FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

D A N N Y L E E J ONE S , Petitioner-Appellant,

v.

C HAR L E S L. R

Y A N , Respondent-Appellee. No. 18-99005

D.C. No. 2:01-cv-00384-SRB

OPINION

Appeal from

the United States District Court f or the District of Arizona Hon. Susan R. Bolton, District Judge, Presiding

Argued and Subm itted February 16, 2021 San Francisco, California

Filed June 28, 2021

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

Opinion by Chief Judge Thom asJ ONE S V

. R Y A N 2

SUMMARY *

Habeas Corpus / Death Penalty

Applying the standards set forth in the Antiterrorism and Effective Death Penalty Act o f 1996, the panel rever s e d the district court’s judgm ent denying Danny Lee Jones’s habeas
corpus petition challenging his Arizona d e ath sentence, and

rem an d e d t o the district court with instructions to issue the writ.

In Claim 1, Jo n e s asserted that his trial counsel was constituti o n ally ineffective b y failing to request a m ental health expert in advance of the sentencing hearing. The panel held that the state court record dem onstrates that trial counsel

was constitutionally ineffective by failing to secure a defense

me nt a l health expert, and that, pursuant to 28 U .S. C. § 2254(d)(1), the Arizona Suprem e Court’s contrary conclusion was an unreasonable application of Strickland v. Washington
, 466 U.S. 668 (1984), and its progeny. Holding that the state pos t-conviction review (PCR) court’s decision

was also b ased on an unreasonable d eterm ination of the facts under 2 8 U.S.C. § 2254(d)(2), the panel agr e e d wi th Jones that (1) the P CR c ourt em ployed a defective fact-finding
process when it deni e d PCR counsel’s funding request for a defense neu

ro p sy ch o lo g ical exp ert, ef f ectiv ely p rev enting the developm ent of Cla i m 1 ; and (2) the state court’s failure to hold a hearing o n Claim 1 resulted in an unreasonable determ inatio n o f the facts. Because the PCR court did not reach the issue of prejudice, the p anel reviewed the issue de

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.J ONE S V

. R Y A N 3

novo. Noting that Jones w as diligent in attem pting to develop the factual basis fo r the claim in state court, the p anel wrote that the district court did not err in its expansion of the record, and the district court considered the evidence develope d i n the district court in conducting its de novo review. The panel concluded that Jone s dem onstrated S trickland p rejudice because there is at l e as t a reasonable probability that developm ent and presentation of m ental h e a l th expert t estim o ny would have changed the result of the sentenci n g proceeding.

In Claim 2, Jones asserted that h i s trial counsel was constitutionally ineffective by f ailing to seek neurological o r neuropsychological testing pr ior to sentencing. The panel

w r o t e t h a t c o u n s e l ’ s f a i l u r e t o p r o m p t l y s e e k neuropsychological testing ran contrary to his obligation to pursue reasonab l e investigations under Strickland
, and in particular, his obligation to investigate and present evidence of a d efendant’s m ent a l defect. The p anel therefore concluded that the PCR court’s decision that defense counsel’s perform ance did not fall below an o bje c t i v e ly reasonable standard was an unreasonable application o f Strickland
, and that Jones satisfied § 2254(d)(1). The panel also h eld that the state PCR court’s decision was based on an

unr e a s o n able determ ination o f the facts, satisfy i n g § 2254(d)(2), where the PCR judge m ade factual findings regarding the necessity of neuropsychological testing, not on the basis of evidence presented by Jones, but on the b asis o f his o wn personal conduct, untested m em ory, and

u n de r s t a n din g o f ev ents—an d b y p lainly misapp r eh en din g t h e record, wh ich in clu d ed a f o ren sic p s y ch iatrist’s testim ony, six
years earlier, strongly suggesting that neuropsychological
t e s t i n g w as essential. B ecause the PCR court did n ot reac h the issue of prejudice, the panel reviewed the issue de novo.J ONE S V

. R Y A N 4

Noting that Jo n e s was diligent in attem p ting 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 n ovo review. Th e panel concluded that Jone s dem onstrated S trickland p rejudice because there is a reasonable probability that had such testing been conducted, an d h ad the results been presented at sentencing, Jones would not have received a death sentence.

C OUNSEL

Am anda B ass (argued) and Letitia Marquez, Assistant Fe d eral Public Defenders; Jon M. Sands, Federal P ubl ic Defender; Office o f the Fed e r a l Public Defender, Phoenix, Arizona; for Petitioner-Appellant.

Jef f rey L

. S p ark s (argu ed)
, A ssistan t Attorney General; Lacey Stover Gard, Chief Counsel; Mark Brn o v ich, Attorney General; Office of the Attorne y General, Phoenix, Arizona; for Respondent-Appellee.J ONE S V

. R Y A N 5

OPINION

THOMAS, Chief Judge:

Danny Lee Jones, an Arizona inm ate on death ro w, appeals the district court’s d enial of his petition for wr it o f habeas corpus on r e man d from this court and the Suprem e Court of the Un ited States. Applying the appropriate standards pursuant to the Ant iterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we conclude that Jones was denied the effective assistance of counsel at sentencing. W e

reve r s e th e judgm ent of the district court and rem and for further proceedings consistent with this opinion.

I 1

A

On March 26, 1992, in B u llhead City, Arizona, Jones and his friend Robert W e av e r spent the day drinking and using crystal m ethamp h e tam ine in W eaver’s garage. At som e point, a fi ght broke o ut, and evidence at trial indicated that Jones hit W eaver over the head m ultiple tim es with a wooden baseball bat, killing him

. Jones then w ent i n side the h ouse where he encountered W eaver’s grandm other, Katherine Gum ina. Jones struck Gum ina in th e h e a d with the b at and knocked her t o th e g r o un d. Jones then m ade his way to a

1 In accordance with o ur obligation under C ullen v. Pinholster
, 563 U.S. 170 (2011), to consider o nly the state court record in conducting

our 28 U.S.C. § 2254(d) analysis, t his recitation o f the facts looks only to that record. Evidence developed at the federal evide nt i ary hearing is included later in the limited contexts where Pinholste r d o es not circum scribe our consideration of such evidence.J ONE S V

. R Y A N 6

bedroom where he found Tisha W eaver, W eav e r’s sevenyear-old d aughter, hiding under the b ed. E vidence showed that Jones hit Tisha in the head with the b at , and either strangled he r o r s uffocated her with a pillow. Jones fled to Las V egas, Nevada, where police eventually arrest ed him

. He was indicted in Arizona on two counts of m urde r i n the first degree, and one count of attempted murder. 2

B

A p ub l i c d efender was assigned to Jones’s case. At the tim e, th e public defender had been an attorney for a little

m ore than three years, and he h ad never been lead attorney on

a capital case. He requested $5,000 from the trial court for expert witn esses. The court authorized $2,000, which the public defender split between a crim e scene investigator and an addictionologist.

The jury convicted Jo nes on all counts. Judge Jam es Chavez scheduled the senten c i n g hearing for three m onths later. About six weeks before the hearing, counsel took his first trip to Reno, Nevada, in order to speak with Jones’s

m other, Peggy Jones 3

, and Jones’s second step-father, Randy Jones, in order to investigate potential m itigation evidence.

At sentencing, the public defender presented testim ony from two witn e sses: investigator Austin Cooper and Randy

2 Gumina initially surv i v e d th e attack and was in a com a f o r seventeen m onths before eventually d ying from he r i n

juries. The prosecution never am ended the indictm ent after Gum ina died.

3 To avoid confusion, we refer to the m em bers of Jones’s family b y their first nam es.J ONE S V

. R Y A N 7

Jones. C ooper testified about evidence regarding an alleged

accom p lice. Randy expl a in e d that he m arried Peggy when Jo n e s wa s seven years old. 4 He explained that Peggy gave birth to Jones when she was only fifteen years ol d and h ad

num erous com

plications during the pregnancy and delivery. Randy testified that Jones suffered m ultiple head i njures when he was growing up, and that when Jones was thirteen o r fourteen his personality b egan to change drastically. Jones
started lying, cutting classes at school, drinking, and doing drugs. Jones’s first step-grandfather introduced him to

m arijuana when he was about ten years old, and Jones was an alcoholic by the tim e he was seventeen.

The trial court appointed the C hief o f Forensic Psychiatry fo r the Correctional H ealth Services in Maricopa County , Dr. Jack Potts, to exam ine Jones and provide a report to the
court pursuant to Rule 2 6.5 of the Arizona Rules of Crim inal Procedure. Defense c o un s e l called D r. 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 adm inistering a personality test. He also spoke to Jones for a couple o f hours the day before testifying
at the sentencing hearing. He interviewed Peggy by phone for thirty mi nut e s , and he spoke to Randy for one hour the day before testifying. During Dr

. Potts’s testim ony, the following colloquy took place:

Q. Do you feel y ou hav e been provided with adequate data, coupled with your i n- p erson exam ination of the defendant, to

4 The record is inconsistent whether Randy and P eggy m arried when Jones was seven or eight years old.J ONE S V

. R Y A N 8

m ake a conclusion f or mitigating findings that you did?

A.

. . . I believe everything I reviewed and what I h ave heard about the case and reviewed wi th the defendant, his comm ents to m e. I would have liked, and I think I have—I think it would be valuab le to have had som e

n eu ro l o g ic ev alu atio n s, n o t— b y a n eu ro lo g ist, clinical exam , such as a CAT s c an, possibly

an MRI, possi b l y EEG, p ossibly som e sophisticated n eurological testing, b ecause I
think there’s very strong evidence that we have

. . . , I believe, of traum atic brain injury, and there’s som e other evidence that I believe

we m ay have organic neurologic dysfunctions here that h as gone o n since he’s been about 13. So, there’s som e other testing that I think

wo u ld be valuable to have to p in down th e diagnosis. . . .

Q. And you think that further testing

m ight shed som e additional light on, perhaps,

som e of these factors you listed and m aybe why Mr. Jones behaves in th e way he did on March 26, 1992?

A. Yes. I think it could help in clarifying and giving us etiology as the beh av i oral

com ponents, the explosi ve outbursts, the aggression, the m ood changes, and the changes that oc curred in his personality as noted by his m other wh en h e was about 13, 14 years old.J ONE S V

. R Y A N 9

Q. In your opinion, could that inform ation possibly provide

. . . a significant m itigating factor a s t o what would be relevant to the issues at this hearing?

A. Clearly I think it would be corroborative o f my clinical im pressions and

my diagnostic impressions in my report.

Dr. Potts discussed th e f

act that Jones’s first step-father physically and verbally abused Jones, and stated that i t was “unequivocal” that Jones carried that abuse with him into his adult life. Dr. Potts also stated that given the long history o f substance abuse and other psychological problem s in Jones’s fam ily, Jones was predisposed to sub s t ance abuse o r a possible affective disorder. D r. Potts did not, however, give

a specific diagnosis, but stated: “ I th ink

. . . to a reasonable degree of m edical certainty that the d efendant suffers f rom a psychothym ic disor d e r, which is a m ood disorder, possibly organic syndrom e, secondary to the m u ltiple cerebral traum a 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 m

urders would have had a significant effect on Jones b e c aus e “ it’s real clear that the brain is m uch m ore susceptible when it’s been injured by drugs. Furtherm ore, when you’re o n drugs, y o u are m ore susceptible to the acts o f
agg ression under am

phetam ines.” He further stated: “I believe in my experience in cases like this, is that ha d i t not been for the intoxication, the alleged offense would not have occurred.”

Dr. Potts also subm itted a six-page report to the c o urt. The report in cluded: approxim ately two pages describingJ ONE S V

. R Y A N 10

Jo n es’s so cial d evelopm ent and history, including his m e dical h istory, one page of analysis, and one pa g e of

recomm endations. Dr. Pott’s report was due to the court on Novem ber 29, 1 9 9 3, but he did not com plete it until Decem b er 3. He was late because he did not receive the Presentence Inform at i o n Report (“PSR”) from the Mohave County pr obation departm ent until Decem ber 1. Dr. Potts also testified at sentencing that he was under “significant tim e pressure” in preparing the report. D r. Potts concluded that “Mr. Jones’ capacity to conform his conduct to that of the law

was clearly im

paired at the tim e of the offenses.

. . . ” He therefore recomm ended that an aggrav at e d sentence should not be im posed.

After Dr. Potts testified, counsel m oved for a continuance

so an expert could conduc t psychological testing. Counsel stated: “It’s n ot a delay tactic

. . . [I]t’s not som ething I planned o n doing until

. . . very recently after the report was done, after talking with Dr. Potts, after exploring all these issues.” Notably, h owever, counsel did not speak to Dr. Potts about the report until Decem ber 7, the n ight be fo re sentencing. The sentencing judge considered and rejected the

m otion:

THE COURT:

. . . . I also k now that there

were f unds ma d e available to the defense at

som e p oint an d you used them to hire [an add i c t i onologist].

. . . [I]f there were any fo l l o w-up questions of a psychological o r neurological n ature, I w ould think that the defense would have followed themup.

C O U N S E L : B u t , Y o u r H o n o r , respectfully,

. . . I didn’t realize this issue wasJ ONE S V

. R Y A N 11

that im portant until D r. Potts brought it u p o r I would have certainly asked f o r the funds earlier.

The judge foun d th e following aggravating factors for W eaver’s m

urder: (1) Jones “committed the o ffen se as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value”; (2) Jones “comm itted the offenses in an especially heinous or de p r av e d m anner”; and (3) Jones was “convicted of o ne or m ore other hom icides

. . . which were comm itted during the comm ission of the offense.”

The judge found four no n -statutory m itigating factors: (1) Jones suffered from long-term substance abuse; (2) he

was under the influence o f drugs and alcoh o l at the tim e o f the offense; (3) he h ad a chaotic and abusive childhood; and (4) h is longstanding substance abuse problem m ay h ave been caused by g enetic fac t o r s and aggravated by head traum a. The judge found the s am e aggravating and m itigating circum stances for Tisha’s m urder, 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 m

urders, and twenty-five years without the possibility of parole for the attempted m urder. The Arizona Suprem e Court affirm ed Jones’s conviction and sentence on direct review. State v. Jones , 917 P.2d 200 (1996).

C

Prior to f

iling Jones’s s t ate post-conviction review (“PCR”) petition, P C R counsel sought authorization from the court for the funding of several experts.J ONE S V

. R Y A N 12

A s relevant here, the PCR court rejected counsel’s requ e st to appoint a neuropsych o l ogist. The court stated that while Dr. Potts m ight not have been a d efense expert, he did a good job, gave “defense o pinions,” and there was n o reason to believe that an expert appointed for the defense “would have been any different.” The court concluded by stat i n g that based on Dr. Potts ’ s t es t im o ny, “I don’t really see any grounds for any additional p sy c h iatric o r psychological testing.”

On July 1
, 1999, counsel file d th e PCR p etition, raising
twenty

- fi v e claim s. Am ong the petition’s exhibits were a declaration from defense trial counsel and an affidavit from Peggy. At an inform al conference on February 23, 2 000, the
court ruled on several of Jones’s claim s, and set others for an evidentiary hearing. In part i c ular, the court denied Claim 1 (as num b ered in this ap p ea l ) o n the m erits. The court set Claim 2 (as num

bered in this appeal), as well as other claim s, for evidentiary hearing.

At the evidentiary hearing, Randy, Pe g gy , and defense trial counsel testified. Randy t e stified that he first spoke to counsel in July 1992, a few m onths after Jones’s arrest. During th i s conversation, Randy told counsel about Jones’s head injuries, as well as his str uggles with substance abuse and stints in rehabilitation program s. Ran dy n e xt spoke to counsel when he cam e to visit Peggy and Randy at their hom e in Reno in October 1993, about six weeks before sentencing.

Peggy testified that she h ad provided counsel with a chronology of Jones’s life d uring counsel’ s visit. Peggy

rem em bered sharing about Jones’s difficult bi rth and the physical abuse she and Jones suffered at the hands of Jones’s biological father and f

irst step-father. Peggy shared thatJ ONE S V

. R Y A N 13

Jones had a good hom e life and a norm al childhood once she

m arried Randy, when Jones was abo ut seven or eight years old.

Trial counsel testified that at the tim e he was appointed to represent Jones, he had been an attorney for three and a half
years and his experience with capital cases consisted o f having been second chair at the p enalty p ha s e i n one p rior

case. He stated that h is strategy for defending the k il ling o f Robert W eaver was self-defense, so he hired Dr. Sparks as an addictionologist to testify ab out Jones’s state of m ind. Dr. Sparks opined at trial that b e c ause of the d rugs Jones ingested, he was unable to prem editate the killings. Dr. Sparks was not called to testify at sentencing.

When PCR counsel asked trial coun s e l if he visited Jones’s fam ily early enough in the case to adequately develop

m itigation evidence, trial coun s el responded that Dr. Potts

was able to m ake effe c ti ve use of the inform ation o b tained from the fam ily. He said that Dr. Potts w as a “very favorable

m itigation witness for the defense.” He s t at ed that it felt to him like Dr. Potts was p art of the defense team , even though he was appointed as a court expert. Finally, counsel s tated that h e did not conside r th e ne ed for testing by a

n eur o psychologist until Dr. Potts suggested it to him on Decem b er 7, 1993, the evening before Jones’ s sentencing hearing.

In the affidavit he pr o v i de d 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
, 0 0 0 of the $5,000 he requested, he “was of the opi n i on that it would b e fruitless to ask the court for additional f

unding for any other needed experts s uc h as anJ ONE S V

. R Y A N 14

independent psychiatrist or psychologis t

. ” Counsel added that he d id not ask his supervisor for any m o ney because he believed that the public defender ’s office did not have sufficient funds for retaining expert witnesses.

After th e h earing, the PCR court denied Claim 2 as well

as the rem aining pending claim s. As to Cla i m 2
, the court stated that “[t]he report and testim o ny of Dr. Potts[,] who was appointed by the Co urt, adequately addressed defendant’s

m ental health issues at sentencing.”

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

D

Jones sub s e qu e ntly filed his federal petition for habeas relief. The district court granted an evidentiary hearing with regard to Claim s 1 & 2 based o n trial counsel’s failure to

secure the appointm ent o f a m ental health expert and failure
to m ove for neurological and neuropsychological testing.

The district co urt subsequently dism issed both ineffective assistance of counsel (“ I AC” ) claim s. The court denied Claim 1 b e cause counsel’s “failure to seek the appointm ent of a m ental health expert in a mo re ti m ely m anner did not prejudice Petitioner.” T h e district court explained that “the Co urt has not been p resented with evidence confirm ing that Petitioner suffers from neurological dam age caused by head
traum a or other factors. Therefore, Dr. Potts’s finding at sentencing rem ains the m ost persuasive s t atem ent in the record that neurological dam age constituted a m itigating factor.” The di s trict court dism issed Claim 2 after finding that Jones co u l d only p rove that he suffered from AD/HDJ ONE S V

. R Y A N 15

residual type and possibly a low level m ood disorder. The district court “conclud[ed] that the trial court would have assigned m inim al significance to testim ony indicati n g that Petitioner suffered from ADHD [sic] and a l ow-level m ood disorder, and that this w eight would not have outbalanced the factors found in aggravation.”

E

Jones tim ely appealed th e di strict court’s denial of his petition for a writ of habeas corpus. W e reversed the district
court and concluded th at J o n es receiv ed IA C w arranting relief

o n his claim s regarding h is counsel’s failure to secure the appointm ent of a m ental health expert, failure to tim ely m o ve for n eurologi ca l and neuropsychological testing, and failure
to present additional m itigation witnesses and evidence. See Jones , 583 F.3d at 636.

The State petitioned for cert iorari. The Suprem e Court granted the petition, vacated our judgm ent, and rem anded the

case for further consideration in light of Cullen v. Pinholster
, 56 3 U.S. 170 (2011). See Ryan v. Jones
, 563 U.S. 932 (2011).

On rem and from th e Suprem e Court, we rem anded 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 argum ent that his ineffective assistance of counsel c l a i ms are unexhausted, and therefore procedurally defaulted, and that the deficient perform ance 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 .). W e expressed “no opinion on any other issue raised o n appeal,” and noted that “[t]hose issuesJ ONE S V

. R Y A N 16

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

On rem and, the district court rejected Jones’s argum ents. The district court determ ined that Jones’s claim s had n ot been fundam entally altered, and therefore, they had p r e v iously been exhausted and were not subje c t t o 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 tim ely notice of appeal and stated that he was al so appealing “all p rior orde rs disposing of other claim s, either on the m erits o r procedurally.”

II

W e review de novo a district court’s dism issal o f a habeas petition. Sexton v. Cozn e r , 679 F.3d 1 150, 1153 (9th Cir. 2012). W e review a district court’s findings of fact for clear

error. Stanley v. Schriro
, 598 F .3d 6 12, 617 (9th Cir. 2010).

Because Jones filed his pet i t i on after April 24, 1996, AEDPA applies to o ur review of this petition. See Summers

v. Schriro
, 481 F.3d 710, 712 (9th Cir

. 2007). Under AEDPA, habeas relief m ay not be granted unless the state court’s d ecision was: (1) “co ntrary to, or involved an unreasonable application of, clearly established Federal law,

as determ ined by the Suprem e Court of the United States;” o r (2) “based on an unreas o n ab le determ ination 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 Suprem e Court precedent if the state court applies a rule thatJ ONE S V

. R Y A N 17

contradicts the governing law set forth in Suprem e Court

cases or if the s tate court confronts a set of facts m aterially indistinguishable from those at issue in a decision o f the Suprem e C ourt and, nevertheless, arrives at a result different from its precedent.” Lambert v. B lodgett
, 393 F.3d 943, 974 (9th C ir. 2 004) (citing Lockyer v. Andrade
, 538 U.S. 63, 73 (2003)). A state court’s decisio n i s an “unreasonable application” of federal law if it “identifies the corr ect governing prin cip le f

ro m [ the S uprem e] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. (intern al quotations and citation

om itted). T he Sup rem e C ourt has explained that the

e x c e ptions based on “clearly established” law refer only to “the h oldings, as opposed to the dicta, of th[e ] Co urt’s decisions as of the tim e o f the relevant state-court decision.” (Terry) Williams v. Taylor
, 529 U.S. 362, 412 (2000) (“ Terry Williams ” )

. Circuit p recedent m ay not clearly establish federal law f

or purposes of § 2254(d), but we m ay “look to circuit precedent to ascertain whether it has already held that the particular point in issue is clearly established by Suprem e Court precedent.” Marshall v. Rodgers
, 569 U.S. 58, 64 (2013).

W ith respect to § 2254(d)(2) claim s, “a state-court factual determ ination is not unreasonable m erely 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 m inds reviewing the record m ight disagree’ about the finding in question, ‘on habeas review that does not suffice to supersede the trial court’s

. . . determ ination.’” Id. (quoting Rice v. Collins , 546 U.S. 333, 341–42 (2006)).

I f a petitioner can overcom e the § 2254(d) bar with respect to the claim s the state court did address, h e m ust alsoJ ONE S V

. R Y A N 18

dem onstrate that he is entitled to relief without the deference required by AEDPA. See Pa n etti v. Quarterman
, 551 U.S. 930, 953–54 (2007). Where the state court did not r e ach a particular issue, § 2254(d) does n ot apply, and we review the issue de novo. See Rompilla v. Beard
, 545 U.S. 3 74
, 3 90 (2005); se e a l

so Weeden v. Johnson
, 854 F.3d 1063, 1071 (9th C ir. 2017) (“Because the [s t ate court] did not reach the issue of prejudice, we address the issue de novo.”).

Pursuant to Pinholster
, our § 2254(d) analysis is lim ited
to the f acts in the state court record. 563 U.S. at 185. However, in narrow circum stances, when we review a claim de novo, and when a p etitioner sat is fi e d the standard for an evidenti ary h earing in federal district court pursuant to § 2254(e)(2) b y exercising diligence in pursuing his claim s in
state court, we m ay consider the evidence developed i n federal court. See id. ; see a lso id. at 212–13 (Sotom ayor, J., dissenting); see also Schriro v. Landrigan
, 550 U.S. 465, 473 n.1 (2007).

III

In Claim s 1 and 2, Jones alleges that his counsel provided IAC at sentencing. To prove a constitutional violati o n for I AC, Jones m

ust show (1) “that counsel’s perform ance was deficient,” and (2) “that the deficient perform ance prejudiced the d e fe n s e.” Strickland v. Washington
, 466 U.S. 668, 687 (1984). Counsel’s perform ance is d eficient if, considering all
th e circum stances, it “fell below an objective standard of reasonableness

. . . . under p revailing professional norm s.” Id. at 688. Under this objective approach, we are required “to affirm atively entertain” the range of possible reasons counsel

m ight have proceeded as he or she did. Pinholster
, 563 U.S. at 196. To establish prejudice under Strickland
, a petitionerJ ONE S V

. R Y A N 19

m ust “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would h ave b een different. A reasonable p r o b ab i l ity is a probability sufficient to underm ine confidence in th e outcom e.” Strickland , 466 U.S. at 694.

Our review of a Strickland claim under § 2 2 54(d) is “doubly defe r e ntial,” requiring the court to apply A E D PA deference on top of Strickland deference. Knowles v. Mirzayance
, 556 U.S. 11 1
, 1 23 (2009). Because the state court reached only the deficient perf o rm an ce p rong of Jones’s IAC claim s, we review only that prong under § 2254(d) and we review the prejudice prong of his claim s de novo.

IV

A

In Claim 1, Jones ass e rt s that his trial counsel was constitutionally i n e ffective b y failing to secure a defense

m ental health expert. He asserts that his right to counsel was vio l ated when his attorney failed to request a m ental health expert in advance of the sentencing hearing. F or the reasons below, we agree.

The state court record dem onstrates that counsel’s failure
to tim ely seek a m ental health expert fell below “prevailing professional norm s.” Strickland
, 4 66 U.S. at 688. “[C]ounsel has a duty to m ake reasonable investig at i o ns or to m ake a reasonable decision that m akes particular investigations unnecessary.” Id. at 691. Counsel has an “obligation to conduct a thorough investi gation of the defendant’s background.” T

erry Williams
, 529 U .S. at 3 9 6 (citing Am erican Bar As s ociation (“ABA”) S tandards for Crim inalJ ONE S V

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Justice 4–4.1, comm entary, p.4–55 (2d ed 1980)). “Crim inal

cases will arise where the only r ea s onable and available defense strategy requires consu l tation with experts o r introduction of expert evidence.” Hinton v. A lab a ma , 571 U.S. 263, 273 (2014) (quoting Harrington v. Ri ch te r , 562 U.S. 86, 106 (2011)). And further, coun se l ’ s failure to inves t igate and present evidence of a defendant’s m ental defect constitutes deficient perform ance. Terry Williams
, 529 U.S. at 396. In light of Terry Wil li ams , we have also held that counsel’s perform ance m ay be deficient “if he ‘is on notice that his client m ay b e m entally im paired,’ yet fails ‘to investigate his client’s m ental condition as a m itigating f actor in a penalty p hase hearing.’” Caro v. Woodford
, 280 F.3d 1247, 1254 (9th Cir. 2002) (quoting H endricks v. Calderon
, 70 F.3d 10 3 2, 1043 (9th Cir. 1995)). Such perform ance is deficient because “[a]t the p enalty p hase, counsel’s duty to follow up o n indicia o f m ental im p airm ent is quite different from —and m uch broader and less contingent than—the m ore confined guilt-phas e responsibility.” Bemore v. Chappell
, 788 F.3d 1 151, 1171 (9th Cir. 2015). “[I]t is im perative that all relevant mitigating inform ation be unearthed for

cons i d er at ion at the capital sentencing phase.” Id. (quoting Wharton v. Chappell
, 765 F.3d 953, 9 70 (9th Ci r

. 2014)). Moreover, the fa i l ur e to “m ake even [a] cursory investigation” into available m eans of obtainin g additional funding for expert witnesses m ay am ount to deficient perform ance under Strickland

. See H inton
, 571 U.S. at 274.J ONE S V

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Additionally, the 1989 ABA Guidelines 5 in effect at the
t i m e of Jones’s sentencing, explain that in capital c a s e s , “[c]ounsel should secure the assistance of experts where it is
necessary or appropriate for:

. . .” “the sentencing phase o f the tr i a l,” and the “presentation of m itigation.” ABA Guidelines for the Appointm ent and Perform ance of Counsel in Death Penalty Cases, Guideline 11.4.1(d)(7), p. 1 6 (1989). The Guidelines explain that “[i]n deciding which witnesses and evidence to prepare for presentatio n at the sentencing phase, counsel should consider the fo l l o wing:

. . . Expert witnesses to provide m edical, psychological, sociological o r other e xplanations for the offense(s)[.]” Id. at Guideline 11.8.3(F)(2), p

. 23–24. The Guidelines also note that, am ong the topics the d e fe nse should consider presenting at sentencing, is “[m ] edical history (includin g m ental and physical illness or injury, alcohol and drug use, birth traum a and developm ent a l d elays)” as well as “[e]xpert testim ony concerning [the client’s m edic a l h istory] and the resulting im pact on the client, relating to the offense and to the client’s potential at the tim e of sentencing.” I d. at Guideline 11.8.6(B)(1)&(8), p. 25–26.

5 W e m ay l ook to the ABA Guidelines as indicators of the prevailing

norm s of pract i c e at a g iven tim e. See Strickland
, 466 U.S. at 6 8 8 (“Prevailing norm s of practice as reflected in Am erican Bar Association standards and the like

. . . are guides to determ ining what [perform ance] is reasonable, but they are o n l y guides.”); see a lso Rompilla
, 545 U .S.
at 387 n.7 (using language of 1 989 and 2003 ABA Guidelines to evaluate perform ance at 1988 trial); Florida v. Ni xo n , 543 U.S. 175, 191 (2004) (using 2003 ABA Guidelines to evaluate counsel’s perform ance at trial); bu t see B obby v. Van Hook
, 558 U.S. 4, 8 ( 2009) (“ Strickland stressed, however, that Am erican Bar Association standards and the like are only guides to what reasonableness m ean s, n ot i ts definition. W e have since regarded them

as such.” (citations and quotations om itted)).J ONE S V

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Moreover, “[t]he tim ing of this investigation is critical.” Allen v. Wood

f o rd
, 395 F.3d 9 79, 1001 (9th Cir. 2 005) (quotation and citation o m itted); see also Heishman v. Ayers
, 621 F.3d 1030, 1036–37 (9th Cir. 2010). The Suprem e Court has found constitutional error “where counsel wa ited until

one week before trial to prepare for the pe n al ty p h ase, thus failing to adequat e l y investigate and put o n m itigating evidence.” A llen
, 395 F.3d at 1 0 0 1 ( citing Terry Williams
, 5 2 9 U.S. at 395). “If the life investigation awaits the gu i l t verdict, it will be t oo late.” Id. (citation and quotation

om itted). “[L]egal experts agree th at preparation for the
sent e n c i n g p hase of a capital case should begin early and

even inform preparation for a tr i a l’ s guilt phase[.]” Id. “Counsel’s obligation to discover and appropriately pr esent all potentially beneficial m itigating evi dence at the p enalty phase should influence ev erything the attorney does before and during trial[.]” Id. (citation and quotation om itted). Moreover, the 1989 ABA Guidelines state that “[c]ounsel should conduct ind e pendent investigations relating to the guilt/innocence ph a se and to the penalty phase of a capital trial[,]” and “[b]oth investigations should begin immediately
upon counsel’s entry into the case and s hould be pursued expeditiously

. ” ABA Guidelines for the Appointm ent and Perform ance of Counsel in Death Penalty Cases, Guid eline 11.4.1(A), p. 1 3 (1989) (em pha s i s a dded); see also id. at Guide li ne 11.8.3, p. 23 (“[P]reparation for the sentencing phase, in the form of investigation, should begin imm ediately upon counsel’s entry into the case.”).

The state court record shows th at counsel was on notice that Jones m ay have been m entally im pa i r e d, yet counsel failed to investigate Jones’s m ental condition as a m itigating factor, and he failed to obtain a d efense m ental health expert. Counsel was in possession o f m edical records sho wi n g thatJ ONE S V

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Jones form erly attem

pted suicide at age twenty-two; Peggy told counsel that Jones experienced extre me m oods swings, but these swings stabilized when he had been m edicated with lithium ; and P eggy and Randy told counsel that Jones was “often a disturbed child,” and they had to seek p s y c h i atric h elp for him at age nine. T his evidence would have l e d a reasonable attorney to investigate f urth er an d o b tain a defense

m ental health expert. See Wiggins v. Smith
, 539 U.S. 510, 527–28 (2003).

An investigation into Jones’s m ental health should have been pursued far in advance of wh e n c o unsel requested that J on e s undergo a m ental health exam ination pursuant t o Arizona Rule of Crim inal Procedure 26.5. Couns e l should have obtained a defense m ental health expert w ell before the
start of the guilt phase o f Jones’s trial, but instead, h e waited
to m ake th i s request until after Jones had already been convicted on Septem

ber 1 3, 1993. Se e Al le n , 395 F.3d at 1001.

O b tainin g the court-ap p o int ed
, in d ep en d ent exp ert’s sh o rt and cursory evaluation did n ot satisfy this duty. See Lambright v. Schriro
, 4 90 F.3d 1103, 1120

–2 1 (9th Cir. 2007) (“Counsel m ay not rel y for the developm ent and presentation of m itigating eviden c e on the probation officer and a court appointed psychologist.

. . . T he responsibility to afford effective representation is not delegable to p arties who have no obligation to protect o r further th e i nt e r ests of the defendant.” (em

phasis a dded)). Moreover, Dr. Potts’s evaluation and opinions were lim ited in th at he was a psychiatris t n ot trained in m atters involving organic brain function—inform ation that a neuropsychologi s t could have developed and presented. Dr. Potts had no obliga t i o n to further the interests of the defendant, even if he did present aJ ONE S V

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defense-favorab l e 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 d efense expert here cannot b e justified as a reasonable strategic decision. F irst and forem ost, counsel’s failure to o btain a m ental health expert was based no t on strategy, but on l a c k o f preparation, which left counsel

unaware of the im

po rtance o f this evidence. Counsel failed
to speak adequ ately to Jones and Jones’s fam ily to obtain a full picture of Jones’ s me nt al health h istory. For instance,

even though when Jones was interviewed for the PSR, Jones reported he was “m entally abused by his first step-father, and later physically abused by a second step-father,” and he

c h aracterized his childhood as “bad and unhappy,” wh e n questioning Dr. P otts at sentencing, defense counsel brushed aside a m ention of Randy’s physical abuse, referring to it as “clearly a m istake,” even though the inform ation cam e from Jones him self.

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

prior to m eeting w ith D r. Jack Potts, M.D. on Decem ber 7, 1993 to discuss his evaluation o f Danny J o n es, [he] was not aware that neurological or neuropsychological testing

was necessary and available which could determ ine the exact nature of injuri e s t o Danny Jones’ brain from long term substanceJ ONE S V

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

This fell below a reasonable standard o f perform an ce given the indications that Jones likely suffered from som e form o f

m ental illness.

Although we n eed “not indulge ‘ post hoc rationalization’ for counsel’s decisionm ak i n g that contradicts the available evidence of counsel’s actions,” Harrington
, 562 U .S. at 109 (qu o ting Wiggins
, 5 39 U.S. at 526–27), even im agining o ne potential strategic reason f or counsel’s failure to obtain an expert—that the defense could not afford one—the failure to attem p t to obtain a d efense expert was neither reasonable nor inform ed. In the declarati o n h e p rovided in the state PCR
pro ceeding, defense counsel stated that he believed “the Mohave County Public D efender’s Office did no t h ave sufficient m onies for retaining expert witn esses,” and so he “did not ask Mr. Ev e re tt [the Mohave Public Defender] for
any funding for addi t ional necessary experts in State vs. Jones .” But according to Kenneth Eve rett’s affidavit provided to the state PCR court, “[i]n the last quarter of 1993, approxim ately Seven Thousand ($7,000.00) Dollars would have been available for experts

. . . in regard to all cases that the Public D efender h ad in that last q uarter, i n c l u d ing the Danny Lee Jones case.” Everett also stat e d th at during the relevant tim e period, counsel “perhaps could have expended add i tional funds for experts for additional m itigation evidence,” although he did recognize that counsel needed “to be circum spect” about requesting such funds. 6 But, contrary

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

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to the Suprem e Court’s ruling in Hinton
, counsel n ever even looked into requesting funding through the Public D efender’s Office. See Hinton
, 571 U.S. at 274 (trial attorney’s failure
to request a d d i t i onal funding was deficient when he

m istakenly believed he h ad received al l the funding available).

In sum , the state court record dem onstrates that trial

coun s e l was constitutionally ineffective by failing to secure

a d e fense m ental h ealth expert. Thus, pursuant to § 2254(d)(1), the Arizona Suprem e Court’s contrary conclusion was an unreasonable application o f S trickland and its progeny.

B

Alternative l y, Jones argues that the state P CR court’s decision was based on an unreasonable determ ination of the facts under § 2254(d)(2). He argues that the court em ployed

a defective f

act-finding process with respect to Claim 1 when it denied PCR counsel’s funding reque s t fo r a defense neuropsychological expert, effectively preventing the factual developm ent 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 n eed pretrial, you m ay need m ore 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 m ore.

Jones
, 583 F.3d at 629 n.2. A lthough this statem ent m ay not have been specifically included in the state court record, t here is n o doubt the PCR
court wa s aw are o f it; t

he sam e judge who sentenced Jones to death presided at his PCR hearing.J ONE S V

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unreasonable determ ination o f the facts. W e agree with both
argum ents.

Under § 2254(d)(2), a petitioner m ay challeng e a state court’s conclu s i o n that is b ased upon an unreasonable determ ination of the facts. W e have noted that § 2 254(d)(2) chall e n g es “com e in several flavors.” Taylor v. Maddox
, 366 F.3d 992, 1000 (9th Cir. 2004), overruled o n o ther grounds by Murray v. Schriro
, 7 45 F .3d 984, 999–1000 (9th Cir. 2014). For instance, we h ave stated that a petitioner m ay

overcom e the § 2254 (d)(2) bar if the f act-finding “process

em ployed by the state court is defective.” Id. at 999 (citing Nunes v. Mueller , 350 F.3d 1045, 1055–56 (9th Cir. 2003)). “W e have held repeatedly that whe r e a state court m akes factual findings without an evidentiary hearing or oth er opportunity for the petitio ne r to present evidence, the factfinding process itself is deficient, and not entitled to deference.” Hurles v Ryan
, 752 F.3d 7 68, 790 (9th Cir. 2 014) (am ended) (quotatio ns o mitted); see also Perez v. Rosario
, 459 F.3d 943, 950 ( 9 th Ci r. 2006) (am ended) (“In m any circum stances, a state court’s determ ination o f the facts with o ut an evidentiary hearing creates a presum ption o f

unr e a s onableness.”). T his is p articularly the case where a judge bases factual findings on their o wn personal co n duc t, untested m em ory, or understanding of events in the place of

an evidentiary hearing. See Hurles
, 752 F.3d at 7 9 1 (finding it “especially troubling” when a j u dge’s factual findings involved h er own co n du c t and w ere based on her “untested

m em ory and understanding of the events”). Sim ilarly, a factfi n d ing process m ay be fatally underm ined “where the st ate courts plainly misapprehend o r m isstate the record in m aking their f indings, and the m isapprehension goes to a m aterial fa c tual issue that is central to petitioner’s claim .” Taylo r , 366 F.3d at 1001; see also Wiggins
, 539 U.S. at 5 28. AndJ ONE S V

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likewise, a fact-finding process m ay be deem ed defective when the end result requires the court to m ake a finding on “an unconstitutionally incom plete record.” Milke v

. Ryan
, 711 F.3d. 998, 1 007 (9th Cir. 2013). For a pe t i t i on e r to prevail on these types o f § 2254(d)(2) argum ent s , h owever, “we m ust be satisfied that any appellate court t o wh om the defect is pointed out would be unreas o nable in holding that the state court’s fact-finding process was adequate.” Taylor
, 366 F.3d at 1000.

The PCR court’s decision not t o hold a hearing on Claim 1 am ounted to an unreasonable determ ination of the fa c t s

. The court ruled on Claim 1 w ithout holding an evidentiary hearing because it found that Dr. Potts essentially satisfied the r o le of a defense m ental health expert. In

r e sponse to PCR counsel’s argum ent that a defendant i s entitled to his own m ental health expert in capital cases, not

a court-appointe d independent expert, the court explained that:

Dr. Potts was a v ery g o o d expert. He was defense oriented. The p r o secutor, I can

rem em ber, w as v ery upset about that.

. . . I’m going to deny [this claim ] because I don’t think counse l was ineffective as far as Dr. Potts.

The fact that the PCR court m ade this factual finding regarding Dr. Potts’s role without hol d i ng an evidentiary hearing or o pportunity for Jones to present evidence, suggests that the PCR court’s fact-finding process was deficient. See Hurles
, 752 F.3d at 7 90. However, the process was even

m ore unreasonable because, even though m ore than six years had passed, the judge based this finding solely o n his o wnJ ONE S V

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untested m em o ry and personal im p ression of Dr. Potts’s role i n the sentencing hearing. See id. at 7 91. The judg e wh o presided over Jones’s state PCR p r o c e e ding was the sam e judge who sentenced h im to death, and in denying a hearing

on this claim
, the judge relied prim arily on hi s personal recollection of Dr. Potts’s testim ony and his m em ory that the prosecution was upset that Dr. Potts testified favorably for the defense. T here is no eviden c e the PCR court considered anything else in denying the request for a hearing.

The PCR court “plainly m isapprehend[ed]” the record in

m aking its finding that D r. Potts satisfied the role of a defense

m ental health expert. See Taylor
, 3 66 F.3d at 1001. Dr. Potts

wa s not a defense expert, and the fact his conclusions we r e favorable to the defense does n ot support th at he filled that role. N othing about the circum stances of Dr. Potts’s testim ony sug g e s ts otherwise. Dr. Potts testified at Jones’s sentencing hearing that he regularly prepares psychological reports requested by the courts, that “at tim e s ar e favorable apparently for the State” and at other tim es are favorable “for the defense[. ]” He also explained that in other cases like Jones’s, he had found little or no m itigation for the defendant. Moreover, the lim ited am ount of tim e D r. 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. Pott s subm itted only a six-page report to the court. He agreed that he was un d e r “ s ignificant tim e pressure” in preparing the report because he received the PSR l ate from Mohave County. He m et with Jones for a total of four hours at the prison, and spent o ne and a half hours of that tim e adm inistering an MMPI personality test. On the d ay before he testified, Dr. Potts also spoke to Jones for “a couple of hours,” Peggy for about thirty minutes, and Randy for o neJ ONE S V

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

valuable to have had som e neurologic evaluations, not – by a neurologist, c l i ni cal

exam , such as a CAT scan, possibly an MRI, possibly EEG, possibly some sophisticated neurolog i c a l testing, b ecause I think there’s
very strong evidence that we have

– well, there’s clear evidence that we h ave, I believe,

o f traum atic brain injury, and there’s som e other evidence that I believ e we m ay have organic neurological dysfunctions here that has gone on since he’s been about 13. So there’s som e other testing that I think would be v aluable to have to pin down the diagnosis.

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

Th e PCR court’s decision not to fund a d efense m ental health expert fatally underm ined the fact-finding process, in part because that decision resulted i n th e c o urt ruling on an unconstitutionally incom

plete record. W ithout funding for a

m ental health expert , it was im possible for Jones to dem onstrate that he had b een prejudiced by counsel’s failure
to obtain one during the c o urse of Jones’s crim inal proceedings. Jones could not dem o nstrate the inadequacy o f counsel’s mitigation case without providing the m itigat i on evidence that could have be e n presented by a defense

neuro psychological expert. Moreover, without f unding, Jones could not sho w that a defense neuropsychological expert would have presented m aterially different evidenceJ ONE S V

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than that already provided by Dr. Potts. By f ailing to provide additional funding to develop Jones’s m ental health

m itigation evidence, the state court, as Jones phra s e s it, created “its own self-fulfilling prophecy,” by preventing the developm ent of the claimbefore it was even presented.

W e em phasize that we are not suggesting that any denial of an evidentiary heari ng or denial of funding for an expert would lead to a deficient fact-finding process in state c o urt. Our determ ination is expressly lim ited to the facts of this

case: The judge denied an evidentia ry h earing based on his personal recollection of a senten c i n g proceeding that took place six years prior—a proceeding in which the sole, courtappointed expert opined that f urther neurological testing was desirable.

For thes e r e asons, we conclude that any appellate court would conclude that the P CR court’s factual determ ination as to Dr. Potts and i t s fact-finding p rocess with respect to Claim 1 were unreasonable and inadequate. See Taylor
, 366 F.3d at 1000. Accordingly, Jones has satisfi e d the requirem ents of § 2254(d)(2).

C

Although § 2254(d) typically also applies to the p rejudice
prong o f a petitioner’s IAC claim
, here, the PCR court did not reach the issue of prejudice, and s o we review the issue de

novo. See, e.g., Weeden , 854 F.3d at 1071.

Pinholster lim its our § 2254(d) analysis to the facts in the
state court record. 5 63 U.S. at 185. However, Pinholster does not prevent us from considering evidence presented for the first tim e in federal district court in reviewing the m eritsJ ONE S V

. R Y A N 32

of Jones’s claim s de novo. As the district court found, Jones satisfied the standard f

or an evidentiary h e aring pursuant to § 2254(e)(2) 7 . That provision p erm its federal district courts to hold evidentiary hearings and consider new evidence when petitioners have exercised diligence in pursuing their claim s in state court. See id. (“Section 2254(e)(2) continues to have force where § 2 254(d)(1) does not b ar f ederal habeas relief.”);

see id. at 2 1 2–13 (Sotom ayor, J., dissenting); (Michael) W i lliams v. Taylor
, 5 29 U .S. 420, 436–37 (2000) (“ Micha el Williams ”).

Though § 2254(e)(2) lim its the dis c r e t ion of district courts to conduct evidentiary hearings, Pinholster
, 563 U.S.

7Section 2254(e)(2) states that

If the applicant has failed to d evelop the factual basis o f

a claim in State court p roceedings, the c ourt shall not hold an evidentiary h earing on the c l aim unless the applicant shows that—

(A) the claim

relies on—

(i) a new rule of constitutional law, m ade retroactive to cases on collateral review by the S up r e m e C o urt , t h a t w a s p r e v i o u s l y unavailable; or

(ii) a factua l predicate that could not h ave been previously discovered through the exercise of due diligence; and

(B) the facts underlying th e claim would be sufficient t o establish by clear and convincing evidence th at but for constitutional error, n o reasonable factfinder would have found the applicant guilty of the underlying offense.J ONE S V

. R Y A N 33

at 203 n.20, it does not im p ose an e xp r e ss lim it on “evidentiary hearings for petitioners who ha[ve] been dilig ent in state court.” Id. at 213 (Sotom ayor, J. dissenting); see also La n drigan
, 550 U.S. at 473 n.1. Here, the federal distr i ct court determ ined that Jones had b een diligent in attem pting
to develop the factual basis for Claim s 1 and 2 in state court, and the State does not contest that d et e rmination n ow. The
state court record shows that Jones was d i l igent. H is PCR counsel requested funding for a neuropsychologist and “a thorough and independent neurological assessm ent” to assist in the developm ent o f Claim s 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 develope d in federal district court in conducting d e novo review of Jones’s claim s.

To prevail on his IAC claim
, Jones m ust dem onstrate that h is trial counsel: (1) perform ed d eficiently; and (2) Jones’ s d efense was prejudiced by that deficient perform ance. Strickland , 466 U.S. at 687. He has done so.

For all the reasons set forth previously in our § 2 254(d)(1) analysis, Jones has dem onstrated that counsel’s perform ance fell below an objective standard of reasonableness and below
th e prevailing professional norm s at the tim e of Jones’s proceedings.

Additionally, Jones has d emonstrated that counsel’s failure to obtain a defen s e me ntal health expert for the penalty phase of Jones’s trial prejudiced the defense. Jones has dem onstrated that there is a “reasonable probability” that had such an expert been retained, “the result o f the proceeding would have been different.” Id. at 694.J ONE S V

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There is a reasonable probability that had counsel secured

a defense m ental h e alth expert, that expert would have uncovered (and presented at sentencing) a wealth of available

m itigating m ental health evidence. The m ai n mitigation witness in state court was Randy, Jones’s second step-father. Randy erroneously testified that Jones enjoyed a stable hom e life after age seven, when Randy m arried Jones’s m other, and yet the trial court found that h is testim ony was sufficient to prove a num

ber of non-statutory m itigating circum stance s. Had counsel secured a m ental h ealth expert, that expert could h a v e p r o v i d e d s u b s t a n t i a l e v i d e n c e

— t h r o u g h neuropsychological testing o r otherwise—that Jones suffered from m ental illness, including evidence supporting any o f the diagnoses m ade b y experts in federal district court: (1) cognitive dysfunction (organic brain d am age and a history of num erous closed-head injuries); (2) poly-substance abuse; (3) post-traum atic stre s s disorder (“PTSD”); (4) attention d ef icit/h y p eractivity disorder (“AD/HD”); (5 ) m o o d diso rd er; (6) bipolar depressive disorder; and (7) a learn i n g disorder. The experts retai ned in Jones’s f ederal habeas proceedings
p r o vi d e d s i gn i fi c ant ev i de n c e o f th e s e c o n d i t i o n s , dem onstrating that such evidence could h ave been uncovered and presented at sentencing.

Dr. Pablo Stewart, Chief of Psych i atr i c Services at the Haight As hbury Free C linic in San Francisco, California, testified at the federal evidentiary hearing. He estim ated that he spent 130 hours working o n Jones’s case, in contrast to the fo ur h o urs Dr. Potts was able to spend with Jones prior t o sentencing. Dr. Stewart dia gn osed Jones with cognitive dysfunction, PTSD, polysubstance abuse, and m ood diso rd er, not o therwise specified. He ultim ately concluded that “[t]he circum stances surrounding Mr. W eaver’s death ar e a direct consequence of [Jones’s] abused and unfortunate past.”J ONE S V

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Dr. S tewart testified to a num ber of factors that m ay have contributed to Jones’s cognitive dysfunction that occ urr ed before Jones was even born. H e noted that Jones’s mo ther, Peggy, worked in a chrom e hub cab plating factory when she

was p regnant w ith Jones, and chrom e expos ur e m ay negatively affect a baby’s birth. He testi fi ed that Peggy’s prenatal diet was also of concern: Peggy reported that during her pregnancy with Jones, her di e t consisted of cigarettes, coffee, and m ayonnaise sandwiches. He expressed that the use of nicotine during pregnancy has been directly linked to
cog n i t ive dysfunction in children and caffeine exposure results in m ore difficult births. He also specified that Jones’s father b eat Peggy during her pregnancy such that there was a potential f

or physical traum a to the fetus. And he testified to Jones’s traumat ic and difficult birth: Jones w as born in the breech p osition, with the um bilical cord wrapped around his neck, and f

orceps were used. He testified that any o f these factors could have been potential contributors to Jones’s cognitive dysfunction.

Dr. Stewart t estified that Jones had suffered m u ltiple serious head injuries over the course o f his life, and he went into m uch greater detail than Randy had provided regarding Jones’s head injuries at the state PCR proceeding. Randy h ad testified that Jones fell off a roof when he was approxim ately thirteen, fell off a scaffolding when he was approxim ately fifteen, was m

ugged while serving in th e Marines, and experienced spontaneous blackouts ar o un d the age of four. By contrast, Dr. Stewart d escribed an incident where Jones “was about eleven (11) years old, he fell, head-first off a roof
onto the m etal fram e of a horizon t a l d o l l y , in an attem p t to retrieve a ball. His eye hit the m etal bar of the dolly. He was unconscious for about five (5) to ten (10) m inutes.” He also

n o ted the fall when Jones w as fifteen, but additiona l l y , h eJ ONE S V

. R Y A N 36

explained that “[a]s a young adul t, Danny had at least three (3) car accidents where he lost conscious n e s s .” Further, “when Danny was about five-and- a

- half (5 1⁄2 ) y ears old, Peg gy 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 vom ited, indicating he had a

c o n cussion.” Dr. Stewart elaborated on the m ugging J o ne s suffered while in the M ar i n es : he was “found lying unconscious in a ditch along the highway, by a M o r e head City P olice Officer, who took him to the hospital. Danny h ad been m u gged and beaten with a two-by-four.”

Dr. S tewart discu ss e d PTSD and explained that Jones suffered num erous traum atic experiences early in his life: he watched h is first step-father hold a jigsaw to his m other’s neck and threaten to kill h er, he watched that sam e step-father shoot a gun at h is m other, and on two separate occasions, his second step-father, Randy, pointed a gun to his own head and threatened to kill h im self in front of Jones. He also noted that Randy beat Jones for no reason with a belt with a b uckle and engaged in other form s o f s e vere physical discipline. On

cross-exam ination the stat e challenged D r. Stewart’s PTSD diagnosis because Dr. S tewart stated that Jones “had PTSD at the time o f th e m

urders,” but did not state that Jones was having a flashback while comm itting the crim es. Dr. Stewart responded by explaining that while the m edia tends to show PTSD as being a person “who is thinking he’ s being

am bushed and he tak e s people hostage,” that only occurs “very, very rarely.” He explained:

The m u ch m ore overwhelm ing l y m ore

comm on thing that occurs is a person having

a short fuse; a person o v e rreacting to aJ ONE S V

. R Y A N 37

situation; a p erson finding the ms elves challenged b y som e things and then just going off; a person

— and that’s PTSD. A person who drinks too m

uch and then gets into fights, those are the m ore comm on thing. But those don’t sell m ovies or books.

But that’s the m ore comm on 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 h im throughout his entire life. Certainly on the day of these m ur d ers, that was going on.

Dr. Stewart also testified that J o n e s’s first step-grandfather forced J o n es to drink alcohol when he was only nine years old, and that it appeared the grandfather used alcohol to get Jones drunk so it wo u l d b e easier to sexually abuse him

. Dr. St e wart described the sexual abuse “as full
contact sexual abuse, including sodomy, including oral sex, both the providing it and receiving it.” Jones becam e a daily

m arijuana u ser when he was in junior high, he used o ne gram of cocaine every weekend in high school, and he rep o rt e d using LSD two hundred tim es. Dr. Stewart explained that the substance abuse appeared to have stemm ed f rom Jones’s genetic predisposition, and also because Jones u sed drugs starting at a very young age to self-m edicate as a m eans o f coping with his m ental defects and past traum a.

Dr. Alan Goldberg, a psychologist in Arizona with a speci a l i ty in neuropsychology, conducted a battery of tests that covered m

ultiple dom ains of cognitive functioning. Dr. Goldberg gave Jones approxim ately twenty-five tests andJ ONE S V

. R Y A N 38

found that “when w e look at the patterns a c r o s s m any different kinds of tests

. . . we see a consistent inconsistency in perform anc e , that is, the perform ance is problem atic on a

num ber of tests that all h ave an attention c o mp o nent to them .” He ult i m ately diagnosed Jones w ith a learning disability, attention deficit disorder, and Bi p olar Disorder, Depressed.

Jo n es su b mitted r ep o rts f

ro m additional exp e rts, in clu din g Dr. David Foy, a professor of psychology at Pepperdine University. Dr. Foy diagnose d Jones with PTSD, polydrug abuse, d ep ressiv e diso rd er, c o m p ro mised co gn itiv e emo tional functioning, and various learning d eficits. Dr. Foy described the num erous instances of life

- threatening fam ily violence Jones w itnessed growing up, an d fo und that on at least two occasions Jones used a baseball bat to protect him sel f: (1) when Jones threatened to kill Jones’s first step-father if he did not stop beating Jones’s m o ther, Peggy; and (2) in order
to stop Jones’s fi r s t step-grandfather from continuing to sexually abuse him . Dr. Foy concluded that

[t]he constant threat o f sudden verbal attacks

or severe phy sical punishm ent in Danny’s h o m e environm ent would be expected t o produce an essential stat e of wariness o r hypervigilance

. . . [and] would be expected to lead t o a heightened suspiciousness and

com bat readiness as a system atic way o f responding, even in situations which later proved to be non-life threatening.

Finally, Jones subm itted a declaration from his y o un g er sister, Carrie. She said that, as a child, Jones twice watched Randy point a gun at h is own head an d threaten to killJ ONE S V

. R Y A N 39

him self. She stated that contrary to Randy’s testim ony during sentencing, Randy was both v erbally and physically abusive
to Jones, and th at Jones threatened to kill Randy if he kept beating Peggy. Carrie also confirm ed that Jo n e s s uffered

num erous head injuries while growing up.

The hearing also ma d e c l ear that Dr. Potts had not been tasked with providing mitigation evidence at sentencing and had not conducted the extensive testing h e felt was required. Potts explained: “I was not an expert fo r e i th e r party. I was the C ourt’s e xp e rt in looking at som e issues. I was n ot—it

was clear I was not h i r ed fo r m itigation, nor was I h ired for aggravation.” The tria l court had ordered Dr. Potts to perform an evaluation pursuan t to Ru le 26.5 o f the Arizona Ru l e s of Crim inal Procedure. The Rule provides: “At any tim e before the court pronounces a sentence, it m ay order the defendant to undergo a m ental h ealth exam inat i on o r diagnostic evaluation. Unless the court orders otherwise, any report concerning such an exam ination or evaluation is due at the sam e tim e as the p resentence report.” In line with this, Dr. Potts had testified at Jones’s sentencing: “My m ain role is working with Maricopa County S uperio r Court, crim inal divis i on, coordinating com petency evaluations, other forensic, an d working with patients. I also have clinical responsibilities.

. . . [ I] [p]rim arily do reports as requested by the Court.” When a s k ed whether o r not he had enough “points of data” to pull f

rom in reaching his conclusion s , he stated:

[T]here’s a clear d istinction between a

m itigation specialist, and I’m no m itigation specialist. I m ay be a part of a te am o f

m itigatio n, but I’m clearly not a m itigationJ ONE S V

. R Y A N 40

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

Mine was a cursory exam ination.

. . . [I]nterviewing one f

am ily m em

b er certain ly is
not adequate, I believe, for what would be considered capital m itigation. It is below the standard of care.

He s t at e d th at, prior to his testim ony at sentencing, h e h ad

recomm ended that defense counsel seek neuropsychological testing f or Jones. Dur in g cross-exam ination, the State tried
to get Dr. Potts to adm it that he only called fo r n eurological testing, n ot neuropsych o l o g ical testing, but Dr. Potts explained that “[s]ophisticated neurological testing would include that.”

He described the reports submitted by the additiona l experts at the habe as proceeding as the “docum ents I think

one would expect to see in m itigation.

. . . I b e l i e v e they’re
very, v ery helpful, and I think—I k now I would have liked to hav e h a d the exhaustive nature of these reports.” He stated that he found his role con s tr a i n ed b y his court-appointed status, and therefore “did n ot m ake diagnoses,” becau s e his “role was n ot to m ake diagnoses . . . and that’s why I would
not have. I could h ave

. . . b ut that was n ot the nature or tenor of any of this report. . . .”

Defense trial counsel t e st ified that Dr. Potts “did n ot act

as a n eutral, det ached court-appointed expert. He actively assisted us in developing m itigat ion, planning strategy to a

m uch larger degree than what he indicated.” He e xp lained that he had “num erous phone conversations” with Dr. Potts, they m et together the night before Dr. Potts testified, andJ ONE S V

. R Y A N 41

Dr. Po tts “stressed to ask for the continuance f or the additional testing.”

The testim ony p rovided at the federal evidentiary hearing dem onstrates the types of m itigation evidence that could and should have b een presented at the p enalty pha se of Jones’s trial. For instance, the evidence dem onstrates that , h ad counsel retained a defe n s e me ntal health expert, that expert could have provided testim o ny explaining the factors that contributed to Jones’s c ognitive dysfunction, including: (1) prenatal c hr om e and nicotine exposure; (2) his m other’s

m alnutrition during pregn an cy ; (3 ) f etal traum a from beatings by his fath e r ; (4) a traum atic birth; (5) several severe head i n juries; or (6) Jones’s substantial and extensive dru g an d alcohol abuse, which began when h e was eight or n ine years old. Any such evidence would have been significantly m ore probative of Jones’s m ental state and m ore persuasive in reducing Jones’s c u lpability than D r. Potts’s conditional findings, com

piled after far less preparation tim e and testing, and com prising only a si x-page report. T hese factors illustrate h ow unfortunate circum stances outside of Jones’s control com

b ined to d am age his cognitiv e functioning and

m ental health at the tim e of his crim es.

Lik e wi s e , the m ental health experts’ testim ony in the district court proceedings dem onstrates that had trial counsel retained suchan expert for sentencing, he or she could have provided evidence that Jones’s m ental state was im paired by drugs and alcohol at the tim e of h is crim es. He or s h e also could have offered context for his substance abuse and insight into how Jones’s long-term self-m edication af f e cted h is b rain

. As dem onstrated at the federal evidentiary heari ng , any

m ental health expert engaged by the defense team would have
attem p ted to explain Jones’s lifelong h istory o f s ubstanceJ ONE S V

. R Y A N 42

abuse and its physical effects on Jo n e s’s brain. This would have included comp i l i n g a fam ily history and hard data regarding Jones’s brain function. It also w ould have included inform ation addressing h ow and when Jones’s substance abuse began. As the federal proceedings revealed
, Jones turned to substance abuse at an extrem ely young age in order
to self-m edicate in response to the traum a he exper i e n ced from being physically and sexually abused and as a result o f

r e peatedly witnessing violence directed at his m other. A

m ental health expert would have relayed that Jones suffered sexual abuse from age n ine until age thirteen at the hands o f his s t ep

- grandfather, who introduced him to m arijuana and alcohol at age n ine in o rder to f acilitate that abuse. A m ental health expert could also have explained the traum a Randy i n flicted o n Jones by d etailing h ow Randy physically an d

em o tionally abused Jones, engaged in various form s of severe physical disc i p l i n e, and threatened suicide in front of Jones and his fam ily.

W e ar e persuaded that testim o ny explaining Jones’s history would have significantly im pacted the overall presentation of Jones’s culpability with respect to h is m ental state, and painted a vastly different picture o f Jones’s childhood and u

pbringin g

. The m itigation case actually presented to the sentencing court suggested that while Jones had undergone a traum atic early childhood, he enjoyed a largely norm al childhood and supportive fam ily after the age of six. And b ecause so little prepar at i o n had b een d one, Dr. Potts erroneously testified at sentencing that Jones did not suffer child abuse once Randy and Peggy m arried. Notably, Randy was the only m itigation witness who tes t ifi e d at Jones’s sentencing, and defense counsel was un aware that Ran dy t o o was an abuser. Had counsel procured a m ental health expert, the m itigation case would have told the story o fJ ONE S V

. R Y A N 43

an individual whose entire childhood was m arred by extrem e physical and em otional abuse, wh i ch i n turn funneled him into early o nset substance abuse that exacerbated e xi sting cognitive dysfunction.

In sum , there is at least a reasonable probability that developm ent and p r es e ntation of m ental health expert testim ony would have changed the result of the senten c i ng proceeding. Therefore, we conclude that Jones has d em onstrated S

trickland prejudice on de novo review. See Boyde v. California , 494 U.S. 3 70, 382 (1990) (“[E]vidence about the defendant’s background and character is relevant because o f th e belief, long h eld by this society, that defendants who comm it crim inal acts that are attributable to

a disadvantaged background, o r to em o t i o n al and m ental problem s, 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 Claim1.

V

A

I n Claim 2, Jones asserts that his trial counsel wa s constitutionally ineffective by f ailing to seek neurological o r neuropsychological testing p rior to s e nt encing. He asserts that the failure to do so fell below prevailing professional

norm s at the tim e. W e agree.

As wi th Claim 1, counsel’s failure to prom ptly seek neuropsychological testing ran contrary to his obligation to pursue reasonable investigations under Strickla nd
, and in particular, his obligation to investigate and present evidenceJ ONE S V

. R Y A N 44

of a defendant’s m ental defect. See Terry Williams
, 529 U.S. at 396 (failure to investigate and present evidence of m ental defect am ounts to d eficient perform ance). The stat e c o urt record shows that counsel was on notice of numerous facts from the very b eginning of the representation that Jones m ay h av e had significant brain dam age. “[W ]hen ‘tantalizin g indications in the record’ suggest that cert a i n m itigating evidence m ay b e available, those leads m ust be pursued.” Lambright
, 490 F.3d at 1 117 (quoting S tankewitz v. W o o d f ord
, 3 6 5 F.3d 706, 719–20 (9th Cir. 2004)); see also Wiggins
, 539 U.S. at 527 (“In assessing the reasonableness o f

an atto rn ey’s investigation, however, a court m ust 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.”). Coun s e l specified in his declaration b e fo re the PCR court that “prior to trial and sentencin g [he] was aware from interviews of Danny Jones and his m o ther an d step-father that he had been rendered unconscious num erous t im es d uring his life from head injuries,” as well a s that “he had a significant history o f serious long term substance abuse.” Any reasonable attorney would understand that these details could lead to valuable, available m itigation evidence and would have pursued these leads further.

However, in the stat e PCR proceedings, defense trial counsel provided no strategic reason for his failure to arrange for neuropsychological te s ting. Instead, trial counsel stated
t h a t h e “ w a s n o t a w a r e t h a t n e u r o l o g i c a l o r neuropsychological testing was n e cessary and available which could d eterm ine the exact nature of injuries to Danny Jones’ brain f

rom 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 toJ ONE S V

. R Y A N 45

appreciate the im

portance of such testing b e fo re the sentenci n g phase of trial constituted deficient perform ance because he failed to understand the v alue neuropsychological testing could provide in Jones’s case, and by the tim e o f Jones’s sentencing in 1 993, counsel in capital ca s e s was expected to be versed in the role of psychiatric evidence. See ABA Guidelines for the Appointm ent and Perform ance of Counsel in Death Penalty Cases, Guideline 5.1(1)(A)(v), p. 5–6 (1989) (“Lead trial counsel a s s ignm ents should be distributed to attorney s who

. . . are fam iliar with and experienced in the utilization of e xp e rt witnesses and evidence, including, but not lim ited to, psychiatric and forensic evidence.”).

Counsel’s request for testing (and a continuance) during Jones’s sentencing hearin g c ame far too late. As noted by PCR counsel, the court denied these r e qu e s ts because it h ad granted funding earlier in the case for expert assistance, and “if the r e [had b een] any follow-up questions of a p sy ch o lo g i cal o r n eu

ro lo g ical n atu

re, [ th e co urt expected] that the defense would have f ollowed them up

. ” The court, therefore, was placing th e burden on counsel to recognize these issues and request funding and assistance earlier in the
case, which counsel failed to do b ecause he had not invested sufficient preparation tim e and research to be aware that such testi n g was available and n eeded. Moreover, the tim ing o f

coun sel’s request for neuropsychological testing, like his request f or a defense m ental health e xp e rt , was in itself deficient. “[P]reparation for the sentencing phase of a capital

case should begin early and even inform preparation f or a trial’s guilt phase.” Allen
, 395 F.3d at 1001. For this reason,J ONE S V

. R Y A N 46

the P CR court’s decision that defense counsel’s perform ance did not fall below an objectively reasonable standard was an unreasonable ap p l ication of Strickland

. Jones has satisfied § 2254(d)(1).

B

Alternatively, Jones asserts th at the state PCR court’s decision was based on an unreasonable determ ination of the facts under § 2254(d)(2). He argues that the court precluded Claim 2’s full f

actual developm ent by denying PCR counsel’s request to fund neuropsychological testing, and h e asserts that the inadequacy of the state court’s fact-finding procedures renders its rejection of this claim unreasonable. W e agree.

The PCR court never addressed the fa c t s supporting Jones’s IAC claim
, and it excused counsel’s failure to m o ve tim ely for neuropsychological testing in a vague, inconsistent order. As with C la i m 1
, this had the effect of precluding Claim 2’s full factual developm ent in a way that rendered the entire fact-finding process unreasonable.

At sentencing, Dr. P otts testified that he saw indicators o f brain d am age, and as a result, counsel requested that the court continue the proceedings so that h e could seek a neuropsychological evaluation. The court, however, ruled contrary to Dr. Pott’s recom m endation, stating only that:

this cas e has been pending a long tim e, and I think the evidence is very slim, nonexistent, in fact
, that the defend ant has anything thatJ ONE S V

. R Y A N 47

r e q u i r e s a n y k i n d o f n e u r o l o g i c a l

exam ination. So, I am ready to proceed [with sentencing].

(em phasis added). Because the State did not call a com peting expert, the only evidence in the r ecord—Dr. Pott’s

u n a m b i g u o u s r e c o m m e n d a t i o n

— s u g g e s t e d t h a t a neuropsychological evaluation was necessary, contrary to the
sentenc i n g court’s assessm ent. The sentencing court’s
cursory evaluation of the record effectively f oreclosed any factual developm ent on this issue.

In the P CR proceedings, the court at least gr ant ed a h earing on the issue of counsel’s ineffectiveness regar d i n g testing, b ut b e c ause the court sum m arily denied the claim

con c erning the appointm ent of a m ental health expert and denied coun sel’s m otion for further neuropsychological
t e s ting, the evidentiary hearing was rendered alm os t

m e a n i n g l e s s

. T h e c o u r t b a s e d i t s d e n i a l o f neuropsychological t e s t ing o n the court’s own im p ressions and untested m em ory of Dr. Potts’s sentencing testim ony from six year s p r i o r. The court recalled that he “thought Dr. Potts did a good job,” and “based o n his testim ony,” the

c ourt did not “really see any grounds for any addit i o n al psychiatric or psychological test i ng.” But Dr. Potts’s testim ony w as that additional neuropsychological testing was needed. The court paradoxically exp l a ined that “[b]ased on [Dr. Potts’s] testim ony and the othe r things that I heard during that hearing, ther e wa s no grounds in m y m ind for obtaining a neuropsychological exam ination. Not o ne.” The

resulting d ecision dismissed th e claim for neuropsychological testing in a single sentence: “The report and testi m o ny o f Dr. Potts who was appointed b y the Court, adequately addressed defendant’s m ental health issues at sentencing.”J ONE S V

. R Y A N 48

As with Claim 1, the state P CR j u d ge ma de factual findings regardin g the necessity of neuropsychological testing, not on the basis o f ev i d en ce presented by the petitioner, but on the basis of his own perso n a l c onduct, untested m em o ry, and understanding o f events. See Hurles
, 7 52 F.3d at 791; see also Buffalo v. Sunn
, 854 F. 2 d 1 1 5 8
, 1165 (9th Cir. 1988) (finding err o r when the court relied on “personal knowledge” to resolve disputed issue of fact). Additionally, in m aking the resulting fa c tual finding—that neuropsychological te sting w as 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 testim ony—strongly suggested that neuropsycho l ogical testing was essential in assessing Jones’s psychological state, contrary to the court’s finding. Thus, by finding against the weight o f the evidence, and p roceeding to rule on the m erits of Claim 2, the court em

ployed a constitutionally defective fact-finding proce s s and ruled on an unconstitutionally incom plete factual recor d

. See id. at 999; see a lso Milke
, 711 F.3d at 1007 (finding the state court decision rested on an unreasonable determ ination of the facts where th e ju d ge relied on a di s t o rted fact-finding process and ruled on an “unconstitutionally incomplete record”).

The P CR court had an obligation to allow for reasonable fact developm ent in reaching the m erits of Claim 2; the judge did n ot fulfill this obligation b y relying on his own untested, personal recollection of the testim ony Dr. Potts presented six
years earlier. For this reason, Jones has dem onstrated that the PCR court’s decision was bas e d on an unreasonable factfinding p rocess and determ ination of the facts, satisfying § 2254(d)(2).J ONE S V

. R Y A N 49

C

As with Claim 1, the P CR court failed to re ac h th e prejudice prong of C laim 2, and so we address the i s s ue d e

novo. See, e.g., Weeden , 854 F.3d at 1071.

As with Claim 1
, because Jones was diligent in attem pting
to develop the factual b asis of this claim in state court by requesting “a thorough and independent n e ur ological

assessm ent,” § 2254(e)(2) does not lim it our abi l i ty to

co ns i der evidence presented for the first tim e in federal district court. See P inholster
, 563 U.S. at 213 (Sotom ayor, J. dissenting); see also Landrigan
, 55 0 U.S. at 473 n.1. The State does not contest that Jones was diligent in attem pting to develop the factual basis f or his claim s in state court, or that

we m ay consider this additional evidence on appeal. And having reviewed the record, we independently conclude that the district court did not err in its diligence determ ination and expansion of the record. Accordingly, we c o n sider the evidence developed in federal district court in conducting de novo review of Jones’s claim s.

In o rder f or us to grant relief on Jones’s IAC claim
, Jones
must d em onstrate that his trial counsel: (1) perform ed deficiently; and (2) Jones’s defense was prejud iced by that deficient perform ance. Str ickland
, 466 U.S. at 687. He has done so.

J o n e s has dem onstrated that trial counsel perform e d deficiently for all the reasons set forth in o ur § 2 254(d)(1) analysis. H e has d em onstrated that counse l ’ s perform ance fell below an objective standard of reasonableness and below the p revailing professional norm s at the tim e of J ones’s proceedings.J ONE S V

. R Y A N 50

Additionally, Jones has dem onstrated th at counsel’s failure t o seek neuropsychological and neurological testing prejudiced h i s d e fense. He h as dem onstrated 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 b een diffe rent.” Strickland
, 466 U.S. at 694. While Dr. Potts presented brief, conditional findings, the resul ts o f the neuropsychological and neurological tests conducted by var i o us experts during Jones’s federal district court proceedings confirm ed that Jones suffered from a variety of psychological disorders
stemm ing from birth and exacerbated by long-term drug use and traum a that affected Jones’s cognitive functioning. A s explained previously, testing revealed that Jones suffered from organic brain dam age, poly-subst an ce abuse, PTSD, AD/HD, m ood disorder, b ipolar depressive disorder, and a learning disorder. The presentation of th ese results would involve presenting the contributing factors t o his cognitive dysfunction, as previously described w ith 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 J o nes had suffered years of sexual

abuse as a child. In com

bination, the testing result s an d th e presentation of contributing factors would have dram atically affe cted any sentencing judge’s perception of Jones’s culpability for h is crim es such that there is a reasonable probability that Jones w ould n ot have recei v e d a death
sentence.

VI

Because we have determ ined that Jones is entitl e d to

r elief and resentencing on the basis of C laim s 1 an d 2
, we need not and do not reach the iss u e o f whether the newJ ONE S V

. R Y A N 51

evidence presented at the federal evidentiary he aring fundam entally altered these claim s such that they were unexhausted, procedurally defaulted, and excused in light o f Dickens v. Ryan
, 740 F .3d 1302 (9th Cir. 2014) (en banc) and Martinez v. R

yan , 566 U.S. 1 (2012). Additionally, we need
not and do not reach the m erits o f any o f Jones’s other claim s.

W e reverse and r em and to the district court with instructions to issue the writ of habeas corpus.

REVERSED AND REMANDED.