FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANNY LEE JONES,

Petitioner-Appellant,

v.

CHARLES L. RYAN,

Respondent-Appellee.

No. 18-99005

D.C. No.

2:01-cv-00384-SRB

OPINION

Appeal from the United States District Court

for the District of Arizona

Hon. Susan R. Bolton, District Judge, Presiding

Argued and Submitted February 16, 2021

San Francisco, California

Filed June 28, 2021

Before: Sidney R. Thomas, Chief Judge, and Michael Daly

Hawkins and Morgan Christen, Circuit Judges

Opinion by Chief Judge Thomas
2 JONES V. RYAN

SUMMARY*

Habeas Corpus / Death Penalty

Applying the standards set forth in the Antiterrorism and

Effective Death Penalty Act of 1996, the panel reversed the

district court’s judgment denying Danny Lee Jones’s habeas

corpus petition challenging his Arizona death sentence, and

remanded to the district court with instructions to issue the

writ.

In Claim 1, Jones asserted that his trial counsel was

constitutionally ineffective by failing to request a mental

health expert in advance of the sentencing hearing. The panel

held that the state court record demonstrates that trial counsel

was constitutionally ineffective by failing to secure a defense

mental health expert, and that, pursuant to 28 U.S.C.

§ 2254(d)(1), the Arizona Supreme Court’s contrary

conclusion was an unreasonable application of Strickland v.

Washington, 466 U.S. 668 (1984), and its progeny. Holding

that the state post-conviction review (PCR) court’s decision

was also based on an unreasonable determination of the facts

under 28 U.S.C. § 2254(d)(2), the panel agreed with Jones

that (1) the PCR court employed a defective fact-finding

process when it denied PCR counsel’s funding request for a

defense neuropsychological expert, effectively preventing the

development of Claim 1; and (2) the state court’s failure to

hold a hearing on Claim 1 resulted in an unreasonable

determination of the facts. Because the PCR court did not

reach the issue of prejudice, the panel reviewed the issue de

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
JONES V. RYAN 3

novo. Noting that Jones was diligent in attempting to develop

the factual basis for the claim in state court, the panel wrote

that the district court did not err in its expansion of the record,

and the district court considered the evidence developed in

the district court in conducting its de novo review. The panel

concluded that Jones demonstrated Strickland prejudice

because there is at least a reasonable probability that

development and presentation of mental health expert

testimony would have changed the result of the sentencing

proceeding.

In Claim 2, Jones asserted that his trial counsel was

constitutionally ineffective by failing to seek neurological or

neuropsychological testing prior to sentencing. The panel

wrote that counsel’s failure to promptly seek

neuropsychological testing ran contrary to his obligation to

pursue reasonable investigations under Strickland, and in

particular, his obligation to investigate and present evidence

of a defendant’s mental defect. The panel therefore

concluded that the PCR court’s decision that defense

counsel’s performance did not fall below an objectively

reasonable standard was an unreasonable application of

Strickland, and that Jones satisfied § 2254(d)(1). The panel

also held that the state PCR court’s decision was based on an

unreasonable determination of the facts, satisfying

§ 2254(d)(2), where the PCR judge made factual findings

regarding the necessity of neuropsychological testing, not on

the basis of evidence presented by Jones, but on the basis of

his own personal conduct, untested memory, and

understanding of events—and by plainlymisapprehending the

record, which included a forensic psychiatrist’s testimony, six

years earlier, strongly suggesting that neuropsychological

testing was essential. Because the PCR court did not reach

the issue of prejudice, the panel reviewed the issue de novo. 
4 JONES V. RYAN

Noting that Jones was diligent in attempting to develop the

factual basis for the claim in state court, the panel wrote that

the district court did not err in its expansion of the record, and

the district court considered the evidence developed in the

district court in conducting its de novo review. The panel

concluded that Jones demonstrated Strickland prejudice

because there is a reasonable probability that had such testing

been conducted, and had the results been presented at

sentencing, Jones would not have received a death sentence.

COUNSEL

Amanda Bass (argued) and Letitia Marquez, Assistant

Federal Public Defenders; Jon M. Sands, Federal Public

Defender; Office of the Federal Public Defender, Phoenix,

Arizona; for Petitioner-Appellant.

JeffreyL. Sparks (argued), Assistant Attorney General; Lacey

Stover Gard, Chief Counsel; Mark Brnovich, Attorney

General; Office of the Attorney General, Phoenix, Arizona;

for Respondent-Appellee.
JONES V. RYAN 5

OPINION

THOMAS, Chief Judge:

Danny Lee Jones, an Arizona inmate on death row,

appeals the district court’s denial of his petition for writ of

habeas corpus on remand from this court and the Supreme

Court of the United States. Applying the appropriate

standards pursuant to the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), we conclude that Jones was

denied the effective assistance of counsel at sentencing. We

reverse the judgment of the district court and remand for

further proceedings consistent with this opinion.

I

1

A

On March 26, 1992, in Bullhead City, Arizona, Jones and

his friend Robert Weaver spent the day drinking and using

crystal methamphetamine in Weaver’s garage. At some

point, a fight broke out, and evidence at trial indicated that

Jones hit Weaver over the head multiple times with a wooden

baseball bat, killing him. Jones then went inside the house

where he encountered Weaver’s grandmother, Katherine

Gumina. Jones struck Gumina in the head with the bat and

knocked her to the ground. Jones then made his way to a

1

In accordance with our obligation under Cullen v. Pinholster,

563 U.S. 170 (2011), to consider only the state court record in conducting

our 28 U.S.C. § 2254(d) analysis, this recitation of the facts looks only to

that record. Evidence developed at the federal evidentiary hearing is

included later in the limited contexts where Pinholster does not

circumscribe our consideration of such evidence.
6 JONES V. RYAN

bedroom where he found Tisha Weaver, Weaver’s sevenyear-old daughter, hiding under the bed. Evidence showed

that Jones hit Tisha in the head with the bat, and either

strangled her or suffocated her with a pillow. Jones fled to

Las Vegas, Nevada, where police eventually arrested him. 

He was indicted in Arizona on two counts of murder in the

first degree, and one count of attempted murder.2

B

A public defender was assigned to Jones’s case. At the

time, the public defender had been an attorney for a little

more than three years, and he had never been lead attorney on

a capital case. He requested $5,000 from the trial court for

expert witnesses. The court authorized $2,000, which the

public defender split between a crime scene investigator and

an addictionologist.

The jury convicted Jones on all counts. Judge James

Chavez scheduled the sentencing hearing for three months

later. About six weeks before the hearing, counsel took his

first trip to Reno, Nevada, in order to speak with Jones’s

mother, Peggy Jones3

, and Jones’s second step-father, Randy

Jones, in order to investigate potential mitigation evidence.

At sentencing, the public defender presented testimony

from two witnesses: investigator Austin Cooper and Randy

2 Gumina initially survived the attack and was in a coma for

seventeen months before eventually dying from her injuries. The

prosecution never amended the indictment after Gumina died.

3 To avoid confusion, we refer to the members of Jones’s family by

their first names.
JONES V. RYAN 7

Jones. Cooper testified about evidence regarding an alleged

accomplice. Randy explained that he married Peggy when

Jones was seven years old.4 He explained that Peggy gave

birth to Jones when she was only fifteen years old and had

numerous complications during the pregnancy and delivery. 

Randy testified that Jones suffered multiple head injures

when he was growing up, and that when Jones was thirteen or

fourteen his personality began to change drastically. Jones

started lying, cutting classes at school, drinking, and doing

drugs. Jones’s first step-grandfather introduced him to

marijuana when he was about ten years old, and Jones was an

alcoholic by the time he was seventeen.

The trial court appointed the Chief of Forensic Psychiatry

for the Correctional Health Services in Maricopa County,

Dr. Jack Potts, to examine Jones and provide a report to the

court pursuant to Rule 26.5 of the Arizona Rules of Criminal

Procedure. Defense counsel called Dr. Potts to testify at

sentencing. Dr. Potts stated that in conducting his review, he

spent four hours interviewing Jones in prison, one and a half

of which were spent administering a personality test. He also

spoke to Jones for a couple of hours the day before testifying

at the sentencing hearing. He interviewed Peggy by phone

for thirty minutes, and he spoke to Randy for one hour the

day before testifying. During Dr. Potts’s testimony, the

following colloquy took place:

Q. Do you feel you have been provided

with adequate data, coupled with your

in-person examination of the defendant, to

4 The record is inconsistent whether Randy and Peggy married when

Jones was seven or eight years old.
8 JONES V. RYAN

make a conclusion for mitigating findings that

you did?

A. . . . I believe everything I reviewed and

what I have heard about the case and reviewed

with the defendant, his comments to me. I

would have liked, and I think I have—I think

it would be valuable to have had some

neurologic evaluations, not—by a neurologist,

clinical exam, such as a CAT scan, possibly

an MRI, possibly EEG, possibly some

sophisticated neurological testing, because I

think there’s very strong evidence that we

have . . . , I believe, of traumatic brain injury,

and there’s some other evidence that I believe

we may have organic neurologic dysfunctions

here that has gone on since he’s been about

13. So, there’s some other testing that I think

would be valuable to have to pin down the

diagnosis. . . .

Q. And you think that further testing

might shed some additional light on, perhaps,

some of these factors you listed and maybe

why Mr. Jones behaves in the way he did on

March 26, 1992?

A. Yes. I think it could help in clarifying

and giving us etiology as the behavioral

components, the explosive outbursts, the

aggression, the mood changes, and the

changes that occurred in his personality as

noted by his mother when he was about 13,

14 years old.
JONES V. RYAN 9

Q. In your opinion, could that information

possibly provide . . . a significant mitigating

factor as to what would be relevant to the

issues at this hearing?

A. Clearly I think it would be

corroborative of my clinical impressions and

my diagnostic impressions in my report.

Dr. Potts discussed the fact that Jones’s first step-father

physically and verbally abused Jones, and stated that it was

“unequivocal” that Jones carried that abuse with him into his

adult life. Dr. Potts also stated that given the long history of

substance abuse and other psychological problems in Jones’s

family, Jones was predisposed to substance abuse or a

possible affective disorder. Dr. Potts did not, however, give

a specific diagnosis, but stated: “I think . . . to a reasonable

degree of medical certainty that the defendant suffers from a

psychothymic disorder, which is a mood disorder, possibly

organic syndrome, secondary to the multiple cerebral trauma

that he’s had as well as the prolonged substance abuse.”

Dr. Potts testified that the drugs and alcohol Jones had on

the day of the murders would have had a significant effect on

Jones because “it’s real clear that the brain is much more

susceptible when it’s been injured by drugs. Furthermore,

when you’re on drugs, you are more susceptible to the acts of

aggression under amphetamines.” He further stated: “I

believe in my experience in cases like this, is that had it not

been for the intoxication, the alleged offense would not have

occurred.”

Dr. Potts also submitted a six-page report to the court. 

The report included: approximately two pages describing
10 JONES V. RYAN

Jones’s social development and history, including his medical

history, one page of analysis, and one page of

recommendations. Dr. Pott’s report was due to the court on

November 29, 1993, but he did not complete it until

December 3. He was late because he did not receive the

Presentence Information Report (“PSR”) from the Mohave

County probation department until December 1. Dr. Potts

also testified at sentencing that he was under “significant time

pressure” in preparing the report. Dr. Potts concluded that

“Mr. Jones’ capacity to conform his conduct to that of the law

was clearly impaired at the time of the offenses. . . .” He

therefore recommended that an aggravated sentence should

not be imposed.

After Dr. Potts testified, counsel moved for a continuance

so an expert could conduct psychological testing. Counsel

stated: “It’s not a delay tactic . . . [I]t’s not something I

planned on doing until . . . very recently after the report was

done, after talking with Dr. Potts, after exploring all these

issues.” Notably, however, counsel did not speak to Dr. Potts

about the report until December 7, the night before

sentencing. The sentencing judge considered and rejected the

motion:

THE COURT: . . . . I also know that there

were funds made available to the defense at

some point and you used them to hire [an

addictionologist]. . . . [I]f there were any

follow-up questions of a psychological or

neurological nature, I would think that the

defense would have followed them up.

COUNSEL: But, Your Honor,

respectfully, . . . I didn’t realize this issue was
JONES V. RYAN 11

that important until Dr. Potts brought it up or

I would have certainly asked for the funds

earlier.

The judge found the following aggravating factors for

Weaver’s murder: (1) Jones “committed the offense as

consideration for the receipt, or in expectation of the receipt

of anything of pecuniary value”; (2) Jones “committed the

offenses in an especially heinous or depraved manner”; and

(3) Jones was “convicted of one or more other homicides . . .

which were committed during the commission of the

offense.”

The judge found four non-statutory mitigating factors:

(1) Jones suffered from long-term substance abuse; (2) he

was under the influence of drugs and alcohol at the time of

the offense; (3) he had a chaotic and abusive childhood; and

(4) his longstanding substance abuse problem may have been

caused by genetic factors and aggravated by head trauma. 

The judge found the same aggravating and mitigating

circumstances for Tisha’s murder, but he also found that

Tisha’s having been under fifteen years old was an additional

aggravating factor. The judge sentenced Jones to two death

sentences for the murders, and twenty-five years without the

possibility of parole for the attempted murder. The Arizona

Supreme Court affirmed Jones’s conviction and sentence on

direct review. State v. Jones, 917 P.2d 200 (1996).

C

Prior to filing Jones’s state post-conviction review

(“PCR”) petition, PCR counsel sought authorization from the

court for the funding of several experts.
12 JONES V. RYAN

As relevant here, the PCR court rejected counsel’s request

to appoint a neuropsychologist. The court stated that while

Dr. Potts might not have been a defense expert, he did a good

job, gave “defense opinions,” and there was no reason to

believe that an expert appointed for the defense “would have

been any different.” The court concluded by stating that

based on Dr. Potts’s testimony, “I don’t really see any

grounds for any additional psychiatric or psychological

testing.”

On July 1, 1999, counsel filed the PCR petition, raising

twenty-five claims. Among the petition’s exhibits were a

declaration from defense trial counsel and an affidavit from

Peggy. At an informal conference on February 23, 2000, the

court ruled on several of Jones’s claims, and set others for an

evidentiary hearing. In particular, the court denied Claim 1

(as numbered in this appeal) on the merits. The court set

Claim 2 (as numbered in this appeal), as well as other claims,

for evidentiary hearing.

At the evidentiary hearing, Randy, Peggy, and defense

trial counsel testified. Randy testified that he first spoke to

counsel in July 1992, a few months after Jones’s arrest. 

During this conversation, Randy told counsel about Jones’s

head injuries, as well as his struggles with substance abuse

and stints in rehabilitation programs. Randy next spoke to

counsel when he came to visit Peggy and Randy at their home

in Reno in October 1993, about six weeks before sentencing.

Peggy testified that she had provided counsel with a

chronology of Jones’s life during counsel’s visit. Peggy

remembered sharing about Jones’s difficult birth and the

physical abuse she and Jones suffered at the hands of Jones’s

biological father and first step-father. Peggy shared that
JONES V. RYAN 13

Jones had a good home life and a normal childhood once she

married Randy, when Jones was about seven or eight years

old.

Trial counsel testified that at the time he was appointed to

represent Jones, he had been an attorney for three and a half

years and his experience with capital cases consisted of

having been second chair at the penalty phase in one prior

case. He stated that his strategy for defending the killing of

Robert Weaver was self-defense, so he hired Dr. Sparks as an

addictionologist to testify about Jones’s state of mind. 

Dr. Sparks opined at trial that because of the drugs Jones

ingested, he was unable to premeditate the killings. 

Dr. Sparks was not called to testify at sentencing.

When PCR counsel asked trial counsel if he visited

Jones’s family early enough in the case to adequately develop

mitigation evidence, trial counsel responded that Dr. Potts

was able to make effective use of the information obtained

from the family. He said that Dr. Potts was a “very favorable

mitigation witness for the defense.” He stated that it felt to

him like Dr. Potts was part of the defense team, even though

he was appointed as a court expert. Finally, counsel stated

that he did not consider the need for testing by a

neuropsychologist until Dr. Potts suggested it to him on

December 7, 1993, the evening before Jones’s sentencing

hearing.

In the affidavit he provided as an exhibit to the PCR

petition, trial counsel stated that he asked the court for $5,000

for expert witnesses at trial. When the trial court authorized

only $2,000 of the $5,000 he requested, he “was of the

opinion that it would be fruitless to ask the court for

additional funding for any other needed experts such as an
14 JONES V. RYAN

independent psychiatrist or psychologist.” Counsel added

that he did not ask his supervisor for any money because he

believed that the public defender’s office did not have

sufficient funds for retaining expert witnesses.

After the hearing, the PCR court denied Claim 2 as well

as the remaining pending claims. As to Claim 2, the court

stated that “[t]he report and testimony of Dr. Potts[,] who was

appointed by the Court, adequately addressed defendant’s

mental health issues at sentencing.”

Jones filed a petition for review in the Arizona Supreme

Court, which it denied on February 13, 2001.

D

Jones subsequently filed his federal petition for habeas

relief. The district court granted an evidentiary hearing with

regard to Claims 1 & 2 based on trial counsel’s failure to

secure the appointment of a mental health expert and failure

to move for neurological and neuropsychological testing.

The district court subsequently dismissed both ineffective

assistance of counsel (“IAC”) claims. The court denied

Claim 1 because counsel’s “failure to seek the appointment

of a mental health expert in a more timely manner did not

prejudice Petitioner.” The district court explained that “the

Court has not been presented with evidence confirming that

Petitioner suffers from neurological damage caused by head

trauma or other factors. Therefore, Dr. Potts’s finding at

sentencing remains the most persuasive statement in the

record that neurological damage constituted a mitigating

factor.” The district court dismissed Claim 2 after finding

that Jones could only prove that he suffered from AD/HD
JONES V. RYAN 15

residual type and possibly a low level mood disorder. The

district court “conclud[ed] that the trial court would have

assigned minimal significance to testimony indicating that

Petitioner suffered from ADHD [sic] and a low-level mood

disorder, and that this weight would not have outbalanced the

factors found in aggravation.”

E

Jones timely appealed the district court’s denial of his

petition for a writ of habeas corpus. We reversed the district

court and concluded that Jones received IACwarranting relief

on his claims regarding his counsel’s failure to secure the

appointment of a mental health expert, failure to timely move

for neurological and neuropsychological testing, and failure

to present additional mitigation witnesses and evidence. See

Jones, 583 F.3d at 636.

The State petitioned for certiorari. The Supreme Court

granted the petition, vacated our judgment, and remanded the

case for further consideration in light of Cullen v. Pinholster,

563 U.S. 170 (2011). See Ryan v. Jones, 563 U.S. 932

(2011).

On remand from the Supreme Court, we remanded the

case to the district court to consider, under Martinez v. Ryan,

566 U.S. 1 (2012), and Dickens v. Ryan, 740 F.3d 1302 (9th

Cir. 2014) (en banc), “Jones’s argument that his ineffective

assistance of counsel claims are unexhausted, and therefore

procedurally defaulted, and that the deficient performance by

his counsel during his post-conviction relief case in state

court excuses the default.” Jones v. Ryan, 572 F. App’x 478

(9th Cir. 2014) (Mem.). We expressed “no opinion on any

other issue raised on appeal,” and noted that “[t]hose issues
16 JONES V. RYAN

are preserved for later consideration by the Court, if

necessary.” Id.

On remand, the district court rejected Jones’s arguments. 

The district court determined that Jones’s claims had not been

fundamentally altered, and therefore, they had previously

been exhausted and were not subject to de novo review. 

Additionally, the court concluded that PCR counsel was not

ineffective as required by Martinez, so any default would not

be excused anyway. 566 U.S. 1. Jones filed a timely notice

of appeal and stated that he was also appealing “all prior

orders disposing of other claims, either on the merits or

procedurally.”

II

We review de novo a district court’s dismissal of a habeas

petition. Sexton v. Cozner, 679 F.3d 1150, 1153 (9th Cir.

2012). We review a district court’s findings of fact for clear

error. Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010).

Because Jones filed his petition after April 24, 1996,

AEDPA applies to our review of this petition. See Summers

v. Schriro, 481 F.3d 710, 712 (9th Cir. 2007). Under

AEDPA, habeas relief may not be granted unless the state

court’s decision was: (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States;” or

(2) “based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 

28 U.S.C. § 2254(d)(1)–(2).

“A state court decision is ‘contrary to’ clearly established

Supreme Court precedent if the state court applies a rule that
JONES V. RYAN 17

contradicts the governing law set forth in Supreme Court

cases or if the state court confronts a set of facts materially

indistinguishable from those at issue in a decision of the

Supreme Court and, nevertheless, arrives at a result different

from its precedent.” Lambert v. Blodgett, 393 F.3d 943, 974

(9th Cir. 2004) (citing Lockyer v. Andrade, 538 U.S. 63, 73

(2003)). A state court’s decision is an “unreasonable

application” of federal law if it “identifies the correct

governing principle from[the Supreme] Court’s decisions but

unreasonably applies that principle to the facts of the

prisoner’s case.” Id. (internal quotations and citation

omitted). The Supreme Court has explained that the

exceptions based on “clearly established” law refer only to

“the holdings, as opposed to the dicta, of th[e] Court’s

decisions as of the time of the relevant state-court decision.” 

(Terry) Williams v. Taylor, 529 U.S. 362, 412 (2000) (“Terry

Williams”). Circuit precedent may not clearly establish

federal law for purposes of § 2254(d), but we may “look to

circuit precedent to ascertain whether it has already held that

the particular point in issue is clearly established by Supreme

Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64

(2013).

With respect to § 2254(d)(2) claims, “a state-court factual

determination is not unreasonable merely because the federal

habeas court would have reached a different conclusion in the

first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). If

“‘[r]easonable minds reviewing the record might disagree’

about the finding in question, ‘on habeas review that does not

suffice to supersede the trial court’s . . . determination.’” Id.

(quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006)).

If a petitioner can overcome the § 2254(d) bar with

respect to the claims the state court did address, he must also
18 JONES V. RYAN

demonstrate that he is entitled to relief without the deference

required by AEDPA. See Panetti v. Quarterman, 551 U.S.

930, 953–54 (2007). Where the state court did not reach a

particular issue, § 2254(d) does not apply, and we review the

issue de novo. See Rompilla v. Beard, 545 U.S. 374, 390

(2005); see also Weeden v. Johnson, 854 F.3d 1063, 1071

(9th Cir. 2017) (“Because the [state court] did not reach the

issue of prejudice, we address the issue de novo.”).

Pursuant to Pinholster, our § 2254(d) analysis is limited

to the facts in the state court record. 563 U.S. at 185. 

However, in narrow circumstances, when we review a claim

de novo, and when a petitioner satisfied the standard for an

evidentiary hearing in federal district court pursuant to

§ 2254(e)(2) by exercising diligence in pursuing his claims in

state court, we may consider the evidence developed in

federal court. See id.; see also id. at 212–13 (Sotomayor, J.,

dissenting); see also Schriro v. Landrigan, 550 U.S. 465, 473

n.1 (2007).

III

In Claims 1 and 2, Jones alleges that his counsel provided

IAC at sentencing. To prove a constitutional violation for

IAC, Jones must show (1) “that counsel’s performance was

deficient,” and (2) “that the deficient performance prejudiced

the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). Counsel’s performance is deficient if, considering all

the circumstances, it “fell below an objective standard of

reasonableness . . . . under prevailing professional norms.” 

Id. at 688. Under this objective approach, we are required “to

affirmatively entertain” the range of possible reasons counsel

might have proceeded as he or she did. Pinholster, 563 U.S.

at 196. To establish prejudice under Strickland, a petitioner
JONES V. RYAN 19

must “show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694.

Our review of a Strickland claim under § 2254(d) is

“doubly deferential,” requiring the court to apply AEDPA

deference on top of Strickland deference. Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). Because the state

court reached only the deficient performance prong of Jones’s

IAC claims, we review only that prong under § 2254(d) and

we review the prejudice prong of his claims de novo.

IV

A

In Claim 1, Jones asserts that his trial counsel was

constitutionally ineffective by failing to secure a defense

mental health expert. He asserts that his right to counsel was

violated when his attorney failed to request a mental health

expert in advance of the sentencing hearing. For the reasons

below, we agree.

The state court record demonstrates that counsel’s failure

to timely seek a mental health expert fell below “prevailing

professional norms.” Strickland, 466 U.S. at 688. “[C]ounsel

has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations

unnecessary.” Id. at 691. Counsel has an “obligation to

conduct a thorough investigation of the defendant’s

background.” Terry Williams, 529 U.S. at 396 (citing

American Bar Association (“ABA”) Standards for Criminal
20 JONES V. RYAN

Justice 4–4.1, commentary, p.4–55 (2d ed 1980)). “Criminal

cases will arise where the only reasonable and available

defense strategy requires consultation with experts or

introduction of expert evidence.” Hinton v. Alabama,

571 U.S. 263, 273 (2014) (quoting Harrington v. Richter,

562 U.S. 86, 106 (2011)). And further, counsel’s failure to

investigate and present evidence of a defendant’s mental

defect constitutes deficient performance. Terry Williams,

529 U.S. at 396. In light of Terry Williams, we have also

held that counsel’s performance may be deficient “if he ‘is on

notice that his client may be mentally impaired,’ yet fails ‘to

investigate his client’s mental condition as a mitigating factor

in a penalty phase hearing.’” Caro v. Woodford, 280 F.3d

1247, 1254 (9th Cir. 2002) (quoting Hendricks v. Calderon,

70 F.3d 1032, 1043 (9th Cir. 1995)). Such performance is

deficient because “[a]t the penalty phase, counsel’s duty to

follow up on indicia of mental impairment is quite different

from—and much broader and less contingent than—the more

confined guilt-phase responsibility.” Bemore v. Chappell,

788 F.3d 1151, 1171 (9th Cir. 2015). “[I]t is imperative that

all relevant mitigating information be unearthed for

consideration at the capital sentencing phase.” Id. (quoting

Wharton v. Chappell, 765 F.3d 953, 970 (9th Cir. 2014)). 

Moreover, the failure to “make even [a] cursory

investigation” into available means of obtaining additional

funding for expert witnesses may amount to deficient

performance under Strickland. See Hinton, 571 U.S. at 274.
JONES V. RYAN 21

Additionally, the 1989 ABA Guidelines5in effect at the

time of Jones’s sentencing, explain that in capital cases,

“[c]ounsel should secure the assistance of experts where it is

necessary or appropriate for: . . .” “the sentencing phase of

the trial,” and the “presentation of mitigation.” ABA

Guidelines for the Appointment and Performance of Counsel

in Death Penalty Cases, Guideline 11.4.1(d)(7), p. 16 (1989). 

The Guidelines explain that “[i]n deciding which witnesses

and evidence to prepare for presentation at the sentencing

phase, counsel should consider the following: . . . Expert

witnesses to provide medical, psychological, sociological or

other explanations for the offense(s)[.]” Id. at Guideline

11.8.3(F)(2), p. 23–24. The Guidelines also note that, among

the topics the defense should consider presenting at

sentencing, is “[m]edical history (including mental and

physical illness or injury, alcohol and drug use, birth trauma

and developmental delays)” as well as “[e]xpert testimony

concerning [the client’s medical history] and the resulting

impact on the client, relating to the offense and to the client’s

potential at the time of sentencing.” Id. at Guideline

11.8.6(B)(1)&(8), p. 25–26.

5 We may look to the ABA Guidelines as indicators of the prevailing

norms of practice at a given time. See Strickland, 466 U.S. at 688

(“Prevailing norms of practice as reflected in American Bar Association

standards and the like . . . are guides to determining what [performance]

is reasonable, but they are only guides.”); see also Rompilla, 545 U.S.

at 387 n.7 (using language of 1989 and 2003 ABA Guidelines to evaluate

performance at 1988 trial); Florida v. Nixon, 543 U.S. 175, 191 (2004)

(using 2003 ABA Guidelines to evaluate counsel’s performance at trial);

but see Bobby v. Van Hook, 558 U.S. 4, 8 (2009) (“Strickland stressed,

however, that American Bar Association standards and the like are only

guides to what reasonableness means, not its definition. We have since

regarded them as such.” (citations and quotations omitted)).
22 JONES V. RYAN

Moreover, “[t]he timing of this investigation is critical.” 

Allen v. Woodford, 395 F.3d 979, 1001 (9th Cir. 2005)

(quotation and citation omitted); see also Heishman v. Ayers,

621 F.3d 1030, 1036–37 (9th Cir. 2010). The Supreme Court

has found constitutional error “where counsel waited until

one week before trial to prepare for the penalty phase, thus

failing to adequately investigate and put on mitigating

evidence.” Allen, 395 F.3d at 1001 (citing Terry Williams,

529 U.S. at 395). “If the life investigation awaits the guilt

verdict, it will be too late.” Id. (citation and quotation

omitted). “[L]egal experts agree that preparation for the

sentencing phase of a capital case should begin early and

even inform preparation for a trial’s guilt phase[.]” Id.

“Counsel’s obligation to discover and appropriately present

all potentially beneficial mitigating evidence at the penalty

phase should influence everything the attorney does before

and during trial[.]” Id. (citation and quotation omitted). 

Moreover, the 1989 ABA Guidelines state that “[c]ounsel

should conduct independent investigations relating to the

guilt/innocence phase and to the penalty phase of a capital

trial[,]” and “[b]oth investigations should begin immediately

upon counsel’s entry into the case and should be pursued

expeditiously.” ABA Guidelines for the Appointment and

Performance of Counsel in Death Penalty Cases, Guideline

11.4.1(A), p. 13 (1989) (emphasis added); see also id. at

Guideline 11.8.3, p. 23 (“[P]reparation for the sentencing

phase, in the form of investigation, should begin immediately

upon counsel’s entry into the case.”).

The state court record shows that counsel was on notice

that Jones may have been mentally impaired, yet counsel

failed to investigate Jones’s mental condition as a mitigating

factor, and he failed to obtain a defense mental health expert. 

Counsel was in possession of medical records showing that
JONES V. RYAN 23

Jones formerly attempted suicide at age twenty-two; Peggy

told counsel that Jones experienced extreme moods swings,

but these swings stabilized when he had been medicated with

lithium; and Peggy and Randy told counsel that Jones was

“often a disturbed child,” and they had to seek psychiatric

help for him at age nine. This evidence would have led a

reasonable attorney to investigate further and obtain a defense

mental health expert. See Wiggins v. Smith, 539 U.S. 510,

527–28 (2003).

An investigation into Jones’s mental health should have

been pursued far in advance of when counsel requested that

Jones undergo a mental health examination pursuant to

Arizona Rule of Criminal Procedure 26.5. Counsel should

have obtained a defense mental health expert well before the

start of the guilt phase of Jones’s trial, but instead, he waited

to make this request until after Jones had already been

convicted on September 13, 1993. See Allen, 395 F.3d

at 1001.

Obtaining the court-appointed, independent expert’s short

and cursory evaluation did not satisfy this duty. See

Lambright v. Schriro, 490 F.3d 1103, 1120–21 (9th Cir.

2007) (“Counsel may not rely for the development and

presentation of mitigating evidence on the probation officer

and a court appointed psychologist. . . . The responsibility to

afford effective representation is not delegable to parties who

have no obligation to protect or further the interests of the

defendant.” (emphasis added)). Moreover, Dr. Potts’s

evaluation and opinions were limited in that he was a

psychiatrist not trained in matters involving organic brain

function—information that a neuropsychologist could have

developed and presented. Dr. Potts had no obligation to

further the interests of the defendant, even if he did present a
24 JONES V. RYAN

defense-favorable opinion, and his expertise and evaluation

did not extend to the precise topic—organic brain

function—that was essential in Jones’s case.

Finally, the state court record establishes that the failure

to obtain a defense expert here cannot be justified as a

reasonable strategic decision. First and foremost, counsel’s

failure to obtain a mental health expert was based not on

strategy, but on lack of preparation, which left counsel

unaware of the importance of this evidence. Counsel failed

to speak adequately to Jones and Jones’s family to obtain a

full picture of Jones’s mental health history. For instance,

even though when Jones was interviewed for the PSR, Jones

reported he was “mentally abused by his first step-father, and

later physically abused by a second step-father,” and he

characterized his childhood as “bad and unhappy,” when

questioning Dr. Potts at sentencing, defense counsel brushed

aside a mention of Randy’s physical abuse, referring to it as

“clearly a mistake,” even though the information came from

Jones himself.

Given this lack of preparation, unsurprisingly, counsel

stated that he never even considered the need for testing by a

neuropsychologist until Dr. Potts suggested it to him the

evening before Jones’s sentencing hearing. He attested that

prior to meeting with Dr. Jack Potts, M.D. on

December 7, 1993 to discuss his evaluation of

Danny Jones, [he] was not aware that

neurological or neuropsychological testing

was necessary and available which could

determine the exact nature of injuries to

Danny Jones’ brain from long term substance
JONES V. RYAN 25

abuse and head injury and the resulting affect

on his behavior and conduct.

This fell below a reasonable standard of performance given

the indications that Jones likely suffered from some form of

mental illness.

Although we need “not indulge ‘post hoc rationalization’

for counsel’s decisionmaking that contradicts the available

evidence of counsel’s actions,” Harrington, 562 U.S. at 109

(quoting Wiggins, 539 U.S. at 526–27), even imagining one

potential strategic reason for counsel’s failure to obtain an

expert—that the defense could not afford one—the failure to

attempt to obtain a defense expert was neither reasonable nor

informed. In the declaration he provided in the state PCR

proceeding, defense counsel stated that he believed “the

Mohave County Public Defender’s Office did not have

sufficient monies for retaining expert witnesses,” and so he

“did not ask Mr. Everett [the Mohave Public Defender] for

any funding for additional necessary experts in State vs.

Jones.” But according to Kenneth Everett’s affidavit

provided to the state PCR court, “[i]n the last quarter of 1993,

approximately Seven Thousand ($7,000.00) Dollars would

have been available for experts . . . in regard to all cases that

the Public Defender had in that last quarter, including the

Danny Lee Jones case.” Everett also stated that during the

relevant time period, counsel “perhaps could have expended

additional funds for experts for additional mitigation

evidence,” although he did recognize that counsel needed “to

be circumspect” about requesting such funds.6 But, contrary

6 Counsel could also have gone back to the trial court for additional

funding. In granting only $2,000 of counsel’s $5,000 request for funding,

the court stated that:
26 JONES V. RYAN

to the Supreme Court’s ruling in Hinton, counsel never even

looked into requesting funding through the Public Defender’s

Office. See Hinton, 571 U.S. at 274 (trial attorney’s failure

to request additional funding was deficient when he

mistakenly believed he had received all the funding

available).

In sum, the state court record demonstrates that trial

counsel was constitutionally ineffective by failing to secure

a defense mental health expert. Thus, pursuant to

§ 2254(d)(1), the Arizona Supreme Court’s contrary

conclusion was an unreasonable application of Strickland and

its progeny.

B

Alternatively, Jones argues that the state PCR court’s

decision was based on an unreasonable determination of the

facts under § 2254(d)(2). He argues that the court employed

a defective fact-finding process with respect to Claim 1 when

it denied PCR counsel’s funding request for a defense

neuropsychological expert, effectively preventing the factual

development of this claim. He also asserts that the state

court’s failure to hold a hearing on Claim 1 resulted in an

If this is all you need pretrial, you may need more at

trial, and then of course the sentencing hearing if we get

that far, so—but, I am willing to go $2,000 prior to

trial, and then with the understanding that I am willing

to listen again if you need more.

Jones, 583 F.3d at 629 n.2. Although this statement may not have been

specifically included in the state court record, there is no doubt the PCR

court was aware of it; the same judge who sentenced Jones to death

presided at his PCR hearing.
JONES V. RYAN 27

unreasonable determination of the facts. We agree with both

arguments.

Under § 2254(d)(2), a petitioner may challenge a state

court’s conclusion that is based upon an unreasonable

determination of the facts. We have noted that § 2254(d)(2)

challenges “come in several flavors.” Taylor v. Maddox,

366 F.3d 992, 1000 (9th Cir. 2004), overruled on other

grounds by Murray v. Schriro, 745 F.3d 984, 999–1000 (9th

Cir. 2014). For instance, we have stated that a petitioner may

overcome the § 2254 (d)(2) bar if the fact-finding “process

employed by the state court is defective.” Id. at 999 (citing

Nunes v. Mueller, 350 F.3d 1045, 1055–56 (9th Cir. 2003)). 

“We have held repeatedly that where a state court makes

factual findings without an evidentiary hearing or other

opportunity for the petitioner to present evidence, the factfinding process itself is deficient, and not entitled to

deference.” Hurles v Ryan, 752 F.3d 768, 790 (9th Cir. 2014)

(amended) (quotations omitted); see also Perez v. Rosario,

459 F.3d 943, 950 (9th Cir. 2006) (amended) (“In many

circumstances, a state court’s determination of the facts

without an evidentiary hearing creates a presumption of

unreasonableness.”). This is particularly the case where a

judge bases factual findings on their own personal conduct,

untested memory, or understanding of events in the place of

an evidentiary hearing. See Hurles, 752 F.3d at 791 (finding

it “especially troubling” when a judge’s factual findings

involved her own conduct and were based on her “untested

memory and understanding of the events”). Similarly, a factfinding process may be fatally undermined “where the state

courts plainly misapprehend or misstate the record in making

their findings, and the misapprehension goes to a material

factual issue that is central to petitioner’s claim.” Taylor,

366 F.3d at 1001; see also Wiggins, 539 U.S. at 528. And
28 JONES V. RYAN

likewise, a fact-finding process may be deemed defective

when the end result requires the court to make a finding on

“an unconstitutionally incomplete record.” Milke v. Ryan,

711 F.3d. 998, 1007 (9th Cir. 2013). For a petitioner to

prevail on these types of § 2254(d)(2) arguments, however,

“we must be satisfied that any appellate court to whom the

defect is pointed out would be unreasonable in holding that

the state court’s fact-finding process was adequate.” Taylor,

366 F.3d at 1000.

The PCR court’s decision not to hold a hearing on

Claim 1 amounted to an unreasonable determination of the

facts. The court ruled on Claim 1 without holding an

evidentiary hearing because it found that Dr. Potts essentially

satisfied the role of a defense mental health expert. In

response to PCR counsel’s argument that a defendant is

entitled to his own mental health expert in capital cases, not

a court-appointed independent expert, the court explained

that:

Dr. Potts was a very good expert. He was

defense oriented. The prosecutor, I can

remember, was very upset about that. . . . I’m

going to deny [this claim] because I don’t

think counsel was ineffective as far as

Dr. Potts.

The fact that the PCR court made this factual finding

regarding Dr. Potts’s role without holding an evidentiary

hearing or opportunity for Jones to present evidence, suggests

that the PCR court’s fact-finding process was deficient. See

Hurles, 752 F.3d at 790. However, the process was even

more unreasonable because, even though more than six years

had passed, the judge based this finding solely on his own
JONES V. RYAN 29

untested memory and personal impression of Dr. Potts’s role

in the sentencing hearing. See id. at 791. The judge who

presided over Jones’s state PCR proceeding was the same

judge who sentenced him to death, and in denying a hearing

on this claim, the judge relied primarily on his personal

recollection of Dr. Potts’s testimony and his memory that the

prosecution was upset that Dr. Potts testified favorably for the

defense. There is no evidence the PCR court considered

anything else in denying the request for a hearing.

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

making its finding that Dr. Potts satisfied the role of a defense

mental health expert. See Taylor, 366 F.3d at 1001. Dr. Potts

was not a defense expert, and the fact his conclusions were

favorable to the defense does not support that he filled that

role. Nothing about the circumstances of Dr. Potts’s

testimony suggests otherwise. Dr. Potts testified at Jones’s

sentencing hearing that he regularly prepares psychological

reports requested by the courts, that “at times are favorable

apparently for the State” and at other times are favorable “for

the defense[.]” He also explained that in other cases like

Jones’s, he had found little or no mitigation for the defendant. 

Moreover, the limited amount of time Dr. Potts spent on his

report and the level of analysis and detail that report provided

do not support the conclusion that he was an advocate for the

defense team. Dr. Potts submitted only a six-page report to

the court. He agreed that he was under “significant time

pressure” in preparing the report because he received the PSR

late from Mohave County. He met with Jones for a total of

four hours at the prison, and spent one and a half hours of that

time administering an MMPI personality test. On the day

before he testified, Dr. Potts also spoke to Jones for “a couple

of hours,” Peggy for about thirty minutes, and Randy for one
30 JONES V. RYAN

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

and

valuable to have had some neurologic

evaluations, not – by a neurologist, clinical

exam, such as a CAT scan, possibly an MRI,

possibly EEG, possibly some sophisticated

neurological testing, because I think there’s

very strong evidence that we have – well,

there’s clear evidence that we have, I believe,

of traumatic brain injury, and there’s some

other evidence that I believe we may have

organic neurological dysfunctions here that

has gone on since he’s been about 13. So

there’s some other testing that I think would

be valuable to have to pin down the diagnosis.

Nothing about Dr. Potts’s role in the sentencing hearing

suggests that he had stepped into the shoes of a defense

expert.

The PCR court’s decision not to fund a defense mental

health expert fatally undermined the fact-finding process, in

part because that decision resulted in the court ruling on an

unconstitutionally incomplete record. Without funding for a

mental health expert, it was impossible for Jones to

demonstrate that he had been prejudiced by counsel’s failure

to obtain one during the course of Jones’s criminal

proceedings. Jones could not demonstrate the inadequacy of

counsel’s mitigation case without providing the mitigation

evidence that could have been presented by a defense

neuropsychological expert. Moreover, without funding,

Jones could not show that a defense neuropsychological

expert would have presented materially different evidence
JONES V. RYAN 31

than that already provided by Dr. Potts. By failing to provide

additional funding to develop Jones’s mental health

mitigation evidence, the state court, as Jones phrases it,

created “its own self-fulfilling prophecy,” by preventing the

development of the claim before it was even presented.

We emphasize that we are not suggesting that any denial

of an evidentiary hearing or denial of funding for an expert

would lead to a deficient fact-finding process in state court.

Our determination is expressly limited to the facts of this

case: The judge denied an evidentiary hearing based on his

personal recollection of a sentencing proceeding that took

place six years prior—a proceeding in which the sole, courtappointed expert opined that further neurological testing was

desirable.

For these reasons, we conclude that any appellate court

would conclude that the PCR court’s factual determination as

to Dr. Potts and its fact-finding process with respect to

Claim 1 were unreasonable and inadequate. See Taylor,

366 F.3d at 1000. Accordingly, Jones has satisfied the

requirements of § 2254(d)(2).

C

Although § 2254(d) typically also applies to the prejudice

prong of a petitioner’s IAC claim, here, the PCR court did not

reach the issue of prejudice, and so we review the issue de

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

Pinholster limits our § 2254(d) analysis to the facts in the

state court record. 563 U.S. at 185. However, Pinholster

does not prevent us from considering evidence presented for

the first time in federal district court in reviewing the merits
32 JONES V. RYAN

of Jones’s claims de novo. As the district court found, Jones

satisfied the standard for an evidentiary hearing pursuant to

§ 2254(e)(2)7. That provision permits federal district courts

to hold evidentiary hearings and consider new evidence when

petitioners have exercised diligence in pursuing their claims

in state court. See id. (“Section 2254(e)(2) continues to have

force where § 2254(d)(1) does not bar federal habeas relief.”);

see id. at 212–13 (Sotomayor, J., dissenting); (Michael)

Williams v. Taylor, 529 U.S. 420, 436–37 (2000) (“Michael

Williams”).

Though § 2254(e)(2) limits the discretion of district

courts to conduct evidentiary hearings, Pinholster, 563 U.S.

7

 Section 2254(e)(2) states that

If the applicant has failed to develop the factual basis of

a claim in State court proceedings, the court shall not

hold an evidentiary hearing on the claim unless the

applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made

retroactive to cases on collateral review by the

Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have

been previously discovered through the

exercise of due diligence; and

(B) the facts underlying the claim would be

sufficient to establish by clear and convincing

evidence that but for constitutional error, no

reasonable factfinder would have found the

applicant guilty of the underlying offense.
JONES V. RYAN 33

at 203 n.20, it does not impose an express limit on

“evidentiary hearings for petitioners who ha[ve] been diligent

in state court.” Id. at 213 (Sotomayor, J. dissenting); see also

Landrigan, 550 U.S. at 473 n.1. Here, the federal district

court determined that Jones had been diligent in attempting

to develop the factual basis for Claims 1 and 2 in state court,

and the State does not contest that determination now. The

state court record shows that Jones was diligent. His PCR

counsel requested funding for a neuropsychologist and “a

thorough and independent neurological assessment” to assist

in the development of Claims 1 and 2, but the PCR court

denied the request. Therefore, the district court did not err in

its expansion of the record, and we consider the evidence

developed in federal district court in conducting de novo

review of Jones’s claims.

To prevail on his IAC claim, Jones must demonstrate that

his trial counsel: (1) performed deficiently; and (2) Jones’s

defense was prejudiced by that deficient performance. 

Strickland, 466 U.S. at 687. He has done so.

For all the reasons set forth previously in our § 2254(d)(1)

analysis, Jones has demonstrated that counsel’s performance

fell below an objective standard of reasonableness and below

the prevailing professional norms at the time of Jones’s

proceedings.

Additionally, Jones has demonstrated that counsel’s

failure to obtain a defense mental health expert for the

penalty phase of Jones’s trial prejudiced the defense. Jones

has demonstrated that there is a “reasonable probability” that

had such an expert been retained, “the result of the

proceeding would have been different.” Id. at 694.
34 JONES V. RYAN

There is a reasonable probability that had counsel secured

a defense mental health expert, that expert would have

uncovered (and presented at sentencing) a wealth of available

mitigating mental health evidence. The main mitigation

witness in state court was Randy, Jones’s second step-father. 

Randy erroneously testified that Jones enjoyed a stable home

life after age seven, when Randy married Jones’s mother, and

yet the trial court found that his testimony was sufficient to

prove a number of non-statutory mitigating circumstances. 

Had counsel secured a mental health expert, that expert could

have provided substantial evidence—through

neuropsychological testing or otherwise—that Jones suffered

from mental illness, including evidence supporting any of the

diagnoses made by experts in federal district court:

(1) cognitive dysfunction (organic brain damage and a history

of numerous closed-head injuries); (2) poly-substance abuse;

(3) post-traumatic stress disorder (“PTSD”); (4) attention

deficit/hyperactivity disorder (“AD/HD”); (5) mood disorder;

(6) bipolar depressive disorder; and (7) a learning disorder. 

The experts retained in Jones’s federal habeas proceedings

provided significant evidence of these conditions,

demonstrating that such evidence could have been uncovered

and presented at sentencing.

Dr. Pablo Stewart, Chief of Psychiatric Services at the

Haight Ashbury Free Clinic in San Francisco, California,

testified at the federal evidentiary hearing. He estimated that

he spent 130 hours working on Jones’s case, in contrast to the

four hours Dr. Potts was able to spend with Jones prior to

sentencing. Dr. Stewart diagnosed Jones with cognitive

dysfunction, PTSD, polysubstance abuse, and mood disorder,

not otherwise specified. He ultimately concluded that “[t]he

circumstances surrounding Mr. Weaver’s death are a direct

consequence of [Jones’s] abused and unfortunate past.”
JONES V. RYAN 35

Dr. Stewart testified to a number of factors that may have

contributed to Jones’s cognitive dysfunction that occurred

before Jones was even born. He noted that Jones’s mother,

Peggy, worked in a chrome hub cab plating factory when she

was pregnant with Jones, and chrome exposure may

negatively affect a baby’s birth. He testified that Peggy’s

prenatal diet was also of concern: Peggy reported that during

her pregnancy with Jones, her diet consisted of cigarettes,

coffee, and mayonnaise sandwiches. He expressed that the

use of nicotine during pregnancy has been directly linked to

cognitive dysfunction in children and caffeine exposure

results in more difficult births. He also specified that Jones’s

father beat Peggy during her pregnancy such that there was a

potential for physical trauma to the fetus. And he testified to

Jones’s traumatic and difficult birth: Jones was born in the

breech position, with the umbilical cord wrapped around his

neck, and forceps were used. He testified that any of these

factors could have been potential contributors to Jones’s

cognitive dysfunction.

Dr. Stewart testified that Jones had suffered multiple

serious head injuries over the course of his life, and he went

into much greater detail than Randy had provided regarding

Jones’s head injuries at the state PCR proceeding. Randy had

testified that Jones fell off a roof when he was approximately

thirteen, fell off a scaffolding when he was approximately

fifteen, was mugged while serving in the Marines, and

experienced spontaneous blackouts around the age of four. 

By contrast, Dr. Stewart described an incident where Jones

“was about eleven (11) years old, he fell, head-first off a roof

onto the metal frame of a horizontal dolly, in an attempt to

retrieve a ball. His eye hit the metal bar of the dolly. He was

unconscious for about five (5) to ten (10) minutes.” He also

noted the fall when Jones was fifteen, but additionally, he
36 JONES V. RYAN

explained that “[a]s a young adult, Danny had at least three

(3) car accidents where he lost consciousness.” Further,

“when Danny was about five-and-a-half (5 1⁄2) years old,

Peggy found Danny regaining consciousness, lying

underneath the swing set. She suspected Eland, Danny’s first

step-father, had hit Danny or thrown him off the slide. 

Danny’s face was red and he vomited, indicating he had a

concussion.” Dr. Stewart elaborated on the mugging Jones

suffered while in the Marines: he was “found lying

unconscious in a ditch along the highway, by a Morehead

City Police Officer, who took him to the hospital. Danny had

been mugged and beaten with a two-by-four.”

Dr. Stewart discussed PTSD and explained that Jones

suffered numerous traumatic experiences early in his life: he

watched his first step-father hold a jigsaw to his mother’s

neck and threaten to kill her, he watched that same step-father

shoot a gun at his mother, and on two separate occasions, his

second step-father, Randy, pointed a gun to his own head and

threatened to kill himself in front of Jones. He also noted that

Randy beat Jones for no reason with a belt with a buckle and

engaged in other forms of severe physical discipline. On

cross-examination the state challenged Dr. Stewart’s PTSD

diagnosis because Dr. Stewart stated that Jones “had PTSD at

the time of the murders,” but did not state that Jones was

having a flashback while committing the crimes. Dr. Stewart

responded by explaining that while the media tends to show

PTSD as being a person “who is thinking he’s being

ambushed and he takes people hostage,” that only occurs

“very, very rarely.” He explained:

The much more overwhelmingly more

common thing that occurs is a person having

a short fuse; a person overreacting to a
JONES V. RYAN 37

situation; a person finding themselves

challenged by some things and then just going

off; a person—and that’s PTSD. A person

who drinks too much and then gets into fights,

those are the more common thing. But those

don’t sell movies or books.

But that’s the more common presentation. So

that’s why I’m saying in the case of Mr.

Jones, it’s absolutely clear that he suffers

from PTSD, in my opinion, and that he carries

that with him throughout his entire life. 

Certainly on the day of these murders, that

was going on.

Dr. Stewart also testified that Jones’s first

step-grandfather forced Jones to drink alcohol when he was

only nine years old, and that it appeared the grandfather used

alcohol to get Jones drunk so it would be easier to sexually

abuse him. Dr. Stewart described the sexual abuse “as full

contact sexual abuse, including sodomy, including oral sex,

both the providing it and receiving it.” Jones became a daily

marijuana user when he was in junior high, he used one gram

of cocaine every weekend in high school, and he reported

using LSD two hundred times. Dr. Stewart explained that the

substance abuse appeared to have stemmed from Jones’s

genetic predisposition, and also because Jones used drugs

starting at a very young age to self-medicate as a means of

coping with his mental defects and past trauma.

Dr. Alan Goldberg, a psychologist in Arizona with a

speciality in neuropsychology, conducted a battery of tests

that covered multiple domains of cognitive functioning. 

Dr. Goldberg gave Jones approximately twenty-five tests and
38 JONES V. RYAN

found that “when we look at the patterns across many

different kinds of tests . . . we see a consistent inconsistency

in performance, that is, the performance is problematic on a

number of tests that all have an attention component to

them.” He ultimately diagnosed Jones with a learning

disability, attention deficit disorder, and Bipolar Disorder,

Depressed.

Jones submitted reports fromadditional experts,including

Dr. David Foy, a professor of psychology at Pepperdine

University. Dr. Foy diagnosed Jones with PTSD, polydrug

abuse, depressive disorder, compromised cognitive emotional

functioning, and various learning deficits. Dr. Foy described

the numerous instances of life-threatening family violence

Jones witnessed growing up, and found that on at least two

occasions Jones used a baseball bat to protect himself:

(1) when Jones threatened to kill Jones’s first step-father if he

did not stop beating Jones’s mother, Peggy; and (2) in order

to stop Jones’s first step-grandfather from continuing to

sexually abuse him. Dr. Foy concluded that

[t]he constant threat of sudden verbal attacks

or severe physical punishment in Danny’s

home environment would be expected to

produce an essential state of wariness or

hypervigilance . . . [and] would be expected to

lead to a heightened suspiciousness and

combat readiness as a systematic way of

responding, even in situations which later

proved to be non-life threatening.

Finally, Jones submitted a declaration from his younger

sister, Carrie. She said that, as a child, Jones twice watched

Randy point a gun at his own head and threaten to kill
JONES V. RYAN 39

himself. She stated that contrary to Randy’s testimony during

sentencing, Randy was both verbally and physically abusive

to Jones, and that Jones threatened to kill Randy if he kept

beating Peggy. Carrie also confirmed that Jones suffered

numerous head injuries while growing up.

The hearing also made clear that Dr. Potts had not been

tasked with providing mitigation evidence at sentencing and

had not conducted the extensive testing he felt was required. 

Potts explained: “I was not an expert for either party. I was

the Court’s expert in looking at some issues. I was not—it

was clear I was not hired for mitigation, nor was I hired for

aggravation.” The trial court had ordered Dr. Potts to

perform an evaluation pursuant to Rule 26.5 of the Arizona

Rules of Criminal Procedure. The Rule provides: “At any

time before the court pronounces a sentence, it may order the

defendant to undergo a mental health examination or

diagnostic evaluation. Unless the court orders otherwise, any

report concerning such an examination or evaluation is due at

the same time as the presentence report.” In line with this,

Dr. Potts had testified at Jones’s sentencing: “My main role

is working with Maricopa County Superior Court, criminal

division, coordinating competency evaluations, other

forensic, and working with patients. I also have clinical

responsibilities. . . . [I] [p]rimarily do reports as requested by

the Court.” When asked whether or not he had enough

“points of data” to pull from in reaching his conclusions, he

stated:

[T]here’s a clear distinction between a

mitigation specialist, and I’m no mitigation

specialist. I may be a part of a team of

mitigation, but I’m clearly not a mitigation
40 JONES V. RYAN

specialist in the realm of what is dealt with

now in capital cases. . . .

Mine was a cursory examination. . . .

[I]nterviewing one family member certainly is

not adequate, I believe, for what would be

considered capital mitigation. It is below the

standard of care.

He stated that, prior to his testimony at sentencing, he had

recommended that defense counsel seek neuropsychological

testing for Jones. During cross-examination, the State tried

to get Dr. Potts to admit that he only called for neurological

testing, not neuropsychological testing, but Dr. Potts

explained that “[s]ophisticated neurological testing would

include that.”

He described the reports submitted by the additional

experts at the habeas proceeding as the “documents I think

one would expect to see in mitigation. . . . I believe they’re

very, very helpful, and I think—I know I would have liked to

have had the exhaustive nature of these reports.” He stated

that he found his role constrained by his court-appointed

status, and therefore “did not make diagnoses,” because his

“role was not to make diagnoses . . . and that’s why I would

not have. I could have . . . but that was not the nature or tenor

of any of this report. . . .”

Defense trial counsel testified that Dr. Potts “did not act

as a neutral, detached court-appointed expert. He actively

assisted us in developing mitigation, planning strategy to a

much larger degree than what he indicated.” He explained

that he had “numerous phone conversations” with Dr. Potts,

they met together the night before Dr. Potts testified, and
JONES V. RYAN 41

Dr. Potts “stressed to ask for the continuance for the

additional testing.”

The testimony provided at the federal evidentiary hearing

demonstrates the types of mitigation evidence that could and

should have been presented at the penalty phase of Jones’s

trial. For instance, the evidence demonstrates that, had

counsel retained a defense mental health expert, that expert

could have provided testimony explaining the factors that

contributed to Jones’s cognitive dysfunction, including:

(1) prenatal chrome and nicotine exposure; (2) his mother’s

malnutrition during pregnancy; (3) fetal trauma frombeatings

by his father; (4) a traumatic birth; (5) several severe head

injuries; or (6) Jones’s substantial and extensive drug and

alcohol abuse, which began when he was eight or nine years

old. Any such evidence would have been significantly more

probative of Jones’s mental state and more persuasive in

reducing Jones’s culpability than Dr. Potts’s conditional

findings, compiled after far less preparation time and testing,

and comprising only a six-page report. These factors

illustrate how unfortunate circumstances outside of Jones’s

control combined to damage his cognitive functioning and

mental health at the time of his crimes.

Likewise, the mental health experts’ testimony in the

district court proceedings demonstrates that had trial counsel

retained such an expert for sentencing, he or she could have

provided evidence that Jones’s mental state was impaired by

drugs and alcohol at the time of his crimes. He or she also

could have offered context for his substance abuse and insight

into how Jones’s long-termself-medication affected his brain. 

As demonstrated at the federal evidentiary hearing, any

mental health expert engaged by the defense teamwould have

attempted to explain Jones’s lifelong history of substance
42 JONES V. RYAN

abuse and its physical effects on Jones’s brain. This would

have included compiling a family history and hard data

regarding Jones’s brain function. It also would have included

information addressing how and when Jones’s substance

abuse began. As the federal proceedings revealed, Jones

turned to substance abuse at an extremely young age in order

to self-medicate in response to the trauma he experienced

from being physically and sexually abused and as a result of

repeatedly witnessing violence directed at his mother. A

mental health expert would have relayed that Jones suffered

sexual abuse from age nine until age thirteen at the hands of

his step-grandfather, who introduced him to marijuana and

alcohol at age nine in order to facilitate that abuse. A mental

health expert could also have explained the trauma Randy

inflicted on Jones by detailing how Randy physically and

emotionally abused Jones, engaged in various forms of severe

physical discipline, and threatened suicide in front of Jones

and his family.

We are persuaded that testimony explaining Jones’s

history would have significantly impacted the overall

presentation of Jones’s culpability with respect to his mental

state, and painted a vastly different picture of Jones’s

childhood and upbringing. The mitigation case actually

presented to the sentencing court suggested that while Jones

had undergone a traumatic early childhood, he enjoyed a

largely normal childhood and supportive family after the age

of six. And because so little preparation had been done,

Dr. Potts erroneously testified at sentencing that Jones did not

suffer child abuse once Randy and Peggy married. Notably,

Randy was the only mitigation witness who testified at

Jones’s sentencing, and defense counsel was unaware that

Randy too was an abuser. Had counsel procured a mental

health expert, the mitigation case would have told the story of
JONES V. RYAN 43

an individual whose entire childhood was marred by extreme

physical and emotional abuse, which in turn funneled him

into early onset substance abuse that exacerbated existing

cognitive dysfunction.

In sum, there is at least a reasonable probability that

development and presentation of mental health expert

testimony would have changed the result of the sentencing

proceeding. Therefore, we conclude that Jones has

demonstrated Strickland prejudice on de novo review. See

Boyde v. California, 494 U.S. 370, 382 (1990) (“[E]vidence

about the defendant’s background and character is relevant

because of the belief, long held by this society, that

defendants who commit criminal acts that are attributable to

a disadvantaged background, or to emotional and mental

problems, may be less culpable than defendants who have no

such excuse.” (quoting Penry v. Lynaugh, 492 U.S. 302, 319

(1989))). Accordingly, we reverse the district court’s denial

of relief on Claim 1.

V

A

In Claim 2, Jones asserts that his trial counsel was

constitutionally ineffective by failing to seek neurological or

neuropsychological testing prior to sentencing. He asserts

that the failure to do so fell below prevailing professional

norms at the time. We agree.

As with Claim 1, counsel’s failure to promptly seek

neuropsychological testing ran contrary to his obligation to

pursue reasonable investigations under Strickland, and in

particular, his obligation to investigate and present evidence
44 JONES V. RYAN

of a defendant’s mental defect. See Terry Williams, 529 U.S.

at 396 (failure to investigate and present evidence of mental

defect amounts to deficient performance). The state court

record shows that counsel was on notice of numerous facts

from the very beginning of the representation that Jones may

have had significant brain damage. “[W]hen ‘tantalizing

indications in the record’ suggest that certain mitigating

evidence may be available, those leads must be pursued.” 

Lambright, 490 F.3d at 1117 (quoting Stankewitz v.

Woodford, 365 F.3d 706, 719–20 (9th Cir. 2004)); see also

Wiggins, 539 U.S. at 527 (“In assessing the reasonableness of

an attorney’s investigation, however, a court must consider

not only the quantum of evidence already known to counsel,

but also whether the known evidence would lead a reasonable

attorney to investigate further.”). Counsel specified in his

declaration before the PCR court that “prior to trial and

sentencing [he] was aware from interviews of Danny Jones

and his mother and step-father that he had been rendered

unconscious numerous times during his life from head

injuries,” as well as that “he had a significant history of

serious long term substance abuse.” Any reasonable attorney

would understand that these details could lead to valuable,

available mitigation evidence and would have pursued these

leads further.

However, in the state PCR proceedings, defense trial

counsel provided no strategic reason for his failure to arrange

for neuropsychological testing. Instead, trial counsel stated

that he “was not aware that neurological or

neuropsychological testing was necessary and available

which could determine the exact nature of injuries to Danny

Jones’ brain from long term substance abuse and head

injury,” nor that testing would shine a light on “the resulting

affect on his behavior and conduct.” Counsel’s failure to
JONES V. RYAN 45

appreciate the importance of such testing before the

sentencing phase of trial constituted deficient performance

because he failed to understand the value neuropsychological

testing could provide in Jones’s case, and by the time of

Jones’s sentencing in 1993, counsel in capital cases was

expected to be versed in the role of psychiatric evidence. See

ABA Guidelines for the Appointment and Performance of

Counsel in Death Penalty Cases, Guideline 5.1(1)(A)(v), p.

5–6 (1989) (“Lead trial counsel assignments should be

distributed to attorneys who . . . are familiar with and

experienced in the utilization of expert witnesses and

evidence, including, but not limited to, psychiatric and

forensic evidence.”).

Counsel’s request for testing (and a continuance) during

Jones’s sentencing hearing came far too late. As noted by

PCR counsel, the court denied these requests because it had

granted funding earlier in the case for expert assistance, and

“if there [had been] any follow-up questions of a

psychological or neurological nature,[the court expected] that

the defense would have followed them up.” The court,

therefore, was placing the burden on counsel to recognize

these issues and request funding and assistance earlier in the

case, which counsel failed to do because he had not invested

sufficient preparation time and research to be aware that such

testing was available and needed. Moreover, the timing of

counsel’s request for neuropsychological testing, like his

request for a defense mental health expert, was in itself

deficient. “[P]reparation for the sentencing phase of a capital

case should begin early and even inform preparation for a

trial’s guilt phase.” Allen, 395 F.3d at 1001. For this reason,
46 JONES V. RYAN

the PCR court’s decision that defense counsel’s performance

did not fall below an objectively reasonable standard was an

unreasonable application of Strickland. Jones has satisfied

§ 2254(d)(1).

B

Alternatively, Jones asserts that the state PCR court’s

decision was based on an unreasonable determination of the

facts under § 2254(d)(2). He argues that the court precluded

Claim2’s full factual development by denying PCR counsel’s

request to fund neuropsychological testing, and he asserts that

the inadequacy of the state court’s fact-finding procedures

renders its rejection of this claim unreasonable. We agree.

The PCR court never addressed the facts supporting

Jones’s IAC claim, and it excused counsel’s failure to move

timely for neuropsychological testing in a vague, inconsistent

order. As with Claim 1, this had the effect of precluding

Claim 2’s full factual development in a way that rendered the

entire fact-finding process unreasonable.

At sentencing, Dr. Potts testified that he saw indicators of

brain damage, and as a result, counsel requested that the court

continue the proceedings so that he could seek a

neuropsychological evaluation. The court, however, ruled

contrary to Dr. Pott’s recommendation, stating only that:

this case has been pending a long time, and I

think the evidence is very slim, nonexistent, in

fact, that the defendant has anything that
JONES V. RYAN 47

requires any kind of neurological

examination. So, I am ready to proceed [with

sentencing].

(emphasis added). Because the State did not call a competing

expert, the only evidence in the record—Dr. Pott’s

unambiguous recommendation—suggested that a

neuropsychological evaluation was necessary, contrary to the

sentencing court’s assessment. The sentencing court’s

cursory evaluation of the record effectively foreclosed any

factual development on this issue.

In the PCR proceedings, the court at least granted a

hearing on the issue of counsel’s ineffectiveness regarding

testing, but because the court summarily denied the claim

concerning the appointment of a mental health expert and

denied counsel’s motion for further neuropsychological

testing, the evidentiary hearing was rendered almost

meaningless. The court based its denial of

neuropsychological testing on the court’s own impressions

and untested memory of Dr. Potts’s sentencing testimony

from six years prior. The court recalled that he “thought

Dr. Potts did a good job,” and “based on his testimony,” the

court did not “really see any grounds for any additional

psychiatric or psychological testing.” But Dr. Potts’s

testimony was that additional neuropsychological testing was

needed. The court paradoxically explained that “[b]ased on

[Dr. Potts’s] testimony and the other things that I heard

during that hearing, there was no grounds in my mind for

obtaining a neuropsychological examination. Not one.” The

resulting decision dismissed the claimfor neuropsychological

testing in a single sentence: “The report and testimony of

Dr. Potts who was appointed by the Court, adequately

addressed defendant’s mental health issues at sentencing.”
48 JONES V. RYAN

As with Claim 1, the state PCR judge made factual

findings regarding the necessity of neuropsychological

testing, not on the basis of evidence presented by the

petitioner, but on the basis of his own personal conduct,

untested memory, and understanding of events. See Hurles,

752 F.3d at 791; see also Buffalo v. Sunn, 854 F.2d 1158,

1165 (9th Cir. 1988) (finding error when the court relied on

“personal knowledge” to resolve disputed issue of fact). 

Additionally, in making the resulting factual finding—that

neuropsychological testing was not warranted—the court

“plainly misapprehend[ed]” the record. See Taylor, 366 F.3d

at 1001. In particular, the evidence in the record—Dr. Potts’s

testimony—strongly suggested that neuropsychological

testing was essential in assessing Jones’s psychological state,

contrary to the court’s finding. Thus, by finding against the

weight of the evidence, and proceeding to rule on the merits

of Claim 2, the court employed a constitutionally defective

fact-finding process and ruled on an unconstitutionally

incomplete factual record. See id. at 999; see also Milke,

711 F.3d at 1007 (finding the state court decision rested on an

unreasonable determination of the facts where the judge

relied on a distorted fact-finding process and ruled on an

“unconstitutionally incomplete record”).

The PCR court had an obligation to allow for reasonable

fact development in reaching the merits of Claim 2; the judge

did not fulfill this obligation by relying on his own untested,

personal recollection of the testimony Dr. Potts presented six

years earlier. For this reason, Jones has demonstrated that the

PCR court’s decision was based on an unreasonable factfinding process and determination of the facts, satisfying

§ 2254(d)(2).
JONES V. RYAN 49

C

As with Claim 1, the PCR court failed to reach the

prejudice prong of Claim 2, and so we address the issue de

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

As with Claim1, because Jones was diligent in attempting

to develop the factual basis of this claim in state court by

requesting “a thorough and independent neurological

assessment,” § 2254(e)(2) does not limit our ability to

consider evidence presented for the first time in federal

district court. See Pinholster, 563 U.S. at 213 (Sotomayor, J.

dissenting); see also Landrigan, 550 U.S. at 473 n.1. The

State does not contest that Jones was diligent in attempting to

develop the factual basis for his claims in state court, or that

we may consider this additional evidence on appeal. And

having reviewed the record, we independently conclude that

the district court did not err in its diligence determination and

expansion of the record. Accordingly, we consider the

evidence developed in federal district court in conducting de

novo review of Jones’s claims.

In order for us to grant relief on Jones’s IAC claim, Jones

must demonstrate that his trial counsel: (1) performed

deficiently; and (2) Jones’s defense was prejudiced by that

deficient performance. Strickland, 466 U.S. at 687. He has

done so.

Jones has demonstrated that trial counsel performed

deficiently for all the reasons set forth in our § 2254(d)(1)

analysis. He has demonstrated that counsel’s performance

fell below an objective standard of reasonableness and below

the prevailing professional norms at the time of Jones’s

proceedings.
50 JONES V. RYAN

Additionally, Jones has demonstrated that counsel’s

failure to seek neuropsychological and neurological testing

prejudiced his defense. He has demonstrated that there is a

“reasonable probability” that had such testing been

conducted, and had the results been presented at sentencing,

“the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. While Dr. Potts presented brief,

conditional findings, the results of the neuropsychological

and neurological tests conducted by various experts during

Jones’s federal district court proceedings confirmed that

Jones suffered from a variety of psychological disorders

stemming from birth and exacerbated by long-term drug use

and trauma that affected Jones’s cognitive functioning. As

explained previously, testing revealed that Jones suffered

from organic brain damage, poly-substance abuse, PTSD,

AD/HD, mood disorder, bipolar depressive disorder, and a

learning disorder. The presentation of these results would

involve presenting the contributing factors to his cognitive

dysfunction, as previously described with respect to Claim 1,

including that his long-term substance abuse was induced by

his sexually abusive step-grandfather. At sentencing, there

was no indication that Jones had suffered years of sexual

abuse as a child. In combination, the testing results and the

presentation of contributing factors would have dramatically

affected any sentencing judge’s perception of Jones’s

culpability for his crimes such that there is a reasonable

probability that Jones would not have received a death

sentence.

VI

Because we have determined that Jones is entitled to

relief and resentencing on the basis of Claims 1 and 2, we

need not and do not reach the issue of whether the new
JONES V. RYAN 51

evidence presented at the federal evidentiary hearing

fundamentally altered these claims such that they were

unexhausted, procedurally defaulted, and excused in light of

Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc) and

Martinez v. Ryan, 566 U.S. 1 (2012). Additionally, we need

not and do not reach the merits of any of Jones’s other claims.

We reverse and remand to the district court with

instructions to issue the writ of habeas corpus.

REVERSED AND REMANDED.