Danny Jones v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DANNY LEE JONES, No. 18-99005
Petitioner-Appellant,
D.C. No.
v. 2:01-cv-00384-SRB

CHARLES L. RYAN,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the District of Arizona
Hon. Susan R. Bolton, District Judge, Presiding

Argued and Submitted February 16, 2021
San Francisco, California

Filed June 28, 2021

Before: Sidney R. Thomas, Chief Judge, and Michael Daly
Hawkins and Morgan Christen, Circuit Judges

Opinion by Chief Judge Thomas
2 JONES V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

Applying the standards set forth in the Antiterrorism and
Effective Death Penalty Act of 1996, the panel reversed the
district court’s judgment denying Danny Lee Jones’s habeas
corpus petition challenging his Arizona death sentence, and
remanded to the district court with instructions to issue the
writ.

In Claim 1, Jones asserted that his trial counsel was
constitutionally ineffective by failing to request a mental
health expert in advance of the sentencing hearing. The panel
held that the state court record demonstrates that trial counsel
was constitutionally ineffective by failing to secure a defense
mental health expert, and that, pursuant to 28 U.S.C.
§ 2254(d)(1), the Arizona Supreme Court’s contrary
conclusion was an unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984), and its progeny. Holding
that the state post-conviction review (PCR) court’s decision
was also based on an unreasonable determination of the facts
under 28 U.S.C. § 2254(d)(2), the panel agreed with Jones
that (1) the PCR court employed a defective fact-finding
process when it denied PCR counsel’s funding request for a
defense neuropsychological expert, effectively preventing the
development of Claim 1; and (2) the state court’s failure to
hold a hearing on Claim 1 resulted in an unreasonable
determination of the facts. Because the PCR court did not
reach the issue of prejudice, the panel reviewed the issue de

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

novo. Noting that Jones was diligent in attempting to develop
the factual basis for the claim in state court, the panel wrote
that the district court did not err in its expansion of the record,
and the district court considered the evidence developed in
the district court in conducting its de novo review. The panel
concluded that Jones demonstrated Strickland prejudice
because there is at least a reasonable probability that
development and presentation of mental health expert
testimony would have changed the result of the sentencing
proceeding.

In Claim 2, Jones asserted that his trial counsel was
constitutionally ineffective by failing to seek neurological or
neuropsychological testing prior to sentencing. The panel
wrote that counsel’s failure to promptly seek
neuropsychological testing ran contrary to his obligation to
pursue reasonable investigations under Strickland, and in
particular, his obligation to investigate and present evidence
of a defendant’s mental defect. The panel therefore
concluded that the PCR court’s decision that defense
counsel’s performance did not fall below an objectively
reasonable standard was an unreasonable application of
Strickland, and that Jones satisfied § 2254(d)(1). The panel
also held that the state PCR court’s decision was based on an
unreasonable determination of the facts, satisfying
§ 2254(d)(2), where the PCR judge made factual findings
regarding the necessity of neuropsychological testing, not on
the basis of evidence presented by Jones, but on the basis of
his own personal conduct, untested memory, and
understanding of events—and by plainly misapprehending the
record, which included a forensic psychiatrist’s testimony, six
years earlier, strongly suggesting that neuropsychological
testing was essential. Because the PCR court did not reach
the issue of prejudice, the panel reviewed the issue de novo.
4 JONES V. RYAN

Noting that Jones was diligent in attempting to develop the
factual basis for the claim in state court, the panel wrote that
the district court did not err in its expansion of the record, and
the district court considered the evidence developed in the
district court in conducting its de novo review. The panel
concluded that Jones demonstrated Strickland prejudice
because there is a reasonable probability that had such testing
been conducted, and had the results been presented at
sentencing, Jones would not have received a death sentence.

COUNSEL

Amanda Bass (argued) and Letitia Marquez, Assistant
Federal Public Defenders; Jon M. Sands, Federal Public
Defender; Office of the Federal Public Defender, Phoenix,
Arizona; for Petitioner-Appellant.

Jeffrey L. Sparks (argued), Assistant Attorney General; Lacey
Stover Gard, Chief Counsel; Mark Brnovich, Attorney
General; Office of the Attorney General, Phoenix, Arizona;
for Respondent-Appellee.
 JONES V. RYAN 5

OPINION

THOMAS, Chief Judge:

Danny Lee Jones, an Arizona inmate on death row,
appeals the district court’s denial of his petition for writ of
habeas corpus on remand from this court and the Supreme
Court of the United States. Applying the appropriate
standards pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), we conclude that Jones was
denied the effective assistance of counsel at sentencing. We
reverse the judgment of the district court and remand for
further proceedings consistent with this opinion.

I1

A

On March 26, 1992, in Bullhead City, Arizona, Jones and
his friend Robert Weaver spent the day drinking and using
crystal methamphetamine in Weaver’s garage. At some
point, a fight broke out, and evidence at trial indicated that
Jones hit Weaver over the head multiple times with a wooden
baseball bat, killing him. Jones then went inside the house
where he encountered Weaver’s grandmother, Katherine
Gumina. Jones struck Gumina in the head with the bat and
knocked her to the ground. Jones then made his way to a

1
In accordance with our obligation under Cullen v. Pinholster,
563 U.S. 170 (2011), to consider only the state court record in conducting
our 28 U.S.C. § 2254(d) analysis, this recitation of the facts looks only to
that record. Evidence developed at the federal evidentiary hearing is
included later in the limited contexts where Pinholster does not
circumscribe our consideration of such evidence.
6 JONES V. RYAN

bedroom where he found Tisha Weaver, Weaver’s seven-
year-old daughter, hiding under the bed. Evidence showed
that Jones hit Tisha in the head with the bat, and either
strangled her or suffocated her with a pillow. Jones fled to
Las Vegas, Nevada, where police eventually arrested him.
He was indicted in Arizona on two counts of murder in the
first degree, and one count of attempted murder.2

B

A public defender was assigned to Jones’s case. At the
time, the public defender had been an attorney for a little
more than three years, and he had never been lead attorney on
a capital case. He requested $5,000 from the trial court for
expert witnesses. The court authorized $2,000, which the
public defender split between a crime scene investigator and
an addictionologist.

The jury convicted Jones on all counts. Judge James
Chavez scheduled the sentencing hearing for three months
later. About six weeks before the hearing, counsel took his
first trip to Reno, Nevada, in order to speak with Jones’s
mother, Peggy Jones3, and Jones’s second step-father, Randy
Jones, in order to investigate potential mitigation evidence.

At sentencing, the public defender presented testimony
from two witnesses: investigator Austin Cooper and Randy

2
Gumina initially survived the attack and was in a coma for
seventeen months before eventually dying from her injuries. The
prosecution never amended the indictment after Gumina died.
3
To avoid confusion, we refer to the members of Jones’s family by
their first names.
 JONES V. RYAN 7

Jones. Cooper testified about evidence regarding an alleged
accomplice. Randy explained that he married Peggy when
Jones was seven years old.4 He explained that Peggy gave
birth to Jones when she was only fifteen years old and had
numerous complications during the pregnancy and delivery.
Randy testified that Jones suffered multiple head injures
when he was growing up, and that when Jones was thirteen or
fourteen his personality began to change drastically. Jones
started lying, cutting classes at school, drinking, and doing
drugs. Jones’s first step-grandfather introduced him to
marijuana when he was about ten years old, and Jones was an
alcoholic by the time he was seventeen.

The trial court appointed the Chief of Forensic Psychiatry
for the Correctional Health Services in Maricopa County,
Dr. Jack Potts, to examine Jones and provide a report to the
court pursuant to Rule 26.5 of the Arizona Rules of Criminal
Procedure. Defense counsel called Dr. Potts to testify at
sentencing. Dr. Potts stated that in conducting his review, he
spent four hours interviewing Jones in prison, one and a half
of which were spent administering a personality test. He also
spoke to Jones for a couple of hours the day before testifying
at the sentencing hearing. He interviewed Peggy by phone
for thirty minutes, and he spoke to Randy for one hour the
day before testifying. During Dr. Potts’s testimony, the
following colloquy took place:

Q. Do you feel you have been provided
with adequate data, coupled with your
in-person examination of the defendant, to

4
The record is inconsistent whether Randy and Peggy married when
Jones was seven or eight years old.
8 JONES V. RYAN

make a conclusion for mitigating findings that
you did?

A. . . . I believe everything I reviewed and
what I have heard about the case and reviewed
with the defendant, his comments to me. I
would have liked, and I think I have—I think
it would be valuable to have had some
neurologic evaluations, not—by a neurologist,
clinical exam, such as a CAT scan, possibly
an MRI, possibly EEG, possibly some
sophisticated neurological testing, because I
think there’s very strong evidence that we
have . . . , I believe, of traumatic brain injury,
and there’s some other evidence that I believe
we may have organic neurologic dysfunctions
here that has gone on since he’s been about
13. So, there’s some other testing that I think
would be valuable to have to pin down the
diagnosis. . . .

Q. And you think that further testing
might shed some additional light on, perhaps,
some of these factors you listed and maybe
why Mr. Jones behaves in the way he did on
March 26, 1992?

A. Yes. I think it could help in clarifying
and giving us etiology as the behavioral
components, the explosive outbursts, the
aggression, the mood changes, and the
changes that occurred in his personality as
noted by his mother when he was about 13,
14 years old.
 JONES V. RYAN 9

Q. In your opinion, could that information
possibly provide . . . a significant mitigating
factor as to what would be relevant to the
issues at this hearing?

A. Clearly I think it would be
corroborative of my clinical impressions and
my diagnostic impressions in my report.

Dr. Potts discussed the fact that Jones’s first step-father
physically and verbally abused Jones, and stated that it was
“unequivocal” that Jones carried that abuse with him into his
adult life. Dr. Potts also stated that given the long history of
substance abuse and other psychological problems in Jones’s
family, Jones was predisposed to substance abuse or a
possible affective disorder. Dr. Potts did not, however, give
a specific diagnosis, but stated: “I think . . . to a reasonable
degree of medical certainty that the defendant suffers from a
psychothymic disorder, which is a mood disorder, possibly
organic syndrome, secondary to the multiple cerebral trauma
that he’s had as well as the prolonged substance abuse.”

Dr. Potts testified that the drugs and alcohol Jones had on
the day of the murders would have had a significant effect on
Jones because “it’s real clear that the brain is much more
susceptible when it’s been injured by drugs. Furthermore,
when you’re on drugs, you are more susceptible to the acts of
aggression under amphetamines.” He further stated: “I
believe in my experience in cases like this, is that had it not
been for the intoxication, the alleged offense would not have
occurred.”

Dr. Potts also submitted a six-page report to the court.
The report included: approximately two pages describing
10 JONES V. RYAN

Jones’s social development and history, including his medical
history, one page of analysis, and one page of
recommendations. Dr. Pott’s report was due to the court on
November 29, 1993, but he did not complete it until
December 3. He was late because he did not receive the
Presentence Information Report (“PSR”) from the Mohave
County probation department until December 1. Dr. Potts
also testified at sentencing that he was under “significant time
pressure” in preparing the report. Dr. Potts concluded that
“Mr. Jones’ capacity to conform his conduct to that of the law
was clearly impaired at the time of the offenses. . . .” He
therefore recommended that an aggravated sentence should
not be imposed.

After Dr. Potts testified, counsel moved for a continuance
so an expert could conduct psychological testing. Counsel
stated: “It’s not a delay tactic . . . [I]t’s not something I
planned on doing until . . . very recently after the report was
done, after talking with Dr. Potts, after exploring all these
issues.” Notably, however, counsel did not speak to Dr. Potts
about the report until December 7, the night before
sentencing. The sentencing judge considered and rejected the
motion:

THE COURT: . . . . I also know that there
were funds made available to the defense at
some point and you used them to hire [an
addictionologist]. . . . [I]f there were any
follow-up questions of a psychological or
neurological nature, I would think that the
defense would have followed them up.

COUNSEL: But, Your Honor,
respectfully, . . . I didn’t realize this issue was
 JONES V. RYAN 11

that important until Dr. Potts brought it up or
I would have certainly asked for the funds
earlier.

The judge found the following aggravating factors for
Weaver’s murder: (1) Jones “committed the offense as
consideration for the receipt, or in expectation of the receipt
of anything of pecuniary value”; (2) Jones “committed the
offenses in an especially heinous or depraved manner”; and
(3) Jones was “convicted of one or more other homicides . . .
which were committed during the commission of the
offense.”

The judge found four non-statutory mitigating factors:
(1) Jones suffered from long-term substance abuse; (2) he
was under the influence of drugs and alcohol at the time of
the offense; (3) he had a chaotic and abusive childhood; and
(4) his longstanding substance abuse problem may have been
caused by genetic factors and aggravated by head trauma.
The judge found the same aggravating and mitigating
circumstances for Tisha’s murder, but he also found that
Tisha’s having been under fifteen years old was an additional
aggravating factor. The judge sentenced Jones to two death
sentences for the murders, and twenty-five years without the
possibility of parole for the attempted murder. The Arizona
Supreme Court affirmed Jones’s conviction and sentence on
direct review. State v. Jones, 917 P.2d 200 (1996).

C

Prior to filing Jones’s state post-conviction review
(“PCR”) petition, PCR counsel sought authorization from the
court for the funding of several experts.
12 JONES V. RYAN

As relevant here, the PCR court rejected counsel’s request
to appoint a neuropsychologist. The court stated that while
Dr. Potts might not have been a defense expert, he did a good
job, gave “defense opinions,” and there was no reason to
believe that an expert appointed for the defense “would have
been any different.” The court concluded by stating that
based on Dr. Potts’s testimony, “I don’t really see any
grounds for any additional psychiatric or psychological
testing.”

On July 1, 1999, counsel filed the PCR petition, raising
twenty-five claims. Among the petition’s exhibits were a
declaration from defense trial counsel and an affidavit from
Peggy. At an informal conference on February 23, 2000, the
court ruled on several of Jones’s claims, and set others for an
evidentiary hearing. In particular, the court denied Claim 1
(as numbered in this appeal) on the merits. The court set
Claim 2 (as numbered in this appeal), as well as other claims,
for evidentiary hearing.

At the evidentiary hearing, Randy, Peggy, and defense
trial counsel testified. Randy testified that he first spoke to
counsel in July 1992, a few months after Jones’s arrest.
During this conversation, Randy told counsel about Jones’s
head injuries, as well as his struggles with substance abuse
and stints in rehabilitation programs. Randy next spoke to
counsel when he came to visit Peggy and Randy at their home
in Reno in October 1993, about six weeks before sentencing.

Peggy testified that she had provided counsel with a
chronology of Jones’s life during counsel’s visit. Peggy
remembered sharing about Jones’s difficult birth and the
physical abuse she and Jones suffered at the hands of Jones’s
biological father and first step-father. Peggy shared that
 JONES V. RYAN 13

Jones had a good home life and a normal childhood once she
married Randy, when Jones was about seven or eight years
old.

Trial counsel testified that at the time he was appointed to
represent Jones, he had been an attorney for three and a half
years and his experience with capital cases consisted of
having been second chair at the penalty phase in one prior
case. He stated that his strategy for defending the killing of
Robert Weaver was self-defense, so he hired Dr. Sparks as an
addictionologist to testify about Jones’s state of mind.
Dr. Sparks opined at trial that because of the drugs Jones
ingested, he was unable to premeditate the killings.
Dr. Sparks was not called to testify at sentencing.

When PCR counsel asked trial counsel if he visited
Jones’s family early enough in the case to adequately develop
mitigation evidence, trial counsel responded that Dr. Potts
was able to make effective use of the information obtained
from the family. He said that Dr. Potts was a “very favorable
mitigation witness for the defense.” He stated that it felt to
him like Dr. Potts was part of the defense team, even though
he was appointed as a court expert. Finally, counsel stated
that he did not consider the need for testing by a
neuropsychologist until Dr. Potts suggested it to him on
December 7, 1993, the evening before Jones’s sentencing
hearing.

In the affidavit he provided as an exhibit to the PCR
petition, trial counsel stated that he asked the court for $5,000
for expert witnesses at trial. When the trial court authorized
only $2,000 of the $5,000 he requested, he “was of the
opinion that it would be fruitless to ask the court for
additional funding for any other needed experts such as an
14 JONES V. RYAN

independent psychiatrist or psychologist.” Counsel added
that he did not ask his supervisor for any money because he
believed that the public defender’s office did not have
sufficient funds for retaining expert witnesses.

After the hearing, the PCR court denied Claim 2 as well
as the remaining pending claims. As to Claim 2, the court
stated that “[t]he report and testimony of Dr. Potts[,] who was
appointed by the Court, adequately addressed defendant’s
mental health issues at sentencing.”

Jones filed a petition for review in the Arizona Supreme
Court, which it denied on February 13, 2001.

D

Jones subsequently filed his federal petition for habeas
relief. The district court granted an evidentiary hearing with
regard to Claims 1 & 2 based on trial counsel’s failure to
secure the appointment of a mental health expert and failure
to move for neurological and neuropsychological testing.

The district court subsequently dismissed both ineffective
assistance of counsel (“IAC”) claims. The court denied
Claim 1 because counsel’s “failure to seek the appointment
of a mental health expert in a more timely manner did not
prejudice Petitioner.” The district court explained that “the
Court has not been presented with evidence confirming that
Petitioner suffers from neurological damage caused by head
trauma or other factors. Therefore, Dr. Potts’s finding at
sentencing remains the most persuasive statement in the
record that neurological damage constituted a mitigating
factor.” The district court dismissed Claim 2 after finding
that Jones could only prove that he suffered from AD/HD
 JONES V. RYAN 15

residual type and possibly a low level mood disorder. The
district court “conclud[ed] that the trial court would have
assigned minimal significance to testimony indicating that
Petitioner suffered from ADHD [sic] and a low-level mood
disorder, and that this weight would not have outbalanced the
factors found in aggravation.”

E

Jones timely appealed the district court’s denial of his
petition for a writ of habeas corpus. We reversed the district
court and concluded that Jones received IAC warranting relief
on his claims regarding his counsel’s failure to secure the
appointment of a mental health expert, failure to timely move
for neurological and neuropsychological testing, and failure
to present additional mitigation witnesses and evidence. See
Jones, 583 F.3d at 636.

The State petitioned for certiorari. The Supreme Court
granted the petition, vacated our judgment, and remanded the
case for further consideration in light of Cullen v. Pinholster,
563 U.S. 170 (2011). See Ryan v. Jones, 563 U.S. 932
(2011).

On remand from the Supreme Court, we remanded the
case to the district court to consider, under Martinez v. Ryan,
566 U.S. 1 (2012), and Dickens v. Ryan, 740 F.3d 1302 (9th
Cir. 2014) (en banc), “Jones’s argument that his ineffective
assistance of counsel claims are unexhausted, and therefore
procedurally defaulted, and that the deficient performance by
his counsel during his post-conviction relief case in state
court excuses the default.” Jones v. Ryan, 572 F. App’x 478
(9th Cir. 2014) (Mem.). We expressed “no opinion on any
other issue raised on appeal,” and noted that “[t]hose issues
16 JONES V. RYAN

are preserved for later consideration by the Court, if
necessary.” Id.

On remand, the district court rejected Jones’s arguments.
The district court determined that Jones’s claims had not been
fundamentally altered, and therefore, they had previously
been exhausted and were not subject to de novo review.
Additionally, the court concluded that PCR counsel was not
ineffective as required by Martinez, so any default would not
be excused anyway. 566 U.S. 1. Jones filed a timely notice
of appeal and stated that he was also appealing “all prior
orders disposing of other claims, either on the merits or
procedurally.”

II

We review de novo a district court’s dismissal of a habeas
petition. Sexton v. Cozner, 679 F.3d 1150, 1153 (9th Cir.
2012). We review a district court’s findings of fact for clear
error. Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010).

Because Jones filed his petition after April 24, 1996,
AEDPA applies to our review of this petition. See Summers
v. Schriro, 481 F.3d 710, 712 (9th Cir. 2007). Under
AEDPA, habeas relief may not be granted unless the state
court’s decision was: (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States;” or
(2) “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1)–(2).

“A state court decision is ‘contrary to’ clearly established
Supreme Court precedent if the state court applies a rule that
 JONES V. RYAN 17

contradicts the governing law set forth in Supreme Court
cases or if the state court confronts a set of facts materially
indistinguishable from those at issue in a decision of the
Supreme Court and, nevertheless, arrives at a result different
from its precedent.” Lambert v. Blodgett, 393 F.3d 943, 974
(9th Cir. 2004) (citing Lockyer v. Andrade, 538 U.S. 63, 73
(2003)). A state court’s decision is an “unreasonable
application” of federal law if it “identifies the correct
governing principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the
prisoner’s case.” Id. (internal quotations and citation
omitted). The Supreme Court has explained that the
exceptions based on “clearly established” law refer only to
“the holdings, as opposed to the dicta, of th[e] Court’s
decisions as of the time of the relevant state-court decision.”
(Terry) Williams v. Taylor, 529 U.S. 362, 412 (2000) (“Terry
Williams”). Circuit precedent may not clearly establish
federal law for purposes of § 2254(d), but we may “look to
circuit precedent to ascertain whether it has already held that
the particular point in issue is clearly established by Supreme
Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64
(2013).

With respect to § 2254(d)(2) claims, “a state-court factual
determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the
first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). If
“‘[r]easonable minds reviewing the record might disagree’
about the finding in question, ‘on habeas review that does not
suffice to supersede the trial court’s . . . determination.’” Id.
(quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006)).

If a petitioner can overcome the § 2254(d) bar with
respect to the claims the state court did address, he must also
18 JONES V. RYAN

demonstrate that he is entitled to relief without the deference
required by AEDPA. See Panetti v. Quarterman, 551 U.S.
930, 953–54 (2007). Where the state court did not reach a
particular issue, § 2254(d) does not apply, and we review the
issue de novo. See Rompilla v. Beard, 545 U.S. 374, 390
(2005); see also Weeden v. Johnson, 854 F.3d 1063, 1071
(9th Cir. 2017) (“Because the [state court] did not reach the
issue of prejudice, we address the issue de novo.”).

Pursuant to Pinholster, our § 2254(d) analysis is limited
to the facts in the state court record. 563 U.S. at 185.
However, in narrow circumstances, when we review a claim
de novo, and when a petitioner satisfied the standard for an
evidentiary hearing in federal district court pursuant to
§ 2254(e)(2) by exercising diligence in pursuing his claims in
state court, we may consider the evidence developed in
federal court. See id.; see also id. at 212–13 (Sotomayor, J.,
dissenting); see also Schriro v. Landrigan, 550 U.S. 465, 473
n.1 (2007).

III

In Claims 1 and 2, Jones alleges that his counsel provided
IAC at sentencing. To prove a constitutional violation for
IAC, Jones must show (1) “that counsel’s performance was
deficient,” and (2) “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). Counsel’s performance is deficient if, considering all
the circumstances, it “fell below an objective standard of
reasonableness . . . . under prevailing professional norms.”
Id. at 688. Under this objective approach, we are required “to
affirmatively entertain” the range of possible reasons counsel
might have proceeded as he or she did. Pinholster, 563 U.S.
at 196. To establish prejudice under Strickland, a petitioner
 JONES V. RYAN 19

must “show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.

Our review of a Strickland claim under § 2254(d) is
“doubly deferential,” requiring the court to apply AEDPA
deference on top of Strickland deference. Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). Because the state
court reached only the deficient performance prong of Jones’s
IAC claims, we review only that prong under § 2254(d) and
we review the prejudice prong of his claims de novo.

IV

A

In Claim 1, Jones asserts that his trial counsel was
constitutionally ineffective by failing to secure a defense
mental health expert. He asserts that his right to counsel was
violated when his attorney failed to request a mental health
expert in advance of the sentencing hearing. For the reasons
below, we agree.

The state court record demonstrates that counsel’s failure
to timely seek a mental health expert fell below “prevailing
professional norms.” Strickland, 466 U.S. at 688. “[C]ounsel
has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.” Id. at 691. Counsel has an “obligation to
conduct a thorough investigation of the defendant’s
background.” Terry Williams, 529 U.S. at 396 (citing
American Bar Association (“ABA”) Standards for Criminal
20 JONES V. RYAN

Justice 4–4.1, commentary, p.4–55 (2d ed 1980)). “Criminal
cases will arise where the only reasonable and available
defense strategy requires consultation with experts or
introduction of expert evidence.” Hinton v. Alabama,
571 U.S. 263, 273 (2014) (quoting Harrington v. Richter,
562 U.S. 86, 106 (2011)). And further, counsel’s failure to
investigate and present evidence of a defendant’s mental
defect constitutes deficient performance. Terry Williams,
529 U.S. at 396. In light of Terry Williams, we have also
held that counsel’s performance may be deficient “if he ‘is on
notice that his client may be mentally impaired,’ yet fails ‘to
investigate his client’s mental condition as a mitigating factor
in a penalty phase hearing.’” Caro v. Woodford, 280 F.3d
1247, 1254 (9th Cir. 2002) (quoting Hendricks v. Calderon,
70 F.3d 1032, 1043 (9th Cir. 1995)). Such performance is
deficient because “[a]t the penalty phase, counsel’s duty to
follow up on indicia of mental impairment is quite different
from—and much broader and less contingent than—the more
confined guilt-phase responsibility.” Bemore v. Chappell,
788 F.3d 1151, 1171 (9th Cir. 2015). “[I]t is imperative that
all relevant mitigating information be unearthed for
consideration at the capital sentencing phase.” Id. (quoting
Wharton v. Chappell, 765 F.3d 953, 970 (9th Cir. 2014)).
Moreover, the failure to “make even [a] cursory
investigation” into available means of obtaining additional
funding for expert witnesses may amount to deficient
performance under Strickland. See Hinton, 571 U.S. at 274.
 JONES V. RYAN 21

Additionally, the 1989 ABA Guidelines5 in effect at the
time of Jones’s sentencing, explain that in capital cases,
“[c]ounsel should secure the assistance of experts where it is
necessary or appropriate for: . . .” “the sentencing phase of
the trial,” and the “presentation of mitigation.” ABA
Guidelines for the Appointment and Performance of Counsel
in Death Penalty Cases, Guideline 11.4.1(d)(7), p. 16 (1989).
The Guidelines explain that “[i]n deciding which witnesses
and evidence to prepare for presentation at the sentencing
phase, counsel should consider the following: . . . Expert
witnesses to provide medical, psychological, sociological or
other explanations for the offense(s)[.]” Id. at Guideline
11.8.3(F)(2), p. 23–24. The Guidelines also note that, among
the topics the defense should consider presenting at
sentencing, is “[m]edical history (including mental and
physical illness or injury, alcohol and drug use, birth trauma
and developmental delays)” as well as “[e]xpert testimony
concerning [the client’s medical history] and the resulting
impact on the client, relating to the offense and to the client’s
potential at the time of sentencing.” Id. at Guideline
11.8.6(B)(1)&(8), p. 25–26.

5
We may look to the ABA Guidelines as indicators of the prevailing
norms of practice at a given time. See Strickland, 466 U.S. at 688
(“Prevailing norms of practice as reflected in American Bar Association
standards and the like . . . are guides to determining what [performance]
is reasonable, but they are only guides.”); see also Rompilla, 545 U.S.
at 387 n.7 (using language of 1989 and 2003 ABA Guidelines to evaluate
performance at 1988 trial); Florida v. Nixon, 543 U.S. 175, 191 (2004)
(using 2003 ABA Guidelines to evaluate counsel’s performance at trial);
but see Bobby v. Van Hook, 558 U.S. 4, 8 (2009) (“Strickland stressed,
however, that American Bar Association standards and the like are only
guides to what reasonableness means, not its definition. We have since
regarded them as such.” (citations and quotations omitted)).
22 JONES V. RYAN

Moreover, “[t]he timing of this investigation is critical.”
Allen v. Woodford, 395 F.3d 979, 1001 (9th Cir. 2005)
(quotation and citation omitted); see also Heishman v. Ayers,
621 F.3d 1030, 1036–37 (9th Cir. 2010). The Supreme Court
has found constitutional error “where counsel waited until
one week before trial to prepare for the penalty phase, thus
failing to adequately investigate and put on mitigating
evidence.” Allen, 395 F.3d at 1001 (citing Terry Williams,
529 U.S. at 395). “If the life investigation awaits the guilt
verdict, it will be too late.” Id. (citation and quotation
omitted). “[L]egal experts agree that preparation for the
sentencing phase of a capital case should begin early and
even inform preparation for a trial’s guilt phase[.]” Id.
“Counsel’s obligation to discover and appropriately present
all potentially beneficial mitigating evidence at the penalty
phase should influence everything the attorney does before
and during trial[.]” Id. (citation and quotation omitted).
Moreover, the 1989 ABA Guidelines state that “[c]ounsel
should conduct independent investigations relating to the
guilt/innocence phase and to the penalty phase of a capital
trial[,]” and “[b]oth investigations should begin immediately
upon counsel’s entry into the case and should be pursued
expeditiously.” ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases, Guideline
11.4.1(A), p. 13 (1989) (emphasis added); see also id. at
Guideline 11.8.3, p. 23 (“[P]reparation for the sentencing
phase, in the form of investigation, should begin immediately
upon counsel’s entry into the case.”).

The state court record shows that counsel was on notice
that Jones may have been mentally impaired, yet counsel
failed to investigate Jones’s mental condition as a mitigating
factor, and he failed to obtain a defense mental health expert.
Counsel was in possession of medical records showing that
 JONES V. RYAN 23

Jones formerly attempted suicide at age twenty-two; Peggy
told counsel that Jones experienced extreme moods swings,
but these swings stabilized when he had been medicated with
lithium; and Peggy and Randy told counsel that Jones was
“often a disturbed child,” and they had to seek psychiatric
help for him at age nine. This evidence would have led a
reasonable attorney to investigate further and obtain a defense
mental health expert. See Wiggins v. Smith, 539 U.S. 510,
527–28 (2003).

An investigation into Jones’s mental health should have
been pursued far in advance of when counsel requested that
Jones undergo a mental health examination pursuant to
Arizona Rule of Criminal Procedure 26.5. Counsel should
have obtained a defense mental health expert well before the
start of the guilt phase of Jones’s trial, but instead, he waited
to make this request until after Jones had already been
convicted on September 13, 1993. See Allen, 395 F.3d
at 1001.

Obtaining the court-appointed, independent expert’s short
and cursory evaluation did not satisfy this duty. See
Lambright v. Schriro, 490 F.3d 1103, 1120–21 (9th Cir.
2007) (“Counsel may not rely for the development and
presentation of mitigating evidence on the probation officer
and a court appointed psychologist. . . . The responsibility to
afford effective representation is not delegable to parties who
have no obligation to protect or further the interests of the
defendant.” (emphasis added)). Moreover, Dr. Potts’s
evaluation and opinions were limited in that he was a
psychiatrist not trained in matters involving organic brain
function—information that a neuropsychologist could have
developed and presented. Dr. Potts had no obligation to
further the interests of the defendant, even if he did present a
24 JONES V. RYAN

defense-favorable opinion, and his expertise and evaluation
did not extend to the precise topic—organic brain
function—that was essential in Jones’s case.

Finally, the state court record establishes that the failure
to obtain a defense expert here cannot be justified as a
reasonable strategic decision. First and foremost, counsel’s
failure to obtain a mental health expert was based not on
strategy, but on lack of preparation, which left counsel
unaware of the importance of this evidence. Counsel failed
to speak adequately to Jones and Jones’s family to obtain a
full picture of Jones’s mental health history. For instance,
even though when Jones was interviewed for the PSR, Jones
reported he was “mentally abused by his first step-father, and
later physically abused by a second step-father,” and he
characterized his childhood as “bad and unhappy,” when
questioning Dr. Potts at sentencing, defense counsel brushed
aside a mention of Randy’s physical abuse, referring to it as
“clearly a mistake,” even though the information came from
Jones himself.

Given this lack of preparation, unsurprisingly, counsel
stated that he never even considered the need for testing by a
neuropsychologist until Dr. Potts suggested it to him the
evening before Jones’s sentencing hearing. He attested that

prior to meeting with Dr. Jack Potts, M.D. on
December 7, 1993 to discuss his evaluation of
Danny Jones, [he] was not aware that
neurological or neuropsychological testing
was necessary and available which could
determine the exact nature of injuries to
Danny Jones’ brain from long term substance
 JONES V. RYAN 25

abuse and head injury and the resulting affect
on his behavior and conduct.

This fell below a reasonable standard of performance given
the indications that Jones likely suffered from some form of
mental illness.

Although we need “not indulge ‘post hoc rationalization’
for counsel’s decisionmaking that contradicts the available
evidence of counsel’s actions,” Harrington, 562 U.S. at 109
(quoting Wiggins, 539 U.S. at 526–27), even imagining one
potential strategic reason for counsel’s failure to obtain an
expert—that the defense could not afford one—the failure to
attempt to obtain a defense expert was neither reasonable nor
informed. In the declaration he provided in the state PCR
proceeding, defense counsel stated that he believed “the
Mohave County Public Defender’s Office did not have
sufficient monies for retaining expert witnesses,” and so he
“did not ask Mr. Everett [the Mohave Public Defender] for
any funding for additional necessary experts in State vs.
Jones.” But according to Kenneth Everett’s affidavit
provided to the state PCR court, “[i]n the last quarter of 1993,
approximately Seven Thousand ($7,000.00) Dollars would
have been available for experts . . . in regard to all cases that
the Public Defender had in that last quarter, including the
Danny Lee Jones case.” Everett also stated that during the
relevant time period, counsel “perhaps could have expended
additional funds for experts for additional mitigation
evidence,” although he did recognize that counsel needed “to
be circumspect” about requesting such funds.6 But, contrary

6
Counsel could also have gone back to the trial court for additional
funding. In granting only $2,000 of counsel’s $5,000 request for funding,
the court stated that:
26 JONES V. RYAN

to the Supreme Court’s ruling in Hinton, counsel never even
looked into requesting funding through the Public Defender’s
Office. See Hinton, 571 U.S. at 274 (trial attorney’s failure
to request additional funding was deficient when he
mistakenly believed he had received all the funding
available).

In sum, the state court record demonstrates that trial
counsel was constitutionally ineffective by failing to secure
a defense mental health expert. Thus, pursuant to
§ 2254(d)(1), the Arizona Supreme Court’s contrary
conclusion was an unreasonable application of Strickland and
its progeny.

B

Alternatively, Jones argues that the state PCR court’s
decision was based on an unreasonable determination of the
facts under § 2254(d)(2). He argues that the court employed
a defective fact-finding process with respect to Claim 1 when
it denied PCR counsel’s funding request for a defense
neuropsychological expert, effectively preventing the factual
development of this claim. He also asserts that the state
court’s failure to hold a hearing on Claim 1 resulted in an

If this is all you need pretrial, you may need more at
trial, and then of course the sentencing hearing if we get
that far, so—but, I am willing to go $2,000 prior to
trial, and then with the understanding that I am willing
to listen again if you need more.

Jones, 583 F.3d at 629 n.2. Although this statement may not have been
specifically included in the state court record, there is no doubt the PCR
court was aware of it; the same judge who sentenced Jones to death
presided at his PCR hearing.
 JONES V. RYAN 27

unreasonable determination of the facts. We agree with both
arguments.

Under § 2254(d)(2), a petitioner may challenge a state
court’s conclusion that is based upon an unreasonable
determination of the facts. We have noted that § 2254(d)(2)
challenges “come in several flavors.” Taylor v. Maddox,
366 F.3d 992, 1000 (9th Cir. 2004), overruled on other
grounds by Murray v. Schriro, 745 F.3d 984, 999–1000 (9th
Cir. 2014). For instance, we have stated that a petitioner may
overcome the § 2254 (d)(2) bar if the fact-finding “process
employed by the state court is defective.” Id. at 999 (citing
Nunes v. Mueller, 350 F.3d 1045, 1055–56 (9th Cir. 2003)).
“We have held repeatedly that where a state court makes
factual findings without an evidentiary hearing or other
opportunity for the petitioner to present evidence, the fact-
finding process itself is deficient, and not entitled to
deference.” Hurles v Ryan, 752 F.3d 768, 790 (9th Cir. 2014)
(amended) (quotations omitted); see also Perez v. Rosario,
459 F.3d 943, 950 (9th Cir. 2006) (amended) (“In many
circumstances, a state court’s determination of the facts
without an evidentiary hearing creates a presumption of
unreasonableness.”). This is particularly the case where a
judge bases factual findings on their own personal conduct,
untested memory, or understanding of events in the place of
an evidentiary hearing. See Hurles, 752 F.3d at 791 (finding
it “especially troubling” when a judge’s factual findings
involved her own conduct and were based on her “untested
memory and understanding of the events”). Similarly, a fact-
finding process may be fatally undermined “where the state
courts plainly misapprehend or misstate the record in making
their findings, and the misapprehension goes to a material
factual issue that is central to petitioner’s claim.” Taylor,
366 F.3d at 1001; see also Wiggins, 539 U.S. at 528. And
28 JONES V. RYAN

likewise, a fact-finding process may be deemed defective
when the end result requires the court to make a finding on
“an unconstitutionally incomplete record.” Milke v. Ryan,
711 F.3d. 998, 1007 (9th Cir. 2013). For a petitioner to
prevail on these types of § 2254(d)(2) arguments, however,
“we must be satisfied that any appellate court to whom the
defect is pointed out would be unreasonable in holding that
the state court’s fact-finding process was adequate.” Taylor,
366 F.3d at 1000.

The PCR court’s decision not to hold a hearing on
Claim 1 amounted to an unreasonable determination of the
facts. The court ruled on Claim 1 without holding an
evidentiary hearing because it found that Dr. Potts essentially
satisfied the role of a defense mental health expert. In
response to PCR counsel’s argument that a defendant is
entitled to his own mental health expert in capital cases, not
a court-appointed independent expert, the court explained
that:

Dr. Potts was a very good expert. He was
defense oriented. The prosecutor, I can
remember, was very upset about that. . . . I’m
going to deny [this claim] because I don’t
think counsel was ineffective as far as
Dr. Potts.

The fact that the PCR court made this factual finding
regarding Dr. Potts’s role without holding an evidentiary
hearing or opportunity for Jones to present evidence, suggests
that the PCR court’s fact-finding process was deficient. See
Hurles, 752 F.3d at 790. However, the process was even
more unreasonable because, even though more than six years
had passed, the judge based this finding solely on his own
 JONES V. RYAN 29

untested memory and personal impression of Dr. Potts’s role
in the sentencing hearing. See id. at 791. The judge who
presided over Jones’s state PCR proceeding was the same
judge who sentenced him to death, and in denying a hearing
on this claim, the judge relied primarily on his personal
recollection of Dr. Potts’s testimony and his memory that the
prosecution was upset that Dr. Potts testified favorably for the
defense. There is no evidence the PCR court considered
anything else in denying the request for a hearing.

The PCR court “plainly misapprehend[ed]” the record in
making its finding that Dr. Potts satisfied the role of a defense
mental health expert. See Taylor, 366 F.3d at 1001. Dr. Potts
was not a defense expert, and the fact his conclusions were
favorable to the defense does not support that he filled that
role. Nothing about the circumstances of Dr. Potts’s
testimony suggests otherwise. Dr. Potts testified at Jones’s
sentencing hearing that he regularly prepares psychological
reports requested by the courts, that “at times are favorable
apparently for the State” and at other times are favorable “for
the defense[.]” He also explained that in other cases like
Jones’s, he had found little or no mitigation for the defendant.
Moreover, the limited amount of time Dr. Potts spent on his
report and the level of analysis and detail that report provided
do not support the conclusion that he was an advocate for the
defense team. Dr. Potts submitted only a six-page report to
the court. He agreed that he was under “significant time
pressure” in preparing the report because he received the PSR
late from Mohave County. He met with Jones for a total of
four hours at the prison, and spent one and a half hours of that
time administering an MMPI personality test. On the day
before he testified, Dr. Potts also spoke to Jones for “a couple
of hours,” Peggy for about thirty minutes, and Randy for one
30 JONES V. RYAN

hour. Dr. Potts also specified that it would have been helpful
and

valuable to have had some neurologic
evaluations, not – by a neurologist, clinical
exam, such as a CAT scan, possibly an MRI,
possibly EEG, possibly some sophisticated
neurological testing, because I think there’s
very strong evidence that we have – well,
there’s clear evidence that we have, I believe,
of traumatic brain injury, and there’s some
other evidence that I believe we may have
organic neurological dysfunctions here that
has gone on since he’s been about 13. So
there’s some other testing that I think would
be valuable to have to pin down the diagnosis.

Nothing about Dr. Potts’s role in the sentencing hearing
suggests that he had stepped into the shoes of a defense
expert.

The PCR court’s decision not to fund a defense mental
health expert fatally undermined the fact-finding process, in
part because that decision resulted in the court ruling on an
unconstitutionally incomplete record. Without funding for a
mental health expert, it was impossible for Jones to
demonstrate that he had been prejudiced by counsel’s failure
to obtain one during the course of Jones’s criminal
proceedings. Jones could not demonstrate the inadequacy of
counsel’s mitigation case without providing the mitigation
evidence that could have been presented by a defense
neuropsychological expert. Moreover, without funding,
Jones could not show that a defense neuropsychological
expert would have presented materially different evidence
 JONES V. RYAN 31

than that already provided by Dr. Potts. By failing to provide
additional funding to develop Jones’s mental health
mitigation evidence, the state court, as Jones phrases it,
created “its own self-fulfilling prophecy,” by preventing the
development of the claim before it was even presented.

We emphasize that we are not suggesting that any denial
of an evidentiary hearing or denial of funding for an expert
would lead to a deficient fact-finding process in state court.
Our determination is expressly limited to the facts of this
case: The judge denied an evidentiary hearing based on his
personal recollection of a sentencing proceeding that took
place six years prior—a proceeding in which the sole, court-
appointed expert opined that further neurological testing was
desirable.

For these reasons, we conclude that any appellate court
would conclude that the PCR court’s factual determination as
to Dr. Potts and its fact-finding process with respect to
Claim 1 were unreasonable and inadequate. See Taylor,
366 F.3d at 1000. Accordingly, Jones has satisfied the
requirements of § 2254(d)(2).

C

Although § 2254(d) typically also applies to the prejudice
prong of a petitioner’s IAC claim, here, the PCR court did not
reach the issue of prejudice, and so we review the issue de
novo. See, e.g., Weeden, 854 F.3d at 1071.

Pinholster limits our § 2254(d) analysis to the facts in the
state court record. 563 U.S. at 185. However, Pinholster
does not prevent us from considering evidence presented for
the first time in federal district court in reviewing the merits
32 JONES V. RYAN

of Jones’s claims de novo. As the district court found, Jones
satisfied the standard for an evidentiary hearing pursuant to
§ 2254(e)(2)7. That provision permits federal district courts
to hold evidentiary hearings and consider new evidence when
petitioners have exercised diligence in pursuing their claims
in state court. See id. (“Section 2254(e)(2) continues to have
force where § 2254(d)(1) does not bar federal habeas relief.”);
see id. at 212–13 (Sotomayor, J., dissenting); (Michael)
Williams v. Taylor, 529 U.S. 420, 436–37 (2000) (“Michael
Williams”).

Though § 2254(e)(2) limits the discretion of district
courts to conduct evidentiary hearings, Pinholster, 563 U.S.

7
Section 2254(e)(2) states that

If the applicant has failed to develop the factual basis of
a claim in State court proceedings, the court shall not
hold an evidentiary hearing on the claim unless the
applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously
unavailable; or

(ii) a factual predicate that could not have
been previously discovered through the
exercise of due diligence; and

(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the
applicant guilty of the underlying offense.
 JONES V. RYAN 33

at 203 n.20, it does not impose an express limit on
“evidentiary hearings for petitioners who ha[ve] been diligent
in state court.” Id. at 213 (Sotomayor, J. dissenting); see also
Landrigan, 550 U.S. at 473 n.1. Here, the federal district
court determined that Jones had been diligent in attempting
to develop the factual basis for Claims 1 and 2 in state court,
and the State does not contest that determination now. The
state court record shows that Jones was diligent. His PCR
counsel requested funding for a neuropsychologist and “a
thorough and independent neurological assessment” to assist
in the development of Claims 1 and 2, but the PCR court
denied the request. Therefore, the district court did not err in
its expansion of the record, and we consider the evidence
developed in federal district court in conducting de novo
review of Jones’s claims.

To prevail on his IAC claim, Jones must demonstrate that
his trial counsel: (1) performed deficiently; and (2) Jones’s
defense was prejudiced by that deficient performance.
Strickland, 466 U.S. at 687. He has done so.

For all the reasons set forth previously in our § 2254(d)(1)
analysis, Jones has demonstrated that counsel’s performance
fell below an objective standard of reasonableness and below
the prevailing professional norms at the time of Jones’s
proceedings.

Additionally, Jones has demonstrated that counsel’s
failure to obtain a defense mental health expert for the
penalty phase of Jones’s trial prejudiced the defense. Jones
has demonstrated that there is a “reasonable probability” that
had such an expert been retained, “the result of the
proceeding would have been different.” Id. at 694.
34 JONES V. RYAN

There is a reasonable probability that had counsel secured
a defense mental health expert, that expert would have
uncovered (and presented at sentencing) a wealth of available
mitigating mental health evidence. The main mitigation
witness in state court was Randy, Jones’s second step-father.
Randy erroneously testified that Jones enjoyed a stable home
life after age seven, when Randy married Jones’s mother, and
yet the trial court found that his testimony was sufficient to
prove a number of non-statutory mitigating circumstances.
Had counsel secured a mental health expert, that expert could
have provided substantial evidence—through
neuropsychological testing or otherwise—that Jones suffered
from mental illness, including evidence supporting any of the
diagnoses made by experts in federal district court:
(1) cognitive dysfunction (organic brain damage and a history
of numerous closed-head injuries); (2) poly-substance abuse;
(3) post-traumatic stress disorder (“PTSD”); (4) attention
deficit/hyperactivity disorder (“AD/HD”); (5) mood disorder;
(6) bipolar depressive disorder; and (7) a learning disorder.
The experts retained in Jones’s federal habeas proceedings
provided significant evidence of these conditions,
demonstrating that such evidence could have been uncovered
and presented at sentencing.

Dr. Pablo Stewart, Chief of Psychiatric Services at the
Haight Ashbury Free Clinic in San Francisco, California,
testified at the federal evidentiary hearing. He estimated that
he spent 130 hours working on Jones’s case, in contrast to the
four hours Dr. Potts was able to spend with Jones prior to
sentencing. Dr. Stewart diagnosed Jones with cognitive
dysfunction, PTSD, polysubstance abuse, and mood disorder,
not otherwise specified. He ultimately concluded that “[t]he
circumstances surrounding Mr. Weaver’s death are a direct
consequence of [Jones’s] abused and unfortunate past.”
 JONES V. RYAN 35

Dr. Stewart testified to a number of factors that may have
contributed to Jones’s cognitive dysfunction that occurred
before Jones was even born. He noted that Jones’s mother,
Peggy, worked in a chrome hub cab plating factory when she
was pregnant with Jones, and chrome exposure may
negatively affect a baby’s birth. He testified that Peggy’s
prenatal diet was also of concern: Peggy reported that during
her pregnancy with Jones, her diet consisted of cigarettes,
coffee, and mayonnaise sandwiches. He expressed that the
use of nicotine during pregnancy has been directly linked to
cognitive dysfunction in children and caffeine exposure
results in more difficult births. He also specified that Jones’s
father beat Peggy during her pregnancy such that there was a
potential for physical trauma to the fetus. And he testified to
Jones’s traumatic and difficult birth: Jones was born in the
breech position, with the umbilical cord wrapped around his
neck, and forceps were used. He testified that any of these
factors could have been potential contributors to Jones’s
cognitive dysfunction.

Dr. Stewart testified that Jones had suffered multiple
serious head injuries over the course of his life, and he went
into much greater detail than Randy had provided regarding
Jones’s head injuries at the state PCR proceeding. Randy had
testified that Jones fell off a roof when he was approximately
thirteen, fell off a scaffolding when he was approximately
fifteen, was mugged while serving in the Marines, and
experienced spontaneous blackouts around the age of four.
By contrast, Dr. Stewart described an incident where Jones
“was about eleven (11) years old, he fell, head-first off a roof
onto the metal frame of a horizontal dolly, in an attempt to
retrieve a ball. His eye hit the metal bar of the dolly. He was
unconscious for about five (5) to ten (10) minutes.” He also
noted the fall when Jones was fifteen, but additionally, he
36 JONES V. RYAN

explained that “[a]s a young adult, Danny had at least three
(3) car accidents where he lost consciousness.” Further,
“when Danny was about five-and-a-half (5 ½) years old,
Peggy found Danny regaining consciousness, lying
underneath the swing set. She suspected Eland, Danny’s first
step-father, had hit Danny or thrown him off the slide.
Danny’s face was red and he vomited, indicating he had a
concussion.” Dr. Stewart elaborated on the mugging Jones
suffered while in the Marines: he was “found lying
unconscious in a ditch along the highway, by a Morehead
City Police Officer, who took him to the hospital. Danny had
been mugged and beaten with a two-by-four.”

Dr. Stewart discussed PTSD and explained that Jones
suffered numerous traumatic experiences early in his life: he
watched his first step-father hold a jigsaw to his mother’s
neck and threaten to kill her, he watched that same step-father
shoot a gun at his mother, and on two separate occasions, his
second step-father, Randy, pointed a gun to his own head and
threatened to kill himself in front of Jones. He also noted that
Randy beat Jones for no reason with a belt with a buckle and
engaged in other forms of severe physical discipline. On
cross-examination the state challenged Dr. Stewart’s PTSD
diagnosis because Dr. Stewart stated that Jones “had PTSD at
the time of the murders,” but did not state that Jones was
having a flashback while committing the crimes. Dr. Stewart
responded by explaining that while the media tends to show
PTSD as being a person “who is thinking he’s being
ambushed and he takes people hostage,” that only occurs
“very, very rarely.” He explained:

The much more overwhelmingly more
common thing that occurs is a person having
a short fuse; a person overreacting to a
 JONES V. RYAN 37

situation; a person finding themselves
challenged by some things and then just going
off; a person—and that’s PTSD. A person
who drinks too much and then gets into fights,
those are the more common thing. But those
don’t sell movies or books.

But that’s the more common presentation. So
that’s why I’m saying in the case of Mr.
Jones, it’s absolutely clear that he suffers
from PTSD, in my opinion, and that he carries
that with him throughout his entire life.
Certainly on the day of these murders, that
was going on.

Dr. Stewart also testified that Jones’s first
step-grandfather forced Jones to drink alcohol when he was
only nine years old, and that it appeared the grandfather used
alcohol to get Jones drunk so it would be easier to sexually
abuse him. Dr. Stewart described the sexual abuse “as full
contact sexual abuse, including sodomy, including oral sex,
both the providing it and receiving it.” Jones became a daily
marijuana user when he was in junior high, he used one gram
of cocaine every weekend in high school, and he reported
using LSD two hundred times. Dr. Stewart explained that the
substance abuse appeared to have stemmed from Jones’s
genetic predisposition, and also because Jones used drugs
starting at a very young age to self-medicate as a means of
coping with his mental defects and past trauma.

Dr. Alan Goldberg, a psychologist in Arizona with a
speciality in neuropsychology, conducted a battery of tests
that covered multiple domains of cognitive functioning.
Dr. Goldberg gave Jones approximately twenty-five tests and
38 JONES V. RYAN

found that “when we look at the patterns across many
different kinds of tests . . . we see a consistent inconsistency
in performance, that is, the performance is problematic on a
number of tests that all have an attention component to
them.” He ultimately diagnosed Jones with a learning
disability, attention deficit disorder, and Bipolar Disorder,
Depressed.

Jones submitted reports from additional experts, including
Dr. David Foy, a professor of psychology at Pepperdine
University. Dr. Foy diagnosed Jones with PTSD, polydrug
abuse, depressive disorder, compromised cognitive emotional
functioning, and various learning deficits. Dr. Foy described
the numerous instances of life-threatening family violence
Jones witnessed growing up, and found that on at least two
occasions Jones used a baseball bat to protect himself:
(1) when Jones threatened to kill Jones’s first step-father if he
did not stop beating Jones’s mother, Peggy; and (2) in order
to stop Jones’s first step-grandfather from continuing to
sexually abuse him. Dr. Foy concluded that

[t]he constant threat of sudden verbal attacks
or severe physical punishment in Danny’s
home environment would be expected to
produce an essential state of wariness or
hypervigilance . . . [and] would be expected to
lead to a heightened suspiciousness and
combat readiness as a systematic way of
responding, even in situations which later
proved to be non-life threatening.

Finally, Jones submitted a declaration from his younger
sister, Carrie. She said that, as a child, Jones twice watched
Randy point a gun at his own head and threaten to kill
 JONES V. RYAN 39

himself. She stated that contrary to Randy’s testimony during
sentencing, Randy was both verbally and physically abusive
to Jones, and that Jones threatened to kill Randy if he kept
beating Peggy. Carrie also confirmed that Jones suffered
numerous head injuries while growing up.

The hearing also made clear that Dr. Potts had not been
tasked with providing mitigation evidence at sentencing and
had not conducted the extensive testing he felt was required.
Potts explained: “I was not an expert for either party. I was
the Court’s expert in looking at some issues. I was not—it
was clear I was not hired for mitigation, nor was I hired for
aggravation.” The trial court had ordered Dr. Potts to
perform an evaluation pursuant to Rule 26.5 of the Arizona
Rules of Criminal Procedure. The Rule provides: “At any
time before the court pronounces a sentence, it may order the
defendant to undergo a mental health examination or
diagnostic evaluation. Unless the court orders otherwise, any
report concerning such an examination or evaluation is due at
the same time as the presentence report.” In line with this,
Dr. Potts had testified at Jones’s sentencing: “My main role
is working with Maricopa County Superior Court, criminal
division, coordinating competency evaluations, other
forensic, and working with patients. I also have clinical
responsibilities. . . . [I] [p]rimarily do reports as requested by
the Court.” When asked whether or not he had enough
“points of data” to pull from in reaching his conclusions, he
stated:

[T]here’s a clear distinction between a
mitigation specialist, and I’m no mitigation
specialist. I may be a part of a team of
mitigation, but I’m clearly not a mitigation
40 JONES V. RYAN

specialist in the realm of what is dealt with
now in capital cases. . . .

Mine was a cursory examination. . . .
[I]nterviewing one family member certainly is
not adequate, I believe, for what would be
considered capital mitigation. It is below the
standard of care.

He stated that, prior to his testimony at sentencing, he had
recommended that defense counsel seek neuropsychological
testing for Jones. During cross-examination, the State tried
to get Dr. Potts to admit that he only called for neurological
testing, not neuropsychological testing, but Dr. Potts
explained that “[s]ophisticated neurological testing would
include that.”

He described the reports submitted by the additional
experts at the habeas proceeding as the “documents I think
one would expect to see in mitigation. . . . I believe they’re
very, very helpful, and I think—I know I would have liked to
have had the exhaustive nature of these reports.” He stated
that he found his role constrained by his court-appointed
status, and therefore “did not make diagnoses,” because his
“role was not to make diagnoses . . . and that’s why I would
not have. I could have . . . but that was not the nature or tenor
of any of this report. . . .”

Defense trial counsel testified that Dr. Potts “did not act
as a neutral, detached court-appointed expert. He actively
assisted us in developing mitigation, planning strategy to a
much larger degree than what he indicated.” He explained
that he had “numerous phone conversations” with Dr. Potts,
they met together the night before Dr. Potts testified, and
 JONES V. RYAN 41

Dr. Potts “stressed to ask for the continuance for the
additional testing.”

The testimony provided at the federal evidentiary hearing
demonstrates the types of mitigation evidence that could and
should have been presented at the penalty phase of Jones’s
trial. For instance, the evidence demonstrates that, had
counsel retained a defense mental health expert, that expert
could have provided testimony explaining the factors that
contributed to Jones’s cognitive dysfunction, including:
(1) prenatal chrome and nicotine exposure; (2) his mother’s
malnutrition during pregnancy; (3) fetal trauma from beatings
by his father; (4) a traumatic birth; (5) several severe head
injuries; or (6) Jones’s substantial and extensive drug and
alcohol abuse, which began when he was eight or nine years
old. Any such evidence would have been significantly more
probative of Jones’s mental state and more persuasive in
reducing Jones’s culpability than Dr. Potts’s conditional
findings, compiled after far less preparation time and testing,
and comprising only a six-page report. These factors
illustrate how unfortunate circumstances outside of Jones’s
control combined to damage his cognitive functioning and
mental health at the time of his crimes.

Likewise, the mental health experts’ testimony in the
district court proceedings demonstrates that had trial counsel
retained such an expert for sentencing, he or she could have
provided evidence that Jones’s mental state was impaired by
drugs and alcohol at the time of his crimes. He or she also
could have offered context for his substance abuse and insight
into how Jones’s long-term self-medication affected his brain.
As demonstrated at the federal evidentiary hearing, any
mental health expert engaged by the defense team would have
attempted to explain Jones’s lifelong history of substance
42 JONES V. RYAN

abuse and its physical effects on Jones’s brain. This would
have included compiling a family history and hard data
regarding Jones’s brain function. It also would have included
information addressing how and when Jones’s substance
abuse began. As the federal proceedings revealed, Jones
turned to substance abuse at an extremely young age in order
to self-medicate in response to the trauma he experienced
from being physically and sexually abused and as a result of
repeatedly witnessing violence directed at his mother. A
mental health expert would have relayed that Jones suffered
sexual abuse from age nine until age thirteen at the hands of
his step-grandfather, who introduced him to marijuana and
alcohol at age nine in order to facilitate that abuse. A mental
health expert could also have explained the trauma Randy
inflicted on Jones by detailing how Randy physically and
emotionally abused Jones, engaged in various forms of severe
physical discipline, and threatened suicide in front of Jones
and his family.

We are persuaded that testimony explaining Jones’s
history would have significantly impacted the overall
presentation of Jones’s culpability with respect to his mental
state, and painted a vastly different picture of Jones’s
childhood and upbringing. The mitigation case actually
presented to the sentencing court suggested that while Jones
had undergone a traumatic early childhood, he enjoyed a
largely normal childhood and supportive family after the age
of six. And because so little preparation had been done,
Dr. Potts erroneously testified at sentencing that Jones did not
suffer child abuse once Randy and Peggy married. Notably,
Randy was the only mitigation witness who testified at
Jones’s sentencing, and defense counsel was unaware that
Randy too was an abuser. Had counsel procured a mental
health expert, the mitigation case would have told the story of
 JONES V. RYAN 43

an individual whose entire childhood was marred by extreme
physical and emotional abuse, which in turn funneled him
into early onset substance abuse that exacerbated existing
cognitive dysfunction.

In sum, there is at least a reasonable probability that
development and presentation of mental health expert
testimony would have changed the result of the sentencing
proceeding. Therefore, we conclude that Jones has
demonstrated Strickland prejudice on de novo review. See
Boyde v. California, 494 U.S. 370, 382 (1990) (“[E]vidence
about the defendant’s background and character is relevant
because of the belief, long held by this society, that
defendants who commit criminal acts that are attributable to
a disadvantaged background, or to emotional and mental
problems, may be less culpable than defendants who have no
such excuse.” (quoting Penry v. Lynaugh, 492 U.S. 302, 319
(1989))). Accordingly, we reverse the district court’s denial
of relief on Claim 1.

V

A

In Claim 2, Jones asserts that his trial counsel was
constitutionally ineffective by failing to seek neurological or
neuropsychological testing prior to sentencing. He asserts
that the failure to do so fell below prevailing professional
norms at the time. We agree.

As with Claim 1, counsel’s failure to promptly seek
neuropsychological testing ran contrary to his obligation to
pursue reasonable investigations under Strickland, and in
particular, his obligation to investigate and present evidence
44 JONES V. RYAN

of a defendant’s mental defect. See Terry Williams, 529 U.S.
at 396 (failure to investigate and present evidence of mental
defect amounts to deficient performance). The state court
record shows that counsel was on notice of numerous facts
from the very beginning of the representation that Jones may
have had significant brain damage. “[W]hen ‘tantalizing
indications in the record’ suggest that certain mitigating
evidence may be available, those leads must be pursued.”
Lambright, 490 F.3d at 1117 (quoting Stankewitz v.
Woodford, 365 F.3d 706, 719–20 (9th Cir. 2004)); see also
Wiggins, 539 U.S. at 527 (“In assessing the reasonableness of
an attorney’s investigation, however, a court must consider
not only the quantum of evidence already known to counsel,
but also whether the known evidence would lead a reasonable
attorney to investigate further.”). Counsel specified in his
declaration before the PCR court that “prior to trial and
sentencing [he] was aware from interviews of Danny Jones
and his mother and step-father that he had been rendered
unconscious numerous times during his life from head
injuries,” as well as that “he had a significant history of
serious long term substance abuse.” Any reasonable attorney
would understand that these details could lead to valuable,
available mitigation evidence and would have pursued these
leads further.

However, in the state PCR proceedings, defense trial
counsel provided no strategic reason for his failure to arrange
for neuropsychological testing. Instead, trial counsel stated
that he “was not aware that neurological or
neuropsychological testing was necessary and available
which could determine the exact nature of injuries to Danny
Jones’ brain from long term substance abuse and head
injury,” nor that testing would shine a light on “the resulting
affect on his behavior and conduct.” Counsel’s failure to
 JONES V. RYAN 45

appreciate the importance of such testing before the
sentencing phase of trial constituted deficient performance
because he failed to understand the value neuropsychological
testing could provide in Jones’s case, and by the time of
Jones’s sentencing in 1993, counsel in capital cases was
expected to be versed in the role of psychiatric evidence. See
ABA Guidelines for the Appointment and Performance of
Counsel in Death Penalty Cases, Guideline 5.1(1)(A)(v), p.
5–6 (1989) (“Lead trial counsel assignments should be
distributed to attorneys who . . . are familiar with and
experienced in the utilization of expert witnesses and
evidence, including, but not limited to, psychiatric and
forensic evidence.”).

Counsel’s request for testing (and a continuance) during
Jones’s sentencing hearing came far too late. As noted by
PCR counsel, the court denied these requests because it had
granted funding earlier in the case for expert assistance, and
“if there [had been] any follow-up questions of a
psychological or neurological nature, [the court expected] that
the defense would have followed them up.” The court,
therefore, was placing the burden on counsel to recognize
these issues and request funding and assistance earlier in the
case, which counsel failed to do because he had not invested
sufficient preparation time and research to be aware that such
testing was available and needed. Moreover, the timing of
counsel’s request for neuropsychological testing, like his
request for a defense mental health expert, was in itself
deficient. “[P]reparation for the sentencing phase of a capital
case should begin early and even inform preparation for a
trial’s guilt phase.” Allen, 395 F.3d at 1001. For this reason,
46 JONES V. RYAN

the PCR court’s decision that defense counsel’s performance
did not fall below an objectively reasonable standard was an
unreasonable application of Strickland. Jones has satisfied
§ 2254(d)(1).

B

Alternatively, Jones asserts that the state PCR court’s
decision was based on an unreasonable determination of the
facts under § 2254(d)(2). He argues that the court precluded
Claim 2’s full factual development by denying PCR counsel’s
request to fund neuropsychological testing, and he asserts that
the inadequacy of the state court’s fact-finding procedures
renders its rejection of this claim unreasonable. We agree.

The PCR court never addressed the facts supporting
Jones’s IAC claim, and it excused counsel’s failure to move
timely for neuropsychological testing in a vague, inconsistent
order. As with Claim 1, this had the effect of precluding
Claim 2’s full factual development in a way that rendered the
entire fact-finding process unreasonable.

At sentencing, Dr. Potts testified that he saw indicators of
brain damage, and as a result, counsel requested that the court
continue the proceedings so that he could seek a
neuropsychological evaluation. The court, however, ruled
contrary to Dr. Pott’s recommendation, stating only that:

this case has been pending a long time, and I
think the evidence is very slim, nonexistent, in
fact, that the defendant has anything that
 JONES V. RYAN 47

requires any kind of neurological
examination. So, I am ready to proceed [with
sentencing].

(emphasis added). Because the State did not call a competing
expert, the only evidence in the record—Dr. Pott’s
unambiguous recommendation—suggested that a
neuropsychological evaluation was necessary, contrary to the
sentencing court’s assessment. The sentencing court’s
cursory evaluation of the record effectively foreclosed any
factual development on this issue.

In the PCR proceedings, the court at least granted a
hearing on the issue of counsel’s ineffectiveness regarding
testing, but because the court summarily denied the claim
concerning the appointment of a mental health expert and
denied counsel’s motion for further neuropsychological
testing, the evidentiary hearing was rendered almost
meaningless. The court based its denial of
neuropsychological testing on the court’s own impressions
and untested memory of Dr. Potts’s sentencing testimony
from six years prior. The court recalled that he “thought
Dr. Potts did a good job,” and “based on his testimony,” the
court did not “really see any grounds for any additional
psychiatric or psychological testing.” But Dr. Potts’s
testimony was that additional neuropsychological testing was
needed. The court paradoxically explained that “[b]ased on
[Dr. Potts’s] testimony and the other things that I heard
during that hearing, there was no grounds in my mind for
obtaining a neuropsychological examination. Not one.” The
resulting decision dismissed the claim for neuropsychological
testing in a single sentence: “The report and testimony of
Dr. Potts who was appointed by the Court, adequately
addressed defendant’s mental health issues at sentencing.”
48 JONES V. RYAN

As with Claim 1, the state PCR judge made factual
findings regarding the necessity of neuropsychological
testing, not on the basis of evidence presented by the
petitioner, but on the basis of his own personal conduct,
untested memory, and understanding of events. See Hurles,
752 F.3d at 791; see also Buffalo v. Sunn, 854 F.2d 1158,
1165 (9th Cir. 1988) (finding error when the court relied on
“personal knowledge” to resolve disputed issue of fact).
Additionally, in making the resulting factual finding—that
neuropsychological testing was not warranted—the court
“plainly misapprehend[ed]” the record. See Taylor, 366 F.3d
at 1001. In particular, the evidence in the record—Dr. Potts’s
testimony—strongly suggested that neuropsychological
testing was essential in assessing Jones’s psychological state,
contrary to the court’s finding. Thus, by finding against the
weight of the evidence, and proceeding to rule on the merits
of Claim 2, the court employed a constitutionally defective
fact-finding process and ruled on an unconstitutionally
incomplete factual record. See id. at 999; see also Milke,
711 F.3d at 1007 (finding the state court decision rested on an
unreasonable determination of the facts where the judge
relied on a distorted fact-finding process and ruled on an
“unconstitutionally incomplete record”).

The PCR court had an obligation to allow for reasonable
fact development in reaching the merits of Claim 2; the judge
did not fulfill this obligation by relying on his own untested,
personal recollection of the testimony Dr. Potts presented six
years earlier. For this reason, Jones has demonstrated that the
PCR court’s decision was based on an unreasonable fact-
finding process and determination of the facts, satisfying
§ 2254(d)(2).
 JONES V. RYAN 49

C

As with Claim 1, the PCR court failed to reach the
prejudice prong of Claim 2, and so we address the issue de
novo. See, e.g., Weeden, 854 F.3d at 1071.

As with Claim 1, because Jones was diligent in attempting
to develop the factual basis of this claim in state court by
requesting “a thorough and independent neurological
assessment,” § 2254(e)(2) does not limit our ability to
consider evidence presented for the first time in federal
district court. See Pinholster, 563 U.S. at 213 (Sotomayor, J.
dissenting); see also Landrigan, 550 U.S. at 473 n.1. The
State does not contest that Jones was diligent in attempting to
develop the factual basis for his claims in state court, or that
we may consider this additional evidence on appeal. And
having reviewed the record, we independently conclude that
the district court did not err in its diligence determination and
expansion of the record. Accordingly, we consider the
evidence developed in federal district court in conducting de
novo review of Jones’s claims.

In order for us to grant relief on Jones’s IAC claim, Jones
must demonstrate that his trial counsel: (1) performed
deficiently; and (2) Jones’s defense was prejudiced by that
deficient performance. Strickland, 466 U.S. at 687. He has
done so.

Jones has demonstrated that trial counsel performed
deficiently for all the reasons set forth in our § 2254(d)(1)
analysis. He has demonstrated that counsel’s performance
fell below an objective standard of reasonableness and below
the prevailing professional norms at the time of Jones’s
proceedings.
50 JONES V. RYAN

Additionally, Jones has demonstrated that counsel’s
failure to seek neuropsychological and neurological testing
prejudiced his defense. He has demonstrated that there is a
“reasonable probability” that had such testing been
conducted, and had the results been presented at sentencing,
“the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. While Dr. Potts presented brief,
conditional findings, the results of the neuropsychological
and neurological tests conducted by various experts during
Jones’s federal district court proceedings confirmed that
Jones suffered from a variety of psychological disorders
stemming from birth and exacerbated by long-term drug use
and trauma that affected Jones’s cognitive functioning. As
explained previously, testing revealed that Jones suffered
from organic brain damage, poly-substance abuse, PTSD,
AD/HD, mood disorder, bipolar depressive disorder, and a
learning disorder. The presentation of these results would
involve presenting the contributing factors to his cognitive
dysfunction, as previously described with respect to Claim 1,
including that his long-term substance abuse was induced by
his sexually abusive step-grandfather. At sentencing, there
was no indication that Jones had suffered years of sexual
abuse as a child. In combination, the testing results and the
presentation of contributing factors would have dramatically
affected any sentencing judge’s perception of Jones’s
culpability for his crimes such that there is a reasonable
probability that Jones would not have received a death
sentence.

VI

Because we have determined that Jones is entitled to
relief and resentencing on the basis of Claims 1 and 2, we
need not and do not reach the issue of whether the new
 JONES V. RYAN 51

evidence presented at the federal evidentiary hearing
fundamentally altered these claims such that they were
unexhausted, procedurally defaulted, and excused in light of
Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc) and
Martinez v. Ryan, 566 U.S. 1 (2012). Additionally, we need
not and do not reach the merits of any of Jones’s other claims.

We reverse and remand to the district court with
instructions to issue the writ of habeas corpus.

REVERSED AND REMANDED.