FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAXWELL HOFFMAN, 

Petitioner-Appellant, No. 02-99004

v. D.C. No.

ARVON J. ARAVE, Warden, Idaho  CV-94-00200-SMaximum Security Institution, BLW

Department of Correction, State of OPINION Idaho,

Respondent-Appellee. 

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, District Judge, Presiding

Argued and Submitted

November 22, 2005—Pasadena, California

Filed July 5, 2006

Before: Harry Pregerson, William A. Fletcher, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Pregerson

7331
COUNSEL

Joan M. Fisher, (argued and brief) Federal Defenders of Eastern Washington and Idaho, Moscow, Idaho, and Ellison Matthews (brief), Boise, Idaho, for the petitioner-appellant. 

HOFFMAN v. ARAVE 7335
L. LaMont Anderson, Deputy Attorney General, Boise, Idaho,

for the respondent-appellee.

OPINION

PREGERSON, Circuit Judge: 

The petitioner, Maxwell Hoffman, appeals the denial of his

28 U.S.C. § 2254 habeas petition based on ineffective assistance of counsel during pre-trial plea bargaining and during

the guilt phase of his trial for the murder of Denise Williams.

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

We affirm in part and reverse in part. 

I. Factual Background

The facts of the murder of Denise Williams have been

recounted in numerous prior decisions in state and federal

courts,1 and are recited only briefly here. Hoffman was

employed by Richard Holmes, a drug dealer. Williams, a

police informant, initiated a controlled buy with Holmes, and

as a consequence, Holmes was arrested for distributing controlled substances. After Holmes was released on bail, Sam

Longstreet and Jeff Slawson, two of Williams’s friends, went

to meet with Holmes to assure him that they had nothing to

do with his arrest. Holmes brokered a deal for these two

friends to deliver Williams to Holmes at a camp in Idaho. 

Longstreet and Slawson dropped Williams off and left her

with Ron Wages, one of Holmes’s associates. Thereafter,

Hoffman and Holmes went to the camp and met up with

Wages and Williams. Holmes kicked Williams in the head,

1

See Hoffman v. Arave, 236 F.3d 523 (9th Cir. 2001); Hoffman v. Arave,

73 F. Supp. 2d 1192 (D. Idaho 1998); Hoffman v. Arave, 973 F. Supp.

1152 (D. Idaho 1997); Hoffman v. State, 121 P.3d 958 (Idaho 2005); State

v. Hoffman, 851 P.2d 934 (Idaho 1993). 

7336 HOFFMAN v. ARAVE
and told Williams that she was “a dead bitch.” Holmes told

Hoffman and Wages, “You know what to do,” and left. 

Hoffman, Wages, and Williams drove around for several

hours. Hoffman and Wages forced Williams to write letters

exonerating Holmes of the controlled substances charges. At

some point, Hoffman stopped the car and took Williams into

a cave. He cut her throat while Wages waited in the car. As

Hoffman was coming back to the car, Williams began to

crawl up an embankment near the cave. Wages ran over to

Williams, and stabbed her with the knife Hoffman was carrying. Wages then began to bury her with rocks, and Hoffman

joined in. The evidence showed that Williams might have

eventually died either from the original cut by Hoffman or

from the wound inflicted by Wages, but that the actual cause

of death was a blow from a rock. 

Hoffman and Wages then drove to Wages’s sisters’ house,

where the two cleaned the car, and burned their clothes and

Williams’s clothes. Later, at Holmes’s house, Hoffman cut up

the knife with a cutting torch.

A. Idaho State Proceedings 

On August 22, 1988, Hoffman was charged with firstdegree murder. The court appointed William Wellman as

counsel. Wellman had never tried a murder case, and had no

formal training on defending capital cases. At the time he was

selected to represent Hoffman, Wellman had done contract

work with the Owyhee County public defender’s office for

several years, and criminal defense work constituted about

half of his practice. 

Five weeks before trial, the State offered Hoffman a plea

bargain: If Hoffman would plead guilty to first-degree murder, the State would not pursue the death penalty. The State

also made clear that it intended to seek the death penalty if

Hoffman rejected the plea agreement. Wellman advised HoffHOFFMAN v. ARAVE 7337
man that he should reject the plea agreement. Wellman

believed that the Idaho death penalty scheme was unconstitutional based on Adamson v. Ricketts, 865 F.2d 1011, 1023-28

(9th Cir. 1988) (en banc), abrogated by Walton v. Arizona,

497 U.S. 639 (1990), where this court found Arizona’s death

penalty scheme unconstitutional. Wellman saw no material

difference between Arizona’s death penalty scheme and the

death penalty scheme in Idaho. He thus recommended that

Hoffman reject the plea agreement because he believed it was

only a matter of time until Idaho’s death penalty scheme

would be declared unconstitutional as well. Hoffman took

Wellman’s advice and rejected the plea agreement. 

In February 1989, only three weeks before trial, the court

appointed co-counsel Charles Coulter. Coulter had tried two

vehicular manslaughter cases, but that was the extent of his

homicide experience. He had no experience with capital

cases. 

The guilt phase of Hoffman’s trial commenced on March

7, 1989. The jury heard eight days of testimony. Defense

counsel presented no evidence of Hoffman’s mental capacity

on the night of Williams’s murder. Instead, Wellman and

Coulter’s central strategy was to paint Wages as the more culpable of the two.2

 After five hours of deliberation, the jury

returned a conviction for first-degree murder and found a sentencing enhancement, making Hoffman “death eligible.” 

The sentencing phase of the trial began on June 9, 1989.

After weighing the aggravating and mitigating circumstances,

2At trial, Wages was one of the principle witnesses against Hoffman; in

exchange for Wages’s testimony, the prosecution agreed not to seek the

death penalty against Wages. Both Longstreet and Slawson pleaded to

second-degree kidnaping charges. The prosecution recommended a sentence of at least six months in jail, and each received a sentence of only

one year in jail. Holmes was originally charged with kidnaping as well,

but was killed in prison before he was brought to trial. Thus, in the end,

the State pursued the death penalty only against Hoffman. 

7338 HOFFMAN v. ARAVE
the court imposed the death penalty.3

 On July 25, 1989, Hoffman filed a post-conviction petition in state court. The state

court denied the petition. On January 29, 1993, the Idaho

Supreme Court affirmed Hoffman’s sentence. See Hoffman,

851 P.2d at 945. 

B. Federal Habeas Proceedings

Hoffman filed an initial habeas petition in the United States

District Court for the District of Idaho on December 1, 1994.

On June 13, 1997, the district court dismissed several claims

on the grounds of procedural default. On December 28, 1998,

the district court dismissed the remainder of the claims on

their merits. On January 3, 2001, we concluded that Hoffman’s ineffective assistance of counsel claims were not procedurally barred. See Hoffman, 236 F.3d at 535-36. We also

held that Hoffman’s pre-sentencing interview conducted by

the state probation officer was a “critical stage” of the proceeding, during which the Sixth Amendment right to counsel

attached. See id. at 540-41. We remanded for further evidentiary hearings on Hoffman’s ineffective assistance of counsel

claims, and for a finding whether the deprivation of counsel

during the pre-sentencing interview was harmless. See id. at

542-43. We affirmed dismissal of the remainder of Hoffman’s

claims. See id.

On remand, the district court held a five-day evidentiary

hearing. The court heard substantial expert testimony about

Hoffman’s mental capacity, and testimony from Hoffman’s

trial counsel. After hearing oral argument by both parties, the

district court granted Hoffman’s habeas petition in part and

3The Idaho death penalty scheme in existence at the time of Hoffman’s

sentencing called for the judge, not a jury, to decide whether the death

penalty was warranted. See State v. Charboneau, 774 P.2d 299, 315-17

(Idaho 1989), withdrawn and superseded by 861 P.2d 67 (Idaho 1993). To

impose the death penalty, the court had to find that the mitigating factors,

considered cumulatively, did not outweigh the gravity of each aggravating

factor, considered separately. See id.

HOFFMAN v. ARAVE 7339
denied it in part. The district court rejected three of Hoffman’s ineffective assistance of counsel claims, specifically

that counsel: (a) failed to challenge Hoffman’s competency to

stand trial; (b) advised Hoffman to reject a plea agreement

that would have foreclosed the State from seeking the death

penalty; and (c) failed to investigate or present evidence of

Hoffman’s diminished capacity at trial. 

But the district court did accept one of Hoffman’s ineffective assistance of counsel claims: that Hoffman had received

ineffective assistance of counsel during sentencing. The district court found that Wellman and Coulter had not sufficiently investigated and presented mitigation evidence at

sentencing that might have kept the trial judge from imposing

a death sentence. The district court also found that the state

trial judge’s decision to deprive Hoffman of counsel during

the pre-sentence interview was not harmless because it “dictated” trial counsels’ sentencing strategy. The district court

granted the habeas petition on these two claims and ordered

the State to re-sentence Hoffman within 120 days of its order.

On April 4, 2002, after the district court issued its decision,

the court issued a separate order stating that it had “fulfilled

the mandate of the Ninth Circuit Court of Appeals” and therefore denied several motions Hoffman had filed after the evidentiary hearing, including a motion to amend his habeas

petition and to expand the record. Hoffman requested, and

was granted, a Certificate of Appealability (“COA”) on his

claim that he received ineffective assistance before and during

trial. The district court denied a COA with respect to its denial

of Hoffman’s post-hearing motions to amend the habeas petition and to expand the record. 

Both parties appealed. Before us, Hoffman argued, again,

that he received ineffective assistance of counsel before and

during trial, and requested that we grant a COA with regard

to the denial of his post-hearing motions. The State crossappealed the district court’s grant of the habeas petition for

7340 HOFFMAN v. ARAVE
ineffective assistance of counsel at the sentencing phase. The

State subsequently withdrew its cross-appeal, leaving in place

the district court’s order granting the habeas petition as to the

sentencing phase. 

Thus, the only questions remaining for this court are: (a)

whether Hoffman was denied effective assistance of counsel

during the plea-bargaining stage or during the guilt phase of

trial; and (b) whether a COA should be granted with regard

to Hoffman’s post-hearing motions. 

II. Ineffective Assistance of Counsel Claims

Hoffman initiated federal review of his state conviction and

sentence on May 2, 1994, before the effective date of the

Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Thus, the more stringent review requirements of

AEDPA do not apply. See Caswell v. Calderon, 363 F.3d 832,

836 n.3 (9th Cir. 2004). Under pre-AEDPA standards, an

ineffective assistance of counsel claim is a mixed question of

law and fact that we review de novo. See Dubria v. Smith, 224

F.3d 995, 1000 (9th Cir. 2000) (en banc). 

[1] An ineffective assistance of counsel claim has two components. First, the defendant must show that counsel’s conduct was not “ ‘within the range of competence demanded of

attorneys in criminal cases.’ ” Strickland v. Washington, 466

U.S. 668, 687 (1984) (quoting McMann v. Richardson, 397

U.S. 759, 770 (1970)). Under this standard, we review only

whether “counsel’s representation fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688.

There is a “strong presumption that counsel’s conduct [falls]

within the wide range of reasonable representation.” United

States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir.

1987) (as amended) (citations omitted). Because there exist

“countless ways to provide effective assistance in any given

case,” we will not second-guess tactical decisions made by

counsel. Strickland, 466 U.S. at 689 (citations omitted). Nor

HOFFMAN v. ARAVE 7341
will we evaluate counsel’s conduct through “the distorting

lens of hindsight.” Hendricks v. Calderon, 70 F.3d 1032, 1036

(9th Cir. 1995) (as amended) (citations omitted). Rather, we

review counsel’s actions based on the facts as known to the

attorney, or as reasonably could have been known to the attorney, at the time he or she acted. See Strickland, 466 U.S. at

690. 

[2] Second, the defendant must show that counsel’s deficient performance caused prejudice. Counsel’s deficient performance must be so significant “as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id. at 687. The

defendant need not prove definitively that the outcome would

be different, but only a “reasonable probability” of a different

result. Id. at 693-94. A reasonable probability is a probability

“sufficient to undermine confidence in the outcome,” a showing less than a preponderance of evidence. Id.

Under this rubric, we consider Hoffman’s ineffective assistance of counsel claims. On appeal, Hoffman contends that

his trial counsel was ineffective for three distinct reasons: (a)

for failing to investigate and challenge, during the guilt phase

of trial, Hoffman’s capacity to form the intent to commit the

crime of first-degree murder;4 (b) for failing to investigate and

to challenge his competency to stand trial; and (c) for recommending that he reject the plea bargain offer. We will consider each in turn.

4As discussed in more detail below, Idaho does not have an affirmative

defense based on either diminished capacity or intoxication. See Idaho

Code § 18-207(a) (1989); compare id. § 18-207(c) (1989). Instead, a

defendant’s capacity to commit a crime is folded into the element of

intent: the State must show, beyond a reasonable doubt, that the defendant

had the capacity to form the intent to commit the crime for which he is

charged. See id. § 18-4003; State v. Beam, 710 P.2d 526, 621-22 (Idaho

1985). For ease of discussion, however, we refer to Hoffman’s claim that

his counsel should have challenged his intent to commit the first-degree

murder as a “diminished capacity defense.” 

7342 HOFFMAN v. ARAVE
A. Ineffective Assistance in Failing to Investigate and

to Present a Diminished Capacity Defense

Hoffman contends that his attorneys were deficient in failing to investigate and to raise a diminished capacity defense.

We agree with Hoffman that trial counsel were deficient in

failing to investigate a diminished capacity defense, and

therefore that Hoffman has met the first prong of the Strickland test. We hold, however, that no prejudice resulted from

his trial counsels’ deficient performance. 

[3] To meet the first prong of Strickland, Hoffman must

show that his counsel had reason to know that Hoffman’s

mental capacity might be at issue in the case. See Hendricks,

70 F.3d at 1043 (“[W]here counsel is on notice that his client

may be mentally impaired, counsel’s failure to investigate his

client’s mental condition . . . without a supporting strategic

reason, constitutes deficient performance.”). We do not expect

counsel to be trained in psychology or mental health. In this

case, however, Wellman and Coulter’s interactions with Hoffman provided them significant clues that would put a reasonable lawyer on notice that Hoffman’s capacity to form the

intent to commit first-degree murder was at issue. 

[4] Both Wellman and Coulter recognized that Hoffman

had some level of cognitive difficulty. Both testified that their

communications with Hoffman were stinted, and that Hoffman had difficulty answering questions. Wellman testified

that he recognized that Hoffman had a “pretty low” IQ and

that he had difficulty understanding their discussions. He

stated: “[G]enerally speaking, as I sit here today and try to put

myself back into that time period of the five months or so

prior to trial, it was fairly — it should have been evident to

me that there were some serious psychiatric problems with

Max [Hoffman].” Coulter similarly explained: “[O]ver a

period of a week or two or however many weeks it was . . .

I came to realize, just based on my own lay experience, that

[Hoffman] had a problem.” In fact, Hoffman’s counsel testiHOFFMAN v. ARAVE 7343
fied that part of the reason they decided not to have Hoffman

testify at the guilt phase of trial was because of his mental

limitations. Surely, then, Hoffman’s attorneys were on notice

that Hoffman’s mental capacity might be at issue. 

[5] In addition, Hoffman’s explanation as to why he slit

Williams’s throat was facially illogical and should have indicated to counsel that Hoffman was not entirely well. Hoffman

told Wellman and Coulter that when he took Williams into the

cave and slit her throat, he was trying to save her life. He

claimed that he believed that if he slit her throat superficially,

she would stay in the cave, he could get Wages to leave, and

that she could take herself to safety. The logic is, of course,

faulty, given that Williams would be left bleeding in the middle of nowhere with no means of communication. This illogical explanation should have put Hoffman’s trial attorney on

notice that Hoffman’s mental capacity might be at issue. 

[6] Third, counsel knew that Hoffman had a history of drug

abuse. Wellman testified that he remembered “clear indication

of fairly steady, regular use of crank,” or methamphetamine,

by Hoffman. In addition, counsel knew that Hoffman had

ingested significant amounts of drugs on the night of Williams’s murder. The amount of drugs alone probably should

have led counsel to investigate whether Hoffman might have

been intoxicated and whether this intoxication might have

affected Hoffman’s ability to form the intent to commit firstdegree murder. 

[7] Based on these facts, we believe that counsels’ performance fell below an objective standard of reasonableness

because reasonable counsel in this situation would have recognized that Hoffman’s capacity on the night of Williams’s

murder might have been affected by mental health problems,

by drug use, or by some combination of the two. Once counsel was on notice that Hoffman’s capacity on the night of Williams’s murder was at issue, counsel had an absolute duty “to

make reasonable investigations or to make a reasonable deci7344 HOFFMAN v. ARAVE
sion that [made] investigations unnecessary.” Strickland, 466

U.S. at 668, 691; see also Douglas v. Woodford, 316 F.3d

1079, 1085 (9th Cir. 2003) (“Trial counsel has a duty to

investigate a defendant’s mental state if there is evidence to

suggest that the defendant is impaired.”). In this case, both

Wellman and Coulter admitted that they did not conduct a

factual investigation into Hoffman’s mental capacity, nor did

they research the viability of a diminished capacity defense.

Wellman himself admitted that he “probably didn’t give the

[diminished capacity] defense due consideration.” This failure

fell below the objective standard of reasonableness. 

We cannot agree with the district court that such failure

was tactical or that counsel made a “reasonable decision that

[made] investigations unnecessary.” See Strickland, 466 U.S.

at 668, 691. The record does not reflect a calculated decision

by counsel not to investigate a diminished capacity defense.

Wellman testified that he was “not sure [they] really had a

good cogent theory of defense.” To the extent that counsel

had a theory, the theory was that Wages was the principal perpetrator of the offense because Wages had engaged in sexual

intercourse with Denise Williams on the night of the murder

and was trying to cover it up. That is, the theory was that

because Hoffman was less culpable than Wages, then Hoffman, like Wages, should be spared the death penalty. Wellman, however, was unable to sufficiently develop this theory.

And even if counsel had been able to develop this theory, the

theory is not a defense to first-degree murder where an aider

and abetter is just as criminally liable as the one who deals the

fatal blow. See Idaho Code § 18-204 (1989); State v. Gonzalez, 12 P.3d 382, 384 (Idaho Ct. App. 2000). A diminished

capacity defense in Idaho could have negated the intent element required for first-degree murder, and, if successful,

could have spared Hoffman’s life. Thus, counsels’ decision —

if it can be called that — to forego a diminished capacity

defense to pursue a strategy that would not result in a lesser

charge falls outside the range of tactical decisions. 

HOFFMAN v. ARAVE 7345
Moreover, pursuing a diminished capacity defense is not

inconsistent with trial counsels’ theory of the case. Rather, a

showing that Hoffman was suffering from psychosis or intoxication would have furthered counsels’ argument that Wages

was the more culpable of the two, and could only have supported counsels’ sentencing strategy. We can see no tactical

disadvantage to investigating a diminished capacity defense,

a defense with a plausible factual basis that might have

allowed Hoffman to escape first-degree murder and would

have, in any event, furthered counsels’ strategy. 

The State tries to paint counsels’ behavior as a strategic

decision of where to focus money and resources. This is contradicted by counsels’ own admissions that they did not have

a clear theory of defense, and that they were “just kind of

spinning” in the weeks and months before trial. Moreover, if

Wellman and Coulter failed to develop a diminished capacity

defense because they lacked funds, this evidences a more serious deficiency: a failure to understand controlling law. Wellman testified that they did not ask for an investigator or for

a mental health expert because they did not think the judge

would have granted such a request. But in Ake v. Oklahoma,

470 U.S. 68, 83 (1985), the Supreme Court held that where

an indigent defendant can demonstrate that his mental capacity is likely to be a “significant issue” at trial or capital sentencing, he has an absolute right to be provided with

psychiatric and psychological expert assistance. We agree

with the district court, then, that “standards of professional

competent assistance required [counsel] to request funds

which would allow for adequate investigation or to preserve

the issue for appeal.” Thus, the failure to investigate and present a diminished capacity defense at trial cannot be forgiven

based on the lack of resources available to Wellman and

Coulter. 

For these reasons, we conclude that Hoffman has met the

first prong of Strickland; he has shown that it was objectively

7346 HOFFMAN v. ARAVE
unreasonable for counsel not to investigate a diminished

capacity defense. 

[8] But this is not enough for Hoffman to succeed on his

ineffective assistance of counsel claim. He must also show a

“reasonable probability” that the outcome of the trial would

have been different had counsel investigated his mental

capacity. Strickland, 466 U.S. at 693-94. Where counsels’

deficiency involves the failure to investigate a possible

defense, we evaluate whether there is a “reasonable probability” that a competent investigation would have turned up evidence bearing on that defense that would have affected the

outcome of trial. See Stankewitz v. Woodford, 365 F.3d 706,

717-19 (9th Cir. 2004) (focusing the prejudice inquiry on the

information that a reasonable investigation would have

unearthed). 

It is apparent that Hoffman suffered and continues to suffer

some degree of mental disability. Eight years before Williams

was murdered, Hoffman was committed for six days in the

Metropolitan State Hospital in Norwalk, California, where he

was diagnosed as suffering from “psychosis manifested by

delusional and violent behavior.” At the habeas hearing,

before the district court, Hoffman offered the expert testimony of three doctors who each testified that Hoffman likely

had some degree of psychotic thought disorder in 1989. The

doctors also agreed that this illness might affect Hoffman’s

ability to reason. As Dr. Merikangas, a psychiatrist and neurologist, explained, psychosis is a “formal thought disorder

where the person’s thinking is not consistent with reality and

with logical thought as experienced by normal people. It is

generally characterized by problems with logic, problems

with abstracting ability, sometimes with hallucinations.” More

important for our purposes, Dr. Merikangas testified that congenital brain damage visible on MRIs taken in 1996 and in

2001 could have been detected had an MRI been taken of

Hoffman’s brain in 1989. 

HOFFMAN v. ARAVE 7347
This expert testimony of these three doctors is supported by

the testimony of Dr. Sanford, the psychologist who examined

Hoffman before his sentencing hearing in 1989. Dr. Sanford

wrote, in his 1989 report, that his initial meeting with Hoffman left him with the impression that “some brain damage or

neurological problem [might be] responsible for the types of

difficulties he was showing on the initial assessment,” especially his difficulty in communicating. After further testing,

Dr. Sanford concluded that Hoffman’s symptoms were consistent with “brain damage to the left hemisphere.” This report

is as close to a contemporaneous mental health evaluation as

exists, and indicates that a reasonably competent investigation

in 1988 could have adduced evidence to support a diminished

capacity defense during the guilt phase. 

The State presented the testimony of Dr. Smith, a neurosurgeon, who opined that the MRI scans fell within the normal

range. At the same time Dr. Smith admitted that he rarely read

MRIs and that it was not his specialty. While the evidence is

somewhat ambiguous, we believe Hoffman probably could

have presented some evidence that would have supported a

finding that he suffered from some degree of psychosis at the

time of Williams’s murder. 

In addition to evidence of psychosis, there is significant

evidence that Hoffman’s IQ fell within the range of mental

retardation. The clinically-accepted range of mental retardation is an IQ score of 70, with a five point margin of error.

See Atkins v. Virginia, 536 U.S. 304, 309 n.5 (2002). Hoffman’s IQ has fluctuated between 72 when tested in 1989 and

74 when tested in 2001. The district court properly concluded,

then, that Hoffman was “borderline retarded.” This evidence

could have been presented in 1989. 

In addition, Hoffman had a significant history of drug

abuse. Counsel knew that Hoffman used methamphetamine

and cocaine at least four times on the day of Williams’s murder. Expert testimony was presented in the district court about

7348 HOFFMAN v. ARAVE
the effect of drug use on a person with psychosis: that drug

use frequently induces a person with psychosis to have more

“florid psychosis and delusions.” This evidence also could

have been presented at the guilt phase of trial in 1989. 

But even if we were to assume that all of the above testimony could have been presented at trial, there is not a “reasonable probability” that such evidence would have altered

the outcome of the guilt phase of Hoffman’s trial. Idaho’s law

is more demanding than most states’ laws on the question of

mental capacity. In Idaho, at the time of Hoffman’s trial (as

now) there was no “diminished capacity,” “intoxication,” or

“insanity” defense. See Idaho Code § 207(a) (1989). Rather

mental capacity was folded into the element of intent: the

prosecution was required to prove, beyond a reasonable

doubt, that the defendant had the mental capacity to form the

intent to commit the crime charged. See State v. Card, 825

P.2d 1081, 1085-86 (Idaho 1991). Section 18-115 of the Idaho

Code, as it existed at the time of Williams’s murder, states

that intent is “manifested by the circumstances connected with

the offense, and the sound mind and discretion of the

accused.” Idaho Code § 18-115 (1989) (emphasis added).

Thus, diminished capacity and intoxication are not “general

excuse[s]” for crime, but the jury can consider such factors as

they relate to whether the defendant was able to form the

intent to commit the crime for which he was charged. See

State v. Hall, 727 P.2d 1255, 1262-63 (Idaho Ct. App. 1986).

Hoffman was charged with first-degree murder and with

aiding and abetting first-degree murder, and the jury was

instructed on both theories. Accordingly, to find prejudice, we

would have to conclude that there is a reasonable probability

that evidence of Hoffman’s mental capacity would negate not

only the intent to murder Williams, but would also negate the

intent to “knowingly assist [or] facilitate” Williams’s murder.

See State v. Paradis, 676 P.2d 31, 40 (Idaho 1983). We cannot do so. 

HOFFMAN v. ARAVE 7349
First, we note that Hoffman had the mental capacity to

complete several intentional acts on the night of the murder.

Hoffman drove around for several hours, and he changed a

flat tire on a car. While there was testimony presented to the

district court that a person in a drug-induced psychosis can

perform certain simple motor functions, this is nonetheless

good evidence that Hoffman had some level of mental functioning on the night of Williams’s murder. In addition, on that

same night, Hoffman destroyed evidence of the murder: he

burned his, Williams’s, and Wages’s clothing, he helped to

clean the car, and he cut up the weapon. Such behavior indicates some level of cognitive planning — a recognition of

criminal behavior — and cuts against a diminished capacity

defense. 

Second, Hoffman bragged about the murder to his cohorts.

Hoffman told Ricky Williams, a cellmate, that he had

“slashed” Williams’s throat, and that he had killed Williams.

Hoffman also told Kenneth Hunnicutt, a friend and cellmate,

that he cut Williams’s throat, and that because she “wouldn’t

die” Wages threw a rock at her. Victor Gezzi, another friend,

testified that Hoffman told him that Williams “was took care

of” and that he had cut Williams’s throat. Hoffman’s act of

telling others that he was the perpetrator of the crime is inconsistent with his testimony that he was trying to help Williams

by slitting her throat. Thus, Hoffman’s admissions would

likely have discredited a diminished capacity defense in the

jury’s mind. 

Third, if Hoffman had contested his capacity to form the

intent to participate in Williams’s murder, evidence of a subsequent crime that Hoffman committed could have been

admissible. Four months after Denise Williams was murdered, Hoffman, Holmes, and Wages together kidnaped a man

named Ricky Simonis. On that occasion, Hoffman drove the

car, and later held Simonis while Wages beat him. Hoffman

then held a gun to Simonis’s head while Simonis signed the

title of his car over to Holmes. See State v. Hoffman, 776 P.

7350 HOFFMAN v. ARAVE
2d 1199 (Idaho Ct. App. 1989). Evidence of this kidnaping

was excluded at the trial, but might have been admitted under

Idaho law if Hoffman had challenged the element of intent in

the instant case. See State v. Dayley, 531 P.2d 1172, 1173-74

(Idaho 1975) (holding that where a defendant challenges his

mental capacity to form criminal intent, other criminal actions

may be admissible to prove the defendant’s intent or “rationality” at the time of the crime); see also Idaho R. Evid.

§ 404(b); State v. Pizzuto, 810 P.2d 680, 688-89 (Idaho 1991),

rev’d on other grounds by State v. Card, 825 P.2d 1081

(Idaho 1991) (affirming admission of both prior and subsequent bad acts under Idaho R. Evid. 404(b)). Williams’s murder was not Hoffman’s first foray into the criminal justice

system — a fact that would have come to light had Hoffman

raised a diminished capacity defense. 

Finally, we consider Wellman’s evaluation, that his “experience with the makeup of the juries in Owyhee County led

[him] to believe that it was not the type of jury makeup that

would be attracted to a more mental-capacity-oriented case.”

Wellman stated that he doubted that he “could persuade a

bunch of farmers and ranchers that [there was] voluntary

intoxication to the point that you [could not] form the intent

to commit the crime.” While Wellman’s statement might be

discounted somewhat, given his lack of experience in capital

cases, Wellman had been a member of the Idaho criminal bar

for ten years before he represented Hoffman, and his evaluation about the likelihood that the jurors would accept this

defense is entitled to some weight.5

5

In evaluating Hoffman’s claims based on diminished capacity and

competency, we do not rely on Hoffman’s testimony at the sentencing

phase of his trial. It is not clear whether Hoffman would have testified had

he not been deprived of counsel at his pre-sentencing interview, which

was found by the district court to constitute a violation of his Sixth

Amendment right to counsel. Testimony by Hoffman’s counsel indicates

that they called Hoffman to testify, in part, with the goal of undoing the

damage that had been done in the pre-sentencing interview. The district

court also found that the deprivation of counsel during the pre-sentencing

interview dictated counsels’ strategy at sentencing. Accordingly, we do

not base our holding here on any statements Hoffman made at sentencing.

HOFFMAN v. ARAVE 7351
[9] While it is impossible to divine exactly what might

sway a jury in any given situation, we do not believe that a

jury would have found that Hoffman was not capable of forming the intent to murder Williams, or at least to knowingly

participate in her murder. The fact that he had the cognitive

ability to recognize that he should cover up evidence of Williams’s murder, that he was able to perform functions such as

driving and changing a tire, and that he was involved in

Simonis’s kidnaping during the same period indicate that

Hoffman probably had sufficient capacity to know what he

was doing and what the end result of his conduct would be.

We do not believe there is a “reasonable probability” that a

jury would have found otherwise. Accordingly, we conclude

that Hoffman was not prejudiced by his counsels’ deficient

performance in failing to investigate and present a diminished

capacity defense. 

B. Ineffective Assistance in Failing to Contest

Hoffman’s Competency

Hoffman claims that his attorneys were ineffective because

they did not contest his competency to stand trial. We conclude that Hoffman was not prejudiced by his attorneys’ failure to move for a competency hearing, and thus decline to

consider whether trial counsel’s conduct fell below an objective standard of reasonableness under the first prong of Strickland. 

[10] A person is competent to stand trial if he understands

the proceedings and is able to assist counsel in his defense.

See Dusky v. United States, 362 U.S. 402, 402 (1960). Competency requires “the mental acuity to see, hear and digest the

evidence, and the ability to communicate with counsel in

helping to prepare an effective defense.” Odle v. Woodford,

238 F.3d 1084, 1089 (9th Cir. 2001) (citing Dusky, 362 U.S.

at 402). 

Our above finding, that counsel had reason to doubt Hoffman’s mental capacity, does not inexorably lead to the con7352 HOFFMAN v. ARAVE
clusion that Hoffman was incompetent to stand trial. The

standard for competency to stand trial is lower than the standard for capacity to commit a crime. United States v. Flynt,

756 F.2d 1352, 1365 n.11 (9th Cir. 1985). Those with mental

disorders “frequently know the difference between right and

wrong and are competent to stand trial,” even if they are

regarded as less culpable because of their mental capacity.

Atkins, 536 U.S. at 318. As such, we have held that those with

mental deficiencies are not necessarily incompetent to stand

trial. See Boyde v. Brown, 404 F.3d 1159, 1166-67 (9th Cir.

2005). In this case, we find that there is no reasonable probability that the court would have found Hoffman incompetent

to stand trial. 

Wellman admitted that he “had concerns about [Hoffman’s] ability to follow, to take in info[rmation] and respond

to it.” Wellman noted Hoffman’s passive nature, that he

would often nod along even when things were going over his

head. Counsel also noticed that Hoffman had difficulty orally

expressing himself and presented an “odd” theory of why he

slit Denise Williams’s throat. At the same time, both trial

counsel testified that Hoffman had some ability to describe

what happened to Williams and to discuss his role and the

role of others in her murder. As Wellman put it, Hoffman

understood the facts of the case against him, even if he did not

always understand the law. Based on that description of Hoffman’s capabilities, it is unlikely that counsel could have convinced the court that Hoffman was incompetent to stand trial.

[11] In addition, observations of Hoffman by those around

him at the time of his trial also suggest that Hoffman would

not have been found incompetent to stand trial. For example,

Dr. Sanford, the expert who interviewed Hoffman in 1989

prior to sentencing, testified that he did not note any “frank”

indications of incompetence. Indeed, Hoffman himself testified, at his post-conviction hearing in December 1989, that

“to the best of his knowledge” he had followed what was

going on during trial and that he understood his attorneys’

HOFFMAN v. ARAVE 7353
strategy. Given counsels’ assessment of Hoffman’s ability,

Dr. Sanford’s evaluation of Hoffman near the time of trial,

and Hoffman’s own evaluation of his competency during the

trial, we do not believe that Hoffman would have been

declared incompetent, had his attorneys moved for a competency hearing. 

The record indicates that Hoffman had difficulty understanding the aider and abettor theory of liability. But competency to stand trial requires an understanding of the factual

basis of the proceedings, and does not require mastery of

technical legal knowledge. See Godinez v. Moran, 509 U.S.

389, 402 (1993); see also Allard v. Helgemoe, 572 F.2d 1, 4

(1st Cir. 1978) (concluding that a defendant’s inability to

understand the intent element of a crime did not render him

incompetent). Hoffman’s difficulty in accepting the culpability of indirect participants to a crime would not have made

him incompetent to stand trial. 

[12] In short, we conclude that Hoffman has not proved an

ineffective assistance claim based on his counsels’ failure to

challenge his competency because there is not a reasonable

probability that Hoffman would have been found incompetent. Because Hoffman was not prejudiced by his counsels’

conduct, we affirm the district court’s finding that Hoffman

was not denied the effective assistance of counsel when his

attorneys failed to move for a competency hearing. 

C. Ineffective Assistance in Counseling Hoffman

Regarding the Plea Offer 

Finally, Hoffman claims that he received ineffective assistance of counsel during the plea bargaining process. On this

claim, we conclude that Hoffman did receive ineffective

assistance of counsel when Wellman advised him to reject the

plea agreement offered by the prosecution.6

6At the time the State offered Hoffman this plea agreement, Coulter had

not yet been appointed as co-counsel. Thus, only Wellman was involved

in advising Hoffman to reject the plea agreement. 

7354 HOFFMAN v. ARAVE
1. Deficient Performance of Counsel

On February 6, 1989, the Owyhee County prosecutor proposed that Hoffman plead guilty to first-degree murder in

exchange for an agreement by the State not to pursue the

death penalty against Hoffman during sentencing. The offer

was set to expire on February 16, 1989. Wellman advised

Hoffman to reject the plea agreement. 

Wellman based his advice on our en banc decision in

Adamson v. Ricketts, 865 F.2d at 1029-39, filed on December

22, 1988, about six weeks before the plea offer was tendered.

In Adamson, we held that Arizona’s death penalty scheme

was unconstitutional because it permitted sentencing facts to

be found by the judge, and not the jury. See id. at 1023. Wellman noted the similarities between the Arizona statute found

unconstitutional in Adamson and the Idaho death penalty statute. See Idaho Code § 19-2515 (1989). Based on Adamson, he

advised Hoffman that he was unlikely to receive the death

penalty because it was only a matter of time before Idaho’s

death penalty scheme would also be, in his view, found

unconstitutional. 

On January 9, 1989, before the prosecutor tendered the plea

offer to Hoffman on February 6, 1989, the State of Arizona

had already signaled its unhappiness with our ruling in Adamson by petitioning for rehearing. On February 1, 1989, this

court stayed the mandate in Adamson pending the Supreme

Court’s disposition of the State’s anticipated petition for certiorari to the Supreme Court. When Hoffman let the prosecutor’s offer lapse on February 16, 1989, the State had not yet

filed a petition for certiorari in Adamson, but it was a virtual

guarantee that the State would do so. 

[13] On February 2, 1989, four days before the prosecutor

tendered the plea offer, the Supreme Court of Arizona filed its

decision in State v. Walton, 769 P.2d 1017 (Ariz. 1989), overruled in part by Ring v. Arizona, 536 U.S. 584, 603 (2002),

HOFFMAN v. ARAVE 7355
in which it reaffirmed its earlier view that jury sentencing was

not constitutionally required in death penalty cases, directly

contrary to our decision in Adamson. See Walton, 769 P.2d at

1030. Thus, on February 16, 1989, when Hoffman let the

prosecutor’s offer lapse, there was a clear and direct conflict

between the Arizona Supreme Court’s decision in Walton and

our decision in Adamson. The State of Arizona had already

clearly signaled its intention to appeal our decision in Adamson, and it was not hard to guess that the defendant in Walton

would do the same. 

Indeed, certiorari was sought in both cases. In October

1989, the Supreme Court granted certiorari in Walton, holding

in abeyance the petition in Adamson. See Walton v. Arizona,

493 U.S. 808 (1989). On June 27, 1990, the Supreme Court

affirmed the Arizona Supreme Court’s decision in Walton,

thereby directly upholding the constitutionality of Arizona’s

judge-sentencing scheme in capital cases, and implicitly

upholding the comparable Idaho scheme. See Walton v. Arizona, 497 U.S. 639, 647-49 (1990).7

 Then, on June 28, 1990,

the Supreme Court denied the petition for writ of certiorari in

Adamson. See Lewis v. Adamson, 497 U.S. 1031 (1990). 

We do not fault Wellman for failing to predict the outcome

of these divergent opinions. We do not expect counsel to be

prescient about the direction the law will take. See Lowry v.

Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (holding that a lawyer

is not ineffective for failing to anticipate a decision in a later

case); Cooks v. United States, 461 F.2d 530, 532 (5th Cir.

1972) (“Clairvoyance is not a required attribute of effective

representation.”). 

7Of course, the Supreme Court has since reversed itself, holding in Ring

v. Arizona, 536 U.S. 584, 603 (2002), that the judge-sentencing scheme is,

after all, unconstitutional in death penalty cases. But the Court has also

held that Ring is not to be applied retroactively, see Schriro v. Summerlin,

542 U.S. 348, 358 (2004), providing no help to those, like Hoffman, who

were sentenced to death under the old judge-sentencing scheme. 

7356 HOFFMAN v. ARAVE
Nor was it unreasonable for Wellman to draw a connection

from the Arizona death penalty scheme to the Idaho scheme.

The same fault that the Ninth Circuit identified in Arizona

death penalty law was present in Idaho’s law: both permitted

the sentencing judge to sentence a defendant to death based

on the judge’s own factual findings. In short, then, Idaho’s

statute and Arizona’s statute were materially indistinguishable. See Charboneau, 774 P.2d at 316-17 (declining to adopt

Adamson even though the court found no material difference

between Idaho’s scheme and Arizona’s scheme). Indeed, several of Wellman’s colleagues in the Idaho state bar argued in

Idaho state courts that Idaho’s statute was unconstitutional

under Adamson. See, e.g., id.; State v. Lankford, 781 P.2d

197, 206-07 (Idaho 1989). Thus, Wellman was not unreasonable in drawing a connection between our decision in Adamson and Hoffman’s case. 

We nonetheless find that Wellman’s representation of

Hoffman during the plea bargaining stage was deficient for

two reasons: first, Wellman based his advice on incomplete

research, and second, Wellman recommended that his client

risk much in exchange for very little. 

[14] The first problem is that Wellman based his advice

solely on a reading of Adamson and not on an understanding

of the general landscape in which that case arose. Wellman

testified that he had read Idaho Supreme Court capital cases,

and therefore he must have known that the Idaho state courts

had considered and consistently rejected claims similar to

Adamson. See State v. Fetterly, 710 P.2d 1202, 1208 (Idaho

1985); State v. Creech, 670 P.2d 463, 473-74 (Idaho 1983),

rev’d in part, Arave v. Creech, 507 U.S. 463 (1993); State v.

Sivak, 674 P.2d 396, 398-99 (Idaho 1983). With minimal

research, he would have discovered that a pair of cases was

well on its way to the Idaho Supreme Court that would challenge the continuing viability of these Idaho Supreme Court

cases in light of our holding in Adamson. See State v. Fain,

774 P.2d 252 (Idaho 1989); Charboneau, 774 P.2d at 315-17

HOFFMAN v. ARAVE 7357
(reaffirming Creech, decided April 4, 1989, less than two

months after Hoffman rejected the plea agreement). 

[15] Had Wellman researched Arizona law, he would have

discovered that on February 2, 1989, after Adamson, but

before Hoffman rejected the plea offer, the Arizona Supreme

Court reaffirmed the constitutionality of Arizona’s death penalty scheme. See Walton, 769 P.2d at 1030-31. A judge who

concurred in Walton recognized that the decision might set up

a conflict between Arizona law and Supreme Court precedent

and cited the Ninth Circuit’s decision in Adamson. See id. at

1039 (Feldman, V.C.J., concurring). With the state of the law

in turmoil both in Arizona and in Idaho, and with conflicts

between this court and the state supreme courts of both states,

a reasonable attorney would have recognized the substantial

risk of advising a client to reject a plea agreement. Because

Wellman possessed a deficient understanding of the law, he

led Hoffman to believe that his sentence would be the same

whether he accepted the plea bargain or was convicted at trial.

Such advice was constitutionally deficient. See Cullen v.

United States, 194 F.3d 401, 403-04 (2d Cir. 1999); Meyers

v. Gillis, 142 F.3d 664, 666-68 (3d Cir. 1988). 

If there was a high probability that Hoffman was not going

to receive the death penalty, Wellman might have been reasonable in considering our decision in Adamson as an additional reason to reject the plea agreement. But Hoffman’s

chance of receiving the death penalty was not minimal, a fact

that counsel vastly underestimated and that made counsel’s

failure to investigate Adamson more disastrous. Under the

plea agreement, Hoffman would have given up his right to

challenge the first-degree murder charge based on aider and

abetter liability. But Wellman admitted that his central strategy at trial — that Hoffman was less culpable than other participants in the murder, especially Wages — could also

support a first-degree murder charge. Thus, Wellman advised

his client to go to trial and risk the death penalty even though

there was a good possibility that the guilt phase of trial would

7358 HOFFMAN v. ARAVE
result in a first-degree murder charge, the same outcome as

the plea agreement. This was a huge risk in light of the potential downside, that is, that the court could impose the death

penalty. In contrast, under the plea agreement, Wellman could

have argued his client’s lesser culpability at sentencing while

ensuring that Hoffman would not receive a death sentence.8

Considering the magnitude of the gamble that Wellman was

advocating, Wellman’s failure to fully research the landscape

surrounding Adamson constituted deficient performance. 

[16] We certainly do not mean to imply that counsel is ineffective in relying on our precedent or in arguing for a reasonable extension of this court’s decisions. In this case, however,

counsel advised Hoffman to give up the certainty of avoiding

the death penalty so that he could go to trial, a risky proposition with a substantial downside. More importantly, he

offered this flawed advice without conducting reasonable

research into the legal landscape. We therefore conclude that

Wellman’s legal representation of Hoffman during the plea

bargaining stage was not objectively reasonable. 

2. Prejudice

As stated above, deficient performance by counsel is not a

sufficient basis to reverse. Hoffman must also show that he

was prejudiced by his counsel’s deficient performance. Hoffman must show that there is a reasonable probability that he

would have accepted the plea agreement had he received

accurate advice from his attorney. See Strickland, 466 U.S. at

694; Nunes v. Miller, 350 F.3d 1045, 1054 (9th Cir. 2003);

8

In Idaho in 1989, a defendant convicted of first-degree murder could

be sentenced to death or to a life sentence. See Idaho Code § 18-4004

(1989). Where the judge imposed a life sentence, the judge also had to

determine a period of confinement, at least ten years, in which the defendant would not be eligible for parole. See id. Thus, under the plea agreement, Hoffman’s counsel would have had full latitude to argue to the

judge that Hoffman’s culpability in Williams’s murder warranted life with

the possibility of parole. 

HOFFMAN v. ARAVE 7359
Cullen, 194 F.3d at 403; Wanatee v. Ault, 259 F.3d 700, 704

(8th Cir. 2001). We hold that there is a “reasonable probability” that the outcome of the proceedings would have been different had counsel acted competently. 

Wellman testified that Hoffman had a “compliant personality,” and would frequently defer to Wellman’s decisionmaking. Wellman testified that, throughout the process, Hoffman would say “Well, Bill, you are the lawyer, you know,

you know more about it than I do.” Coulter also testified that

Hoffman would frequently defer to their decisions about how

the defense ought to be managed. This strongly suggests that,

had Wellman fully presented Hoffman’s options and told

Hoffman that he was giving up very little in exchange for the

security of the death penalty being off the table, Hoffman

probably would have gone along with Wellman’s suggestion

and would have accepted the plea agreement. 

The State argues that, regardless of Wellman’s advice,

Hoffman would not have taken the plea agreement because

Hoffman wanted the State to prove the charges against him.

The State points to Wellman’s testimony: 

I would describe [Hoffman as being] of the old

school. He was not . . . going to snitch on anybody,

he was not going to turn on anybody. And if the

State charged him, then they needed to prove it. 

The State’s argument pulls Wellman’s testimony out of context. In the next sentence, Wellman admitted that he did not

know whether Hoffman had insisted on going to trial in any

previous criminal proceeding. He then explained that Hoffman was surprised that he was indicted, because he “perceived himself as being out of the circle” of those responsible

for Williams’s murder, i.e., Holmes and Wages. As such,

Wellman explained, “he needed to see the evidence that the

State had in order to satisfy his mind or convince him[self]”

that the State had a case against him. 

7360 HOFFMAN v. ARAVE
[17] When read in this light, Hoffman’s desire to have the

State prove its case was not a principled stand against accepting a plea agreement. Rather, Hoffman’s misunderstanding of

aiding and abetting liability led him to believe that the State

was not likely to prove a first-degree murder charge against

him. Had Hoffman been presented with an accurate evaluation (1) of the very real possibility of receiving the death penalty at the end of the penalty phase; (2) of the very real chance

that the Idaho death penalty scheme would be upheld; and (3)

of the almost nonexistent chance that if he had gone to trial

he could have achieved anything better than the result promised in the plea agreement, there is more than a reasonable

probability that he would have accepted the plea. Therefore,

we find that Hoffman suffered prejudice because of his counsel’s inadequate performance. 

3. Remedy

Because we find that Hoffman was deprived of the effective assistance of counsel, we must determine the proper remedy. A habeas remedy “should put the defendant back in the

position he would have been in if the Sixth Amendment violation had not occurred.” United States v. Blaylock, 20 F.3d

1458, 1468 (9th Cir. 1994) (as amended). Where a defendant

is deprived of the opportunity to make a reasoned decision

about a proffered plea agreement, the proper remedy is reinstatement of the offer of the plea agreement. See id. at 1468-

69; see also Nunes, 350 F.3d at 1056-57. 

[18] Accordingly, we order the district court to direct the

State to release Hoffman unless, within a reasonable time

from the date of this opinion, the State offers Hoffman a plea

agreement with the “same material terms” offered in the original plea agreement. Nunes, 350 F.3d at 1057.

HOFFMAN v. ARAVE 7361
III. Uncertified Issues

Hoffman has requested that we expand the COA to consider two additional issues: (a) whether the district court

abused its discretion in denying Hoffman’s motion to amend

his petition; and (b) whether the district court abused its discretion when it denied Hoffman’s motion to expand the record.9

A COA should be granted where “the applicant has made

a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). A “substantial showing” means that

“reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to

deserve encouragement to proceed further.’ ” Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000) (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 & n.4 (1983)).

A. Motion to Amend the Habeas Petition 

On February 7, 2002, after the district court held an evidentiary hearing on Hoffman’s habeas petition but before oral

argument, Hoffman moved to amend his habeas petition.

Hoffman wished to amend the language of his ineffective

assistance claim to include the following language: 

As a result of his mental states, including retardation

and congenital and drug-induced psychosis, Petitioner’s admissions regarding his presence and participation in the offense are suspect and should have

9

In his opening brief, Hoffman raised a third uncertified issue, challenging whether Ring v. Arizona, 536 U.S. 584, 598 (2002), should apply

retroactively to his death sentence. Hoffman conceded that the issue was

relevant only if we reversed the district court’s order granting the habeas

petition on the grounds of ineffective assistance of counsel at the sentencing phase. Because the State withdrew its cross-appeal on grant of the

habeas petition on the sentencing phase, we do not consider the Petitioner’s Ring-related request for a COA. 

7362 HOFFMAN v. ARAVE
included further investigation into the truth of Petitioner’s statements, all of which would have called

into question the reliability of admissions made by

Petitioner, raising a reasonable doubt as to Petitioner’s guilt and giving the jury evidence to support a

finding of actual innocence. 

Thus, Hoffman sought to add a claim of ineffective assistance

based on his counsels’ failure to raise a factual innocence

claim. 

Hoffman also sought permission to add three additional

claims, each contending that the death penalty, as applied to

him, violated the Eighth Amendment prohibition on cruel and

unusual punishment because he is mentally retarded. The latter amendment was requested shortly after the Supreme Court

granted certiorari in Atkins v. Virginia, 543 S.E.2d 312 (Va.

2000), on the same issue. See Atkins v. Virginia, 533 U.S.

976, 976 (2001).10 Instead of permitting Hoffman to amend

his habeas petition to include these Atkins-related claims, the

district court ruled in Hoffman’s favor on a different ground

and then denied the motion to amend the petition. 

A district court “shall grant leave to amend freely ‘when

justice so requires.’ ” Lopez v. Smith, 203 F.3d 1122, 1130

(9th Cir. 2000) (en banc) (citing Fed. R. Civ. P. 15(a)). A district court may deny leave to amend based on “the presence

of any of four factors: bad faith, undue delay, prejudice to the

opposing party, and/or futility.” Griggs v. Pace Am. Group,

Inc., 170 F.3d 877, 880 (9th Cir. 1999). 

Given our holding above, Hoffman will almost certainly

not be subject to the death penalty, assuming he accepts the

10In Atkins v. Virginia, 536 U.S. 304, 321 (2002), filed after the district

court’s decision in this case, the Supreme Court held that execution of the

mentally retarded violates the Eighth Amendment’s prohibition against

cruel and unusual punishment. 

HOFFMAN v. ARAVE 7363
plea agreement. Thus, Hoffman’s request to amend his petition to add Atkins-type claims is moot. We are left with Hoffman’s request to add an actual innocence claim to his habeas

petition. We will grant the COA, in that reasonable minds

could differ over whether the district court should have permitted Hoffman to amend his habeas petition to include an

actual innocence claim. 

[19] We find, however, that the district court did not abuse

its discretion in refusing to allow Hoffman to amend his

claim. The legal basis for Hoffman’s actual innocence claim

is “tenuous.” See Caswell v. Calderon, 363 F.3d 832, 837-38

(9th Cir. 2004) (finding that the district court did not abuse its

discretion when it denied petitioner’s request to amend his

habeas petition to include a “tenuous” claim). Given the

amount of evidence showing that Hoffman knowingly and

intentionally participated in Williams’s murder, we do not

believe that counsel was objectively unreasonable in failing to

investigate an actual innocence theory premised on the reliability of Hoffman’s admission. The likelihood of success on

such a claim was minimal given the amount of evidence —

outside of Hoffman’s admissions — showing that Hoffman

was present at the scene and participated in Williams’s murder. For the same reason, Hoffman suffered no prejudice from

his counsel’s failure to raise an actual innocence claim,

because there is not a reasonable probability that the jury

would have accepted such a claim. Accordingly, the district

court’s refusal to allow Hoffman to add such a tenuous ineffective assistance of counsel claim at such a late hour was not

an abuse of discretion. 

B. Motion to Expand the Record 

Hoffman also challenges the district court’s denial of his

motion to expand the record. Given the district court’s time

constraints, the court asked both parties to consider presenting

testimony in the form of deposition transcripts instead of

examination in open court. After the evidentiary hearing but

7364 HOFFMAN v. ARAVE
before oral argument, Hoffman filed a motion to expand the

record to include: (a) deposition testimony of Levi Martinez

and Don Sherman, both of whom testified that Holmes told

them that Hoffman was being set up to take the fall for Williams’s murder; (b) the declarations of Renee Lundquist and

Richard Simonis, who each testified that Hoffman had been

held responsible for other criminal acts by Holmes and

Wages; and (c) the pre-sentence interview of Richard Holmes,

in which he admitted that he often got others to do his “dirty

work” for him. This evidence, Hoffman alleged, would support his claim of actual innocence. The state stipulated to

admission of the depositions of Martinez and Sherman, but

challenged admission of the remaining documents. After rendering its decision on the habeas petition, the district court

summarily denied Hoffman’s motion to expand the record. 

It is not clear why the district court did not allow Hoffman

to introduce these documents, especially those the State had

stipulated were admissible. Apparently, the district court did

not see these documents as useful to its decision, and “having

fulfilled the mandate of the Ninth Circuit,” it declined to

include them in the record. 

We grant the COA on this issue, in that reasonable jurists

could differ as to whether the district court, having requested

the parties to submit deposition testimony in lieu of live testimony and having promised to review the deposition testimony, should then exclude the documents. Even if the court

did not find the documents to be dispositive to its decision,

the better practice would have been to admit the documents,

if nothing else, so that Hoffman would have the benefit of

these documents on appeal. 

[20] But any error was harmless here. Even if we were to

consider all of the requested documents, see Burnett v. Lampert, 432 F.3d 996, 1001 n.7 (9th Cir. 2005), it would not

change our decision in this case. Testimony that Hoffman was

being set up to take the fall for Williams’s murder is highly

HOFFMAN v. ARAVE 7365
relevant for sentencing purposes. But, as noted above, none of

the testimony at issue demonstrates that Hoffman did not

knowingly and intentionally participate in Williams’s murder.

Nor do these documents affect our finding that no prejudice

inhered from counsel’s failure to pursue a diminished capacity

defense; a finding of diminished capacity requires more than

the influence of another to commit a crime. We thus find that

any district court error in not expanding the record was harmless.

IV. Conclusion 

For the foregoing reasons, we GRANT the habeas petition

with respect to ineffective assistance of counsel during the

plea bargaining phase, and we remand for proceedings consistent with this opinion. As stated above, we order the district

court to direct the State to release Hoffman unless, within a

reasonable time from the date of this opinion, the State offers

Hoffman a plea agreement with the “same material terms”

offered in the original plea agreement. On all other points, we

affirm the district court. 

AFFIRMED IN PART, REVERSED IN PART.

7366 HOFFMAN v. ARAVE