FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS S. MICKEY,
Petitioner-Appellant,
No. 07-99006
v.
D.C. No.
ROBERT L. AYERS, For California CV-93-00243-RMW
State Prison at San Quentin,
Respondent-Appellee.
DOUGLAS S. MICKEY,
Petitioner-Appellee, No. 07-99007
v.
D.C. No.
CV-93-00243-RMW
ROBERT L. AYERS, For California
State Prison at San Quentin, OPINION
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted
December 9, 2009—San Francisco, California
Filed June 7, 2010
Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
8085
MICKEY v. AYERS 8089
COUNSEL
J. Frank McCabe, San Francisco, California, and Neoma D.
Kenwood, Berkeley, California, filed the briefs and argued
the cause for the petitioner-appellant-cross-appellee.
8090 MICKEY v. AYERS
Alice B. Lustre, Deputy Att’y General of California, argued
the cause and filed the brief for the respondent-appellee-cross-
appellant. Edmund G. Brown, Jr., Attorney General of Cali-
fornia, Gerald A. Engler, Senior Assistant Attorney General
of California, Dane R. Gillette, Chief Assistant Attorney Gen-
eral of California, and Glenn R. Pruden, Deputy Attorney
General of California also were on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We consider an appeal and a cross-appeal presenting con-
solidated issues arising out of a California double murder con-
viction and death sentence.
I
A
A California jury convicted Douglas S. Mickey of two first-
degree murders, making special circumstance findings that
authorized the death penalty. The state court jury returned a
death verdict. The facts, as aptly discussed by the California
Supreme Court in People v. Mickey, 54 Cal. 3d 612 (1991),
and undisputed by the parties, can be summarized as follows:
1
In September 1980, Mickey lived on an Air Force base in
Japan with his wife, who worked as a nurse, and her two chil-
dren. Mickey did not have a job and his family was experienc-
ing financial difficulties. On September 17, 1980, Mickey
flew to California, his home state. He stayed with Edward
Rogers, a longtime friend. Mickey disclosed to Rogers that he
traveled to California in order to rob and murder Eric Lee
MICKEY v. AYERS 8091
Hanson. After that, Mickey planned to travel to Alaska to kill
his wife’s ex-husband in order to obtain life insurance pro-
ceeds for his wife and children, who were beneficiaries under
the policy. Although Hanson, a drug dealer, was a longtime
friend of his, Mickey had a grudge against him. Mickey
believed that Hanson had stolen some of Mickey’s personal
property. As a result, Mickey had stolen some of Hanson’s
marijuana crop, burying it in the ground. When Mickey
returned to California, he retrieved the stolen loot and began
consuming it, along with alcohol.
On September 22, Mickey drove to Hanson’s home in
Placer County in a car he borrowed from Rogers, arriving
around 11 p.m. He armed himself with a rifle, also borrowed
from Rogers, to which Mickey attached a homemade silencer.
Mickey stayed overnight with Hanson and his girlfriend,
Catherine Blount. Though Mickey observed Hanson counting
a wad of money, he did not act on his plan to kill Hanson, and
he left the next day.
On September 28, Rogers dropped Mickey off at Hanson’s
home, around midnight. This time, Rogers and Mickey estab-
lished a rendez-vous point at a public telephone booth a few
miles from Hanson’s home. Mickey had armed himself with
his own knife and Rogers’s pistol. Hanson and Blount invited
Mickey inside the home.
Shortly thereafter, Mickey murdered Hanson and Blount.
He first bludgeoned Hanson with a baseball bat and slit his
throat from ear to ear down to the spinal cord. He then
stabbed Blount seven times in the chest. Three of the blows
pierced her heart. Mickey left the house, taking substantial
property with him, and drove away in Hanson’s Volkswagen.
He left no fingerprints.
Mickey then met up with Rogers. They transferred the
stolen property to Rogers’ pick-up truck and wiped the Volk-
swagen clean of fingerprints. Rogers convinced Mickey not to
8092 MICKEY v. AYERS
go back and burn the house to the ground. They abandoned
the Volkswagen and returned to Rogers’ house. They stashed
the goods and Mickey tended to a wound suffered during the
murders. The next day, September 30, Mickey fled to Japan.
2
Within a few days, the State secured a statement from Rog-
ers implicating himself and Mickey in the crimes, in exchange
for Rogers’ immunity. The State soon thereafter filed a com-
plaint against Mickey for the double homicide, alleging five
special circumstances making the crimes capital offenses.
Sheriff Donald Nunes traveled to Japan, where Mickey was
arrested on October 14, 1980. Nunes advised Mickey of his
Miranda rights and Mickey declined to speak at that time,
asking to speak to a friend who was an attorney. Although
Mickey desired to waive extradition, the Japanese government
would not permit a waiver.
3
Mickey sat in a Japanese prison until 1981. On January 12
of that year, federal marshal Robert LaRoche arrived with
Sheriff Nunes and Detective Curtis Landry and, more impor-
tantly, an extradition warrant. Nunes and Landry accompa-
nied LaRoche in order to collect evidence and to interview
witnesses. On January 16, 1981, at about 3:30 p.m. Tokyo
time, LaRoche, Nunes, Landry, and Mickey began the journey
back to California. The law enforcement officials picked up
Mickey from the Japanese detention center. Mickey was alert,
healthy, jovial, and talkative, and engaged in small talk with
Nunes, whom he recognized. Mickey continued to initiate
small talk with Nunes on the three-hour ride to the Tokyo air-
port.
Around 8 p.m. Tokyo time, after waiting about an hour at
the airport, Landry, who suffered from halitosis, offered
Mickey a mint for Mickey’s bad breath. The mint came from
MICKEY v. AYERS 8093
a bowl in Mickey’s wife’s house, which Landry had visited
the prior day to conduct an interview. After Mickey appeared
to recognize the mint, Landry asked Mickey if he knew its
origin. Mickey said yes and put his head in his hands. The
group then boarded the plane. Mickey sat next to Nunes and
resumed small talk. He spoke of his family and hobbies and
was generally pleasant and talkative. He expressed no signs
of grief.
Nunes later switched seats with Landry to take a nap. Lan-
dry and Mickey then enjoyed several cups of coffee, and
Mickey picked up where he left off with Nunes. He spoke of
philosophy, politics, food, football, family, and California. He
asked Landry about his family. Landry answered, and eventu-
ally, in the course of discussion, referenced that he watched
Mickey play high-school football and knew of his brother’s
suicide. About two hours later, Mickey suddenly asked Lan-
dry whether Hanson and Blount were buried together. Landry
replied that they had been cremated and their ashes scattered.
At this point, Mickey started crying uncontrollably. He said
that nothing would have happened if Hanson had not reacted
as he had to the news of Mickey’s theft of Hanson’s mari-
juana crop. This lasted about twenty minutes. Landry did
nothing. An hour later, Mickey resumed conversing about his
family, his hobbies, and politics. The plane then landed in
Hawaii, around 1:30 a.m. Tokyo time (6:30 a.m. Hawaii
time). Mickey said to Landry, “Curt, I would like to continue
our conversation at a later time.” Landry replied, “Fine, yes.”
After Mickey was checked into a Honolulu jail, LaRoche,
Nunes, and Landry discussed what to do. Nunes called the
Placer County District Attorney’s office, which told him to
ask Mickey if he wanted to speak and, if Mickey said yes, to
Mirandize and then to interrogate him. Landry did so, starting
the interrogation at 12:42 p.m. Hawaii time, or 7:42 a.m.
Tokyo time. Mickey confirmed that he had requested the con-
versation and then waived his Miranda rights. During the
four-hour interrogation, Mickey was alert and aware and lost
8094 MICKEY v. AYERS
and regained his composure several times. His answers to
Landry’s questions implicated himself in the murders and the
planning. The next day, the group returned to California,
where Mickey was incarcerated. While in prison there, he
made further statements regarding his role in planning and
executing the murders to a jailhouse informant.
B
The trial did not begin until two and a half years later.1
1
The guilt phase trial began on June 21, 1983 and ran until
July 20, 1983. At trial, the prosecution relied on Mickey’s
statements to police officers, family and friends, Edward Rog-
ers, and a jailhouse informant. The State also introduced some
of the letters Mickey penned to his wife, which showed his
financial motive for the murders. And it introduced numerous
photographs of the crime scene.
Mickey provided very little resistance in the way of a
defense, likely because, as counsel told the trial judge before
trial started, the strategy was to focus on the penalty phase
because of the overwhelming evidence of guilt. Mickey did
not testify and merely contested whether the prosecution met
its burden as to the required mental state. He pointed to his
statements, admitted by the prosecution, as evidence of self-
defense or diminished capacity from voluntary intoxication.
The jury convicted Mickey of both murders in the first degree
and, for each of the murders, made special circumstance find-
1
Mickey was represented by Fred P. Tuttle III and Lyle H. Shattuck
throughout this time period. The trial was originally set for November 9,
1981, but the state and the defense jointly sought and obtained a continu-
ance of six months. The defense successfully sought further continuances.
MICKEY v. AYERS 8095
ings of multiple murders, intentional murder for financial
gain, felony-murder-robbery, and felony-murder-burglary.2
At the penalty phase, the prosecution largely rested on the
nature of the crimes themselves, although it did attempt to
prove prior domestic abuse through testimony of Mickey’s
ex-wives. Mickey, however, put on what the California
Supreme Court called “substantial” evidence in mitigation.
Mickey, 54 Cal. 3d at 639. Thirty lay witnesses testified as to
their interaction with Mickey. Without exception, all por-
trayed him as a good, loving, hardworking child and youth.
Notably lacking from the penalty phase was any mention of
Mickey’s pattern of sexual exhibitionism in his youth and
young adulthood, which culminated in two and a half years of
sexual abuse of his step-daughter immediately prior to the
murders. The defense successfully excluded this evidence.
Instead, defense counsel cast Mickey as a good child who
began drifting through life after experiencing tragedy.
Defense counsel told the jury of the death of Mickey’s half-
brother in an automobile accident when Mickey was five
years of age. Defense counsel also emphasized the death of
his mother, a possible suicide, in an automobile accident
when Mickey was seventeen years old, and conveyed that
Mickey was very close to his mother and felt the loss deeply,
turning to alcohol to dull the pain. Counsel also showed the
jury that soon after that Mickey’s grandfather died, and after
that, his brother committed suicide.
Counsel argued that, as a result of these experiences,
Mickey began abusing drugs, eventually branching out from
the alcohol he abused after his mother’s death into more seri-
ous drugs like marijuana, mushrooms, PCP, and LSD. Mickey
became entangled with the drug culture, through which he
met Hanson. Two experts, Drs. Jules Burstein and David
2
The fifth special circumstance allegation—of a heinous, atrocious, or
cruel murder—was set aside by the trial judge prior to trial.
8096 MICKEY v. AYERS
Smith, explained the effect of the drug abuse on Mickey. Both
testified that Mickey lacked the capacity to appreciate the
criminality of his conduct or to conform his conduct to law at
the time of the murders because of “polysubstance” drug
abuse combined with a delusional system in which Hanson
was the oppressive master and Mickey the apprentice. They
based their findings largely on interviews with Mickey him-
self. The prosecution produced its own expert on rebuttal to
counter Burstein and Smith.
Despite this thirty-witness presentation, the jury returned a
death verdict.
2
Mickey appealed his convictions to the California Supreme
Court. He raised numerous issues arising from the guilt and
penalty phases. The California Supreme Court affirmed the
judgment in a thorough, ninety-five-page opinion. Mickey, 54
Cal. 3d at 612. It did rule for Mickey on two minor issues,
holding that Mickey was eligible for only one of the multiple
murder special circumstance findings because one case could
only support one such finding, no matter how many murders.
Id. at 678. It also held that the murder-for-financial gain spe-
cial circumstance findings were inappropriate because the
murder was committed neither as a murder-for-hire nor for
insurance proceeds. Id. at 678-79. Neither of these two hold-
ings affected the ultimate affirmance of the death penalty
because the remaining special circumstance findings were
upheld.
Relevant for our purposes, the California Supreme Court
rejected Mickey’s argument that the trial judge erroneously
denied his motion to suppress his in-flight and Hawaii admis-
sions. The court held that there was no due process violation
for the in-flight admissions because there was no state coer-
cion. Rather, the defendant initiated the discussion. The same
was true of the Hawaii admissions. Moreover, it held that
MICKEY v. AYERS 8097
there was no Miranda violation with respect to the in-flight
admissions because there was no custodial interrogation. And
there was no Miranda violation for the Hawaii admissions
because the defendant started the conversation.
The Supreme Court of the United States denied certiorari.
Mickey v. California, 506 U.S. 819 (1992).
3
Mickey then began pursuing federal habeas relief. After he
successfully moved for a stay of his execution and appoint-
ment of counsel, he filed a petition for a writ of habeas corpus
in 1995. Proceedings on that petition were stayed pending
exhaustion of certain claims in state court, which was com-
pleted in 1996. Mickey also filed for postconviction relief in
the California Supreme Court challenging his death sentence,
but that petition was denied in 1997.
Mickey filed an amended federal habeas petition at the end
of 1997, raising numerous claims. The district court awarded
summary judgment to the state on all but three of his claims.
To evaluate these remaining claims, the district court held an
evidentiary hearing, which included testimony by a new
social historian, David Lisak; a new expert, Dr. Donald Stone-
field; the two original penalty phase experts, Burstein and
Smith; and various other new and old lay witnesses. The dis-
trict court then denied the petition for a writ of habeas corpus
with respect to the voluntariness of incriminating statements
claim and the guilt phase ineffective assistance of counsel
claim, but granted the petition for a writ of habeas corpus with
respect to the penalty-phase ineffective assistance of counsel
claim.
The district court granted certificates of appealability
(“COA”) on the ineffective assistance of counsel claims at the
guilt and penalty phases. Mickey appeals the district court’s
ruling on ineffective assistance at the guilt phase. The state
8098 MICKEY v. AYERS
cross-appeals the district court’s ruling on ineffective assis-
tance at the penalty phase. Mickey’s opening brief requested
a COA on the inadmissibility claim involving the extrajudicial
incriminating statements, which we granted.
II
Mickey first claims that his statements on the plane from
Tokyo to Hawaii and in the Hawaii jail are constitutionally
inadmissible. In Mickey’s view, his right against involuntary
admissions under the Due Process Clause of the Fourteenth
Amendment, Brown v. Mississippi, 297 U.S. 278 (1936), was
violated because he was coerced by mistreatment in Japan and
by a mental illness he suffered. Mickey also argues his rights
under Miranda v. Arizona, 384 U.S. 436 (1966), were violated
because he was reinterrogated after invoking his right to
counsel and involuntarily waived his rights.
Since Mickey filed his petition for a writ of habeas corpus
before the enactment of AEDPA, we review Mickey’s claims
under pre-AEDPA standards. State court findings of fact,
including whether a waiver of Miranda was knowing and
intelligent, are thus accorded a “presumption of correctness.”
Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991) (en
banc). However, we review the voluntariness of a confession
or Miranda waiver de novo. Id. at 415-16.
A
We turn first to Mickey’s Due Process Clause claim.
Mickey argues his in-flight and Hawaii statements were invol-
untary for two reasons. First, he alleges coercion by poor con-
ditions and a lack of contact with his family in the Japanese
prison in which he was incarcerated pending extradition.
Mickey also points to Landry’s gift of a mint in the Tokyo air-
port, which Mickey correctly recognized as coming from a
bowl of mints in his wife’s home.
MICKEY v. AYERS 8099
1
[1] An admission “is involuntary if coerced either by phys-
ical intimidation or psychological pressure.” United States v.
Shi, 525 F.3d 709, 730 (9th Cir. 2008) (quoting United States
v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003)). We look
to see “whether a defendant’s will was overborne by the cir-
cumstances surrounding the giving of a confession.” Dicker-
son v. United States, 530 U.S. 428, 434 (2000) (internal
quotation marks omitted). When assessing the voluntariness
of an admission, we consider “the totality of all the surround-
ing circumstances—both the characteristics of the accused
and the details of the interrogation.” Id. at 434; see Shi, 525
F.3d at 730.
[2] Here, we agree with the district court that the Japanese
prison conditions did not overcome Mickey’s will. As an ini-
tial matter, we agree with the district court that Mickey exag-
gerates his prison conditions. His family, for example, visited
him three or four times while he was in prison, and the other
abuses he alleges are unsupported by the record. Moreover,
the California Supreme Court affirmed, and the district court
agreed, that when the officers picked Mickey up from the Jap-
anese prison and transported him to Hawaii, Mickey “was
alert and in good health; he was also jovial and extremely
talkative.” Mickey, 53 Cal. 3d at 643. He was so talkative that
the federal marshal hoped he would stop talking. This behav-
ior continued on the plane, where Mickey directed a running
conversation with whomever was the occupant of his airplane
row. Throughout this trip, the officers did not threaten Mickey
physically or psychologically. In fact, they did not ask him
any questions. The officers merely reciprocated Mickey’s
desire to engage in “small talk” about traffic, philosophy, pol-
itics, and mutual acquaintances in California. We cannot rule
that Mickey’s will was “overborne” by these normal prison
conditions, which the evidence shows Mickey weathered
quite well, in light of our case law holding incriminating
statements in far worse conditions were voluntary. E.g., Shi,
8100 MICKEY v. AYERS
525 F.3d at 719 (holding that incriminating statement issued
after nineteen-hour confinement by a native Chinese speaker
on a ship was voluntary).
[3] Even if we believed Mickey’s account, it is well-
established that “coercive police activity is a necessary predi-
cate to finding that a confession is not ‘voluntary’ within the
meaning of the Due Process Clause of the Fourteenth Amend-
ment.” Colorado v. Connelly, 479 U.S. 157, 167 (1986). In
other words, “[t]here must be some causal connection
between the police conduct and the confession.” United States
v. Kelley, 953 F.2d 562, 565 (9th Cir. 1992). We are satisfied
that the actions of the Japanese prison officials are not at all
connected to the behavior of American police.
2
[4] Mickey also argues that Landry’s gift of a mint from
Mickey’s home undermined the voluntariness of Mickey’s
confession by “softening up” Mickey. But the totality of the
circumstances convince us that Mickey’s will was not over-
borne by the gift. The mint was given at 8 p.m., but the first
incriminating statement did not occur until four hours later,
with several hours of calm small talk that continued the earlier
small talk intervening. Given that Mickey acted the same
before and after the mint, it is hard to see how the mint is
“causally related” to Mickey’s statements. Connelly, 479 U.S.
at 164. Additionally, this type of behavior is a far cry from the
type of police behavior typically associated with coercion.
E.g., Greenwald v. Wisconsin, 390 U.S. 519 (1968) (police
withheld food and prevented sleep during eighteen-hour inter-
rogation); Beecher v. Alabama, 389 U.S. 35 (1967) (police
officers held gun to the head of wounded individual to extract
confession); Davis v. North Carolina, 384 U.S. 737 (1966)
(police placed individual in closed cell without windows, pro-
vide limited food, and use coercive tactics for sixteen days).
We conclude that Mickey’s in-flight statements were volun-
tary.
MICKEY v. AYERS 8101
[5] There is nothing in the record to suggest any additional
physical or psychological coercion accompanied Mickey’s
admissions in Hawaii, which occurred in a standard police
interrogation after Mickey asked to speak with Detective Lan-
dry. Mickey at times suggests he was excessively fatigued at
the time of the statements due to the flight. But we have held
that statements of defendants in far worse health were not
involuntary. Kelley, 953 F.2d at 564-65 (statements from a
handcuffed suspect in heroin withdrawal); United States v.
Lewis, 833 F.2d 1380 (9th Cir. 1987) (statements after defen-
dant was administered a general anaesthetic); United States v.
Martin, 781 F.2d 671 (9th Cir. 1985) (statements of a groggy
defendant under the influence of Demerol). Here, by contrast,
Mickey has not overcome the presumption of correctness of
the state court finding that Mickey was “alert and aware” dur-
ing the Hawaii interrogation. Since Mickey’s will was not
overborne by the Hawaii trip, his statements in Hawaii also
were not involuntary for purposes of the Due Process Clause.
B
Second, we consider Mickey’s claims that his in-flight and
Hawaii statements were taken in violation of his Fifth
Amendment Miranda rights. Mickey argues that he was inter-
rogated on the plane to Hawaii and in the Hawaii jail notwith-
standing invoking his right to counsel in Japan. Mickey also
argues his Miranda waiver in Hawaii was involuntary.
[6] A suspect who invokes the right to counsel may not be
interrogated unless he initiates the conversation. Edwards v.
Arizona, 451 U.S. 477 (1981). Mickey told Nunes at the time
of his arrest that he did not want to speak without first con-
sulting a friend, who was an attorney. We assume this consti-
tutes an invocation of the right to counsel under Edwards.
[7] Miranda and Edwards, however, only apply to interro-
gations, which consist of “any words or actions on the part of
the police (other than those normally attendant to arrest and
8102 MICKEY v. AYERS
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” Rhode
Island v. Innis, 446 U.S. 291, 301 (1980). Casual conversation
is generally not the type of behavior that police should know
is reasonably likely to elicit an incriminating response. United
States v. Tail, 459 F.3d 854, 858 (8th Cir. 2006) (“Polite con-
versation is not the functional equivalent of interrogation.”);
United States v. Satterfield, 743 F.2d 827, 849 (11th Cir.
1984) (“Incriminating statements made in the course of casual
conversation are not products of a custodial interrogation.”).
Here, on the airplane the police asked no questions and only
responded to Mickey’s desire for small talk. They engaged in
casual conversation of the type generally not subject to
Edwards.
[8] Mickey argues that the small talk, though casual, does
not fall under this general rule. In his view, Landry had reason
to know his behavior might elicit an incriminating response
because he was “softening up” Mickey by participating in a
discussion of the connections between their two families,
including Landry’s knowledge of Mickey’s brother’s suicide.
But, Landry did not intend and had no reason to know that his
statements about his various family members and how they
interacted with Mickey’s family were likely to elicit an
incriminating response in the context of a conversation rang-
ing from California, philosophy, and politics to family, food,
and football. See United States v. Hackley, 636 F.2d 493, 498
(D.C. Cir. 1980) (holding that a statement from a conversation
about defendant’s cousin in which police mentioned their
inability to reach her after her arrest was not interrogatory).
Here, the small talk was not interrogational. Moreover,
Mickey initiated the discussion of California connections
between the two men. His words and deeds thus can be “fairly
said to represent a desire” to “open up a more generalized dis-
cussion relating . . . indirectly to the investigation.” Oregon
v. Bradshaw, 462 U.S. 1039, 1045 (1983). Since Mickey was
not interrogated and, in any event, initiated the discussion on
MICKEY v. AYERS 8103
the airplane, his Miranda and Edwards rights were not vio-
lated on the flight.
[9] Similar reasoning applies to the Hawaii statements.
Mickey initiated the conversation with Landry that led to the
statements in the Hawaii jail while disembarking from the air-
plane, by saying: “I would like to continue our conversation
at a later time.” This statement is more of an initiation than
that of the defendant in Bradshaw itself, where the defendant
merely asked “Well, what is going to happen to me now?”
462 U.S. at 1045. At the Hawaii jail, furthermore, Mickey
was re-Mirandized and waived his rights in writing. Mickey
argues this waiver was involuntary. But the same standard of
voluntariness in due process claims also applies to Miranda
waiver claims. Connelly, 479 U.S. at 169-70. Accordingly,
Mickey’s waiver was not involuntary for the reasons dis-
cussed in Part II.A. We are satisfied that Mickey’s Miranda
rights were not violated during the flight and in Hawaii.
III
Mickey next argues that he received ineffective assistance
of counsel at the guilt phase of his trial.3 A defendant’s Sixth
Amendment rights are violated if counsel’s representation
“fell below an objective standard of reasonableness” and such
deficiency prejudiced the defendant. Strickland v. Washing-
ton, 466 U.S. 668, 688, 694 (1984). There is a strong pre-
sumption of competence because of the bias of hindsight. Bell
v. Cone, 535 U.S. 685, 702 (2002). Prejudice results when
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would
have been different.” Strickland, 466 U.S. at 694. A “reason-
3
As noted in footnote 1, Mickey was represented by two attorneys, Tut-
tle and Shattuck. We consider their combined performance because the
record does not indicate that their representation was not joint. The word
“counsel” refers to both attorneys’ joint representation.
8104 MICKEY v. AYERS
able probability” is that which is “sufficient to undermine
confidence in the outcome.” Id.4
A
Under California law at the time of Mickey’s offense,
defendants could argue that they lacked the capacity to delib-
erate or to premeditate that was required for first degree, or
death-penalty eligible, murder. People v. Mosher, 1 Cal. 3d
379 (1969); see Cal. Penal Code § 25(a) (abolishing dimin-
ished capacity defense for crimes committed after 1982).
Mickey argues that his counsel were deficient for failing to
investigate and present such a mental health defense. In par-
ticular, he contends that counsel failed to call examining psy-
chiatrist Dr. David Axelrad, failed adequately to investigate a
diminished capacity defense, and presented an unbelievable
self-defense theory. In Mickey’s view, this deficiency preju-
diced him by conceding an element of the offense, his capac-
ity to deliberate. We disagree.
As an initial matter, we distinguish between two duties the
parties conflate. On the one hand, counsel must investigate
relevant defenses. Strickland, 466 U.S. at 690-91; Rios v.
Rocha, 299 F.3d 796, 799 (9th Cir. 2002). On the other hand,
counsel must reasonably select and present a defense. Strick-
land, 466 U.S. at 690-91; Phillips v. Woodford, 267 F.3d 966,
980 (9th Cir. 2001). These are different duties. See, e.g., Wig-
gins v. Smith, 539 U.S. 510, 523 (2003) (contrasting “whether
counsel should have presented a mitigation case” with
“whether the investigation support[ed] counsel’s decision not
to introduce mitigating evidence . . . was itself reasonable”)
(emphasis modified); Stankewitz v. Woodford, 365 F.3d 706
(9th Cir. 2004). It is true that evaluation of the two duties
4
As discussed in Part II, we review Mickey’s claims under pre-AEDPA
standards. We review the district court’s ruling on ineffective assistance
of counsel de novo. Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir.
1995).
MICKEY v. AYERS 8105
overlaps: counsel will be hard pressed to satisfy the duty to
select a defense when counsel fails to investigate the best
defense. E.g., Phillips, 267 F.3d at 980. But counsel may fail
to investigate a particular defense and still, luckily, present
the best one. He may also properly investigate various
defenses, but unreasonably select among the alternatives. The
inquiries also overlap at the prejudice stage: with respect to
defective investigations, the test for prejudice is whether the
noninvestigated evidence was powerful enough to establish a
probability that a reasonable attorney would decide to present
it and a probability that such presentation might undermine
the jury verdict. Wiggins, 539 U.S. at 535.
1
[10] Guided by this distinction, we first consider counsel’s
performance of their “duty to make reasonable investigations
or to make a reasonable decision that makes particular investi-
gations unnecessary.” Strickland, 466 U.S. at 691. An investi-
gation must be more than cursory. Rios, 299 F.3d at 805-06
(holding that counsel must interview more than one witness
before abandoning a particular defense). For mental health
defenses, counsel cannot ignore “abundant signs” of mental
illness, Seidel v. Merkle, 146 F.3d 750, 755 (9th Cir. 1998),
or rest on a “preliminary examination,” Daniels v. Woodford,
428 F.3d 1181, 1203-04 (9th Cir. 2005). At the same time, of
course, counsel need not investigate interminably. Hendricks
v. Calderon, 70 F.3d 1032, 1037 (9th Cir. 1995).
[11] Here, Mickey’s counsel conducted a significant inves-
tigation into a mental health defense. Counsel employed no
fewer than four mental health experts for the guilt phase. Dr.
Frederick Whipple, a forensic psychiatrist, evaluated Mickey
on March 23, 1981, only two months after Mickey’s extradi-
tion to the United States and over two years before the start
of his trial. In July 1981, still nearly eighteen months before
trial, counsel hired another psychiatrist, Dr. A. David Axel-
rad, who examined Mickey several times over the course of
8106 MICKEY v. AYERS
three months. Axelrad, in turn, hired two clinical psycholo-
gists, Grant L. Hutchinson and Thomas L. Morrison, to assist
in evaluating Mickey. Hutchinson evaluated Mickey on Sep-
tember 21, 1981. Morrison also administered psychological
testing to assist Axelrad. This investigation was sufficient. See
Hendricks, 70 F.3d at 1037 (holding that hiring of only two
mental health experts was not deficient).
Even if there were deficiencies in that investigation, they
are justified by a “reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691; see
Wood v. Allen, 130 S. C.t 841, 850-51 (2010) (holding that
state court’s factual finding that counsel made a strategic
decision not to investigate further a mental illness that, if rea-
sonable, would make counsel’s investigation not deficient,
was reasonable under AEDPA review). Turk v. White, 116
F.3d 1264 (9th Cir. 1997), is instructive as an application of
this principle. In that case, counsel chose a self-defense theory
instead of a mental health defense theory because the former
was the “strongest defense.” Id. at 1266. In particular, a men-
tal health defense “would have been inconsistent with a
defense based upon the facts as presented by both [the defen-
dant] and as contained within the officers’ reports” because
the self-defense theory “required [defendant] to prove that he
acted reasonably, while the insanity defense required [defen-
dant] to prove that he did not understand what he was doing.”
Id. (internal quotation marks omitted). We held that counsel
acted reasonably in relying on the defendant’s communica-
tions and police reports in light of this conflict. Id. We also
held that this reasonable strategy justified counsel’s decision
not to investigate further a mental health defense. Id. at 1267.
[12] The same is true here: any deficiencies are justified by
the reasonable strategic decision to investigate a defense con-
sistent with Mickey’s extrajudicial statements. After counsel
lost motions to exclude Mickey’s statements on the airplane
to Hawaii, in the Hawaii jail, and to a jailhouse informant, he
was faced with a situation in which the jury would hear
MICKEY v. AYERS 8107
incriminating admissions in the defendant’s own words, quali-
fied only by self-defense rhetoric. But, just as in Turk, here a
mental health defense would require counsel to prove that the
defendant could not act reasonably, while his assertions of
self-defense assumed he could. Faced with this evidence, it
was reasonable for counsel not to investigate a conflicting
mental health defense beyond the four experts he consulted.
2
[13] Nor were counsel deficient in failing to present a
mental health defense. Counsel need not present a defense just
because it was viable. In Hendricks, for example, we blessed
counsel’s decision to forego a mental health defense because
it was not entirely persuasive, was subject to serious cross-
examination, and would expose the jury to the defendant’s
other crimes. 70 F.3d at 1037. The Supreme Court recently
affirmed this type of reasoning in Wong v. Belmontes, 130 S.
Ct. 383 (2009), where it strongly suggested that counsel’s
decision to forego a defense because it would prompt the
introduction of damaging evidence was not deficient. Id. at
385-86.
[14] Here, there were numerous reasons justifying coun-
sel’s decision not to present a mental health defense and
instead to rely on reasonable doubt and argue a self-defense
theory. First, a mental health defense was unlikely to persuade
a jury. Williams v. Woodford, 384 F.3d 567, 610-11 (9th Cir.
2004) (holding counsel need not put on an unpersuasive
defense). A mental health defense would have presented evi-
dence that Mickey lacked the capacity to premeditate or delib-
erate about the killings. But Mickey flew from a foreign
country to commit the murders, planned a rendez-vous with
his accomplice, did not kill the pair the first time he visited
them for fear of getting caught, wiped down the car he drove
to eliminate fingerprints, and assembled and brought weapons
to the crime scene. In light of the established facts of the
crime, it was reasonable for counsel to believe that a jury
8108 MICKEY v. AYERS
would likely be skeptical of an argument that Mickey lacked
the ability to deliberate and plan. Furthermore, the mental
health defense based on delusions about Hanson would not
explain Mickey’s murder of Blount, who slept in a different
room than Hanson and, according to Mickey’s own experts,
was not a part of Mickey’s delusional scheme. Finally, this
mental health defense conflicted with Mickey’s own state-
ments. Mickey claimed self-defense during interviews in
which the police described him as alert and cognitively stable.
But if he was in a delusional state at the time of the murders,
how could he be defending himself? Counsel were not defi-
cient in deciding not to portray his client as a flip-flopper. See
Turk, 116 F.3d at 1266-67.
Second, a mental health defense was likely to open the door
to evidence of Mickey’s deviant sexual behaviors. Belmontes,
130 S. Ct. at 385-86 (commenting on superior performance of
counsel in excluding damaging evidence while presenting a
defense); Hendricks, 70 F.3d at 1037 (holding counsel acted
reasonably when not exposing the jury to the defendant’s
other crimes). The experts who would have testified to Mick-
ey’s alleged mental health defense and its effect on him based
their diagnosis on his sexualized relationship with his mother.
This reliance, in turn, would have opened the door to issues
of Mickey’s sexual exhibitionism and his two and a half year
sexual abuse of his step-daughter starting when she was eight
years old. It is no overstatement to say that a jury would not
look favorably upon a defendant with a pattern of sexual mis-
behavior that had recently escalated into years-long sexual
abuse of his own step-daughter. Counsel successfully
excluded this evidence from the penalty phase, and reason-
ably took steps to avoid opening the door to it here.
Third, counsel reasonably took into account the climate of
the times. Mickey was tried at a time of hostility to mental
health defenses. Although such defenses were available to
Mickey, California had recently abolished them prospectively
by plebiscite. Cal. Penal Code § 25(a). They had also voted
MICKEY v. AYERS 8109
merely five years earlier to expand the death penalty pursuant
to the Briggs Initiative, and outrage existed over the dimin-
ished capacity defense of the killer of the San Francisco
mayor George Moscone and supervisor Harvey Milk. The
people also were soon to vote out three California Supreme
Court justices for their perceived efforts to frustrate the death
penalty. Robert Lindsey, Deukmejian and Cranston Win As 3
Judges Are Ousted, New York Times, Nov. 6, 1986, at A30.
3
Mickey responds with two reasons why counsel’s decisions
regarding a mental health defense cannot be justified on the
grounds that a mental health defense was inconsistent with the
self-defense theory. Mickey first argues that a mental health
defense is not inconsistent with his self-defense rhetoric in his
Hawaii statements because his schizophrenia, diagnosed after
trial, explains the statements as the product of disease. At the
time of trial, however, none of the four guilt-phase experts or
the two penalty-phase experts even raised as a possibility, let
alone concluded, that Mickey had schizophrenia. In fact, three
of the four experts found no evidence of psychological abnor-
mality. Even the penalty-phase expert Dr. Burstein, testifying
in habeas proceedings with the advantage of twenty years of
hindsight, could only suggest that he may have reached a
diagnosis of schizophrenia with certain other information, and
the district court found his testimony incredible.
[15] Mickey next argues that the introduction of mental
health evidence in the penalty phase undermines any claim of
inconsistency to justify counsel’s decisions. But there is no
requirement of consistency between the two phases. Hen-
dricks, 70 F.3d at 1041. Furthermore, Mickey misunderstands
the purpose of the evidence in the two phases. In the guilt
phase, mental health evidence would explain why Mickey
was not guilty because he lacked capacity. In the penalty
phase, mental health evidence would explain why, though he
had capacity, he was less culpable. It is reasonable to think
8110 MICKEY v. AYERS
that the same evidence might be useless for the former but
helpful for the latter given the facts of the crime. In other
words, it was reasonable for counsel to save their best argu-
ment against the death penalty—mental health—for the phase
in which it would be most effective. Thus, counsel were not
deficient in the investigation and presentation of a mental
health defense.
B
In any event, the Supreme Court’s recent cases dictate that
any deficiency in representation was not prejudicial because
it is not “sufficient to undermine confidence in the outcome”
of the trial. Strickland, 466 U.S. at 694. In Belmontes, for
example, the Court emphasized that the difference between
what the petitioner wanted counsel to present and what he
presented was marginal, that the new evidence the petitioner
wanted presented opened the door to harmful evidence, and
that the facts of the crime matter. 130 S. Ct. at 386-90. In Por-
ter v. McCollum, 130 S. Ct. 447, 454 (2009), the Court simi-
larly emphasized the great effect on the prejudice
determination of the large difference between the evidence
counsel presented and should have presented. Even though
both cases were penalty-phase cases, they could not be clearer
in their instruction: whether prejudice results matters.
Here, any deficiency in counsel’s performance does not
create a “reasonable probability” that the “result of the pro-
ceeding would have been different,” such that we lack confi-
dence in the outcome of the trial, Strickland, 466 U.S. at 694,
because the evidence of Mickey’s guilt for premeditated mur-
der was overwhelming. Belmontes, 130 S. Ct. at 390 (finding
no prejudice primarily because the evidence in favor of the
death penalty was “simply overwhelming”). Mickey visited
Hanson prepared to commit the crime once before he did so,
assembled and brought weapons to Hanson’s home twice,
enlisted an accomplice from whom to obtain weapons and
transportation and with whom to split the proceeds, set up a
MICKEY v. AYERS 8111
rendez-vous with that accomplice, and wiped his fingerprints
off of the getaway vehicle.
Moreover, Mickey’s response to all of this evidence—that
he spontaneously acted in self-defense—sharply conflicted
with the physical evidence and his pre-trial statements. The
physical evidence showed that Hanson’s throat was slashed
from ear to ear down to the spinal cord and Blount was
stabbed seven times in the chest so hard three of the blows
pierced her heart. Yet Mickey maintained both to police on
the way back from Japan and to a jailhouse informant before
trial in California that he acted in self-defense.
[16] Additionally, there was ample other evidence of
Mickey’s premeditation and deliberation. His accomplice,
Rogers, testified that Mickey traveled from Japan intending to
kill Hanson. Mickey’s own letters to his wife, furthermore,
also showed that he traveled to California to alleviate his fam-
ily’s financial problems by killing Hanson. Given this sub-
stantial evidence of premeditation, we do not think there is a
“reasonable probability” that the results of the guilt phase of
the trial would have been different, such that we lack confi-
dence in the trial’s outcome, if counsel had deployed a mental
health defense to contest Mickey’s capacity to deliberate.
Therefore, we conclude that Mickey’s constitutional right to
effective assistance of counsel was not violated in the guilt
phase of his trial.
IV
In its cross-appeal of the district court’s grant of the habeas
petition regarding the penalty phase of Mickey’s trial, the
State contends that the district court erroneously held that
Mickey was denied effective assistance of counsel. Mickey
had argued before the district court that counsel ineffectively
investigated and failed to present a mitigation case that
Mickey suffered a harmful childhood. He also argued that
counsel ineffectively utilized the penalty-phase experts and
8112 MICKEY v. AYERS
failed to provide them with adequate information. The district
court accepted Mickey’s arguments and ruled that these errors
prejudiced Mickey.
A
The State first argues that counsel did not perform defi-
ciently with respect to investigating adequately and presenting
evidence of childhood abuse and mental health issues. The
State also argues that, in any event, Mickey did not suffer
prejudice from any deficiency. We agree with the State on
both points.
1
We first consider counsel’s investigation of abuse in Mick-
ey’s childhood. Mickey first argues counsel’s preparation was
too late and too little. We are guided by the Supreme Court’s
recent decision in Bobby v. Van Hook, 130 S. Ct. 13, 17-20
(2009). In that case, the Court held that the timeliness and
scope of counsel’s investigation was reasonable. Id. at 17-18.
Van Hook first claimed, as does Mickey, that counsel began
its investigation of mitigating evidence and preparation for the
penalty phase too late. Id. at 18. The Court held otherwise, on
the grounds that counsel was in touch with penalty-phase wit-
nesses the entire three months between indictment and trial,
was in touch with an expert “more than a month before trial,”
sought records seven weeks before trial, and “looked into” hir-
ing a mitigation specialist five weeks before trial. Id. (empha-
ses added).
[17] When we compare Van Hook to this case, we are per-
suaded that Mickey’s counsel timely prepared. Counsel hired
an investigator in February, 1981, immediately after appoint-
ment by the court. That investigator accompanied counsel to
Japan and interviewed the defendant’s then-current wife at
that time. The investigator also hired three individuals to
assist him on the case. In July 1981, still eighteen months
MICKEY v. AYERS 8113
before trial, counsel hired Dr. Axelrad to psychologically
evaluate Mickey, as a supplement to forensic psychiatrist Dr.
Whipple’s evaluation and report in March 1981. Axelrad in
turn hired two clinical psychologists, Hutchinson and Morri-
son, to assist in evaluating Mickey. Hutchinson evaluated
Mickey on September 21, 1981, and Morrison also adminis-
tered psychological testing to assist Axelrad. Additionally, in
January 1983, over five months before the guilt phase and
seven months before the penalty phase, counsel hired the
National Jury Project, a jury selection consultant. The first
meeting took place on March 18, 1983, five months before the
penalty phase. Soon after that, in April 1983, counsel hired a
social worker intern to prepare a social history. She completed
her report well before the penalty phase began. Her report
summarized Mickey’s life, based primarily on reports by
Mickey because of the division of labor between social histo-
rian and investigator established by counsel. Finally, in May
1983, counsel hired two experts solely for the penalty phase,
Smith, and Burstein. These experts provided extensive testi-
mony regarding Mickey’s life and mental state during the
penalty phase. In light of the timeline of this investigation and
the much shorter investigation in Van Hook, we cannot hold
that counsel did not timely investigate Mickey’s childhood.
Mickey also claims, as Van Hook did, that his counsel did
not conduct a sufficiently broad investigation of his child-
hood. Van Hook, 130 S. Ct. at 18-19. The Court in Van Hook
disagreed with the petitioner, calling this a “gross distortion.”
Id. at 18. Counsel, the Court recounted, conducted several
interviews with four individuals—Van Hook’s mother and
father, a caregiving aunt, and a family friend Van Hook vis-
ited after the crime—and learned all about Van Hook’s child-
hood, including his drinking as a toddler, his parents’
alcoholism, his father’s domestic abuse, and his mental health
issues. Counsel, therefore, did not need to “interview other
family members—his step-sister, two uncles, and two aunts—
as well as a psychiatrist who once treated his mother” because
“there comes a point at which evidence from more distant rel-
8114 MICKEY v. AYERS
atives can reasonably be expected to be only cumulative, and
the search for it distractive from more important duties.” Id.
at 19. It “was not unreasonable for his counsel not to identify
and interview every other living family member or every ther-
apist who once treated his parents.” Id.; see Cox v. Ayers, 588
F.3d 1038, 1046, 1048-49 (9th Cir. 2009) (holding that coun-
sel who interviewed nine individuals conducted sufficient
investigation); Williams, 384 F.3d at 613-14 (holding that
counsel who investigated family and life history, drug use,
and mental state of defendant, “interviewed a number of wit-
nesses suggested by [the defendant],” obtained various
records, and compiled a client history conducted an adequate
investigation); Babbitt v. Calderon, 151 F.3d 1170, 1176 (9th
Cir. 1998) (holding investigation was not deficient in part
because “[c]ounsel hired an experienced death penalty inves-
tigator who conducted a thorough investigation into [defen-
dant’s] history”).
[18] Similarly, counsel’s investigation here was suffi-
ciently broad. Counsel hired an investigator who interviewed
over forty potential witnesses, thirty of whom testified in the
penalty phase, spanning Mickey’s life, in an investigation that
took him or counsel to Japan, Hawaii, Alabama, Nevada,
Washington, Oregon, Alaska, and Louisiana. Counsel learned
about Mickey’s childhood, including his relationship with his
mother, his half-brother’s death, his mother’s death, his posi-
tive reputation with his peers and teachers, his productive
school life, and his descent into the drug culture. The investi-
gation also covered Mickey’s adult life, including his career,
his relationship with his wife, ex-wives, and step-children,
and his relationship with Hanson. As in Van Hook, it was not
unreasonable for counsel to go only as far as they did, stop-
ping after interviewing forty witnesses. This is especially true
because the forty witnesses, without exception, stated and
then testified that Mickey enjoyed a fairly good childhood.
None testified to abuse.
[19] Mickey argues, however, that despite this breadth,
counsel’s investigation was deficient because it failed to
MICKEY v. AYERS 8115
uncover evidence of psychiatric illness prior to his drug abuse
and because it failed to uncover physical, emotional, and sex-
ual abuse in Mickey’s childhood. For support Mickey points
to a new social history of his life completed in 1996. We are
not persuaded that this new social history changes the analy-
sis.
[20] First of all, the new social history does not establish
that Mickey had psychological problems before his drug use.
It reported that Mickey engaged in a “16-year period of virtu-
ally uninterrupted drug and alcohol abuse, beginning in 1964,
and accelerating after the death of his mother in 1966.” This
substance abuse, the report continued, “seems to have had an
exacerbating effect on the grandiose and persecutory beliefs
that Doug began to develop during the mid-1970s.” Thus,
Mickey is simply incorrect that there was undiscovered evi-
dence of pre-drug abuse psychiatric disturbance for counsel to
investigate.
The same is true of the new social history with respect to
the purported abuse. It is black-letter law that counsel cannot
be found deficient for believing what his client plausibly tells
him: “when a defendant has given counsel reason to believe
that pursuing certain investigations would be fruitless or
harmful, counsel’s failure to pursue those investigations may
not later be challenged as unreasonable.” Strickland, 466 U.S.
at 691; Cox, 588 F.3d at 1048-49 (holding counsel not respon-
sible for defendant’s failure to mention abuse); Raley v. Ylst,
470 F.3d 792, 803 (9th Cir. 2006).
But, both the 1983 social history’s finding of no abuse and
the new 1996 social history’s findings of rampant abuse and
family problems are based on Mickey’s self-reporting. The
1983 social history was based solely on interviews with
Mickey. In it, Mickey described his childhood as “peaceful,”
saw his father as “quiet, gentle and a little distant,” claimed
that his parents “never fought with each other,” and described
only “fanciful” sexual thoughts about his mother, in addition
8116 MICKEY v. AYERS
to a pattern of sexual exhibitionism. Mickey portrayed no
abuse and no incest. The new social historian’s interview with
Mickey apparently yielded different results, according to the
paragraphs in the new social history that are attributed solely
to Mickey. Mickey now recalls “many beatings” of his
brother, that his dad was “nuts and swinging away and Mom
was supporting him all the way,” that he was himself “repeat-
edly victimized” by his father, that his mother would “remark
on [his] aroused state” when they touched, that she “mastur-
bated him manually” on at least one occasion, and that his
parents repeatedly destroyed or forced him to destroy family
pets.
[21] To be sure, the new social history does not rely solely
on Mickey. But few of the other declarations on which it
relies are cited for the new abuse and incest Mickey now doc-
uments, and the cited declarations do not appear to support
the new findings. For example, the declarations of family
friends Fleming and Kimbrough, used to support many of the
new findings of abuse and incest, are relatively mild, demon-
strating only that Mickey loved his dog and then it died and
that Mickey’s mother inappropriately showed a neighbor the
pre-adolescent Mickey’s medical problem involving undes-
cended testicles. These declarations hardly support a conclu-
sion that Mickey was forced to kill his dog or that Mickey
was sexually abused. Similarly, the declarations by other fam-
ily members that purportedly demonstrate that Mickey’s
father was an alcoholic, or the declarations by neighbors that
claim that Mickey’s mother was “oversexed,” are too vague
to support Mickey’s new allegations of abuse and incest. The
new report thus amounts to a change in story. We refuse to
find counsel deficient for not uncovering evidence that
Mickey did not tell the original investigators, especially when
forty witnesses confirmed Mickey’s original story.
Since counsel were not deficient in their investigation into
abuse, they also were not deficient in failing to present evi-
dence of the same abuse. But, even if counsel were deficient
MICKEY v. AYERS 8117
in uncovering this purported abuse, the testimony of the forty
witnesses provides an additional reason that counsel were not
deficient in not presenting it. If counsel presented Mickey’s
new story regarding abuse, assuming Mickey or someone else
would have testified to it, then surely the State could have put
on some of the forty witnesses to contradict Mickey or the
other witness. Williams, 384 F.3d at 611 (holding counsel
may refuse to call witnesses because of their weakness on
cross-examination).
Moreover, counsel reasonably chose not to present evi-
dence of abuse because such evidence would have opened the
door to prosecution rebuttal evidence showing Mickey’s sex-
ual deviancy, including the molestation of his step-daughter.
Counsel need not present evidence that may do more harm
than good. In Williams, for example, we held that counsel
need not have presented evidence concerning the defendant’s
“family and life history, drug use, and mental state” because
such would open the door to evidence concerning the defen-
dant’s significant gang activity. 384 F.3d at 613-15; see Bel-
montes, 130 S. Ct. at 385-86 (strongly suggesting that counsel
did not deficiently perform by presenting meager mitigation
case because presentation of more mitigation evidence would
open the door to rebuttal evidence); Cox, 558 F.3d at 1051-52
(upholding counsel’s strategic choice to present a mitigation
defense other than childhood abuse).
[22] In this case, if counsel had attempted to introduce
childhood abuse evidence, the prosecution most likely would
have responded by introducing rebuttal evidence of Mickey’s
sexual deviancy, including years-long sexual abuse of his
step-daughter. Starting in his late teenage years and running
through the time of the crime, Mickey had exhibited himself
in public. This pattern escalated into a two and a half year
sexual abuse of his step-daughter. From the case’s inception,
counsel successfully strove to exclude this evidence of Mick-
ey’s sexual deviancy. But introduction of the purportedly
since-discovered evidence regarding Mickey’s childhood
8118 MICKEY v. AYERS
would have opened the door to this harmful evidence, just like
introduction of a mental health defense in the guilt phase
would have opened the door to similar harmful evidence, see
supra Part II, at 8108. The experts who would have testified
to Mickey’s alleged childhood abuse and its effect on him
could not help but mention his newly discovered sexual rela-
tionship with his mother, which one of them calls “the single
most damaging and shaping fact of Doug’s life.” And that dis-
cussion, of course, would raise the issue of Mickey’s teenage
exhibitionism, and then his adult exhibitionism, and then his
molestation of his step-daughter. An expert who testified to
the sexual abuse and its effect on Mickey would be subject to
cross-examination on the molestation. Cal. Evid. Code 721(a).
Counsel surmised, reasonably, that the penalty phase jury
might not look kindly upon evidence that the defendant rou-
tinely exhibited himself in public and sexually abused his
step-daughter.
2
The State also argues that Mickey did not suffer prejudice
from any deficiencies he claims. In its view, even if counsel
should have presented Mickey as an abused and mentally ill
individual before his mother’s death and his descent into drug
use, instead of as a good child who started drifting into drugs
after his mother’s death, such a choice does not “undermine[ ]
confidence in the outcome” of the trial. Strickland, 466 U.S.
at 694. We agree.
Even if Mickey’s claims regarding deficiency had merit,
the Supreme Court’s recent cases indicate that Mickey cannot
show prejudice. Belmontes, 130 S. Ct. at 383; Van Hook, 130
S. Ct. at 19. In Belmontes, the Court accepted, without decid-
ing, that counsel should have presented more mitigating evi-
dence. But it held that Belmontes did not suffer prejudice in
any event, disagreeing with our holding that the aggravation
evidence was “scant” and would have been outweighed by
more mitigating evidence. Id. at 390. The Supreme Court first
MICKEY v. AYERS 8119
reaffirmed that the prejudice inquiry is holistic and so must
“consider all the relevant evidence that the jury would have
had before it if [counsel] had pursued the different path.” Id.
at 386. In Belmontes, if counsel had introduced more mitiga-
tion evidence, the door would have been opened for the prose-
cution to introduce Belmontes’ boasts regarding his gangland-
style murder of another individual several years before his
most recent murder. Id. at 385. That, the Supreme Court, held,
was the “elephant in the courtroom” in the prejudice determi-
nation. Id. at 390. The aggravation evidence thus could not be
considered “scant.” Id.
This case is strikingly similar to Belmontes in this respect.
Even if counsel were deficient in not uncovering and intro-
ducing the new, abused version of Mickey’s childhood,
Mickey did not suffer prejudice because the prosecution
would have introduced rebuttal evidence of Mickey’s sexual
deviancy, including sexual abuse of his step-daughter, as dis-
cussed above. It is no overstatement to say that a jury would
not look favorably upon a defendant with a pattern of sexual
misbehavior that had recently escalated into sexual abuse of
his own step-daughter. This sexual deviancy is this case’s “el-
ephant in the courtroom,” and makes it so that any deficiency
does not create a “reasonable probability” of a different out-
come. Strickland, 466 U.S. at 694.
Moreover, the Supreme Court in Belmontes and Van Hook
reaffirmed that the facts of the crime play an important role
in the prejudice inquiry. Belmontes, 130 S. Ct. at 390-91. In
Belmontes, the Court emphasized that Belmontes “was con-
victed on extremely strong evidence that he committed an
intentional murder of extraordinary brutality.” Id. The aggra-
vating evidence, “in particular, the circumstances of the
crimes—was simply overwhelming.” Id. The jury viewed
numerous autopsy photographs showing the 15 to 20 blows
from a steel dumbbell upon the victim and heard evidence that
Belmontes committed the crime solely to steal $100. Id.
8120 MICKEY v. AYERS
In Van Hook, the Court similarly held that, even if counsel
performed deficiently, Van Hook suffered no prejudice in part
because of the facts of the crime. Van Hook, 130 S. Ct. at 19-
20. In particular, the Court stressed that Van Hook committed
the murder alone in an aggravated robbery with premedita-
tion, escalating a pattern of robberies of gay men to the killing
and disfiguring of his victim in this case. Id. at 19. Such facts
of the crime, the Court held, outweighed by themselves the
sum of the mitigating evidence Van Hook wanted counsel to
present. Id.
The jury in this case, like the jury in Belmontes and Van
Hook, was confronted by a particularly violent crime. The
evidence demonstrated that Mickey, like Belmontes, commit-
ted a double murder in order to steal a small amount of prop-
erty. And, as in Van Hook, the jury heard evidence that
Mickey committed this crime intentionally, planning it out
carefully by flying from Japan, enlisting an accomplice to
procure weapons and transportation, and calling off his first
attempt for fear of capture. Additionally, as in Belmontes, the
jury saw ten pictures that chronicled the positions of the
bodies of Hanson, whose throat was slashed to the spinal cord
from ear to ear, and Blount, who was stabbed seven times in
the chest so hard three of the blows penetrated her heart.
[23] The State’s near-exclusive reliance on the facts of the
crime at the penalty phase strengthens our conclusion that
there is not a “reasonable probability” that the outcome would
have been different had Mickey presented a different mitiga-
tion case. Strickland, 466 U.S. at 694. During the penalty
phase, the prosecution presented only four witnesses, who tes-
tified to domestic abuse by Mickey. 54 Cal. 3d at 639. The
defense, by contrast, put on thirty lay witnesses and two
experts who testified as to Mickey’s positive characteristics
and his mental defects. Id. at 640. The testimony covered all
aspects of Mickey’s life, ranging from the tragedy he experi-
enced at five years of age when his half-brother died, the deep
loss he felt when his mother died in a potential suicide when
MICKEY v. AYERS 8121
he was 17 years old, his decline into drug use, his ability to
adapt well to life in prison, and his mental state on the night
of the murders. This disparity indicates that the jury sentenced
Mickey to death almost exclusively on the facts of the crime,
despite what the California Supreme Court called a “substan-
tial” penalty-phase presentation by the defense. Id. at 639.
Since the harmful sexual deviancy evidence would have been
admitted in the penalty phase had counsel taken Mickey’s
proposed path and since the jury must have relied heavily on
the gruesome facts of the crime despite the “substantial” miti-
gation case, our “confidence in the outcome” is not under-
mined by Mickey’s counsel’s alleged deficiencies, Strickland,
466 U.S. at 694, and we are persuaded there was no prejudice.
B
1
[24] The State also argues that counsel’s interaction with
the penalty-phase mental health experts was not deficient. We
agree. Counsel put on two mental health experts in the penalty
phase. Smith, a toxicologist, testified that Mickey suffered
from toxic psychosis, a self-induced drug disorder stemming
from Mickey’s poly-drug substance abuse. Burstein, a psychi-
atrist, testified that Mickey was delusional at the time of the
crime, plagued by a borderline personality disorder exacer-
bated by his use of multiple types of drugs. These experts pro-
vided substantial testimony before the penalty phase jury.
Mickey, however, points to three deficiencies. First, he
argues that counsel should have better coordinated the
experts’ testimony. The experts, for example, differed as to
whether Mickey needed to be intoxicated for a diagnosis of
toxic psychosis. But surely counsel cannot be faulted for the
fact that their experts gave inconsistent sworn testimony. We
do not expect counsel to manipulate experts to get their stories
straight, Mod. R. Prof. Conduct 3.3, so it is not deficient for
them to refrain from doing so.
8122 MICKEY v. AYERS
Mickey also argues that counsel should have deployed the
penalty phase experts in surrebuttal of the prosecution’s
expert. But such testimony might not even have been allowed
by the trial judge. People v. Lamb, 40 Cal. Rptr. 3d 609, 614
(Cal. Ct. App. 2006). And it is not deficient to refuse to join
a battle royale of experts. Hendricks, 70 F.3d at 1037 (citing
Harris v. Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990)
(“[E]ven where there is a strong basis for a mental defense . . .
an attorney may forego that defense where the attorney’s
experts would be subject to cross-examination based on
equally persuasive psychiatric opinions that reach a different
conclusion.”); see Williams v Woodford, 384 F.3d 567 (9th
Cir. 2004) (holding that counsel may refuse to call experts
because of their weakness on cross-examination). It was rea-
sonable for counsel to conclude that surrebuttal was unlikely
to strongly influence the jury.
Mickey next argues that counsel were deficient in the com-
munication of medical-related information and the facts of the
crime to the experts Burstein and Smith. This, too, is unavail-
ing. With respect to Burstein, Mickey claims that counsel
were deficient in providing a garbled tape of the Hawaii inter-
view with police. But, Burstein notably does not claim he ever
requested a better version or a transcript. Mickey also claims
that counsel should have provided access to the testimony of
the accomplice Rogers and Mickey’s ex-wife Rochelle for
corroboration of Mickey’s history of drug use. But Mickey’s
drug use was not in dispute. Conveying such additional infor-
mation was therefore unnecessary. Hovey v. Ayers, 458 F.3d
892, 925-26 (9th Cir. 2006) (holding counsel must bring rele-
vant facts to attention of experts). We decline to rule that
counsel must provide, unsolicited, access to fact witnesses. Id.
(holding counsel must only provide relevant facts of the
crime).
Finally, Mickey claims that counsel should have provided
a Minnesota Multiphasic Personality Inventory (“MMPI”),
given in 1981, and naval discharge records to Burstein. But
MICKEY v. AYERS 8123
these are not the type of public or readily available evidence
counsel must obtain, and then provide to experts. Rompilla v.
Beard, 545 U.S. 374, 383-84 (2005) (holding counsel must
examine public information, like prior conviction records,
prosecutor is likely to use); see Raley, 470 F.3d at 801 (ruling
sufficient counsel’s provision of “basic background informa-
tion” on defendant to experts). In any event, “reasonable pro-
fessional judgments [can] support[ ] limitations on
investigation.” Strickland, 466 U.S. at 690-91. See Sanders v.
Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (observing that
counsel may render ineffective assistance “where he neither
conducted a reasonable investigation nor made a showing of
strategic reasons for failing to do so” (emphasis added)).
Here, there was such a judgment. Counsel knew that Burstein
administered his own MMPI. It is not until now that Burstein
claims that a change between the two MMPIs might have
been significant, testimony the district court found incredible.
With respect to the second penalty-phase expert, Smith,
Mickey claims that counsel should have provided access to
the Hawaii interview tape, Rogers’ testimony, Mickey’s
1980-81 letters to his wife, the navy discharge records, the ex-
wife Rochelle, a gourd and necklace of Mickey’s, and family
history information. As an initial matter, it is not deficient
performance to fail to provide information beyond an expert’s
expertise because an expert cannot testify beyond his exper-
tise. Cal. Evid. Code § 720(a); see Korsak v. Atlas Hotels,
Inc., 3 Cal. Rptr. 2d 833, 837 (Cal. Ct. App. 1992). Smith is
a toxicologist, studying drug-related disorders. The Hawaii
interview, in which a sober Mickey allegedly hallucinates, is
thus of little use to him. Furthermore, Mickey’s long-term
drug use was not in dispute. Thus, access to Mickey’s 1980-
81 letters, ex-wife Rochelle, the navy discharge records, and
Rogers’ testimony, all of which primarily established that
Mickey was a long-term drug user, was unnecessary. Mickey
is also incorrect about the gourd and necklace—both were
available for trial, if only Smith asked. Finally, at the time of
the trial, Smith’s research on the genetic links of certain dis-
8124 MICKEY v. AYERS
eases was in the nascent stages, so it was not deficient to fail
to provide him with Mickey’s family history.
2
Even assuming counsel’s interaction with the penalty phase
experts was deficient, Van Hook and Belmontes again compel
the conclusion that prejudice did not result. In both cases, the
Court reasoned that the omission of cumulative evidence and
minor additional details from the penalty phase did not preju-
dice the defendant. Belmontes, 130 S. Ct. at 387; Van Hook,
130 S. Ct. at 19. The same is true here: correcting the defi-
ciencies Mickey criticizes does not create a “reasonable prob-
ability” of a different result. Strickland, 466 U.S. at 694.
The lack of prejudice with respect to the first two alleged
deficiencies is particularly clear. Mickey did not suffer preju-
dice from an alleged deficiency in coordinating the experts’
testimony with respect to whether Mickey needed to be intox-
icated for a diagnosis of toxic psychosis because there is no
evidence that more coordination would eliminate this incon-
sistency. The deficiency thus does not create a reasonable
probability of a different outcome.
Nor did Mickey suffer prejudice from counsel’s failure to
employ the two penalty-phase experts to surrebut the prosecu-
tion’s rebuttal expert. Even assuming that the trial court judge
would allow such surrebuttal, it is widely accepted that the
absence of marginal and cumulative evidence is not prejudi-
cial. Belmontes, 130 S. Ct. at 386-90; Van Hook, 130 S. Ct.
at 19. Here, Mickey’s experts on surrebuttal would merely
have added a few additional details to their testimony, again
explaining why they were right and the prosecution expert
wrong. In particular, the experts would have clarified why
their diagnoses of toxic psychosis with borderline personality
disorder disease was superior to the prosecution’s diagnosis of
a slightly different disease (atypical personality disorder) and
why their focus on particular pieces of evidence was justified.
MICKEY v. AYERS 8125
Such marginal, cumulative comments do not create a “reason-
able probability” of altering the jury’s calculus. It is not per
se prejudice to not get the last word.
Finally, Mickey did not suffer prejudice because counsel
could have better prepared the experts Burstein and Smith
with respect to medical materials and basic facts of the crime.
As for the medical materials, Burstein testified during his
deposition that the new medical information, a MMPI from
1981, would not change his testimony on the ultimate ques-
tion of Mickey’s diagnosis. While he qualified that testimony
somewhat during the district court hearing, he ultimately
stood by his original diagnosis and the district court discred-
ited his speculation as to the importance of the MMPI, calling
him a partial “advocate.” Similarly, Smith did not even claim
that the new information would alter his testimony.
Nor would the new medical information radically buttress
the experts’ testimony, causing it to shift from mere “artifice”
to gamechanging revelation that creates a reasonably proba-
bility of a different outcome. Bean v. Calderon, 163 F.3d
1073, 1081-82 (9th Cir. 1998). Burstein’s testimony, on Bur-
stein’s own view, would have been additionally supported
only by hearsay statements from Mickey’s ex-wife regarding
delusions. But such hearsay is of little value, especially since
Mickey’s ex-wife did not distinguish between drug-induced
and non-drug-induced delusions. The same is true for Smith’s
testimony, which would only have been bolstered by addi-
tional evidence of Mickey’s uncontested drug use and family
history, the latter of which was unhelpful given the state of
genetic research at the time of the trial.
Nor was Mickey prejudiced by counsel’s alleged deficient
performance in preparing Burstein and Smith regarding the
basic facts of the crime. It is true that the prosecutor con-
fronted Burstein with the inconsistency of his mental health
theory, based on Mickey’s self-reporting, and Mickey’s pre-
meditation and planning. But Burstein responded that such
8126 MICKEY v. AYERS
planning was consistent with his diagnosis. Thus, Burstein’s
testimony would not have been significantly improved by
more information about the crime. Rather, it suffered from a
fundamental weakness that could not be remedied, that is, that
a jury was unlikely to believe that a defendant suffering as
Burstein diagnosed could act as the facts of the crime showed
that Mickey did. Mickey’s claim that these additional, minor
improvements to Burstein’s testimony create a “reasonable
probability” of swaying the jury is, as the Court described a
similar interpretation of the facts in Belmontes, “fanciful.”
130 S. Ct. at 391.
[25] The contrast between this case and Porter, where the
Court did find prejudice for failure of counsel to deploy ade-
quately mental health experts, confirms our assessment. 130
S. Ct. at 454. In that case, the Court emphasized that counsel
presented no evidence at all concerning Porter’s mental health
sufferings with respect to his service in the Korean war and
brain abnormalities. Id. at 454-55. Here, by contrast, counsel
presented extensive expert testimony. Overall, even assuming
Mickey is right that counsel were deficient in a few respects
regarding the expert testimony, this case is a far cry from
those in which counsel’s interaction with experts prejudiced
the defendant. Our confidence in the state court outcome is far
from undermined. Strickland, 466 U.S. at 694. Mickey’s con-
stitutional right to effective assistance of counsel was not vio-
lated in the penalty phase of his trial.
V
For the foregoing reasons, the judgment of the district court
is AFFIRMED with respect to the denial of the writ of
habeas corpus for the guilt phase and REVERSED with
respect to the grant of the writ of habeas corpus for the pen-
alty phase.