Pinholster v. Ayers

FISHER, Circuit Judge,

dissenting:

I respectfully dissent. This case is controlled by a trio of recent Supreme Court decisions holding that petitioners’ Sixth Amendment rights were violated when their lawyers failed to present available mitigating evidence during the penalty phases of their capital trials. See Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The majority’s attempts to distinguish these cases are not persuasive. Pinholster’s counsel performed at least as deficiently as the lawyers in the Court’s recent decisions; and Pinholster was prejudiced as a result since the mitigating evidence that could have been introduced on his behalf was at least as strong as that in Williams, Wiggins and Rompilla, and the aggravating evidence against him was if anything weaker than that in Williams and Rompilla. Binding Supreme Court precedent therefore compels the conclusion that the state court’s summary denial of Pinholster’s penalty phase ineffective assistance of counsel (IAC) claim was objectively unreasonable. I would therefore remand for the district court to issue a writ vacating Pinholster’s sentence, unless within a reasonable time set by the court the State conducts a new penalty phase trial or imposes a lesser sentence consistent with law.

I.

Before addressing the majority’s penalty phase analysis, I pause to note my partial disagreement with its resolution of Pinhol-ster’s guilt phase IAC claim. I agree that the district court did not err in denying Pinholster’s request for an evidentiary hearing on that claim, but I would base that conclusion solely on Pinholster’s failure to present a colorable claim of prejudice. I cannot agree with the majority’s conclusion that counsel’s decision to advise *776Pinholster to testify was a reasonable tactical choice rather than deficient performance.1

Pinholster’s counsel advised him to testify to a defense that was not only implausible and nonsensical, but also demonstrably false. There was compelling evidence disproving almost every facet of the defense’s case. First, contrary to Pinholster’s claim that he was a gun-toting robber and not a knife-wielding burglar, several witnesses testified at trial that they saw Pinholster carrying a large buck knife immediately before and after the murders. Pinholster himself admitted to carrying a knife on the night of the murders, and a knife sheath was found in his pocket when he was arrested. Pinholster also testified, contrary to his claim that he was not a burglar, that he had burglarized Kumar’s home just hours before the murders took place. In contrast, Corona testified that he and Pin-holster went to Kumar’s house on the night of the murders intending to rob Ku-mar, and that the intended robbery turned into a burglary only when they found Ku-mar’s home unoccupied. Corona — the State’s lead witness — -thus gave testimony that was more consistent with Pinholster’s defense than even Pinholster’s own testimony. The second part of Pinholster’s alibi — that he was at Kumar’s residence before and not after his visit to Tapar’s house — was also disproved at trial. Contrary to Pinholster’s statement that he went to Tapar’s residence by himself in order to tell her about Shotgun’s death, Tapar testified that she did not know Shotgun and that Pinholster arrived in Corona’s car and appeared intent on robbing Kumar. Even more damaging was Klem-etti’s testimony that he was at Kumar’s house at 9 p.m. and found no signs of the burglary that Pinholster claimed to have committed at 8 p.m.

On its own, counsel’s chosen defense was misguided. But in light of counsel’s additional failure to investigate important physical evidence, including the palm print and the boot print, it amounted to deficient performance.2 Although a defendant’s right to testify is his own and may not be *777overridden by counsel, counsel nonetheless has the responsibility to independently investigate and challenge a defendant’s implausible story. See Phillips v. Woodford, 267 F.3d 966, 978-79 (9th Cir.2001) (stating that an attorney has an obligation to investigate defendant’s “ ‘incredibly lame’ ” alibi and “ ‘confront the petitioner with the difficulties of his story’ ”) (quoting Johnson v. Baldwin, 114 F.3d 835, 838, 840 (9th Cir.1997)). Here, an investigation would have revealed that Pinholster’s alibi was highly suspect, giving rise to counsel’s obligation to advise Pinholster against testifying, because the jury would likely conclude he was lying.3 See also id. at 979 (“ ‘The prejudice from failing to investigate the alibi and confer more fully with petitioner is not avoided by the fact the petitioner misinformed his attorney.’ ”) (quoting Johnson, 114 F.3d at 840). At the very least, counsel’s shortcoming in this regard makes out a colorable claim of deficient performance for purposes of obtaining an evidentiary hearing. See id. (noting that the “colorable claim” standard is “far less onerous” than the standard for granting the writ); see also Earp v. Omoski, 431 F.3d 1158, 1170 (9th Cir.2005) (describing the “colorable claim” standard as “a low bar”).

Nonetheless, I agree that Pinholster has failed to present a colorable claim of prejudice. There was overwhelming evidence of Pinholster’s guilt, including: Art Corona’s eyewitness testimony of the murders; Casey Corona’s testimony that she saw Pin-holster washing blood off his knife soon after the murders while stating “[i]t had to be done the way it was done”; Kempfs testimony that Pinholster stated — while clutching his buck knife — that he wanted to rob Kumar “one way or the other”; Tapar’s testimony that Pinholster appeared at her door with a knife just before the murders and that she had the impression that Pinholster intended to steal from Kumar; and evidence that one Gian Norel-li had heard Pinholster brag about stabbing two people in Tarzana, where Kumar lived. In light of this evidence, it is difficult to conceive of any reasonable juror not voting to convict absent a convincing defense theory. Pinholster has failed to articulate such a defense theory. Cf. Phillips, 267 F.3d at 980-81 (gauging whether there was a colorable claim of prejudice by comparing the deficient defense presented at trial to a proposed alternative' defense). For this reason alone, I would hold that the district court appropriately denied Pin-holster an evidentiary hearing on guilt phase ineffective assistance and, necessarily, that the district court properly denied habeas relief with regard to guilt.

Notwithstanding that counsel’s deficiencies were not prejudicial at the guilt phase, I would hold that they added considerably to the prejudice Pinholster suffered at the penalty phase. Counsel’s deficient performance at the guilt phase resulted in the jury hearing Pinholster boast about committing hundreds of robberies as well as other damaging evidence suggesting that Pinholster murdered two men. The majority itself makes evident that counsel’s failure to advise Pinholster against taking the stand during the guilt phase was prejudicial at the penalty phase, because it repeatedly invokes the “damage Pinholster did to himself when he took the stand in *778the guilt phase and testified to an unrepentant life of violent crime.” See Maj. Op. at 767; see also id. at 770 (“[N]o newly-minted expert theory to explain his behavior would have made a difference in the face of what Pinholster said and did.”); id. at 771 (noting that any mitigating evidence would have been offset when Pinholster “proudly boasted to the jury” about his life of crime). The same jury that decided Pinholster’s guilt went on to decide his penalty, so the harmful guilt phase evidence undoubtedly added to the other prejudicial errors Pinholster’s counsel committed at the penalty phase, to which I now turn.

II.

The majority holds that the California Supreme Court’s summary denial of Pin-holster’s penalty phase IAC claim was not objectively unreasonable. I disagree. In my view, the Supreme Court’s recent decisions in Williams, Wiggins and Rompilla compel the conclusion that Pinholster’s counsel performed deficiently and that Pinholster was prejudiced as a result. The state court’s ruling to the contrary was indeed an “unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

A.

The majority proceeds straight to the prejudice prong of the IAC inquiry and does not contend that Pinholster’s trial counsel performed competently. See Maj. Op. at 765-66. This is a wise decision, because counsel manifestly failed to satisfy the professional standards for penalty phase representation. The Supreme Court has held that “trial counsel [must] conduct a thorough investigation of the defendant’s background.” Williams, 529 U.S. at 396, 120 S.Ct. 1495 (citing the applicable American Bar Association standards); see also Rompilla, 545 U.S. at 387 & n. 7, 125 S.Ct. 2456; Wiggins, 539 U.S. at 524, 123 S.Ct. 2527 (“[I]nvestigations into mitigating evidence should comprise efforts to discover all reasonably available mitigating evidence ....”) (internal quotation marks omitted). Employing this approach, the Court found deficient performance — despite AEDPA’s deferential standard of review — in Williams, Wiggins, and Rompilla. In Williams, counsel began to prepare for the penalty phase less than a week before trial, presented only four witnesses and “failed to conduct an investigation that would have uncovered extensive records graphically describing Williams’ nightmarish childhood.” 529 U.S. at 369, 395, 120 S.Ct. 1495. In Wiggins, counsel presented no evidence of the petitioner’s life history or family background, and failed to consult documentary evidence beyond the petitioner’s presen-tence investigation (PSI) report and Department of Social Services (DSS) records. See 539 U.S. at 516, 524-29, 123 S.Ct. 2527. And in Rompilla, counsel presented five witnesses during the penalty phase and reviewed the reports of three mental health experts, but failed to examine the petitioner’s prior conviction file even though the prosecution had declared its intention to introduce that file’s contents at trial. See 545 U.S. at 381-86, 125 S.Ct. 2456.

Pinholster’s attorneys plainly performed even more deficiently than the lawyers in Williams, Wiggins and Rompilla. According to billing records, they spent only 6.5 hours preparing for the penalty phase of Pinholster’s trial. One week before the penalty phase began, counsel admitted that they “had not prepared any evidence by way of mitigation,” and then declined to request a continuance so that they could conduct a proper investigation, telling the *779court that they did not think more time “would make a great deal of difference.” They obtained no medical or psychological records, law enforcement records or school reports for Pinholster or his siblings, even though all of this documentary evidence was readily available. They failed to provide the psychiatrist they retained, Dr. Stalberg, with any of the materials he needed to evaluate Pinholster properly. They interviewed and presented just one witness, Pinholster’s mother, whose testimony at trial was highly misleading and self-serving. They waived their opening statement in the penalty phase. If the lawyers in Williams and Rompilla performed deficiently even though they interviewed and presented multiple witnesses, and if counsel’s performance in Wiggins was deficient despite the examination of the petitioner’s PSI report and DSS records, then Pinholster’s attorneys cannot have satisfied the professional standards for penalty phase representation. It is not reasonable for a lawyer to interview and present just one witness, to fail to uncover abundant readily available mitigating evidence and to spend less than a day preparing for a proceeding at which the jury will decide whether the lawyer’s client should live or die.

Chief Judge Kozinski, concurring, suggests that this performance was not deficient because counsel “made a rational decision to pursue what was essentially a ‘pity’ mitigation case, rather than trying to make out a case of mental defect.” Concurring Op. at 774. Relying almost exclusively on Justice O’Connor’s nonbinding concurrence in Rompilla, he argues that Rompilla stands only for the “unremarkable proposition” that counsel must take reasonable steps to prepare for a hearing, not “that counsel are always ineffective for failing to uncover childhood mitigating evidence.” Id. Even if he were correct that Rompilla’s holding is so limited, however, the same cannot be said for Williams, where the Court noted that it was “barely disputed” that counsel were ineffective where, as here, they “did not begin to prepare for [the penalty] phase of the proceeding until a week before the trial” and “failed to conduct an investigation that would have uncovered extensive records graphically describing Williams’ nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records.” 529 U.S. at 395, 120 S.Ct. 1495 (emphasis added).

In this case, counsel failed to conduct an investigation into Pinholster’s background' — not through any mistake of law, but through apathy or negligence. This hardly seems to be a more defensible strategic choice. Although in certain cases counsel may have “sound reason to think it would have been pointless to spend time and money on ... additional investigation,” and hence counsel’s failure to uncover additional mitigating evidence would not be unreasonable, here there was no investigation into Pinholster’s background at all, beyond interviewing his mother. Rompilla, 545 U.S. at 383, 125 S.Ct. 2456. Where no meaningful investigation is even attempted, counsel could hardly have developed any “sound reason” to think that “additional investigation” would be fruitless. Id. (emphasis added); see also id. at 389, 125 S.Ct. 2456 (explaining that conducting further investigation may not be necessary “when a lawyer truly has reason to doubt” that further useful mitigating information will be found) (emphasis added). Here counsel not only conducted the very barest kind of investigation, they failed to conduct any follow-up investigation into the limited mitigating evidence that they did learn from Pinholster’s mother, such as evidence that Pinholster suffered from epilepsy. Thus even where *780counsel developed “sound reason” to believe that further investigation would yield fruitful evidence, counsel utterly neglected that duty. Id.

Lastly, contrary to Chief Judge Kozin-ski’s suggestion, counsel could not have made a “rational decision” to pursue a mitigation strategy that relied solely on Pinholster’s mother’s inaccurate testimony, when counsel failed to explore meaningfully any other options. See Concurring Op. at 774. As the Court has explained, the question is “not whether counsel should have presented a mitigation case,” but “whether the investigation supporting counsel’s decision not to introduce mitigating evidence of [the defendant’s] background was itself reasonable.” See Wiggins, 539 U.S. at 523, 123 S.Ct. 2527. Even if one could hypothesize a world in which relying on Pinholster’s mother’s testimony and eschewing a mental defect defense was a reasonable defense strategy, Pinholster’s counsel could not have made such a strategic decision where they “abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources.” Id. at 524, 123 S.Ct. 2527. Counsel’s failure to investigate here was even more flagrant than in Williams, Wiggins or Rompilla, and so was manifestly unreasonable under clearly established Supreme Court law.

B.

1.

The majority holds that even if the performance of Pinholster’s counsel was deficient, it was not objectively unreasonable for the state court to rule that Pinholster was not thereby prejudiced. In reaching this conclusion, the majority minimizes or ignores much of the mitigating evidence that Pinholster could have presented, overstates the value of what little mitigating evidence was actually put before the jury, and exaggerates the aggravating evidence that was introduced against him. The majority thus imposes a much more stringent test for prejudice than is required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny. While it is true that Pinhol-ster must demonstrate that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” the Court has emphasized that a reasonable probability is less than the preponderance more-likely-than-not standard. See Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052; see also Rompilla, 545 U.S. at 393, 125 S.Ct. 2456 (“[A]lthough we suppose it is possible that[the sentencer] could have heard it all and still decided on the death penalty, that is not the test.”). The gap between the evidence that was presented and what could have been presented is more than sufficient to “undermine confidence in the outcome” of the proceeding. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Beginning with the available mitigating evidence, the majority ignores or downplays much of the probative information that Pinholster could have presented at trial. First, the “years of significant neglect and physical and emotional abuse” that Pinholster experienced as a child were not, as the majority implies, limited to the beatings by his stepfather and grandmother. Maj. Op. at 767. His birth father, Garland Pinholster, abandoned the family when Pinholster was an infant. Pinhol-ster’s family was extremely poor, to the point that the children would sometimes mix flour and water when they were hungry. Neither Pinholster’s stepfather nor his mother evinced any concern for Pinhol-ster and his siblings. Indeed, Pinholster’s mother often laughed when her children *781behaved inappropriately, encouraged them to steal from nearby rail cars and dressed the children in rags while buying mink coats for herself.

Second, the lives of Pinholster’s siblings were worse than the majority indicates. Pinholster’s half-sister, Tammy Brashear, was convicted of prostitution and forcible sexual battery, and became a ward of the juvenile court when she was 16. Pinholster’s brother, Alvin Pinhol-ster, was arrested for robbery, rape, sodomy and other offenses, suffered from severe depression and schizophrenia and eventually committed suicide. Pinhol-ster’s other brother, Terry Pinholster, suffered from depression and became a user of PCP. And Pinholster’s half-brother, Guy Pinholster, suffered from depression as well as bipolar mood disorder, and was frequently beaten by his father.

Third, Pinholster’s own medical history is more problematic than the majority acknowledges. He suffered his first head injury at age two when he was run over by his mother’s car, resulting in a two-week hospital stay. He suffered a second severe head injury a year later, during a car accident in which Pinholster’s head hit the front windshield hard enough to shatter the glass. According to Dr. Woods, these injuries at the very least supported a post-traumatic diagnosis, and may have accounted for the abnormal EEG that Pin-holster recorded as a child. Similarly, Dr. Olson and Dr. Vinogradov stated that the injuries damaged Pinholster’s brain and caused him to become more aggressive, while Dr. Stalberg described the injuries as potentially “devastating” and linked them to Pinholster’s epilepsy. That epilepsy was severe enough that Pinholster was prescribed medication from age nine onward and repeatedly suffered complex partial and grand mal seizures. Different doctors also diagnosed Pinholster with bipolar mood disorder (Dr. Woods) and personality change due to childhood head trauma (Dr. Olson and Dr. Vinogradov), while agreeing that he was epileptic. At age 11, Pinholster spent more than four months in a mental institution.

Fourth, the majority does not even acknowledge that Pinholster had severe learning disabilities in school and was socially isolated and maladjusted as a child. According to his elementary school teacher, Lois Rainwater, Pinholster “had no friends at all,” “seemed incapable of relating either to his peers or to adults,” “seemed like a child who got no attention or structure at home” and “fell through the cracks emotionally and every other way.” Lastly, Pinholster had a history of abusing alcohol, nicotine, marijuana, and heroin. He started drinking alcohol, smoking, sniffing glue and paint and using marijuana between the ages of 10 and 12; using Seconal and downers between the ages of 13 and 14; and using heroin and cocaine between the ages of 14 and 16. On the night of the events in question, Pinhol-ster was heavily intoxicated with both alcohol and drugs.

Instead of discussing this substantial available mitigating evidence that was not put before the jury, the majority instead dwells on an interview Pinholster gave to a social worker in 1991, where he downplayed the extent of the abuse he suffered as a child. See Maj. Op. at 767-68. Although the majority acknowledges that Pinholster’s stepfather “frequently beat Pinholster with his fists, a belt, or anything else available, including a two-by-four board,” the majority nonetheless focuses on Pinholster’s — the abused child’s— interpretation of these events as nothing but “discipline” that “benefitted” him and his brothers. Id. at 767. Further, while the majority goes on at length about the positive relationship Pinholster may have *782with his maternal grandfather, Pinholster’s uncle and aunt testified that it was Pinhol-ster’s grandmother who would frequently “beat the hell out of’ Pinholster from the time when he was a toddler. Every medical professional who evaluated Pinholster concluded that he suffered severe abuse and neglect in his childhood. Further, multiple doctors who evaluated Pinholster noted his tendency to portray his own history inaccurately or minimize the seriousness of his childhood trauma so as to maintain a facade of personal control. The majority’s emphasis on Pinholster’s rationalization of his mother’s neglect therefore seems rather myopic if not disingenuous.

The majority also attempts to minimize the evidence of Pinholster’s substantial neurological and emotional disorders by emphasizing disagreements among the experts as to some diagnoses, and stating that “the only constant with regards to the evolving defense expert testimony has been Dr. Stalberg’s diagnosis of Antisocial Personality Disorder and the experts’ agreement that it is reasonably probable that Pinholster suffered from epilepsy.” Maj. Op. at 770. It is unclear why the majority dismisses the importance of these diagnoses, which are clearly sufficient of themselves to indicate an organic basis for some of Pinholster’s behavior. Further, Dr. Woods concluded that Pinholster suffered from bipolar mood disorder and Dr. Olson and Dr. Vinogradov concluded that Pinholster suffered from brain damage attributable to childhood trauma, which may have explained in part his aggressive behavior. Even if not all experts concurred on the exact set of diagnoses, numerous doctors agreed that Pinholster suffered from psychological disorders that may have influenced his criminal acts. Further, this medical testimony might have also affected the jury’s interpretation of Pinholster’s guilt phase testimony, again by suggesting an organic basis for his tendency to exaggerate his past. Yet none of this medical evidence or testimony was put before the jury to evaluate, and the majority acknowledges that it has no reason to doubt the credibility of these medical professionals.

The majority also gives too much credit to the penalty phase testimony of Pinhol-ster’s mother, Burnice Brashear. While Brashear’s testimony did include some “mitigating evidence,” see id. at 768 — as was inevitable given Pinholster’s horrific childhood — the overall impression she conveyed of Pinholster’s upbringing was not just incomplete but actually untrue. Contrary to her statements in court, Pinhol-ster’s siblings were not “[bjasically very good children,” and they got into much more than “small trouble” with drugs, alcohol and the law. The beatings that Pin-holster endured at the hands of his stepfather were quite certainly child abuse, not mere “discipline” or “arguments and hassles,” as Brashear also characterized them. Pinholster and his siblings did not have “everything normally material-wise that most people have,” “decent clothes” and “a nice house,” but instead suffered from malnutrition, lack of clothing and neglect. Pinholster’s epilepsy was first diagnosed at age nine, not after he was beaten at age 18. And Pinholster did not do “much better” at school after being diagnosed with “perceptive vision” and moved to a different classroom; rather, his academic performance continued to decline, and by his teenage years he was being shuffled from one institutional setting to another. Instead of minimizing the damage done by Brashear’s testimony, I would simply adhere to the conclusions of Dr. Stalberg and the district court. Dr. Stalberg described Brashear’s statements as “profoundly misleading,” while the district court opined that “[tjhe available evidence ‘was far dif*783ferent from the unfocused snapshot’ presented by Pinholster’s attorneys at trial.” Hence the majority attributes false weight to the jury’s supposedly “obvious rejection of such mitigating circumstances.” Id. at 768. The jury was not presented with an accurate picture of the mitigating circumstances, so it hardly could have rejected them.

Finally, the majority not only overvalues Brashear’s testimony, but also ignores the way in which its deficiencies were turned against Pinholster by the prosecution. During the penalty phase closing arguments, the State was able to claim, on the basis of Brashear’s inaccurate statements, that Pinholster had resorted to crime and violence even though he “came from a good home,” “was not a deprived child” and “had many things going for him, probably more than many children.” The State also was able to discount Brashear’s testimony about Pinholster’s epilepsy — and indeed to accuse her of lying about it — by pointing to the complete lack of corroborating evidence as well as her own ignorance about the condition. On cross-examination, Brashear stated that she did not know what type of epilepsy Pinholster had, that she was unsure when she found out about the condition and that on one occasion she had taken Pinholster to a doctor and, as the prosecutor put it, “lo and behold, just like that the doctor told them he had epilepsy.” Brashear’s flawed testimony, in combination with Pinholster’s counsel’s failure to present any other evidence in mitigation, thus made possible the State’s devastating conclusion: “What did the defendant proffer in this particular case as to ask you to come back with anything less than death? ... Not one person except his mother.” Cf. Karis v. Calderon, 283 F.3d 1117, 1139 (9th Cir.2002) (finding prejudice in part because “[t]he defense counsel’s portrayal of [petitioner] as intelligent without any indication of his violent and abusive childhood afforded the prosecution a very effective argument,” and enabled “[t]he prosecutor [to] emphasize[ ] the fact that [petitioner] was ‘bright’ and ‘cunning’ and that he ‘well knew exactly what he was doing’ ”).

2.

On the other side of the ledger, the majority describes the aggravating evidence that was introduced against Pinhol-ster as “overwhelming.” Maj. Op. at 766, 770. This evidence must not be understated, and Pinholster is obviously not a sympathetic person, but deeming the aggravating evidence “overwhelming” does not make it so. First, the murders themselves were not as heinous as many of the other terrible crimes that we have considered in capital cases. Pinholster did not intend to kill anyone when he went to Kumar’s house, and indeed was surprised when the housesitters, Johnson and Beckett, arrived at the scene. Thus to the extent there was any premeditation, it formed immediately before the instant offenses took place, when a drunk, high and emotionally distraught Pinholster and his two codefen-dants, Corona and Brown, suddenly discovered that they were not alone in Ku-mar’s house. Moreover, Brown stabbed Johnson as well and said that he had “ ‘buried his knife to the hilt’ ” in him, meaning that it is uncertain whether Pin-holster was responsible for Johnson’s fatal wounds. See Pinholster, 4 Cal.Rptr.2d 765, 824 P.2d at 582-84.

We have previously described a very similar crime as “in essence a robbery gone wrong.” Belmontes v. Brown, 414 F.3d 1094, 1139 (9th Cir.2005), rev’d on other grounds, Ayers v. Belmontes, 549 U.S. 7, 127 S.Ct. 469, 166 L.Ed.2d 334 (2006). We commented in Belmontes that the murder, which involved the bludgeoning of a single victim with an iron bar *784during a robbery, “was not pre-planned, nor did it involve kidnapping, rape, torture ... or any of the other especially heinous elements that usually are present when a jury votes for the ultimate penalty.” Id,.; see also Summerlin v. Schriro, 427 F.3d 623, 641 (9th Cir.2005) (en banc) (noting that “instantaneous premeditation” is “not definitive for the purpose of establishing the especially heinous, cruel, or depraved aggravator”). Although Pinholster’s crime was surely vicious, the facts of the crime were unfortunately far from extreme in either their depravity or cruelty. See, e.g., Hovey v. Ayers, 458 F.3d 892, 898 (9th Cir.2006) (defendant abducted a young girl as she was walking home from school, sexually molested her and abandoned her on the side of the road with six skull fractures and 14 laceration wounds); Fields v. Brown, 431 F.3d 1186, 1202 (9th Cir.2005) (defendant was responsible for a “ ‘one-man crime wave’ ” during which he committed “a murder and at least three kidnappings, rapes, and robberies within a three-week period of time”).

Second, the aggravating evidence introduced against Pinholster that pertained to incidents other than the murders themselves was also less severe than that in many of our previous cases. As the majority notes, Pinholster denied murdering Johnson and Beckett, referred to himself as a “professional robber,” testified that he often scratched people’s property, was convicted of kidnaping and received several disciplinary infractions while arrested and incarcerated. See Maj. Op. at 771-73 & n. 29. As presented to the jury, however, Pinholster’s criminal record was not very extensive, as it did not include any convictions other than the kidnaping count. Moreover, although the majority believes this aggravating evidence was of overwhelming importance, the prosecutor did not actually refer to Pinholster’s denial of his involvement in the murders, his prior robberies or his penchant for scratching property at any point during the penalty phase. Considering analogous aggravating evidence in Belmontes, we concluded that it was “not strong,” but was “minimal” and “weak[ ].” 414 F.3d at 1106, 1139-40. The relevant facts in that case consisted of Belmontes’ “previous[ ] inearcerat[ation] in the youth facility for being an accessory after the fact to voluntary manslaughter, one domestic violence incident, and two occurrences relating to possession, or possible possession, of a gun.” Id. at 1139. Similarly, we noted that the prosecution presented “considerable” aggravating evidence in Boyde v. Broum, 404 F.3d 1159, 1179 (9th Cir.2005). The incidents introduced in that case included the petitioner’s assaults on former classmates, his throwing bricks at a van, his theft of his stepfather’s gun, his prior robberies, his drug use while incarcerated and his plot to escape from prison. See id.

The majority dismisses the relevance of any comparisons between Pinholster’s murders and other crimes, noting that under California law, the jury reviews only the facts in front of it and does not conduct a proportionality review by comparing the crime to others. See Maj. Op. at 772 n. 30. All jurors, however, consider a case against a background of social understandings and shared experiences about crime and criminals, which in turn influences their decision as to whether someone has committed an offense so heinous as to warrant the ultimate penalty. Indeed, the majority’s emphasis on the lack of proportionality analysis in California law underscores the prejudice that resulted from counsels’ failure to put forth the reams of the readily available mitigating evidence in Pinholster’s ease. Because the jurors could weigh only the aggravating and mitigating evidence presented to them, the omissions of and outright misrepresenta*785tions about mitigating evidence on Pinhol-ster’s side of the scale plainly left the jury with little to tip the balance toward life imprisonment over execution.

Finally, as discussed above, some of the aggravating evidence that the majority cites would never have been introduced had Pinholster’s counsel not performed de-ficiently during the guilt phase of the trial. In particular, Pinholster’s references to his own past robberies — -probably the most damning testimony the jury heard, next to the details of the actual murders — and his statements about the swastikas and signatures he frequently scratched into other people’s property would never have been admitted. See Maj. Op. at 772-73. Competent representation during the trial’s first stage would thus have further weakened the prosecution’s argument during the penalty phase that Pinholster deserved the ultimate penalty.

3.

The mitigating evidence that Pinholster could have introduced was therefore substantially more compelling than the majority acknowledges, whereas the aggravating evidence was somewhat weaker. If the evidence on both sides of the ledger is fairly characterized, and evaluated in light of the Supreme Court’s recent decisions in Williams, Wiggins and Rompilla, it is clear that the California Supreme Court’s denial of Pinholster’s penalty phase IAC claim was objectively unreasonable.

The available mitigating evidence in Williams was that the petitioner had been beaten by his father, that his parents had been imprisoned for criminal neglect, that he had been placed under the custody of the social services bureau for two years, that he was borderline mentally retarded, that he had helped crack a prison drug ring and that he had been a peaceful prisoner. See 529 U.S. at 395-96, 120 S.Ct. 1495. The aggravating evidence, on the other hand, was that the petitioner had been convicted of armed robbery, burglary and grand larceny prior to the murder for which he was sentenced to death, and that after the murder he perpetrated two auto thefts and two separate assaults on elderly victims. The jury also learned that he was convicted for setting a fire while in jail. See id. at 368-69, 120 S.Ct. 1495. In Wiggins, the available mitigating evidence was that the petitioner experienced severe privation and abuse while in his mother’s custody, that he was abused, sexually molested and raped while in foster care, that he was homeless for a period and that his mental capacity was diminished. See 539 U.S. at 535, 123 S.Ct. 2527. The only aggravating evidence was that the petitioner had drowned his elderly victim and ransacked her apartment; he had no record of violent conduct before or after the murder. See id. at 514, 537, 123 S.Ct. 2527. Finally, the available mitigating evidence in Rompilla was that the petitioner grew up in a slum, that he was abused by his father, that his parents were alcoholics, that he consumed too much alcohol, that he was mentally retarded and that he suffered from organic brain damage. See 545 U.S. at 390-93, 125 S.Ct. 2456. The aggravating evidence consisted of the petitioner’s prior convictions for rape, burglary and theft, as well as his use of torture in committing the murder for which he was sentenced to death. See id. at 378, 125 S.Ct. 2456; Rompilla v. Horn, 355 F.3d 233, 237 (3d Cir.2004), overruled by 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).

Although the majority asserts that Pin-holster’s available mitigating evidence “falls short when compared to the mitigating evidence available in Williams, Wiggins, and Rompilla,” that evidence cannot be meaningfully distinguished from these *786cases. Maj. Op. at 770-71. Pinholster, Williams, Wiggins and Rompilla were all badly beaten by their parents. All four men grew up in extreme poverty with little to no parental attention. All four spent time in foster homes and other institutional settings as children. Pinholster and Rompilla suffered from organic brain damage, while Williams and Wiggins were mentally retarded or close to it. And both Pinholster and Rompilla were addicted to alcohol.

Rather than heed these obvious similarities, the majority emphasizes the differences that inevitably exist between one person’s life and another’s. For instance, Williams, unlike Pinholster, behaved well while in prison and Wiggins, also unlike Pinholster, was sexually molested and spent time homeless. Maj. Op. at 770. These minor factual contrasts cannot be legally dispositive, particularly given that several aspects of Pinholster’s available mitigating evidence have no parallel in Williams, Wiggins and Rompilla. Pinholster’s mother, for example, did not just neglect him but rather actively encouraged his illegal activities. His siblings had serious problems with alcohol, drugs, mental health and the law. Pinholster himself is a lifelong epileptic prone to severe seizures. He was socially isolated and maladjusted as a child. His substance abuse issues began at an early age and involved an array of illegal drugs. And Pinholster’s counsel did not just present incomplete information about him in mitigation, but rather allowed his mother to give inaccurate testimony that was then used against him by the prosecution. I do not necessarily contend that these differences make Pinholster’s available mitigating evidence more powerful than that in Williams, Wiggins and Rompilla. They do, however, more than offset the supposedly meaningful contrasts that the majority identifies.

On the aggravating evidence side, I agree with the majority that Wiggins can be distinguished because the petitioner in that case, unlike Pinholster, “[did] not have a record of violent conduct that could have been introduced by the State to offset th[e] powerful mitigating narrative.” 539 U.S. at 537, 123 S.Ct. 2527; see Maj. Op. at 770-71. However, the aggravating evidence against Pinholster was not disposi-tively stronger than that in Williams and Rompilla. It is true, as the majority asserts, that Pinholster admitted to committing many past robberies — in guilt phase testimony that would never have taken place had he been competently represented, and that the prosecutor never mentioned during the penalty phase — and that he was an unusually problematic inmate. See Maj. Op. at 771-72 & n. 29. But Williams also committed theft-related offenses both before and after his homicide, and, unlike Pinholster, he was actually convicted of some of those crimes (namely his 1976 armed robbery and his 1982 burglary and grand larceny). There is also no analogue in Pinholster’s criminal history to Williams’ “two separate violent assaults on elderly victims perpetrated after the [relevant] murder,” his proclivity for starting fires or the testimony by two expert witnesses that he would “pose a serious continuing threat to society.” 529 U.S. at 368-69, 120 S.Ct. 1495. Rompilla, similarly, was actually convicted of burglary and theft. He was also convicted of rape — a more serious crime than any Pinholster committed before the instant murders— and tortured his homicide victim before finally putting him out of his misery. See 545 U.S. at 378,125 S.Ct. 2456; 355 F.3d at 237. Again, I do not necessarily argue that these differences make the aggravating evidence against Pinholster weaker than that in Williams and Rompilla. But I cannot accept the majority’s conclusion that the aggravating evidence against Pin-holster was dispositively worse.

*787Though the majority does not address them, it is also clear that none of the Supreme Court decisions that have upheld state court denials of petitioners’ penalty phase IAC claims are as relevant here as Williams, Wiggins and Rompilla. In Strickland, “[t]he evidence that respondent says his trial counsel should have offered at the sentencing hearing would barely have altered the sentencing profile presented to the sentencing judge,” and the aggravating factors were “overwhelming.” 466 U.S. at 699-700, 104 S.Ct. 2052. The balance between available mitigating evidence and aggravating evidence was thus starkly different from Williams, Wiggins, Rompilla and the case before us. In Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), and Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), the Court never reached the prejudice prong of the IAC inquiry because it concluded that the petitioners’ lawyers had not performed defi-ciently. The aggravating evidence in Burger and Bell was also more severe than in this case, while the available mitigating evidence was less powerful. See Bell, 535 U.S. at 699, 122 S.Ct. 1843; Burger, 483 U.S. at 789-94, 107 S.Ct. 3114. Woodford v. Visciotti, 537 U.S. 19, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002), is inap-posite for the same reason: The aggravating evidence, which included the knifing of one man and the stabbing of a pregnant woman, was “devastating” while the available mitigating evidence was not particularly potent. Id. at 26, 123 S.Ct. 357. Schriro v. Landrigan,—U.S.-, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), finally, dealt primarily with the extraneous issue of a petitioner instructing his lawyer not to mount a case in mitigation. The Court also explicitly labeled the available mitigating evidence in that case as “weak,” and noted the petitioner’s “exceedingly violent past” of murders, kidnappings and prison escapes. Id. at 1944. Accordingly, nothing in the Supreme Court’s other penalty phase IAC decisions undermines my conclusion that we are bound here by Williams, Wiggins and Rompilla — and that those cases require us to hold that the California Supreme Court’s denial of Pin-holster’s penalty phase IAC claim was objectively unreasonable.

III.

The California Supreme Court’s summary denial of Pinholster’s penalty phase IAC claim was an objectively unreasonable application of Strickland. The performance of Pinholster’s counsel at the penalty phase was plainly deficient; and the available mitigating evidence in his favor and the aggravating evidence against him— when they are fairly characterized — render this case materially indistinguishable for purposes of prejudice from Williams and Rompilla. I therefore dissent. I would remand, for the district court to issue a writ vacating Pinholster’s sentence, unless within a reasonable time set by the court the State conducts a new penalty phase trial or imposes a lesser sentence consistent with law.

. I also disagree with the majority's conclusion that the California Supreme Court reasonably concluded that Pinholster's counsel was effective in failing to object to highly prejudicial evidence suggesting that Pinhol-ster murdered two other individuals in Sun Valley. That court’s conclusion was based entirely on the assumption that the evidence would assist Pinholster’s defense. However, Pinholster's defense was irrational and should have never been put forth. The California Supreme Court also failed to consider whether Pinholster could have received the same benefit in terms of "candor,” People v. Pinholster, 1 Cal.4th 865, 4 Cal.Rptr.2d 765, 824 P.2d 571, 604 (1992), by requesting redaction of the prior murder evidence from the Corona tape and allowing the remainder to be played. Finally, as the prosecution never produced evidence that two Latino men were killed in a shootout in Sun Valley, it appears that Corona's prior murder comments were simply untrue.

. The majority's insistence that Pinholster's counsel were not ineffective because Pinhol-ster was "eager to take the stand” is not illuminating. Maj. Op. at 759. Counsels’ deficient failure to investigate Pinholster's alibi defense, which in turn rendered them unable to provide competent advice about whether he should testify, made it impossible for Pin-holster to make an informed decision as to whether he should exercise his constitutional right to do so.

. The majority suggests that Pinholster suffered less prejudice from his counsels' failure to investigate the palm print, because counsel "merely stated that he probably ” would have advised Pinholster not to testify had he known of evidence that the palm print found at the crime scene did not match Pinholster's palm. See Maj. Op. at 759 & n. 13. The question is not what Pinholster's ineffective counsel would have done but rather what effective counsel would have done. Competent counsel would have certainly advised Pinholster not to testify. Nor do I agree that the existence of only a "battle of the experts” with regard to the palm print evidence somehow reduces the prejudice from counsel's failure to investigate. See id. at 759-60. Evidence that creates a "battle of the experts” is precisely the type of evidence that gives rise to reasonable doubt, and thus will typically support a finding of prejudice. In this case it is only because other evidence overwhelmingly shows Pinholster’s guilt that the new palm print evidence does not amount to prejudice.