dissenting.
I originally concurred in the majority opinion. I continue to concur in the denial of guilt-phase relief. However, after close attention to the issues raised in the petition for panel rehearing and petition for en banc review, and a re-review of the relevant record, I confess error. I must and do here dissent from the majority opinion. The death penalty was wrongly imposed. As a threshold issue, I think there is a substantial question as to whether Davis was competent at the time of his penalty-phase trial. At a minimum Davis is entitled to an evidentiary hearing as to his competence.
Beyond that, after painstaking review of the penalty phase itself, I am persuaded that ineffective assistance of counsel probably affected the outcome, and that a juror’s bias may have tainted the proceedings to the extent that the verdict was not the product of unbiased decision-making.
I. Substantive Inoompetence
Davis convincingly argues that he is entitled to an evidentiary hearing on his claim that he was incompetent during the sentencing phase.
A. Standard for an Evidentiary Hearing1
“In a habeas proceeding, a petitioner is entitled to an evidentiary hearing on the issue of competency to stand trial if he presents sufficient facts to create a real and substantial doubt as to his competency, even if those facts were not presented to the trial court.” Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir.1985). “In a capital case, a habeas petitioner who asserts a colorable claim to relief, and who has never been given the opportunity to develop a factual record on that claim, is entitled to an evidentiary hearing in federal court.” Siripongs v. Calderon, 35 F.3d 1308, 1310 (9th Cir.1994).
B. STANDARD FOR A SUBSTANTIVE INCOMPETENCE CLAIM
Competence to stand trial requires that a defendant have “a rational as well as factual understanding of the proceedings against him” and “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (internal quotation marks omitted). Factors relevant to a competency determination include evidence of irrational behavior; demeanor at trial; and prior medical opinions on competence. Torres v. Prunty, 223 F.3d 1103, 1108-09 (9th Cir.2000).
C. Standard Applied to Davis’s Claim
Davis has at least a “colorable” claim under the second prong of the competency test — the requirement that a defendant be able to communicate with and assist his attorneys. One of Davis’s lawyers, William Maxwell, told the trial court on November 29, 19892 that Davis was “incom*656municado” and that if he continued in his then “mental state” an incompetency hearing could become necessary. Maxwell also reported to the court:
• “I think the Court needs to know that ... Mr. Davis is in a mental state ... where I don’t think he is going to be any longer able to cooperate with his counsel in the conduct of his defense.”
• “If he’s getting that paranoid and he’s flipping out that much from whatever is happening over there with him and he can’t even talk to his attorneys ... we may have a real problem.”
• “I think the problem is he’s gonna fold up, he’s not gonna talk, he’s not gorma take part.”
• “So we are right back to — we are back in a situation ... I guess I can tell the Court this — the first several times I went to see Mr. Davis he would not talk to me about the case.”
In a declaration he signed-in 1997, Maxwell indicated that the situation with Davis did not improve significantly before the sentencing phase: “After the guilt phase ended,- Mr. Davis stopped cooperating with me and Mr. Alvarado [Maxwell’s co-counsel]. During the period between the guilt phase and the penalty phase, Mr. Davis would not talk to us.” Maxwell explained his failure to pursue a competency hearing with the lay opinion that Davis was possibly “just malingering,” but Maxwell also recognized that a qualified psychiatrist “might have found that Mr. Davis’s behavior at the penalty phase was not purely volitional.”3
In fact, two psychiatric professionals have expressed the opinion that Davis’s inability to communicate with counsel was not purely volitional. According to Dr. Vicary, Davis’s inability to cooperate with counsel “had both a mental illness and a behavioral component” and some of Davis’s actions “had to have been the product of mental illness.” Davis “was severely depressed, agitated and anxious, so much so that he was exhibiting signs of paranoia.” Dr. Vicary stated that Davis’s “competency was a legitimate concern at the penalty phase” and that Davis was “marginal,” in a “gray area between competency and incompetency.” Dr. Vicary’s opinion is significant and compelling because Dr. Vicary knew Davis at the relevant time.4
*657The majority notes that Dr. Vicary “did not see fit to place himself within the company of those few psychiatrists” who would have found Davis incompetent. But because there cannot be a “gray area between competency and incompetency” in the context of the defendant’s fitness to stand trial, Dr. Vicary’s statements that Davis was “marginal” and in a “gray area” raise a substantial question about Davis’s competence, which is all that is required to trigger the necessity for an evidentiary hearing. See Boag, 769 F.2d at 1343; see also Siripongs, 35 F.3d at 1310.
Dr. Vicary’s opinion is echoed by Dr. Sara Latz, a psychiatrist who has reviewed records from the trial and psychological evaluations and testing done at the time of trial. In Dr. Latz’s opinion, the materials she has reviewed “raise a serious question as to Mr. Davis’s competency at the time of the penalty phase.” Dr. Latz’s opinions provide a response to Maxwell’s concern that Davis may have been malingering. According to Dr. Latz: “[Davis’s] depression was likely misinterpreted by others as anger and defiance. Consequently, petitioner was likely to be treated with punishment rather than antidepressant medication. Punishment, however, would generally be ineffective with petitioner because his behavior was not entirely within his control.”
Dr. Latz recognizes that she would need more information to make a “proper competency determination,” but her conclusion that there is a “serious question” about competency provides support for the need for an evidentiary hearing. Retrospective competency evaluations are given less weight, but they are “permissible” where, as here, the psychiatrist has “consulted] contemporaneous medical reports.” Williams v. Woodford, 306 F.3d 665, 707 (9th Cir.2002).
The deposition of Myra Thomas, a sentencing-phase consultant, provides additional'support for Davis’s claim. Thomas testified that Davis “totally changed” from when she first met him to the end of the trial. Davis believed he was physically paralyzed; “he couldn’t move;” he was “out of it” and “paranoid;” he “lost it;” he became “very difficult to get through to,” “hysterical,” and “unfocusable towards the end.” The majority discounts Thomas’s testimony on the grounds that Thomas and Davis had a “poor rapport” and that “[Thomas’s] testimony reflects that [Davis’s] behavior probably resulted from his anger towards [Thomas], his attorneys, and the entire process,” not from incompetency. But a poor rapport does not explain away Thomas’s observation that Davis’s behavior deteriorated significantly; there is no evidence that the relationship between Thomas and Davis worsened over time. The opinion’s assumption about “anger” as the sole cause of Davis’s condition is contradicted by Thomas’s testimony. Thomas attributed Davis’s condition to “depression ... intermingled with ... anger and paranoia.”
Four other factors support the need for an evidentiary hearing in this case. First, Dr. Vicary testified during the sentencing phase that Davis had attempted suicide in the past and that he reported “seeping] things, animals, people around [him] that *658others do not see.” Davis’s past suicide attempts and hallucinations suggest a history of mental illness — illness that easily could have resurfaced during the penalty phase. Second, Judge Letts issued an order stating that a court-appointed mental health expert would evaluate his competence:
Petitioner’s request to retain 4 psychiatrist to determine if he was competent to stand trial at the penalty phase is granted. While funds are being authorized to allow petitioner to uncover factual support for potential claims, any questions relating to petitioner’s mental state raised in the federal habeas petition will be addressed by a court appointed mental health expert.
Judge Tevrizian read Judge Letts’s order as stating only that Judge Letts would appoint an expert if Davis met the “substantial evidence” standard for an eviden-tiary hearing. I agree with Davis’s counsel, however, that the language in Judge Letts’s order must be read as stating that the court would appoint an expert. Because this is a death case, it is troubling that the majority would deny Davis’s competency claim without -an evidentiary hearing when the first trial court judge to consider the case indicated his intent to appoint a mental health expert. Third, there is evidence in the record that Davis may have been abused in prison during his trial. We have recognized that in-prison treatment may cause significant deterioration in a defendant’s mental condition and may be relevant to a competency determination. See Comer v. Stewart, 215 F.3d 910, 916 (9th Cir.2000).
Finally, I note that our recent opinion in Deere v. Woodford, 339 F.3d 1084 (9th Cir.2003), provides support for the conclusion that an evidentiary hearing must be granted in a case such as this. The Deere panel remanded for an evidentiary hearing on the petitioner’s claim that he had been incompetent to plead guilty. The petitioner in Deere presented the following evidence: (1) a psychiatric report prepared at the time Deere pled guilty that found him competent; (2) a report prepared by a psychologist (Dr. Jones) at the time Deere pled guilty which found that Deere understood the proceedings and “evidenced no obvious thought disorders;” (3) a post-plea declaration submitted by Jones in which he stated that Deere’s competency was “very questionable” because although Deere understood the nature of the proceedings, he was “bent on self-destruction” and was unable to “eooperate[] in a meaningful way” with defense counsel; and (4) a declaration submitted by a psychiatrist (Dr. Rosenthal) who did not know Deere at the relevant time but who opined that Deere was incompetent when he pled guilty. Deere, 339 F.3d at 1085-86.
' Deere may have had something Davis does not — Dr. Rosenthal’s opinion that Deere was incompetent when he pled guilty — but the Deere panel did not rely on Dr. Rosenthal’s declaration because he did not know Deere at the relevant time. See Deere, 339 F.3d at 1086. Instead, the Deere panel emphasized Dr. Jones’s opinion that Deere’s competency was “questionable” and that Deere could not communicate meaningfully with defense counsel. Id. at 1086-87 (“Dr. Jones’s declaration, however, stands on different footing[than Dr. Rosenthal’s]. It is based on his two examinations of Deere, which he performed in 1982, within several days of when Deere pleaded guilty. It is, therefore, probative of Deere’s mental status at the critical time.”). Dr. Vicary’s declaration in this case is very similar- to Dr. Joneses, and, as in Deere, provides strong support for the petitioner’s claim.
Davis also has some evidence that Deere did not: Maxwell’s declaration that estab*659lishes communication problems; Thomas’s testimony about Davis’s deteriorating mental state; evidence that Davis had attempted suicide in the past; and evidence that Davis believed he was paralyzed when in fact he was not.
D. Summary op Davis’s Substantive Incompetence Claim
Davis’s evidence meets the relatively low threshold that mandates an evidentiary hearing. To all appearances Davis acted irrationally during the sentencing phase. See Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (a defendant’s irrational behavior and demeanor at trial are factors to be considered in assessing competence); Torres, 223 F.3d at 1109 (stating that “defendant’s unusual and self-defeating behavior in the courtroom suggested that an inquiry into competence was required”); cf. Williams, 306 F.3d at 703 (finding it significant that Williams did not “evidence any bizarre or irrational behavior”). He believed he was paralyzed when he wasn’t; he insisted on self-destructive behavior, including his refusal to sit at counsel table; and he turned down medicine that might have helped him because, according to Dr. Vicary, he “was so impaired at that point that he did not understand that medication would help him.” Compare Torres, 223 F.3d at 1109— 10 (defendant “insisted on wearing jailhouse blues; threatened to assault his attorney; insisted, after being ordered shackled, to be handcuffed as well; and continually disrupted the trial”). It is also clear that Davis was not communicating well (if at all) with his attorneys; a defendant’s competence turns on whether he has “the ability to communicate with counsel in helping prepare an effective defense.” Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir.2001). Finally, the declarations signed by Drs. Vicary and Latz raise at least a “substantial doubt” as to Davis’s competency. Boag, 769 F.2d at 1343.
II. Ineffective Assistance of Counsel
Davis contends that defense counsel was ineffective for failing to put on additional mitigating evidence, for failing to prepare adequately for Dr. Vicary’s expert testimony, and for delivering an extremely hostile closing argument. I conclude that Davis is entitled to an evidentiary hearing on his mitigating evidence claim, and that his claims regarding Dr. Vicary and Maxwell’s closing argument should also be developed at an evidentiary hearing so that they may be considered as part of a cumulative error analysis.
A. Standard for an Ineffective Assistance Claim
Davis must meet two requirements to establish ineffective assistance. First, he must show that counsel’s performance was “deficient” — that it was not reasonable under “prevailing professional norms.” Strickland v. Washington, 466 U.S. 668, 687, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, he must demonstrate prejudice to his defense. Id. at 687, 104 S.Ct. 2052. This requires showing “a reasonable probability that, but for counsel’s unprofessional errors, the result ... would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. I conclude Davis has met that burden.
B. Additional Mitigating Evidence Claim
1. Witnesses Not Called
Defense counsel or their sentencing consultants interviewed fifteen mitigation witnesses in addition to those witnesses actually called during the sentencing phase. Davis argues that defense counsel was in*660effective for failing to call some of the additional witnesses who had been interviewed, and he points to notes from interviews with those witnesses as evidence of what the witnesses would have testified to if called. The interview notes on which Davis relies indicate that three of the additional witnesses would have given positive, non-cumulative testimony.
First, Davis’s sister, Sherri Davis, told an interviewer that Davis’s mother “mentally and physically abused the kids” and that, in Sherri’s opinion, “David got hit by his mom one too many times.” No witness actually called by the defense testified that Davis had been physically abused as a child.5 Instead, Davis’s mother and sister, Terri Reynolds, testified that although other children in the family had been physically abused, Davis was spared. The state’s attorney emphasized this issue in closing argument: “[Davis’s mother is] described as cold and unloving and, according to Dr. Vicary, physically abusive to the defendant. Well, ... he doesn’t have any support for that.... [B]oth of the daughters who testified ... never saw her physically abuse [Davis] but she did physically abuse at least1 one of the daughters.”
Second, Davis’s aunt Olivia Guerrero told, an interviewer that when she visited Davis’s family, she noticed that Davis and one of his sisters were singled out for negative treatment:
During her visits to California, [Guerrero] saw differences in the way Sandra treated her kids. Her gut feeling was that [Davis] was treated differently (not favorably), because he was a boy. She also felt that Tracy was treated differently than the others, even though she was a girl. [Guerrero] points out that what’s interesting is that those two, [Davis] and Tracy, turned out to be the two problem children.
[Guerrero] says she wasn’t around Sandra and her family enough to see what was really going on. But in the brief time she did spend in the home, there seemed to be differences. It seemed to her that if all the kids were disciplined for an identical misbehavior, [Davis] got more discipline, and more severe disciplin[e] than the others. The others were allowed to slide sometimes, [Davis] wasn’t. [Davis] seemed to get the brunt of Sandra’s anger. Also, to [Guerrero], [Davis] and his behavior, seemed the same as the other kids. In other words, she could never see a reason for Sandra to be harder on [Davis].
In contrast to Guerrero’s account, Davis’s sister Terri Reynolds testified during the sentencing phase that the boys were rarely disciplined. Guerrero’s testimony would thus have been significant because it would have explained why Davis had more problems as an adult than his siblings did and would have undermined Terri Reynolds’s account that Davis had been favored by his mother. The state’s attorney emphasized Terri Reynolds’s account during closing argument: “[B]oth of the daughters who testified ... said that it really made them mad that [Davis’s mother] favored the defendant and his brother, Chris.... ”
Third, Davis’s second wife, Leticia Hernandez, told an interviewer that Davis was a good father and husband and that he had never been violent toward her. Hernandez attributed Davis’s occasional “strange look” or behavior to “something in his past.” Hernandez also confirmed the defense’s story that Davis and Hernandez had had a fight before the murder because Davis did not want Hernandez smoking while pregnant: “[Hernandez] says she *661and David had a fight the night before the murder.... They fought because David wouldn’t give her any money for cigarettes. She says she wasn’t supposed to be smoking because she was pregnant, but she wanted her cigarettes anyway. She told David to get out of her house, or she would call the police.”
Although other witnesses testified that they did not believe Davis was a violent person, only Hernandez could have countered the state’s significant aggravating evidence that Davis had a recent tendency toward spousal abuse and, more generally, abuse of women. The state’s attorney summarized this point in his closing argument: “He’s gotten worse. Over the last five to ten years, his life shows an increasing pattern of misbehavior and violence towards both men and women but especially women.” In fact, the state’s attorney emphasized that the defense had failed to call Davis’s second wife. He argued that Hernandez’s absence undermined other witnesses’ positive testimony about Davis.
[W]e heard some witnesses about what the defendant was like at various times.
And when did these witnesses know him? In almost all cases, these are witnesses out of the past.
So ... doesn’t it sound to you like they’re really digging in the bottom of the barrel to come up with something mitigating about his background?
Well, think about who they called. Mostly people out of the past.
And then think about this: Who didn’t they call?
They didn’t call his second wife, Leticia Hernandez, although Dr. Vicary had bad things to say about her like he did just about everybody else....
Why not call her to find out what the defendant’s been like since she’s known him? She married him even after he was arrested for this, so she can’t be totally disloyal.
So they didn’t call people who have known him most recently and primarily they called people who knew him back 8, 10,12 years ago.
The state’s attorney also challenged the truth of the defense’s story about why Davis and Hernandez fought before the murder. In addition to countering that point, Hernandez’s testimony that she attributed Davis’s behavior to “something in his past” would also have provided support for the defense’s argument that Davis’s behavior was the result, at least in part, of a traumatic childhood or of mental illness.
2. Deficient PeRformance
“To perform effectively in the penalty phase of a capital case, counsel must conduct sufficient investigation and engage in sufficient preparation to be able to ‘pres-entí ] and explain! ] the significance of all the available [mitigating] evidence.’ ” Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir.2001) (en banc) (emphasis added) (quoting Williams v. Taylor, 529 U.S. 362, 399, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); alterations in Mayfield). The Supreme Court recently emphasized this point in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In Wiggins, the Court noted that the ABA Guidelines for capital defense work provide that effective assistance “should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” Id. at 2537 (emphasis in Wiggins); see also Allen v. Woodford, 366 F.3d 823, 845 (9th *662Cir.2004) (quoting this text from Wiggins ).
In this case, Davis’s defense attorneys failed in their duty to present all available, non-cumulative mitigating evidence. I find no suggestion in the record of a strategic reason to explain defense counsel’s failure to call Sherri Davis, Olivia Guerrero and Leticia Hernandez; the interview notes do not refer to any significant negative testimony that would have outweighed the positive testimony the witnesses apparently would have given. Absent a sound strategic explanation, defense counsel’s failure to call witnesses who would have provided significant mitigating testimony “fell below an objective standard of reasonableness.” Wiggins, 123 S.Ct. at 2535 (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052).
3. Prejudice
The test for prejudice 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, 104 S.Ct. 2052; Mayfield, 270 F.3d at 928-29 (applying this standard and reversing death sentence because en banc panel could not conclude “with confidence that the jury would unanimously have sentenced [the petitioner] to death if[defense counsel] had presented and explained all of the available mitigating evidence”).
Mayfield provides support for a prejudice finding in this case. The aggravating evidence against Davis is no stronger than in Mayfield. Mayfield killed two people after threatening them with a gun for fifteen minutes; he then lay in wait, armed with a knife, for a third person. Id. at 920-21, 929. Mayfield had a criminal and violent past: he had pled guilty to auto theft; he had fired a gun into the home of one ex-girlfriend; and he had physically abused another former girlfriend. Id. at 920, 929. The en banc panel described the aggravating evidence against Mayfield as “strong.” Id. at 929.
Mayfield’s defense lawyer did put on some compelling mitigation evidence similar to that presented in Davis’s case. See id. (describing the mitigating evidence presented by the defense as “substantial”). The defense put on evidence that Mayfield had suffered from depression as a child; that he was addicted to POP; that he had had an increasingly tense relationship with his mother as he grew up; that he suffered from diabetes; that he had expressed remorse for his actions “in different ways at different times;” and that the violent crime was out of character. Id. at 929-30. The defense failed to put on additional evidence about Mayfield’s traumatic childhood struggle with diabetes, his substance abuse, as well as character evidence about Mayfield’s positive relationships with friends and with children. Id. at 930-32. The Mayfield panel held — notwithstanding the strong aggravating evidence and the compelling mitigating evidence the defense did present — that there was a “reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, hence, the sentence imposed.” Id. at 932 (quoting Strickland, 466 U.S. at 700, 104 S.Ct. 2052).
Here, as in Mayfield, defense counsel failed to put on evidence of a traumatic childhood experience — here with physical abuse, as opposed to diabetes in Mayfield. The Ninth Circuit has recognized that evidence of a traumatic background is significant at the penalty phase:
Evidence regarding social background and mental health is significant, as there is a “belief, long held by this society, that defendants who commit criminal *663acts that are attributable to a disadvantaged background or to emotional and mental problems, may be less culpable than defendants who have no such excuse.”
Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir.) (quoting Boyde v. California, 494 U.S. 370, 382, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)), cert. denied, 540 U.S. 810, 124 S.Ct. 49, 157 L.Ed.2d 23 (2003); see also Hendricks v. Calderon, 70 F.3d 1032, 1044 (9th Cir.1995) (holding that the failure to present evidence of physical and psychological abuse was prejudicial). Leticia Hernandez’s testimony, like the testimony of Mends and family in Mayfield, would have provided an important “humanizing” account of a positive recent relationship and of Davis’s self-control. Mayfield, 270 F.3d at 932. Given the testimony of Davis’s first wife and the state’s closing argument, Hernandez’s testimony also would have rebutted a key element of the state’s case in aggravation.
4. The Majority’s Analysis
The majority gives three reasons for rejecting Davis’s claim that defense counsel was ineffective for failing to put on additional mitigation witnesses: (1) eonelu-sory allegations; (2) cumulative or negative testimony; and (3) failure to exhaust.
Given the interview notes Davis submitted, I do not agree that he presented only “conclusory” allegations.6 I also do not agree, for the reasons given above, that all of Davis’s additional witnesses would have given only negative or cumulative testimony. Finally, Davis makes a compelling argument rebutting the failure-to-exhaust rationale. Judge Letts twice found Davis’s claims exhausted, and Judge Tevrizian reversed those rulings without notice. In light of Judge Letts’s rulings, Judge Tevri-zian at least should have given Davis the opportunity either to dismiss and return to state court or to stay his federal petition pending another round of state habeas filings. Judge Tevrizian’s order also overturned the law of the case. See United States v. Alexander, 106 F.3d 874 (9th Cir.1997) (reversing district court for improperly overruling decision made by district court judge to whom case had originally been assigned). The inconsistency between Judge Letts’s and Judge Tevrizi-an’s orders prejudiced Davis: Davis reasonably relied on Judge Letts’s ruling as to which of his claims were unexhausted when he returned to state court to exhaust his unexhausted claims. -
In any event, only the claim regarding Sherri Davis is affected by the exhaustion requirement. The district court did not question exhaustion of the Guerrero and Hernandez claims. Even if the majority persists in relying on a failure-to-exhaust rationale with respect to Sherri Davis’s testimony, Davis should be granted an evi-dentiary hearing as to incompetence of counsel based on failure to call Guerrero and Hernandez.
C. Cumulative Error
Davis’s second and third ineffective assistance claims may best be considered— together with his claim regarding additional mitigating witnesses — as part of a cumulative error analysis. See Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir.1995) (considering combined prejudicial effect of trial counsel’s errors). I address the two claims in turn under Strickland’s first prong: first, the claim that defense counsel prepared inadequately for Dr. Vicary’s testimony, and second, the claim that Maxwell delivered a rude and hostile closing *664argument. I will then address the claims together under Strickland’s second, prejudice, prong.
1. Inadequate Preparation for Dr. Vicary’s Testimony
Inadequate preparation for a witness’s testimony may itself constitute deficient performance, even if the decision to call the witness could ultimately be considered reasonable. See Alcala v. Woodford, 334 F.3d 862, 890 (9th Cir.2003) (“We need not determine whether, after proper preparation, the decision to call Vogel might have been a reasonable exercise of professional judgment. In the absence of such preparation, ... trial counsel’s performance was clearly deficient.”); see also Wiggins, 123 S.Ct. at 2536 (“[0]ur principal concern ... is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence ... was itself reasonable.”) (first emphasis added) (citing Williams v. Taylor, 529 U.S. at 415, 120 S.Ct. 1495 (O’Connor, J., concurring) (noting counsel’s duty to conduct a “diligent” investigation into his client’s background)).
In this case, Jorge Alvarado, the defense lawyer primarily responsible for Dr. Vi-cary’s testimony, “never talked specifically [with Dr. Vicary] about what information he might mention during cross-examination” — despite the fact that Alvarado had been told, both by colleagues and by Dr. Vicary, himself, that Dr. Vicary “had a bad reputation for offering damaging testimony from the stand” and “would say things that most lawyers would be shocked about.” Instead of asking Dr. Vicary what negative testimony he planned to offer about Davis, Alvarado apparently relied on Dr. Vicary’s statements that “whatever he said would not be that bad” and that “he could ... explain away the cross-examination during redirect examination.” Alvarado was completely unprepared for Dr. Vi-cary’s diagnosis of antisocial personality disorder. Obviously, Dr. Vicary’s ability to “explain” cross-examination on re-direct was limited in this case because Alvarado never found out what negative testimony Dr. Vicary planned to offer or could develop and never asked Dr. Vicary the appropriate questions. Alvarado could not in advance prepare questions that would allow Dr. Vicary to “explain away” anything. Alvardo could not and did not prepare adequately for the rehabilitative re-direct that Dr. Vicary expected. In fact, according to Myra Thomas, Alvarado was “overwhelmed” by and did not know “what to do with” Dr. • Vicary’s testimony during the penalty phase.
The complete failure to investigate and prepare for Dr. Vicary’s negative testimony was devastating and cannot possibly be considered “sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Alcala, 334 F.3d at 890.
2. Rude and Hostile Closing Argument
As the majority recognizes, attorney Maxwell delivered a closing argument that at best could be described as “unusual” and at worst calculated to condemn his client. Here are a sample of his statements:
• “Good afternoon, ladies and gentlemen. We will start right out with a comment that I have a strong belief that some of you have already decided this phase of the case to yourselves and to those, probably ... nothing I can say is going to have any particular value.”
• “[W]e [criminal lawyers] are kind of technicians .... And we’re jaundiced and we are cynical. And we have talked about theory and we talk about *665what people will ‘bu/ and we ... manipulate you and we do that because [that is our] stock [in] trade. That is what we are trained to do. ... That is how we as lawyers ... get our notches on our gun, so to speak....”
• “I truly believe that murder cases in general are the easiest kinds of eases upon which to get convictions. Now you have to notice I did not say the easiest to prove. I said the easiest to get convictions.”
• “The only difference between what [you’re] being asked to do and premeditated murder in the first degree is that we label it ‘legal.’ ”
• “I would like to talk about [Davis] from ... a standpoint of someone who ... does not believe that the evidence in this case was sufficient to justify your verdict previously rendered but with an acceptance that that is the way it is.”
• “Now you can poo-poo and shake your head and give me that ‘BS’ look if you wish, and that is fine.... ”
• “You’re going to make your decision regardless of what any of us say here and I’d like you to consider a couple of points.”
Because I cannot imagine a sound reason for what can best be described as Maxwell’s “attack” approach, I conclude that his closing statement was not reasonable under “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The majority agrees, rather relying on Strickland’s second, prejudice, prong to defeat this claim.
3. Prejudice
Viewed cumulatively, counsel’s errors— the failure to prepare for Dr. Vicary’s testimony, Maxwell’s closing argument, and the failure to put on additional mitigating witnesses — undermine confidence in the outcome of the sentencing phase. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
Dr. Vicary’s testimony and Maxwell’s closing argument were profoundly important to Davis’s case in mitigation. Dr. Vicary did provide some mitigating evidence, but he also testified that he believed Davis was guilty and had lied; testified about the negative attributes of antisocial personalities; testified that his opinion about remorse was at least somewhat undermined by statements Davis made to jailhouse informants; testified that there were “no excuses” for Davis’s own “bad choices”; testified that Davis kept his emotions bottled up inside until a triggering event; testified that anti-social personalities could never truly be cured; testified that the best predictor of future behavior is past behavior; and testified about what he believed to be several aggravating-factors in the case.
Defense counsel’s attempt at redirect waá very brief and did not address at all the ASPD diagnosis. Redirect was also conducted by attorney Maxwell rather than by Alvarado, the defense lawyer responsible for Dr. Vicary’s testimony. As Alvarado explained in his April 1997 declaration, he was “shocked” by Dr. Vicary’s “harsh testimony” and “did not believe [it] could be explained away on redirect.” Even Dr. Vicary signed a declaration in 1997 stating that he was “disappointed” in the weak re-direct. Dr. Vicary apparently counted on a successful redirect to take some of the “venom” out of his earlier testimony, and he noted that he was never given a chance “to explain antisocial personality disorder as a legitimate, debilitating mental disorder.”
With respect to Maxwell’s closing argument, the majority emphasizes that Maxwell’s troubling comments were part of a fifty-page closing argument. While true, the majority’s approach does not take into *666account that Maxwell’s troubling comments were spread throughout those pages. Attorney Alvarado referred to Maxwell’s statements in disagreement. This not only highlighted the statements in the eyes of the jury, but highlighted the disarray of the defense.
III. Juror Bias in Favor of the Death Penalty
There may have been jury bias favoring death. Without a hearing we cannot be sure. The questions submitted by R.C. Schwartz, the jury foreman, indicate that he: (1) wanted at least to ensure that Davis would serve a life term without the possibility of parole; (2) believed that Davis would be paroled if given a life sentence; and (3) believed that imposing the death penalty would in fact achieve life without parole. The jury foreman may not have been biased in favor of a death sentence because he actually wanted Davis to die, but he was biased in favor of a death sentence because he believed it was the only way to achieve life without parole.
Due process requires a “a jury capable and willing to decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). “A court confronted with a color-able claim of juror bias must undertake an investigation of the relevant facts and circumstances.” 7 Dyer v. Calderon, 151 F.3d 970, 974 (9th Cir.1998) (en banc); see also Smith, 455 U.S. at 215, 102 S.Ct. 940(“[T]he remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.”). The trial court’s investigation must “be reasonably calculated to resolve the doubts raised about the juror’s impartiality.” Dyer, 151 F.3d at 974-75. The trial court’s “fact-finding process” must be “objective” and must “reasonably explore[ ] the issues presented.” Id. at 975.
In this case, the trial court conducted no hearing or investigation. The trial court never questioned the jury foreman about whether he could put his beliefs out of his mind in order to be fair and impartial. Defense counsel had no opportunity to probe the jury foreman’s bias or to question him about impermissible discussions with other jurors.
The trial court gave a “curative” instruction, but that instruction was of dubious value. The trial court instructed the jury that it should not consider “parole” and that it should assume the authorities would “properly carry out their responsibilities,” but it also confirmed the foreman’s belief by stating that a future modification of Davis’s sentence was possible. In doing so, the trial court drew the jury members’ attention to the very issue — possibility of parole' — -that it then instructed them not to consider.8
IV. Conclusion
For the foregoing reasons, I dissent from the majority’s decision to deny relief *667as to the sentencing phase, and hereby amend the opinion by withdrawing my concurrence in the sentencing phase.
. The limitations of 28 U.S.C. § 2254(e)(2) do not apply in this case. Davis was diligent in state court; he made requests for investigation funds, discovery and evidentiary hearings that were denied. See Jaramillo v. Stewart, 340 F.3d 877, 882 (9th Cir.2003) ("Absent a showing of a lack of due diligence, a petitioner will be excused from showing compliance with the balance of [§ 2254(e)(2)'s] requirements.”) (internal quotation marks omitted); see also Williams v. Taylor, 529 U.S. 420, 442-43, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (finding it significant that request for investigation funds was denied in state court).
. Davis’s guilt phase ended on November 22, 1989. The sentencing phase began in early January 1990.
. Maxwell’s statements questioning Davis's competency support Davis's claim. As a lay person, Maxwell was not qualified (as he recognized) to decide whether Davis was actually unable or simply unwilling to communicate with counsel. See Odle v. Woodford, 238 F.3d 1084, 1088-89 (9th Cir.2001) (explain-' ing that because a defense attorney "is not a trained mental health professional, ... his failure to raise petitioner's competence does not establish that petitioner was competent”). And, as is discussed below, Davis offers expert testimony that his symptoms might well have appeared as malingering tb a lay person, although, in fact, his conduct -was not volitional. What Maxwell was competent to observe and understand helps Davis's case— Davis stopped communicating meaningfully with counsel.
. (The majority suggests that Dr. Vicaiy’s declaration is not compelling because Vicary signed it in 1997. But the case the opinion cites — Douglas v. Woodford, 316 F.3d 1079, 1090 (9th Cir.), cert. denied,-U.S.-, 124 S.Ct. 49, 157 L.Ed.2d 23 (2003)) — involved psychiatrists who did not know or examine the defendant at the time of trial. Douglas submitted the declarations of two psychiatrists, one who examined Douglas seven years before Douglas's trial and one who examined Douglas for the first time thirteen years after the trial. 316 F.3d at 1094. In this case, by contrast, Dr. Vicary had extensive contact with Davis throughout the trial and sentencing phase.
As we recognized recently in Deere v. Woodford, 339 F.3d 1084 (9th Cir.2003), a declaration prepared for a habeas corpus petition by a doctor who knew the petitioner at the relevant time is compelling evidence — even if the declaration is prepared years after the trial. Id. at 1085, 1086-87 (considering as signifi*657cant the declaration of a doctor who examined Deere at the time of trial in 1982 but who signed his declaration in 1993 for Deere's habeas petition). What matters is whether the declarant knew the petitioner at the time of trial, so that the declarant's conclusions (whenever put in declaration form) are based on observations from the relevant time period. Id. at 1086-87 (“Dr. Jones’s declaration ... is based on his two examinations of Deere, which he performed in 1982, within several days of when Deere pleaded guilty. It is, therefore, probative of Deere’s mental status at the critical time.”).
. Dr. Vicary testified that he had learned of physical abuse while preparing his report, but the jury was instructed not to consider such evidence for its truth.
. Right or wrong on this point, Judge Tevrizi-an in a death penalty case abused his discretion in not granting leave to amend to add information from the interview summaries.
. In Tracey v. Palmateer, 341 F.3d 1037 (9th. Cir.2003), the trial court questioned the juror who overheard a potentially troubling conversation between two other jurors. See id. at 1039-40. In this case, no hearing of any kind was conducted.
. The majority relies on Anderson v. Calderon, 232 F.3d 1053, 1098-99 (9th Cir.2000), in rejecting Davis's claim. Anderson is distinguishable for two reasons. First, Anderson addressed the petitioner’s claim only on a premature-deliberation theory, not a bias theory. Second, the juror note at issue in Anderson was less troubling than Schwartz’s note. The Anderson juror asked: "Does life without possibility of parole really mean that? Or can Anderson, under the sentence, at some future time be released?” Id. at 1098. It appears from the note in this case that Schwartz had already reached his own conclusion.