better talk to a
lawyer. I don’t want to say any more.” After confirming that
Stanley did not wish to answer questions, Saravo indicated
that he was concluding the interview and stopped the record-
ing. He did not tell Stanley that he was free to leave.
4154 STANLEY v. SCHRIRO
After an unknown period of time elapsed, Saravo turned the
tape recorder back on. He purported to recognize Stanley’s
invocation of his rights (“You have requested to talk to an
attorney, you don’t have to talk to me.”), then confronted
Stanley with additional evidence and resumed questioning.
(“It appears now that very strongly that your wife has met
some foul play, understand?”); (“There’s nothing more that
you would like to do to locate your wife and child?”). At least
ten minutes passed with Stanley sobbing and Saravo coming
and going from the room before the tape ran out. Subse-
quently, Stanley apparently confessed to the killing.

Our colleague in dissent assiduously catalogs every heinous
detail of this gruesome crime. See Dissenting Opinion, p.
4177-79. There is no doubt that the facts of this case are
repulsive. But that is true for every case where the death pen-
alty is imposed. If the resolution of this case rested on the rel-
ative heinousness of the offense, we would have no quarrel
with our colleague in dissent. However, our charge is to look
at the merits of the legal issues raised rather than to focus on
the degree to which we are repulsed by the inevitably grisly
details of the case. Indeed, our precedent leaves no doubt that
the heinous nature of the underlying offense should not be the
determining factor. See Stankewitz v. Woodford, 365 F.3d
706, 723 (9th Cir. 2004) (holding that “counsel’s failure to
present mitigating evidence can be prejudicial even when the
defendant’s actions are egregious”); see also Douglas v.
Woodford, 316 F.3d 1079, 1091 (9th Cir. 2003) (“The grue-
some nature of the killing did not necessarily mean the death
penalty was unavoidable.” (citations omitted).

B. Admission of the Confession

In denying Stanley’s contention that his confession was
wrongfully admitted into evidence, “[t]he trial court deter-
mined there was neither a Miranda nor an Edwards [v. Ari-
zona, 451 U.S. 477 (1981)] violation because Stanley was not
in custody at the time of Saravo’s questioning.” Stanley, 809
 STANLEY v. SCHRIRO 4155
P.2d at 948. On direct appeal, the Arizona Supreme Court
agreed, stating that, “[w]hether one is in custody is deter-
mined objectively: Under the circumstances, would a reason-
able person feel deprived of his freedom of action? Factors
indicative of custody include: (1) whether the objective indi-
cia of arrest are present; (2) the site of the interrogation; (3)
the length and form of the investigation; and, (4) whether the
investigation had focused on the accused.” Id. (citations omit-
ted). Applying these factors, the court concluded that Stanley
was not in custody and, therefore, Miranda warnings were not
required. See id. On that basis, the court rejected Stanley’s
argument that, under Edwards, questioning should have
ceased when he attempted to invoke his Miranda rights. See
id. at 948-49.

C. Dissociative Reaction and Insanity

Following his confession, Stanley was arrested. The next
day he was seen by Dr. Hammitt, the jail psychiatrist. Among
other things, Stanley told Dr. Hammitt that at the time of the
killing “he experienced the sensation that he was watching
like he wasn’t even there.” “He told [Dr. Hammitt] that he
flew off the wall and shot them.”

The dissent represents that Dr. Hammitt “concluded that
Stanley was . . . not even remorseful.” Dissenting Opinion, p.
4179. This characterization considerably overstates Dr. Ham-
mitt’s report. As the dissent notes, Stanley “cried a great deal”
during the meeting with Dr. Hammitt, which observation is
somewhat inconsistent with a complete lack of remorse. In
fact, Dr. Hammitt described Stanley as “quite emotionally dis-
traught,” and “anguished, sobbing [and] unable to relate
appropriately.” In addition, Dr. Hammitt did not report that
Stanley lacked remorse. Her precise statements were that
“[n]othing [Stanley] said indicated to me any degree of
remorse per se” and that Stanley “never volunteered any com-
ments about remorse . . .” That is a far cry from a definitive
statement that Stanley lacked remorse.
4156 STANLEY v. SCHRIRO
Prior to trial, defense counsel sought to exclude the notes
regarding Dr. Hammitt’s interview of Stanley (the Hammitt
interview) on the basis of doctor-patient privilege. The court
granted the motion. Defense counsel did not provide informa-
tion regarding the Hammitt interview to the defense mental
health experts who evaluated Stanley.

Upon learning of this information after trial, the defense
experts declared that the information would have changed
their opinions regarding Stanley’s mental state at the time of
the killings. Had they been provided with the Hammitt inter-
view, both experts would have testified that Stanley most
likely suffered from a dissociative reaction at the time of the
killings, making it unlikely that he acted with premeditation.

II.

STANDARDS OF REVIEW

“We review de novo the district court’s denial of a petition
for a writ of habeas corpus.” Earp v. Ornoski, 431 F.3d 1158,
1166 (9th Cir. 2005), as amended (citation omitted). The dis-
trict court’s factual findings are reviewed for clear error. See
id. We review the district court’s determination that a peti-
tioner is not entitled to an evidentiary hearing for abuse of
discretion. See Schriro v. Landrigan, 127 S. Ct. 1933, 1939
(2007).

Under the Antiterrorism and Effective Death Pen-
alty Act of 1996 (AEDPA), . . . a federal court can
grant an application for a writ of habeas corpus on
behalf of a person held pursuant to a state-court
judgment if the state-court adjudication resulted in a
decision that was contrary to, or involved an unrea-
sonable application of, clearly established Federal
law, as determined by the Supreme Court of the
United States.
 STANLEY v. SCHRIRO 4157
Yarborough v. Alvarado, 541 U.S. 652, 655 (2004) (citation
and internal quotation marks omitted). “[C]learly established
law as determined by [the Supreme Court] refers to the hold-
ings, as opposed to the dicta, of [the Supreme Court’s] deci-
sions . . .” Id. at 660-61 (citation and internal quotation marks
omitted). “[Courts] look for the governing legal principle or
principles set forth by the Supreme Court at the time the state
court renders its decision.” Id. at 661 (citation and internal
quotation marks omitted).

The court may grant relief under the ‘unreasonable
application’ clause if the state court correctly identi-
fies the governing legal principle from [the Supreme
Court’s] decisions but unreasonably applies it to the
facts of the particular case. The focus of [this]
inquiry is on whether the state court’s application of
clearly established federal law is objectively unrea-
sonable, and [the Supreme Court] has stressed . . .
that an unreasonable application is different from an
incorrect one.

Bell v. Cone, 535 U.S. 685, 694 (2002) (citations omitted).

III.

DISCUSSION

A. Admission of Stanley’s Confession

To be entitled to relief based on an alleged violation of his
Miranda rights, Stanley must show that the state court’s deter-
mination that he was not in custody when he attempted to
invoke his right to silence and right to have an attorney pres-
ent during questioning either was contrary to, or involved an
unreasonable application of, clearly established federal law,
or was based on an unreasonable determination of the facts.
See 28 U.S.C. § 2254(d). Stanley has failed to make this
showing and, therefore, is not entitled to relief on this claim.
4158 STANLEY v. SCHRIRO
[1] Under clearly established federal law, Miranda warn-
ings are required “only where there has been such a restriction
on a person’s freedom as to render him ‘in custody.’ ” Stans-
bury v. California, 511 U.S. 318, 322 (1994) (citations omitted).2
The “ultimate inquiry” underlying the question of custody “is
simply whether there was a formal arrest or restraint on free-
dom of movement of the degree associated with a formal
arrest.” Id. (citation and alteration omitted). To answer this
question, the reviewing court looks to the totality of the cir-
cumstances, id. at 322, that might “affect[ ] how a reasonable
person in that position would perceive his or her freedom to
leave.” Id. at 325.

[2] On direct review, the Arizona Supreme Court identified
eight facts which, together, rendered Stanley’s interview non-
custodial.3 First, the investigation that led officers to question
Stanley was initiated by Stanley’s report that his wife and
daughter were missing. See Stanley, 809 P.2d at 948. Second,
the interview took place at the county building rather than the
police station. See id. Third, Stanley voluntarily agreed to the
interview. See id. Fourth, he was told that he was not under
arrest and was not a suspect. See id. Fifth, he was not dis-
armed of his hunting knife. See id. Sixth, the investigation
was focused “on a search for missing persons . . ., not on a
homicide.” Id. Seventh, during the interview Stanley left the
office, unaccompanied, to get something to drink and use the
restroom. See id. Eighth, there was no display of weapons by
police, and no use of physical force or threatening language.
See id.

Stanley contends that the state court failed to address the
2
Although Stansbury was decided after the Arizona Supreme Court’s
1991 decision in State v. Stanley, the principles it discusses were clearly
established federal law based on Supreme Court decisions announced
prior to 1991. See Stansbury, 511 U.S. at 322-25.
3
On habeas review we examine the last reasoned decision from the state
courts. See Mejia v. Garcia, 534 F.3d 1036, 1042 (9th Cir. 2008).
 STANLEY v. SCHRIRO 4159
increasingly accusatory nature of the questioning to which he
was subjected. This argument lacks merit. An officer’s
expressed suspicions may be relevant to the issue of custody.
See Stansbury, 511 U.S. at 325. However,

[e]ven a clear statement from an officer that the per-
son under interrogation is a prime suspect is not, in
itself, dispositive of the custody issue, for some sus-
pects are free to come and go until the police decide
to make an arrest. . . . In sum, an officer’s . . . beliefs
concerning the potential culpability of the individual
being questioned, may be one among many factors
that bear upon the assessment whether that individ-
ual was in custody, but only if the officer’s views or
beliefs were somehow manifested to the individual
under interrogation and would have affected how a
reasonable person in that position would perceive his
or her freedom to leave.

Id. (emphasis added).

[3] Although it is somewhat troubling that the court failed
to explicitly address the accusatory nature of Saravo’s ques-
tioning, the omission does not render the court’s application
of federal law unreasonable. In the context of determining
whether a state court has reasonably applied clearly estab-
lished federal law to reach its determination, “the range of
reasonable judgment can depend in part on the nature of the
relevant rule.” Yarborough, 541 U.S. at 664. “The custody
test is general,” id. at 665, and “[t]he more general the rule,
the more leeway courts have in reaching outcomes in case-by-
case determinations.” Id. at 664 (citation omitted); see also
Oregon v. Mathiason, 429 U.S. 492, 494-95 (1977) (per
curiam) (holding that a suspect was not in custody despite
being informed that he was a suspect and confronted with fab-
ricated evidence linking him to the crime). Because the state
court delineated and weighed factors comparable to those the
Supreme Court has considered, cf. Yarborough, 541 U.S. at
4160 STANLEY v. SCHRIRO
664, we conclude that the Arizona Supreme Court reasonably
applied federal law in determining that Stanley was not in
custody when he confessed.

B. Ineffective Assistance of Counsel: Guilt Phase

[4] To establish a violation of his Sixth Amendment right
to effective assistance of counsel, Stanley must show that (1)
counsel’s performance fell below an “objective standard of
reasonableness” and (2) he was prejudiced by this deficient
performance. Strickland v. Washington, 466 U.S. 668, 687-88
(1984). If we conclude that the petitioner fails to satisfy one
of the Strickland prongs, we need not address the other. See
id. at 697. Because Stanley failed to demonstrate that he was
prejudiced by trial counsel’s alleged shortcomings, he is not
entitled to relief.

[5] To establish prejudice, Stanley “must show that there
is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probabil-
ity sufficient to undermine confidence in the outcome.” Id.
(emphasis added). Where, as here, there is a contention that
trial counsel’s performance was deficient due to failure to
present evidence to support a defense, there must be a reason-
able probability that the omitted evidence would have raised
a reasonable doubt in jurors’ minds as to guilt. See id. at 695.

[6] Stanley contends that he was prejudiced by counsel’s
failure to present evidence revealed in the Hammitt interview
to his experts. According to Stanley, the experts could then
explain the significance of that interview to the jury to estab-
lish an insanity or diminished capacity defense. However,
Arizona law bars the admission of expert testimony regarding
the mental state of the defendant at the time of the offense.
See State v. Mott, 931 P.2d 1046, 1050 (Ariz. 1997). As a
result, Arizona courts have “consistently refused to allow psy-
chiatric testimony to negate specific intent.” Id. at 1051 (cita-
 STANLEY v. SCHRIRO 4161
tions omitted). “Arizona does not allow evidence of a
defendant’s mental disorder short of insanity either as an
affirmative defense or to negate the mens rea element of a
crime.” Id.; see also Clark v. Arizona, 548 U.S. 735, 756, 779
(2006) (holding that exclusion of expert testimony regarding
diminished capacity does not violate due process). This is a
longstanding rule in Arizona. See Mott, 931 P.2d at 1050.

[7] Much of the proffered testimony upon which Stanley
relies falls within the scope of Arizona’s bar. For example,
Dr. Bindelglas, one of the expert witnesses, stated in an affi-
davit:

Without regard to whether Stanley was insane under
the requirements of Arizona law at the time the
shooting of his wife and daughter occurred, there
was a very real issue as to whether Stanley could
premeditate his actions if they occurred during a Dis-
sociative Reaction . . . . Had I been asked, I would
have testified that a Dissociative Reaction is a spon-
taneous, involuntary event and so there were very
substantial doubts that Stanley premeditated his
actions, regardless of whether he met the legal test
for insanity in Arizona.

Dr. Bindelglas declared that access to the Hammitt inter-
view would have provided corroboration for his conclusion
that Stanley had suffered a dissociative reaction. Similarly,
another expert witness, Dr. Garcia-Bunuel, stated in an affida-
vit that the Hammitt interview generated an “opinion that at
the time of the killing of his wife and daughter, it is highly
probable that Mr. Stanley was suffering from a Dissociative
Reaction.”

[8] Expert testimony that Stanley suffered a dissociative
reaction at the time of the killing would not have been admis-
sible to challenge premeditation. See Mott, 931 P.2d at 1051
(“Arizona does not allow evidence of a defendant’s mental
4162 STANLEY v. SCHRIRO
disorder short of insanity either as an affirmative defense or
to negate the mens rea element of a crime.”). No prejudice is
suffered when counsel declines to pursue the development of
testimony that would be inadmissible at trial. See Wilson v.
Henry, 185 F.3d 986, 990 (9th Cir. 1999).

Stanley attempts to re-frame the issue to avoid Arizona law
limiting the admissibility of expert testimony on the issue of
premeditation by describing the testimony as addressing
“character traits.” An expert witness may testify as to “a per-
son’s continuing general personality trait” (e.g., general ten-
dency to act without reflection), but may not testify as to “a
person’s probable state of mind at the time of the offense.”
State v. Ortiz, 764 P.2d 13, 18 (Ariz. 1988) (citation omitted).
Stanley’s reliance on this proposition is misplaced because the
testimony of Drs. Bindelglas and Garcia-Bunuel would not be
that Stanley had a “character trait of impulsivity,” as argued
by Stanley. Rather, Dr. Bindelglas would have testified that
“a Dissociative Reaction is a spontaneous, involuntary event
and so there were very substantial doubts that Stanley pre-
meditated his actions, regardless of whether he met the legal
test for insanity in Arizona.” This testimony directly conflicts
with Arizona’s limitation on expert testimony. See id. at 18
(“An expert witness may not testify specifically as to whether
a defendant was or was not acting reflectively at the time of
a killing.”) (citation, alteration and emphasis omitted). Like-
wise, Dr. Garcia-Bunuel’s testimony would have focused
impermissibly on the likelihood of a dissociative reaction “at
the time of the killing of his wife and daughter.”

In his subsequent declaration, in addition to opining that
Stanley likely suffered a dissociative reaction, Dr. Garcia-
Bunuel stated his “further opinion that as a result of [his Dis-
sociative Reaction], it is highly probable that Stanley met the
criteria for the M’Naughten standard of insanity.” Testimony
to this effect would not have been barred, as Arizona allows
expert testimony that a defendant meets the legal definition of
insanity. See Mott, 931 P.2d at 1051. However, we conclude
 STANLEY v. SCHRIRO 4163
that the absence of testimony to this effect did not prejudice
Stanley due to the overwhelming evidence that he was sane.
Indeed, two of the other experts who testified at trial
expressly disagreed with Dr. Garcia-Bunuel on this point.

[9] Finally, despite the fact that trial counsel successfully
petitioned the court to exclude Dr. Hammitt’s interview from
admission into evidence, Stanley argues now that Dr. Ham-
mitt’s interview should have been offered into evidence.
Although observation evidence offered by an expert is admis-
sible to rebut the prosecution’s evidence of mens rea, see
Clark, 548 U.S. at 760, 765 n.34,4 we conclude that Stanley
was not prejudiced by trial counsel’s failure to introduce the
Hammitt interview into evidence. It is true that Dr. Hammitt
made statements that could support a lack-of-premeditation
defense. For example, she described Stanley as “quite emo-
tionally distraught,” “anguished, sobbing, [and] unable to
relate appropriately.” However, it is unlikely that Dr. Ham-
mitt’s observation evidence would have overcome the sub-
stantial evidence of premeditation presented at trial.5

[10] The district court specifically referenced the particu-
lars of the shootings (“evidence of similarly-placed contact
4
It would have been appropriate for Dr. Hammitt to offer observation
evidence because she interviewed Stanley shortly after the murders were
committed. See State v. Wright, 155 P.3d 1064, 1068 (Ariz. Ct. App.
2007) (noting that “[o]bservation evidence includes evidence of a defen-
dant’s behavior, statements, and expressions of belief around the time of
the offense.”) (citation omitted) (emphasis added).
5
Premeditation requires a showing of actual reflection prior to the kill-
ing; the decision to kill must “be more than just a snap decision made in
the heat of passion.” State v. Thompson, 65 P.3d 420, 427 (Ariz. 2003).
Premeditation may be proved through either direct or circumstantial evi-
dence. See id. at 428. However, it is usually proved by circumstantial evi-
dence. See id. “[T]he time needed for reflection is not necessarily
prolonged, and the space of time between the intent [knowledge] to kill
and the act of killing may be very short. It is the act of premeditation and
not the length of time available that determines the question.” Id. at 428-
29 (internal quotation marks omitted).
4164 STANLEY v. SCHRIRO
wounds”), the testimony of Officer Wright, and Stanley’s
conduct after the shootings, as evidence “present[ing] chal-
lenges to a defense based on absence of premeditation.” At
trial, there was evidence that Stanley’s wife was shot three
times: once to the top of her head, with the barrel of the gun
pressed against her skull; once in the upper lip, from a dis-
tance of less than one foot; and once behind the ear, from a
distance of three or more feet. The evidence also indicated
that his daughter was shot once: to the top of the head, with
the barrel of the gun pressed against her skull. Officer Wright
testified that Stanley said he shot his daughter “because she
had seen what he had done.” This evidence is sufficient to
show a lack of prejudice to Stanley because the Hammitt
interview would not have changed the outcome given the evi-
dence of premeditation.

C. Ineffective Assistance of Counsel: Sentencing Phase

Stanley asserts that trial counsel was ineffective during the
sentencing phase because he “failed to offer the wealth of mit-
igating evidence that was at his disposal.” There appear to be
two parts to this argument. First, Stanley contends that coun-
sel failed to “call a single mental health expert to testify at
sentencing, despite the fact that all of the experts . . . agreed
that Stanley’s mental capacities were impaired at the time of
the crime,” and failed to offer testimony “regarding Stanley’s
mental health, his low IQ, or to explain, from a scientific
standpoint, how the drug and alcohol abuse could have
affected his actions on the night of the crime.”6 Second, Stan-
ley argues that trial counsel’s failure to investigate the signifi-
cance of the Hammitt interview or provide that information to
the mental health experts constituted ineffective assistance of
counsel.
6
Despite Stanley’s argument on appeal, in the district court he confined
his challenge to counsel’s failure to offer the testimony of experts regard-
ing his impairment due to substance abuse at the time of the offense. We
limit our review to the issue raised in the district court. See Gallego v.
McDaniel, 124 F.3d 1065, 1072 n.7 (9th Cir. 1997).
 STANLEY v. SCHRIRO 4165
During the guilt phase, the experts’ testimony focused on
whether Stanley satisfied the legal standard of insanity, not on
the broader effects of his substance abuse. Specifically, in his
report to the court, Dr. Garcia-Bunuel stated that, “[h]ad
[Stanley] not been under the influence of a combination of
alcohol, marijuana and cocaine, the alleged crimes would not
have been committed in that his ability to conform his con-
duct to the requirements of the law would have been very
seriously impaired.” At trial, Dr. Garcia-Bunuel testified that,
“Defendant at the time of the commission of the alleged
offense was under the influence of alcohol, marijuana,
cocaine. He was not psychiatrically ill . . . [and] was able to
appreciate the difference between right and wrong as applied
to his actions.” Similarly, Dr. Bindelglas concluded in his
report to the court that, “[a]t the time of the offense . . . the
defendant’s ability to think clearly, reflect on the conse-
quences of his actions and to control his activity were signifi-
cantly impaired.” Neither expert testified regarding the
cumulative effect of substance abuse on Stanley. But while
the expert testimony during the guilt phase was clearly limited
in its scope, Stanley provides no evidence to suggest what
additional testimony would have been given by the experts if
called during the sentencing phase to explain the cumulative
effects of Stanley’s chronic substance abuse.

[11] Stanley argued in his state petition for post-conviction
relief that trial counsel rendered ineffective assistance by fail-
ing to call mental health experts during the sentencing phase
of trial. However, the state court did not address this issue.

[12] “[W]hen it is clear that a state court has not reached
the merits of a properly raised issue, we must review it de
novo.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)
(citations and footnote reference omitted). Nevertheless,
because Stanley failed to present evidence to support his con-
tention, other than the evidence presented at trial, he has
failed to establish that counsel rendered ineffective assistance
in failing to present evidence to explain the cumulative effects
4166 STANLEY v. SCHRIRO
of Stanley’s chronic substance abuse. See Cox v. Del Papa,
542 F.3d 669, 681 (9th Cir. 2008) (“Without any specification
of the mitigating evidence that counsel failed to unearth, [the
petitioner’s] claim must fail.”) (citation omitted).

[13] Stanley has a stronger argument regarding use of the
Hammitt interview as mitigation evidence during the sentenc-
ing phase. We pause for a moment to note our dissenting col-
league’s disturbing argument that the passage of time should
somehow militate against habeas relief. See Dissenting Opin-
ion, pp. 4175-76. Indeed, Stanley has met all deadlines in fil-
ing for post-conviction relief, including the restrictive
AEDPA deadlines. After the Arizona Supreme Court affirmed
Stanley’s conviction in 1991, Stanley filed a preliminary peti-
tion for post-conviction relief in the trial court. The trial court
took nearly five years to deny the petition even though it did
not hold a hearing. Less than three weeks after the Arizona
Supreme Court’s denial of Stanley’s state petition, Stanley
filed his federal habeas petition. The district court took more
than eight years to deny the petition. Stanley then promptly
appealed to the Ninth Circuit. For the dissent to suggest that
the lengthy process, none of it due to a lack of diligence on
Stanley’s part, is reason to deny him an evidentiary hearing
violates every sense of fairness and justice. Moreover, the
increasing frequency with which innocent people have been
vindicated after years of imprisonment counsels a different
approach. See Samuel R. Gross et al., Exonerations in the
United States 1989 through 2003, 95 J. CRIM. L. &
CRIMINOLOGY 523, 523-24 (2004) (noting that from 1989
through 2003 exonerated individuals “spent more than 3,400
years in prison for crimes for which they should never have
been convicted . . .”). We note this phenomenon, not to imply
that Stanley is innocent, but to emphasize that it is never too
late to correct an injustice.

[14] We also point out that because the district court
addressed whether an evidentiary hearing was warranted, that
issue is squarely presented on appeal. See Sechrest v. Ignacio,
 STANLEY v. SCHRIRO 4167
549 F.3d 789, 810 n.10 (9th Cir. 2008). Finally, it is important
to keep in mind that our decision in no way affects Stanley’s
conviction, and it may not affect his sentence. All this deci-
sion does is give Stanley the opportunity to establish whether
his counsel’s failure to fully inform the defense mental health
experts undermines confidence in the sentence of death
imposed. See Strickland, 466 U.S. at 694.

[15] On post-conviction review, the Superior Court of the
State of Arizona held that trial counsel’s decision to withhold
the Hammitt interview was a reasonable tactical decision
because “the possible harm to the defense which could be
caused by use of Dr. Hammitt’s interview outweighed the
possible benefits the use of the interview might produce.”7
State v. Stanley, No. CR 11909, at 7 (Ariz. Super. Ct. May 19,
1997). The court concluded that, “with regard to the issue of
sentencing, Dr. Hammitt’s interview could have undermined
the claim of a disassociative (sic) reaction . . .” Id. Without
holding an evidentiary hearing or making any findings regard-
ing the investigation underlying trial counsel’s decision, the
court found that “[Stanley’s] determination not to waive the
physician-client privilege was a matter of reasoned trial strat-
egy and does not present a colorable claim that trial counsel
was ineffective for failing to do so.” Id.

[16] Where a petitioner has not failed to develop the fac-
tual basis of his claim in State court, as required by 28 U.S.C.
§ 2254(e)(2), an evidentiary hearing on a habeas corpus peti-
tion is required where the petitioner’s allegations, if true,
would entitle him to relief, and the petitioner has satisfied the
requirements of Townsend v. Sain, 372 U.S. 293 (1963). See
Insyxiengmay v. Morgan, 403 F.3d 657, 670 & n.6 (9th Cir.
2005). A petitioner who has previously sought and been
denied an evidentiary hearing has not failed to develop the
7
The Superior Court rejected his claim on the merits, and the Arizona
Supreme Court summarily denied review. Thus, the Superior Court’s deci-
sion is the last reasoned decision of the state courts.
4168 STANLEY v. SCHRIRO
factual basis of his claim and therefore satisfies § 2254(e)(2).8
See Estrada v. Schribner, 512 F.3d 1227, 1235 n.7 (9th Cir.
2008). Under Townsend, an evidentiary hearing is justified
where, as here, “the material facts were not adequately devel-
oped at the state-court hearing.” 372 U.S. at 313. Therefore,
Stanley is entitled to an evidentiary hearing on his ineffective
assistance claim if his allegations, if proved, would entitle
him to federal habeas relief. See Insyxiengmay, 403 F.3d at
670. The standard we apply to determine whether the alleged
facts would entitle Stanley to relief is the deferential standard
of 28 U.S.C. § 2254. See Estrada, 512 F.3d at 1235.

[17] “It is imperative that all relevant mitigating informa-
tion be unearthed for consideration at the capital sentencing
phase.” Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir.
1999), as amended. The emphasis of the sentencing phase of
trial is different than that of the guilt phase. See id. (“The
determination of whether to impose a death sentence is not an
ordinary legal determination which turns on the establishment
of hard facts.”) (citation omitted); see also Wallace v. Stewart,
184 F.3d 1112, 1117 n.5 (9th Cir. 1999) (“[T]he lawyer’s bur-
den might differ at the guilt phase from that at the penalty
phase . . .”). Even where the sentencer is aware of facts under-
lying the defendant’s mitigation case, trial counsel may not
necessarily rest on these facts. See Caro, 165 F.3d at 1227
(clarifying that although the jury had information regarding
the defendant’s background, it did not “have the benefit of
expert testimony to explain the ramifications of [this back-
ground] on Caro’s behavior”).

[18] Even if expert testimony regarding Stanley’s mental
state at the time of the crime would not have been admissible
to challenge premeditation, as discussed above, it would have
been admissible and highly relevant at sentencing. Evidence
that might not rise to the level of defense of a crime may
8
In his state petition for post-conviction relief, Stanley sought an evi-
dentiary hearing. His petition was denied without a hearing.
 STANLEY v. SCHRIRO 4169
nonetheless be important mitigating evidence. See Frierson v.
Woodford, 463 F.3d 982, 993-94 & n.12 (9th Cir. 2006).

[19] In Wallace, we held that trial counsel has an affirma-
tive duty to provide mental health experts with all information
relevant to the formulation of their conclusions. See Wallace,
184 F.3d at 1117. “A lawyer who knows of but does not
inform his expert witnesses about essential pieces of informa-
tion going to the heart of the case for mitigation does not
function as ‘counsel’ under the Sixth Amendment.” Id. (cita-
tion and alteration omitted). Although trial counsel’s lack of
effectiveness was not prejudicial at the guilt phase, during
sentencing, “where mitigation evidence may well be the key
to avoiding the death penalty,” our analysis differs. Id. (cita-
tion omitted). Indeed, if the district court were persuaded that
rather than being a cold-blooded murderer, Stanley “snapped”
and killed his wife and daughter, it is not at all unlikely that
he could have avoided a death sentence. See, e.g., State v.
Carlson, 48 P.3d 1180, 1197-98 (Ariz. 2002) (en banc)
(reducing a death penalty to life in prison without the possibil-
ity of parole based upon mitigating circumstances). As in
Wallace, we conclude that Stanley “has made out a prima
facie case” of ineffective assistance of counsel. See Wallace,
184 F.3d at 1118.

In the dissent’s view “all that we are talking about” is sup-
plementation of the defense experts’ “testimony with Stan-
ley’s remark that ‘he felt like he was watching’ and like he
wasn’t really there.’ ” Dissenting Opinion, p. 4183. We beg
to differ. Both defense experts agreed that the information
regarding Stanley’s apparent dissociative state would have
completely changed their testimony in Stanley’s favor and
would have permitted a credible argument against the alleged
depravity that is so prominent in our dissenting colleague’s
discussion.

To warrant habeas relief, Stanley is also required to demon-
strate that he was prejudiced by counsel’s failing. See Strick-
4170 STANLEY v. SCHRIRO
land, 466 U.S. at 687. Prejudice is established by a showing
“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. Stanley need only show “a proba-
bility sufficient to undermine confidence in the outcome.” Id.
“In assessing prejudice, we reweigh the evidence in aggrava-
tion against the totality of available mitigating evidence.”
Stankewitz v. Woodford, 365 F.3d 706, 723 (9th Cir. 2004)
(citations omitted).

Stanley’s death sentence was based on the following aggra-
vating circumstances: (1) Stanley was convicted of one other
homicide in connection with the killing of his daughter; (2) at
the time of the murder, Stanley was an adult and his daughter
was under 15 years of age; and (3) Stanley committed the
murder of his daughter in a depraved manner. These were bal-
anced against the following mitigating circumstances: (1)
Stanley had no prior felony record; (2) he “was an adequate
family man;” (3) he made attempts to address his drug and
alcohol problems; (4) “he had exhibited very little violent
behavior or spousal abuse;” and (5) he was “remorseful for
his crimes.” Stanley, 809 P.2d at 954. The court considered
and rejected Stanley’s assertion that “his capacity to appreci-
ate the wrongfulness of his conduct or his ability to conform
his conduct to the requirements of the law” was “significantly
impaired” at the time of the killings. Id. at 956.

[20] The statements of Drs. Bindelglas and Garcia-Bunuel
undermine confidence in the state court’s balancing. First,
they introduce additional residual doubt regarding Stanley’s
culpability for both killings by casting additional doubt on his
premeditation. They also weigh against the court’s finding
that Stanley killed his daughter in a depraved manner, because
they suggest that he was not in control at the time of the kill-
ings. In relation to the finding of depravity, a dissociative
reaction would explain how Stanley could have been so inten-
tional about concealing his wrongdoing after the killing, yet
not have been intentional about the killing itself. Most signifi-
 STANLEY v. SCHRIRO 4171
cantly, with the support of the Hammitt interview, the state-
ment of the experts would have supported a finding that
Stanley could not “conform his conduct to the requirements
of the law.” Therefore, we conclude that, if proved, Stanley’s
allegation would establish that he was prejudiced by trial
counsel’s failure to investigate and develop a mitigation case
based on the Hammitt interview.

[21] We cannot agree with our dissenting colleague that
defense counsel’s failure to inform the mental health experts
of Stanley’s statements to Dr. Hammitt was a reasonable tacti-
cal decision at the sentencing phase of the trial. It was entirely
reasonable to keep this evidence out at the guilt phase because
Stanley was still challenging the admissibility of his confes-
sion and testimony regarding his statements to Dr. Hammitt
would have established an independent admission of guilt.
However, that consideration evaporated once Stanley was
convicted. Moreover, because the admission of expert testi-
mony regarding the mental state of the defendant at the time
of the offense is barred in Arizona, any attempt to introduce
the expert testimony during the guilt phase would have been
futile. Just the opposite was true for the sentencing phase.
That was the time for defense counsel to muster all available
mitigation evidence. Testimony from the defense experts
would have countered Dr. Hammitt’s testimony on a two-to-
one basis and explained how Stanley could have acted in such
a depraved manner at the time of the killings.

[22] Because Stanley’s allegation supported by expert tes-
timony would entitle him to federal habeas relief, the district
court abused its discretion in denying his petition without an
evidentiary hearing. See Wallace, 184 F.3d at 1118 (remand-
ing for an evidentiary hearing under similar circumstances).

IV.

CONCLUSION

[23] For the foregoing reasons, we AFFIRM the district
court’s denial of the petition for a writ of habeas corpus as to
4172 STANLEY v. SCHRIRO
the Miranda claim and as to the claim of ineffective assis-
tance during the guilt phase, and REVERSE the district
court’s denial as to the claim of ineffective assistance during
the sentencing phase. We REMAND for an evidentiary hear-
ing on that claim. In so doing, we express no opinion as to the
ultimate merits of Stanley’s petition.

AFFIRMED in part, REVERSED in part, and
REMANDED.

B. FLETCHER, Circuit Judge, concurring:

I concur in the majority opinion affirming the district
court’s denial of the Miranda claim and the claim of ineffec-
tive assistance during the guilt phase, and its reversal of the
district court’s denial of the claim of ineffective assistance
during the sentencing phase. I also concur in remanding for
an evidentiary hearing on that claim.

I write separately because I find an additional ground for
reversal of the district court’s denial of the ineffective assis-
tance claim during the sentencing phase. Stanley has alleged
a colorable claim of ineffective assistance for the failure to
call mental health experts during sentencing. He argues that
competent counsel would have called mental health experts to
testify to two types of evidence: “Stanley’s mental health, his
low IQ . . . [and] how the drug and alcohol abuse could have
affected his actions on the night of the crime.” Such evidence,
properly presented, has a “reasonable probability” of affecting
the outcome of the sentencing proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Thus, I would expand
the scope of the evidentiary hearing on remand to include
whether Stanley’s constitutional right to effective assistance
of counsel was violated by his lawyer’s failure to call any
mental health experts at sentencing.
 STANLEY v. SCHRIRO 4173
The majority does not include this aspect of Stanley’s
appeal in its reversal for two reasons, each of which I will
address in turn. First, the majority refuses to consider trial
counsel’s failure to present expert testimony on Stanley’s gen-
eral mental capacity because “in the district court he confined
his challenge to counsel’s failure to offer the testimony of
experts regarding his impairment due to substance abuse at
the time of the offense. We limit our review to the issue raised
in the district court.” Majority Op. 4164, n.6, citing Gallego
v. McDaniel, 124 F.3d 1065, 1072 n.7 (9th Cir. 1997). But it
was adequately raised. Stanley argued to the district court that
his lawyers were ineffective in pursuing mitigation based on
mental capacity. His Petition for Writ of Habeas Corpus
stated that,

In the sentencing hearing, trial counsel failed to call
any of the mental health experts as witnesses. Fur-
thermore, he failed cite [sic] the above conclusions
of the experts in the sentencing hearing or argue that
their reports established the existence of a statutory
mitigating circumstance pursuant to ARS § 13-
703(G)(1).

ARS § 13-703(G)(1) is not specific to drug abuse evidence,
but pertains to mental incapacity in general: “The defendant’s
capacity to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of law was signifi-
cantly impaired, but not so impaired as to constitute a defense
to prosecution.” The essence of Stanley’s argument on appeal
is that his lawyers should have presented the available evi-
dence of impaired capacity, evidence of his low IQ, the head
trauma he suffered as a child, and his chronic substance abuse
from an early age. It is true that in his Petition to the district
court, Stanley referred specifically to his lawyer’s failure to
present the mental health experts’ conclusions regarding his
substance abuse. However, the underlying claim — ineffec-
tive assistance based on failure to present expert witness testi-
mony on impaired capacity (ARS § 13-703(G)(1)) — includes
4174 STANLEY v. SCHRIRO
more than just that one type of evidence, and was raised in the
district court.

Moreover, even if I were to accept the majority’s view on
this issue, I would still find that justice requires us to include
it in our review. Waiver, after all, is not a jurisdictional limita-
tion, and we retain discretion to consider issues for the first
time on appeal. See, e.g., Myers v. Merrill Lynch & Co., 249
F.3d 1087, 1088 (9th Cir. 2001); Telco Leasing, Inc. v. Trans-
western Title Co., 630 F.2d 691, 693 (9th Cir. 1980). The
state was not prejudiced in its ability to respond to this issue
and vigorously argued it on appeal.

Second, the majority rejects Stanley’s claim of ineffective
assistance for failure to present evidence to explain the cumu-
lative effects of Stanley’s chronic substance abuse, because
“he has failed to present evidence to support his contention,
other than the evidence presented at trial.” Majority Op. 4165,
citing Cox v. Del Papa, 542 F.3d 669, 681 (9th Cir. 2008)
(“Without any specification of the mitigating evidence that
counsel failed to unearth, [the petitioner’s] claim must fail.”)
(citation omitted). I disagree. Stanley has argued that his
counsel provided ineffective assistance at sentencing because,
“[a]lthough a few witnesses did testify very briefly about drug
use, there was no testimony . . . to explain, from a scientific
standpoint, how the drug and alcohol abuse could have
affected his actions on the night of the crime.” That is enough
suggestion of “what additional testimony would have been
given by the experts” to make out a colorable claim of preju-
dice and to entitle Stanley to a hearing on the matter. Majority
Op. 4165. See Caro v. Calderon, 165 F.3d 1223, 1227 (9th
Cir. 1999) (as amended) (finding that although the jury had
information on defendant’s background, it did not “have the
benefit of expert testimony to explain the ramifications of
[this background] on Caro’s behavior”); Frierson v. Wood-
ford, 463 F.3d 982, 994 (9th Cir. 2006) (“The district court
misapprehended the different purposes for the drug evidence
at each phase of trial. Evidence of a history of chronic drug
 STANLEY v. SCHRIRO 4175
abuse may not have been sufficient to demonstrate that
[defendant] lacked the requisite mental state for the crime, but
the extent of [defendant’s] drug use from an early age was an
important mitigating factor that the jury did not have an
opportunity to consider.”)

Therefore, while I concur in the majority opinion, I am
compelled to set out these additional reasons for reversing the
district court and remanding for an evidentiary hearing.

KLEINFELD, Circuit Judge, concurring in part and dissent-
ing in part:

I concur in the majority’s rejection of Stanley’s claims that
his confession was inadmissible, and that his lawyer rendered
ineffective assistance in the guilt phase of his trial. I respect-
fully dissent from the majority’s decision that Stanley is enti-
tled to an evidentiary hearing on whether his lawyer rendered
ineffective assistance in the penalty phase.

Federal evidentiary hearings on state habeas petitions are
limited and discretionary.1 This case shows one reason why.
Murderers sentenced to death typically outlive many of the
other participants at trial. Stanley murdered his wife and
daughter in 1986 and the evidentiary hearing would take
place, probably, in 2010, almost a quarter century later.
Because the issue would be whether his lawyer rendered inef-
fective assistance, the focus would be on asking his lawyer
what he did, what he did not do, and why he acted or
refrained from acting as he did. That cannot happen, because
Stanley’s lawyer is dead. There is nothing unusual about a
lawyer of the level of experience adequate to defend death
penalty cases dying in the quarter century following trial, nor
is there anything unusual about the decades between trial and
1
Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
4176 STANLEY v. SCHRIRO
a favorable appellate decision in a § 2254 habeas case.2 If the
lawyers are still alive, it is a stretch to pretend that they
remember everything, even if they have retained their ancient
notes. And in this case, even if he were alive, the lawyer’s
responses could not justify relief.3

In this case, Stanley did not even ask the district court to
hold an evidentiary hearing on his claim. He had asked for
one in state court, so no doubt made a considered decision not
to request one in federal court, perhaps because he had no
2
See, e.g., Sechrest v. Ignacio, 549 F.3d 789 (9th Cir. 2008) (twenty-
five years passed between state court conviction and grant of federal
habeas relief); Frierson v. Woodford, 463 F.3d 982, 985 (9th Cir. 2006)
(twenty-eight years passed between state court conviction and grant of
federal habeas relief); Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006)
(eighteen years passed between state court conviction and grant of federal
habeas relief), rev’d, 550 U.S. 465 (2007).
3
The majority finds my comment about the passage of time “disturbing”
because of “the increasing frequency with which innocent people have
been vindicated after years of imprisonment.” See Majority Opinion at
4166. I can think of few tasks more important than freeing innocent people
who have been wrongly imprisoned. Stanley does not claim to be among
the innocent. The majority does not suggest any possibility that he is inno-
cent.
The delay matters here because the only issue is what may seem to be
an unspoken rule in our circuit that anyone sentenced to death had ineffec-
tive assistance of counsel during the sentencing phase of his trial or at
least needs an evidentiary hearing decades after sentencing to find out.
See, e.g., Pinholster v. Ayers, 590 F.3d 651 (9th Cir. 2009) (en banc); Bel-
montes v. Ayers, 529 F.3d 834 (9th Cir. 2008), reversed, Wong v. Bel-
montes, 130 S.Ct. 383 (2009); Landrigan v. Schriro, 441 F.3d 638 (2006),
reversed, Schriro v. Landrigan, 550 U.S. 456 (2007). My colleagues and
I share a concern with getting accurate results from the courts to avoid
wrongful imprisonment of the innocent. We also ought to share a concern
with getting accurate and reliable results on whether lawyers rendered
ineffective assistance, a task best accomplished when the lawyers who
rendered the assistance are alive to explain what they did and why they did
it. I do not suggest that the delay is Stanley’s fault. My point is that the
decades preceding an evidentiary hearing on what his lawyer did and why
make the hearing unreliable where the lawyer cannot testify because he is
dead.
 STANLEY v. SCHRIRO 4177
useful evidence to present. The district court nevertheless
considered granting such a hearing, and concluded “after
reviewing the record, that none of Petitioner’s claims warrants
evidentiary development because the allegations, even if true,
do not entitle Petitioner to habeas relief.”4 Yet somehow the
majority concludes that the district court abused his discretion
by not giving Stanley a hearing he did not ask for, and was
not entitled to receive, at which findings would not entitle
Stanley to relief. That is our error, not the district court’s.5

Facts

Stanley took his wife and two children for a ride, and mur-
dered his wife and older child. He shot his wife dead with
three shots, one to the left side of her head, one under her lips,
one through the top of her head, with the muzzle planted on
her skull.

And he murdered his five year old daughter. He put the
muzzle of the gun on the top of her skull and pulled the trig-
ger. The forensic pathologist testified that the shots Stanley
fired through the tops of his wife’s and his daughter’s skulls
were contact wounds, that is, the muzzle was touching their
skulls.6
4
Stanley v. Schriro, No. CV-98-0430, 2006 WL 2816541, at *33 (D.
Ariz. Sept. 27, 2006).
5
See Landrigan, 550 U.S. at 481 (reversing the Ninth Circuit and hold-
ing that a district court did not abuse its discretion in refusing to grant an
evidentiary hearing to death row inmate where it determined that, even
assuming the truth of all facts respondent sought to prove at the hearing,
respondent was not entitled to federal habeas relief because the evidence
respondent sought to introduce would not have changed the result).
6
The majority opinion suggests that the heinous details of the two mur-
ders are immaterial to the merits of the legal issues. That argument is mis-
taken. The heinous details were why the judge sentenced Stanley to death.
Our critical question is whether the trial judge would have sentenced Stan-
ley to death if at the penalty phase the trial judge had heard Stanley’s
statements to Dr. Hammitt, as well as the opinion from two doctors,
4178 STANLEY v. SCHRIRO
Significantly, Stanley spared the baby. His eleven month
old son was sitting next to his daughter, but Stanley did not
shoot this child. The reason why affected his death sentence.
Stanley shot his daughter because she otherwise might have
testified against him, and spared his baby because the baby
could not testify against him.

After he killed them, Stanley dumped his wife’s and daugh-
ter’s corpses by pulling over to the side of the road, carrying
each body to the edge, and dumping it. Then he drove home,
showered with his clothes on to wash out the blood, and drove
his car to his father’s repair shop to clean it out. He hid the
bloody seat cover and blanket in the trash, but he missed a
bloody sock. Then he took the baby, his wife’s purse, and
some groceries home, stopping off on the way for some beer.

At home, Stanley changed the baby’s diaper, started a load
of laundry, and put the baby to bed. Then he drove to a conve-
nience store, rented a videotape, and set up a phony story. The
store clerk remembered him because he rented one of the
store’s few “racy” videos. Stanley asked if the clerk had seen
a woman and little girl earlier that evening. When the clerk
said he hadn’t seen them, Stanley remarked that his wife
“must have gotten pissed off and taken off.” This was after he
had murdered them, dumped their bodies, and washed away
their blood, so he knew perfectly well that his wife had not
“taken off.”

instead of one doctor, that Stanley had a dissociative reaction. The details
of the murder of the daughter together with the sentencing judge’s com-
ments on that murder provide the answer. The trial judge had already
heard testimony from one of these two doctors that Stanley had a dissocia-
tive reaction, and from the other doctor that Stanley might have had a dis-
sociative reaction. Having heard this testimony, the trial judge
nevertheless sentenced Stanley to death because of the close-range execu-
tion style of the killings, and because he killed his daughter in order to
eliminate her as a witness to her mother’s murder.
 STANLEY v. SCHRIRO 4179
At around 11:30 pm, Stanley called his father and the
police to report his wife and daughter “missing,” continuing
the deception he had begun with the convenience store clerk.
He told them his wife and daughter went for a walk with the
family dog around 10:45 p.m. and had not returned. Stanley’s
family and the police began searching the neighborhood.

The phony “must have gotten pissed off and taken off”
story fell apart the next day, when police found the bloody
blanket and seat cover at the repair shop. The police brought
Stanley in, and he confessed. Asked why he shot his daughter
but not the baby, Stanley said it was “because she [the daugh-
ter] had seen what he had done,” but the baby “could not tell
anybody what he had done.” In Stanley’s VCR, the police
found the videotape the convenience store had described,
stopped partway through.

The morning after his arrest, Stanley spoke with the jail
psychiatrist, Karleen B. Hammitt, M.D. Dr. Hammitt con-
cluded that Stanley was not insane, not psychotic, not even
remorseful. Stanley told her that “he flew off the wall and
shot them,” and “realized right away what he had done.” He
also said that he felt “like he was watching and like he wasn’t
really there” during the murders. Stanley denied ever having
heard voices (i.e. no auditory hallucinations, tending to rule
out psychosis). Dr. Hammitt said Stanley “never volunteered
any comments about remorse or, you know, if I had just done
this or that differently or gotten treatment for my drinking
problem or done anything different,” during his meetings with
her. Although Stanley cried a great deal during their initial
meeting (48 hours after the murders), Dr. Hammitt told the
defense investigator that “[n]othing [Stanley] said indicated to
me any degree of remorse per se.”7
7
The majority opinion suggests that Dr. Hammitt’s statements that
“[n]othing [Stanley] said indicated to me any degree of remorse per se”
and that he “never volunteered any comments about remorse” are “a far
cry from a definitive statement that Stanley lacked remorse.” See Majority
4180 STANLEY v. SCHRIRO
Stanley was charged with first degree murder for the deaths
of his wife and daughter. During the guilt phase of his trial,
Stanley sought to avoid conviction for first degree murder by
arguing that: (1) the police conducted a sloppy investigation
resulting in only circumstantial evidence; (2) the police
coerced Stanley’s confession; (3) Stanley lacked the capacity
to premeditate or deliberate, having been too high and too
drunk at the time to form the requisite intent; and (4) Stanley
met the legal test for insanity. In support, the defense called
two mental health experts. One thought Stanley had suffered
a “dissociative reaction” and may have met the M’Naughten
test for insanity at the time of the murders. The other thought
a dissociative reaction was “unlikely,” but could not rule it
out.

The jury nevertheless convicted Stanley of first degree
murder for the deaths of his wife and five-year-old daughter.
After reviewing the entire file and all the testimony, the judge
imposed a sentence of life imprisonment for the murder of
Stanley’s wife. The judge imposed a sentence of death for the
murder of Stanley’s five-year-old daughter.8

The judge based his decision to sentence Stanley to death
for the murder of his five-year-old daughter (not his wife) on

Opinion at 4155. The majority evidently would infer remorse despite what
Dr. Hammitt said, because Stanley cried. I read Dr. Hammitt as taking
special note that Stanley did not say a word indicating that he was
remorseful. As for his crying, that could be for his wife and daughter,
whom he had murdered, or himself, and Dr. Hammitt’s discussion appears
to have meant to the sentencing judge that Stanley was not crying out of
remorse for murdering his wife and daughter.
8
In 1986 when Stanley was sentenced to death, Arizona death sentences
were imposed by the judge, not the jury. The Supreme Court held in Ring
v. Arizona that the Constitution precludes that procedure. 536 U.S. 584
(2002). The Court subsequently decided that Ring does not apply retroac-
tively to cases such as this one where the convictions and sentences were
final when Ring was decided. Schriro v. Summerlin, 542 U.S. 348 (2004).
 STANLEY v. SCHRIRO 4181
a combination of aggravating circumstances: (1) Stanley
killed his daughter because she had witnessed him murder her
mother and could tell what she had seen; (2) Stanley did not
kill the baby because the baby was too young to talk about
what he had seen; (3) the execution-style contact wound on
Stanley’s daughter’s skull; (4) the brutality and senselessness
inherent in killing one’s own family; (5) the testimony of the
video store clerk indicating that Stanley did not appear to be
under the influence of alcohol or drugs; and (6) the type of
video Stanley rented shortly after hiding the evidence of his
brutal crime. From this evidence, the judge concluded that
Stanley’s decision to kill his daughter was the product of an
intelligent, rational calculation, and showed the requisite hei-
nousness and depravity to impose a death sentence. Here is
the sentencing judge’s explanation:

The Court will first note that it is convinced
beyond a reasonable doubt that Defendant did state
that he had killed his daughter because she had seen
what he had done and that his son was too young to
talk about what he had seen. The Court is likewise
convinced beyond a reasonable doubt that when
Defendant made these statements to the officers they
were made entirely voluntarily and is further con-
vinced beyond a reasonable doubt that these state-
ments reflect the true state of mind of Defendant at
the time of these murders. . . . .

When Defendant’s statements are considered
together with Dr. Keen’s testimony that the shooting
of Susan Stanley was accomplished at very close
range, including one contact wound, and the shoot-
ing of Selest Stanley was with a single hard contact
wound, the Court has concluded that Defendant
deliberately excluded Chad from any danger based
on his intelligent and rational conclusion that Chad
could not relate to anyone what Defendant had done.
...
4182 STANLEY v. SCHRIRO
Heinousness and depravity involve the killer’s
mental state and attitude at the time of the killing. In
State v. Gretzler, 135 Ariz. 42 (1983), our Supreme
Court set forth a list of specific factors which could
lead to a finding of heinousness or depravity. These
factors included the senselessness of the crime and
the helplessness of the victim. In addition, our Court
in State v. Gillies, 142 Ariz. 564 (1984) stated that
elimination of a witness as a motive for murder also
illustrates heinousness and depravity.

Addressing first the motive for the killing, as
noted above, the Court is convinced beyond a rea-
sonable doubt that Defendant murdered Selest to
eliminate her as a witness.

Addressing next the senselessness of the crime
and helplessness of the victim, instructive in this
regard is the recent case of State v. Wallace, 151
Ariz. 362 (1986). Here the Defendant brutally mur-
dered a mother and her two children. As noted by the
Supreme Court, Defendant committed these acts
despite the fact that he claimed to have loved these
people and that he had lived with them as a family
for more than two years. Focusing in specifically on
the children, the Court stated:

“Moreover, the fact that Defendant killed
two children, with whom he admittedly had
no dispute and who posed no danger to him
is additional evidence of his ‘shockingly
evil state of mind.’ (Citation omitted) We
therefore find that the statutory aggravating
factor of heinous and depraved is present in
the instant case.” 151 Ariz. at page 368.

Finally bearing on Defendant’s state of mind is the
videotape testified to. According to the testimony of
 STANLEY v. SCHRIRO 4183
Mr. Cook, within just a short time after the killings,
disposal of the bodies and attempts to hide evidence,
Defendant was at Mr. Cook’s place of business to
rent a “racy” videotape, identified by Officer Saravo
later as entitled “Best of Anything Goes”, a video
dealing with a strip game show. Defendant did not
appear to be under the influence of alcohol or any
drug at the time he rented this videotape and appar-
ently some time in the next twenty-four hours before
he was arrested had watched part of it.

When these factors are considered together, they
paint the picture of a man so depraved that he could
kill his helpless 5 year old child, who was com-
pletely dependent on him and trusting of his good-
will toward her, kill her for no reason other than to
eliminate her as a witness, and then, after rolling her
body down a mountainside, sought to idle away his
time by indulging himself in watching a strip game
show. Beyond a reasonable doubt, the State has
proven that Defendant committed the murder of Sel-
est Dawn Stanley in an especially depraved manner.

As is plain from the judge’s remarks, he viewed Stanley’s
murder of his daughter as a cold-blooded execution of a wit-
ness to keep her from talking, and that was the most central
fact on the judge’s mind in passing sentence. That would not
have changed if the defense experts had supplemented their
mental state testimony with Stanley’s remark that “he felt like
he was watching and like he wasn’t really there.” And that is
all that we are talking about.9 We lack authority to substitute
9
The majority suggests that my view minimizes the effect of Stanley’s
remark on the penalty phase of the trial. Majority Opinion at 4169. Rather,
I believe that the majority mischaracterizes the effect of the remarks on the
defense experts’ positions by saying that this information “would have
completely changed their testimony in Stanley’s favor[.]” Majority Opin-
ion at 4169. Dr. Bindleglass states that he would have testified that Stanley
4184 STANLEY v. SCHRIRO
our view for the state sentencing judge’s on whether Stanley
should be executed for murdering his daughter.

Analysis.

I. Standard of review.

The district court had discretion, bounded by standards,
whether to grant an evidentiary hearing. “In deciding whether
to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition’s factual allegations, which, if true, would entitle the
applicant to federal habeas relief.”10 Under AEDPA, the dis-
trict court’s deference was also bounded by the deference it
owed to the state court,11 and our review is bounded by the
additional deference we owe to the district court.12 We have
no warrant to jump over this triple deference.

had a dissociative reaction, but that was already his position at trial. Dr.
Bunuel states that he would have opined that Stanley had a dissociative
reaction, as opposed to his position at trial that Stanley might have had a
dissociative reaction. The state superior court judge, not Dr. Bindleglass
or Dr. Bunuel, had sentencing responsibility. It is clear from the sentenc-
ing judge’s remarks that Dr. Bunuel’s change from “might have had” to
“did have” a dissociative reaction would not have changed the sentencing
judge’s mind. The sentencing judge commented on various aspects of the
evidence, but not this one. His explanation for the sentence focused on
murder of Stanley’s helpless child because she might otherwise be a wit-
ness, not on the psychological underpinnings of Stanley’s conduct. The
trial judge was thus already presented with defense expert testimony
regarding the dissociative reaction theory, and nevertheless sentenced him
to death for the reasons discussed at length above. Moreover, we cannot
only consider how Dr. Hammitt’s statements might have been favorable
to Stanley in the sentencing phase, but also how Dr. Hammitt’s statements
may have had hurt Stanley in the sentencing phase as well.
10
Landrigan, 550 U.S. at 474.
11
See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 404-05
(2000).
12
Landrigan, 550 U.S. at 468, 481 (reviewing for abuse of discretion the
district court’s decision not to grant an evidentiary hearing).
 STANLEY v. SCHRIRO 4185
As the majority correctly points out, habeas relief for inef-
fective assistance requires two things: deficient performance
by the attorney under the Strickland v. Washington standard,
and prejudice.13 Ineffective assistance of counsel in violation
of the Sixth Amendment is representation that falls “below an
objective standard of reasonableness” in light of “prevailing
professional norms” at the time of the representation.14 Coun-
sel’s actions are reviewed with a “ ‘strong presumption’ that
counsel’s conduct falls within the wide range of reasonable
professional assistance because it is all too easy to conclude
that a particular act or omission of counsel was unreasonable
in the harsh light of hindsight.”15 The Supreme Court has
stated that “strategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are virtually
unchallengeable.”16

Deficient performance by the attorney is not enough, how-
ever, to establish a Sixth Amendment violation. The petitioner
must also establish that he was prejudiced by the attorney’s
deficient performance. The prejudice standard is “a reason-
able probability that, but for counsel’s unprofessional errors,
the result of the proceedings might have been different.”17
Wong v. Belmontes18 holds that we cannot consider merely the
best evidence the defense might have presented, but instead
must consider all of the evidence that would have come into
a penalty phase of a trial (both mitigating and aggravating) if
the lawyer had made a different choice.19
13
Strickland v. Washington, 466 U.S. 668, 694 (1984).
14
Id. at 686; see also Bobby v. Van Hook, 130 S.Ct. 13, 16 -17 (2009).
15
Bell v. Cone, 535 U.S. 685, 702 (2002) (quoting Strickland, 466 U.S.
at 689).
16
Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009) (quoting Strick-
land, 466 U.S. at 690).
17
Wong v. Belmontes, 130 S.Ct. 383, 386 (2009) (quoting Strickland,
466 U.S. at 693).
18
130 S.Ct. 383 (2009).
19
Id. at 386.
4186 STANLEY v. SCHRIRO
Thus, to reverse, we have to conclude that (1) Stanley’s
lawyer’s conduct in not showing his expert witnesses the
notes of what the jail psychiatrist said (Stanley’s “felt like he
was watching” remark) fell below an objective standard of
reasonableness, almost impossible since it was strategic; (2)
the judge might have sentenced Stanley to life imprisonment
instead of death had he heard Stanley’s experts testify after
they had been informed by the jail psychiatrist’s observations;
(3) the state court’s decision to the contrary was not merely
incorrect but went beyond error to being “objectively unreason-
able;”20 (4) even though Stanley’s habeas lawyer did not ask
for an evidentiary hearing, the district judge abused his discre-
tion by not conducting one anyway to determine whether the
state court’s ineffective assistance decision was objectively
unreasonable. The record does not support a single one of
these requirements for reversal.

II. Deficient performance.

Because “strategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are virtually
unchallengeable,”21 the state court cannot fairly be said to
have unreasonably applied Strickland in determining that
Stanley’s lawyer’s decision fell below “the wide range of rea-
sonable professional assistance[.]”22

There is no claim that Stanley’s lawyer failed to investi-
gate, or failed to discover, some sort of available psychologi-
cal or psychiatric evidence. Stanley’s theory is that, knowing
full well just what the jail psychiatrist had observed, his law-
yer should have provided the jail psychiatrist’s notes and the
transcript of his own investigator’s interview with the jail psy-
20
Williams, 529 U.S. at 409-10; see also Woodford v. Viscotti, 537 U.S.
19, 22 (2003).
21
Knowles, 129 S. Ct. at 1420 (quoting Strickland, 466 U.S. at 690).
22
Strickland, 466 U.S. at 689.
 STANLEY v. SCHRIRO 4187
chiatrist to the two witnesses who testified for the defense
about Stanley’s mental condition.

The first question to be answered, applying Strickland to
this case, is whether not providing the notes was strategic,
because “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable.”23 The record admits of but one answer, yes.
Stanley’s lawyer made an in limine motion to keep the jail
psychiatrist’s evidence out of the trial, on the ground that it
was protected by the physician-patient privilege. The prosecu-
tion wanted her to testify, and the defense did not. Stanley
prevailed in keeping her out. As the state court observed,24 he
did so for the purpose of keeping the jury from hearing her
unfavorable opinion that Stanley was neither psychotic nor
remorseful.

The state court reasonably concluded that if Stanley had
disclosed Dr. Hammit’s interview or notes to third parties (the
defense experts), Stanley would have waived the physician-
patient privilege and could not have later successfully reas-
serted it.25 Thus the jail psychiatrist could have testified. In
addition, her opinion that Stanley was not psychotic and
showed no remorse could have been brought out by prosecu-
tion cross examination of Stanley’s own experts.26 He would
have obtained one very bad prosecution witness and compro-
23
Knowles, 129 S. Ct. at 1420 (quoting Strickland, 466 U.S. at 690).
24
State v. Stanley, No. CR 11909, at *7 (Ariz. Superior Ct. Yavapai
County May 20, 1997) (order denying state habeas petition).
25
See State v. Mincey, 687 P.2d 1180, 1194 (Ariz. 1984).
26
Ariz. R. Evid. 705 (“The expert may testify in terms of opinion or
inference and give reasons therefor without prior disclosure of the under-
lying facts or data, unless the court requires otherwise. The expert may in
any event be required to disclose the underlying facts or data on cross-
examination.”); State v. Hummert, 188 Ariz. 119, 126, 933 P.2d 1187,
1194 (Ariz. 1997) (“It is well established in Arizona that the basis for an
expert’s opinion is fair game during cross-examination.”).
4188 STANLEY v. SCHRIRO
mised his own two witnesses, had he disclosed the jail psychi-
atrist’s information to his own witnesses.

Dr. Hammit’s statements are devastating to Stanley’s case.
Dr. Bindleglass testified for the defense that Stanley suffered
a dissociative reaction, resulting in such marked impairment
that Stanley was “truly incompetent” at the time of the mur-
ders. Dr. Bunuel testified that Stanley showed remorse, and
may have suffered a dissociative reaction. The jail psychia-
trist, who saw Stanley the morning after he was arrested,
came to the opposite conclusions. She told the defense inves-
tigator that Stanley suffered from depression and she had
advised the jail authorities to consider him at risk for self
harm. Stanley told her that his wife had been yelling at him
about his drinking, he flew off the wall, and he realized
immediately what he had done. He had never heard voices,
and she “found no indicators of psychotic thought process.”
“There were no non sequiturs in his speech,” nothing “really
off the wall” or “unrelated to what we were talking about,”
“really nothing to make me think that there was a psychotic
process going on.” Additionally, she noted that Stanley “never
volunteered any comments about remorse.”

The single remark by Dr. Hammitt that the majority thinks
would have turned the whole case around had Stanley’s law-
yer disclosed it to the defense experts was “he said it was like
he was watching and like he wasn’t even there.” Asked if she
thought that indicated psychosis, Dr. Hammitt said: “No. I
thought it probably had something to with whatever state of
intoxication he was involved in at the time as well as the fact
that most people don’t ever believe that they themselves are
going to be in the situation like he found himself in when he
sobered up.” Thus Dr. Hammitt rejected the defense experts’
conclusion that this comment was evidence of a dissociative
reaction. Dr. Hammitt considered the statement “within the
continuum of things that are experienced by a person who is
intoxicated.”
 STANLEY v. SCHRIRO 4189
It is hard to imagine a reason why, if he could keep this
devastating evidence out, defense counsel would not do so.
And he did. Before trial, defense counsel filed a motion in
limine to exclude “the entirety of testimony, notes, materials,
and reports secured, prepared, utilized and/or including the
actual presence of” Dr. Hammitt, “in any aspect whatsoever
of the case concerning Milo Stanley” based on the patient-
physician privilege.

Before the penalty phase, defense counsel reminded the
court of his successful in limine motion and moved to strike
references to Dr. Hammitt’s opinion from the presentence
report. Thus keeping it out at sentencing was also a consid-
ered decision, not an oversight. The court granted the defense
request. It then ordered both parties to refrain from citing or
referring to Dr. Hammitt during the penalty phase. Dr. Ham-
mitt’s evidence, had defense counsel not succeeded in getting
it stricken, would have tended to establish absence of
remorse, absence of psychosis, and absence of “dissociative
reaction” beyond what normal people have when they realize
they have put themselves in a terrible situation.

Because the “possible harm to the defense which could
[have been] caused by use of Dr. Hammitt’s interview out-
weighed the possible benefits the use of the interview might
produce,” the state court concluded that counsel’s “determina-
tion not to waive the physician-client privilege was a matter
of reasoned trial strategy and does not present a colorable
claim that trial counsel was ineffective for failing to do so.”
It further found that Dr. Hammit’s interview “could have
undermined the [defense’s] claim of dissociative reaction.”
This is a sound application of the Strickland principle that
“strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallenge-
able.”27
27
Knowles, 129 S. Ct. at 1420 (quoting Strickland, 466 U.S. at 690).
4190 STANLEY v. SCHRIRO
Capable lawyers evaluate not only what they ought to do,
but what they ought not to do. Where action on behalf of a cli-
ent has a considerable likelihood of backfiring, they avoid it.28
Just as lawyers have no duty to pursue defenses likely to fail,29
and no duty to pursue investigations likely to be “fruitless or
even harmful,”30 they have no duty to inject evidence likely
to open the door to additional evidence that would be harmful.
Much of the strategic thinking a good lawyer does during a
trial is about whether something helpful he would like to put
in will open the door to something harmful his adversary will
then be able to inject. Decisions not to open the door are
“sound tactical reasons” for not calling a witness or present-
ing certain evidence.31 Had Stanley’s attorney disclosed what
Dr. Hammitt had said to his expert witnesses, he would have
opened the door to devastating rebuttal testimony by Dr.
Hammitt. His strategic decision not to do so is “virtually unchal-
lengeable”32 and, far from the state court’s rejection of his
deficient performance claim being unreasonable, it is our own
majority opinion that unreasonably applies Strickland.

28
Cf. Osborne v. State, 110 P.3d 986, 991 (Alaska App. 2005) (holding
that where defense counsel believed client was guilty and there was a sub-
stantial risk that test would prove the prosecution’s case, counsel’s deci-
sion not to obtain highly discriminating DNA test was not ineffective
assistance of counsel under Alaska law) (discussed in District Attorney’s
Office for Third Judicial Dist. v. Osborne, 129 S.Ct. 2308, 2314 (2009)).
29
Knowles, 129 S. Ct. at 1420-22; see also Lowry v. Lewis, 21 F.3d 344,
346 (9th Cir. 1994).
30
Burger v. Kemp, 483 U.S. 776, 795 (1987) (quoting Strickland, 466
U.S. at 691).
31
See Bell, 535 U.S. at 700-01; see also Williams v. Woodford, 384 F.3d
567 (9th Cir. 2004) (holding that when mitigating evidence is “not espe-
cially helpful” and “would open the door to damaging rebuttal evidence,”
it is reasonable for counsel to decide not to present it).
32
Knowles, 129 S. Ct. at 1420 (quoting Strickland, 466 U.S. at 690).
 STANLEY v. SCHRIRO 4191
III. Prejudice.

Even if we pretend that any reasonable lawyer would have
educated his experts with Dr. Hammitt’s devastating opinion
and opened the door to it at sentencing, Stanley would still
have to surmount the impossible hurdle of showing that the
sentence might have been different had he done so. That
would require a record different from what we have, perhaps
a sentencing judge who had said “if only I had seen some evi-
dence that Stanley had a drinking problem or a fight with his
wife or was depressed, then I would not sentence him to death
for the murder of his little girl to keep her from talking.” Stan-
ley’s argument seems to be that, had his experts known that
he told the jail psychiatrist that he flew off the handle when
his wife criticized his drinking, and felt “like he was watching
and like he wasn’t really there,” his own experts might have
persuaded the judge that he murdered his daughter because of
a mental defect, even though the judge would also have
known that Dr. Hammitt thought Stanley was remorseless,
mentally normal except for depression, and not psychotic.

That is not a plausible possibility, in light of what the sen-
tencing judge said. He decided to give Stanley the benefit of
the doubt on whether he had any remorse, and considered
remorse as a mitigating factor (persuasive for the murder of
Stanley’s wife), but Dr. Hammitt’s evidence would have
made that less likely. Stanley’s problem establishing prejudice
is that even if his own expert witnesses would have testified
differently, the sentencing decision was not theirs to make, so
improving their testimony but not the judge’s decision would
be fruitless. It is not enough for the petitioner to show that
counsel’s error had “some conceivable effect on the outcome.”33
Stanley must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedings
might have been different.”34 The sentencing judge’s remarks
demonstrate that the outcome would have been the same.
33
Strickland, 466 U.S. at 694 (emphasis added).
34
Id. at 693.
4192 STANLEY v. SCHRIRO
The sentencing judge was “convinced beyond a reasonable
doubt that Defendant did state that he had killed his daughter
because she had seen what he had done and that his son was
too young to talk about what he had seen.” Together with his
five year old daughter’s helplessness and the contact of Stan-
ley’s gun’s muzzle with the top of her skull, he concluded that
her murder was extremely heinous and depraved. Throwing
the dead bodies of his wife and child and renting the “racy”
videotape shortly afterwards contributed to this evaluation.
Based on the convenience store clerk’s testimony as well as
the other facts, the judge did not think Stanley was too drunk
to know what he was doing. Stanley got his death sentence
because of what he did to his daughter. Disclosure of what he
told the jail psychiatrist to his defense experts would not have
changed what Stanley did, and what he did persuaded the
judge to impose a death sentence.

Conclusion

An evidentiary hearing on whether Stanley’s lawyer ren-
dered ineffective assistance in this case is going to be a very
odd proceeding. Because Stanley’s lawyer is dead, he cannot
be asked to fall on his sword and testify about what a bad law-
yer he was for not giving Dr. Hammitt’s notes and interview
to his expert witnesses. Habeas counsel may be able to pro-
duce an expert witness to testify that any competent lawyer
would have done so, and will be able to have his two experts
testify in accord with what they say in their affidavits, that it
would have made a difference to what they said. But even in
the unlikely event that all this persuades the district judge that
Stanley’s lawyer did so bad a job that it was deficient despite
being strategic, such a finding would be of no significance,
because prejudice cannot be established. We already know the
answer about whether the lawyer’s putatively deficient perfor-
mance might have made a difference, because the record
establishes that the judge sentenced Stanley to death for exe-
cuting his daughter to keep her from talking. We do not have
a legal justification for doing anything but affirming, because
 STANLEY v. SCHRIRO 4193
established habeas law precludes the federal courts from
granting a writ against this state sentence.