FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY TIMOTHY LANDRIGAN, a.k.a. 

Billy Patrick Wayne Hill, No. 00-99011 Petitioner-Appellant,

D.C. No.

v.  CV-96-02367-PHXDORA B. SCHRIRO, Director, ROS

Arizona Department of OPINION Corrections,

Respondent-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted En Banc

March 24, 2005—San Francisco, California

Submission Withdrawn April 15, 2005

Resubmitted March 1, 2006

Filed March 8, 2006

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,

Stephen Reinhardt, Alex Kozinski, Michael Daly Hawkins,

Kim McLane Wardlaw, William A. Fletcher,

Marsha S. Berzon, Richard R. Clifton, Consuelo M. Callahan

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Hawkins;

Dissent by Judge Bea

2329
COUNSEL

Dale A. Baich, Assistant Federal Public Defender, Phoenix,

Arizona, for the petitioner-appellant. 

James P. Beene, Assistant Attorney General, Capital Litigation Section, Phoenix, Arizona, for the respondent-appellee. 

OPINION

HAWKINS, Circuit Judge: 

In this appeal, we consider whether petitioner, Jeffrey Timothy Landrigan, received ineffective assistance of counsel in

the penalty phase of his capital murder trial. We conclude

Landrigan has raised a colorable claim that his counsel’s performance fell below the objective standard of reasonableness

LANDRIGAN v. SCHRIRO 2333
required by Strickland v. Washington, 466 U.S. 668 (1984),

and that he was prejudiced by these errors. We therefore

remand to the district court to conduct an evidentiary hearing

on Landrigan’s claim. 

BACKGROUND

In 1989, Landrigan escaped from an Oklahoma prison and

soon thereafter murdered Chester Dean Dyer in Arizona. He

was convicted of first degree murder in Arizona state court

and sentenced to death. The Arizona Supreme Court affirmed

his conviction and sentence. Arizona v. Landrigan, 176 Ariz.

1, 8 (1993).1

Landrigan filed a petition for post-conviction relief in the

Arizona Superior Court, urging that his counsel, Dennis Farrell, had been ineffective by failing to investigate and present

mitigating evidence at the sentencing proceeding. Landrigan

also requested an evidentiary hearing in connection with this

claim. The Superior Court denied the request for the hearing

and the petition, concluding that Landrigan could not argue

his counsel was ineffective at sentencing because he had

instructed his attorney not to present mitigating evidence. The

Arizona Supreme Court summarily denied the petition. 

Landrigan thereafter filed a petition for writ of habeas corpus in federal district court raising a number of claims,

including ineffective assistance of counsel. Landrigan sought

to expand the record to include declarations by mental health

experts and persons familiar with Landrigan’s background,

and the district court granted this request in part. Landrigan

also sought an evidentiary hearing, but the district court

denied this request and also denied the petition on the merits.

The district court concluded that even if Landrigan’s counsel

1For a more detailed description of the crime and state court proceedings, see Landrigan, 176 Ariz. at 3-4. 

2334 LANDRIGAN v. SCHRIRO
was deficient, Landrigan had not demonstrated he suffered

prejudice from his counsel’s shortcomings. 

Landrigan appealed to this court. The district court granted

Landrigan a certificate of appealability on several claims,

including whether “Landrigan’s trial counsel was ineffective

at sentencing, depriving Landrigan of his rights under the

Fifth, Sixth, Eighth and Fourteenth Amendments.” A threejudge panel affirmed the district court’s denial of the writ.

Landrigan v. Stewart, 272 F.3d 1221, 1223 (9th Cir. 2001).

We granted rehearing en banc. Landrigan v. Stewart, 397

F.3d 1235 (9th Cir. 2005).2

Since the district court’s 1999 denial of the writ and Landrigan’s request for an evidentiary hearing and the filing of

our now withdrawn panel opinion on November 28, 2001, the

Supreme Court has issued a number of significant decisions

regarding ineffective assistance of counsel claims. The Court

has clarified the duty of an attorney to develop and present

mitigating evidence, even when dealing with capital defendants who are “uninterested in helping” or “even actively

obstructive” in developing a mitigation case, Rompilla v.

Beard, 125 S. Ct. 2456, 2462-63 (2005), and also has elaborated on the appropriate measure of prejudice in a capital penalty phase proceeding, see Wiggins v. Smith, 539 U.S. 510,

534-38 (2003). Viewing Landrigan’s claim in light of these

precedents, we find that Landrigan has made a colorable

claim that he did not receive effective assistance of counsel in

his sentencing. We therefore remand to the district court to

conduct an evidentiary hearing.

I.

We review the district court’s decision to deny habeas cor2We initially heard argument in March 2005, but deferred submission

pending this court’s en banc decision in Summerlin v. Schriro, 427 F.3d

623 (9th Cir. 2005) (en banc). 

LANDRIGAN v. SCHRIRO 2335
pus relief de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018

(9th Cir. 2000). Because Landrigan filed his petition after

April 24, 1996, it is governed by the standard of review set

forth in the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1). Under AEDPA,

Landrigan is entitled to a writ if the state court’s denial of his

claim “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States.” Id.

[1] The district court’s decision to deny an evidentiary

hearing is reviewed for an abuse of discretion. See Earp v.

Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005). Under

AEDPA, if a petitioner fails to develop in state court the factual basis for a claim, he is restricted in his ability to do so in

federal court. See 28 U.S.C. § 2254(e)(2). These restrictions

do not apply, however, if a petitioner exercised due diligence

in state court and attempted to develop the factual basis of his

claim. As the Supreme Court has explained, “a failure to

develop the factual basis of a claim is not established unless

there is lack of diligence, or some greater fault, attributable to

the prisoner or the prisoner’s counsel.” Michael Wayne Williams v. Taylor, 529 U.S. 420, 432 (2000). The Court has further noted that “[d]iligence will require in the usual case that

the prisoner, at a minimum, seek an evidentiary hearing in

state court in the manner prescribed by state law.” Id. at 437.

[2] Landrigan did not “fail to develop” the factual basis for

his ineffective assistance claim in state court. In his state

habeas petition, Landrigan made a general claim that his

counsel had failed to investigate and develop potential mitigating evidence, including his biological mother’s use of

drugs and alcohol during gestation, his adoptive mother’s

alcoholism and its adverse effect on Landrigan’s upbringing,

and information regarding his biological father and his family

history of violence. Landrigan sought the appointment of a

medical expert to assist in establishing mitigating evidence

2336 LANDRIGAN v. SCHRIRO
regarding the effects of drug and alcohol use on a developing

fetus, and also requested an evidentiary hearing on his ineffective assistance claim. Landrigan supported his petition with

various declarations by available witnesses who attested they

were never contacted by Landrigan’s trial attorney, and with

documentary evidence regarding criminal psychobiology and

congenital determinants of violence. The state court denied

both the appointment of an expert and Landrigan’s request for

an evidentiary hearing. 

[3] Landrigan tried and failed, through no fault of his own,

to develop the facts supporting his ineffective assistance claim

at the state-court level. He is therefore not precluded by

AEDPA from seeking an evidentiary hearing in federal court.

See Earp, 431 F.3d at 1169; Jones v. Wood, 114 F.3d 1002,

1013 (9th Cir. 1997). In such circumstances, Landrigan is

entitled to an evidentiary hearing if he can establish a “colorable claim” for relief. See Earp, 431 F.3d at 1173.

II.

[4] The Sixth Amendment right to effective assistance of

counsel extends to the sentencing phase of a capital case.

Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002). We

analyze Landrigan’s claim that he was deprived of this right

pursuant to the standards set forth by the Supreme Court in

Strickland: Landrigan must demonstrate that his counsel’s

representation “fell below an objective standard of reasonableness” and that there is a reasonable probability that counsel’s unprofessional errors “undermine confidence in the

outcome of the proceeding.” 466 U.S. at 688, 694. 

A.

[5] According to the prevailing standards at the time of

Landrigan’s sentencing, counsel had an obligation to conduct

a thorough investigation of the defendant’s background. See

Terry Williams v. Taylor, 529 U.S. 362, 396 (2000) (“T. WilLANDRIGAN v. SCHRIRO 2337
liams”) (citing 1 ABA Standards for Criminal Justice 4-4.1,

cmt. at p. 4-55 (2d ed. 1980)); Rompilla, 125 S. Ct. at 2466.

As this court has also noted, when it comes to the penalty

phase of a capital trial, “[i]t is imperative that all relevant mitigating information be unearthed for consideration.” Caro v.

Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999). We begin by

considering what steps Landrigan’s counsel took in his investigation. See Wiggins, 539 U.S. at 522-23 (court should first

focus on whether the investigation is itself reasonable); Strickland, 466 U.S. at 690-91 (courts will defer to counsel’s

choices, if made after conducting a reasonable investigation).

1. On the record before us, it appears that Landrigan’s counsel

did little to prepare for the sentencing aspect of the case. He

did obtain several medical documents indicating Landrigan

had a long history of substance abuse and included this information in Defendant’s Sentencing Memorandum Concerning

Mitigation. He also had a psychologist, Mickey McMahon,

evaluate Landrigan to obtain an “initial impression,” but did

not provide him with any relevant background information on

Landrigan to assist in the evaluation. See, e.g., Clabourne v.

Lewis, 64 F.3d 1373, 1385 (9th Cir. 1995) (counsel ineffective for inadequately preparing psychologist). Although the

psychologist recommended that he perform additional testing,

Farrell would not authorize any follow-up tests. Dr.

McMahon’s declaration describes his experience with Farrell

as “quite different from the working relationship I had with

counsel in other death penalty cases.” 

Landrigan’s counsel also hired an investigator, who spent

a total of thirteen hours on the case, but none of this work was

directed towards sentencing phase considerations. The investigator claims that he had very little interaction with counsel

about the case and that he found this “quite frustrating.” 

Prior to the sentencing, Farrell also spoke briefly with two

family members — Landrigan’s ex-wife and his birth mother.

At the sentencing hearing, Farrell advised the court that he

2338 LANDRIGAN v. SCHRIRO
expected Landrigan’s ex-wife to verify Landrigan’s history of

substance abuse; state that Landrigan had been a loving, caring husband; and explain the circumstances of one of Landrigan’s prior convictions. Farrell also proffered that

Landrigan’s birth mother would testify about her drug and

alcohol use during her pregnancy, and that after developing

this testimony, Farrell was then hoping to have a recess to talk

to some experts about the effect on the fetus. But even this

dialogue with the court revealed that he had not, during presentencing investigation, ascertained any specifics about Landrigan’s mother’s drug use or contacted any experts on the

subject in advance of the hearing. 

[6] “[C]ounsel is not deficient for failing to find mitigating

evidence if, after a reasonable investigation, nothing has put

the counsel on notice of the existence of that evidence.” Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998) (quoting

Matthews v. Evatt, 105 F.3d 907 (4th Cir. 1997)) (internal

quotation marks omitted). In this case, however, the initial

investigation did reveal potential mitigating evidence, but that

evidence was not developed. In addition to the evidence discussed above, Landrigan alleges that his birth mother sent a

letter to Farrell in April 1990, informing Farrell that, among

other things, (1) Landrigan began drinking at an early age

because his adoptive mother was an alcoholic and would walk

around nude in front of him, (2) Landrigan’s father was on

death row in Arkansas and the “blood link to Darrel [and] I

are what has messed up his whole life,” and (3) “Jeff needs

help mentally like his father did.” Despite these clues, Farrell

did not contact Landrigan’s birth father, secure a detailed

mental health evaluation, or develop a family or social history

regarding Landrigan’s upbringing in his adoptive home. 

Landrigan alleges that with some minimal investigation,

Farrell could have uncovered Landrigan’s tortured family history: Landrigan’s birth parents were troubled individuals who

abused drugs and alcohol; Landrigan’s biological father was

a violent man who, at the time of Landrigan’s trial, was on

LANDRIGAN v. SCHRIRO 2339
death row in Arkansas; Landrigan’s mother abandoned Landrigan when he was six months old, leaving him in a day nursery and never returning; Landrigan was later adopted, but

unfortunately, his adoptive mother was also an alcoholic, at

times consuming a fifth of vodka or more a day until she

passed out; she would frequently slap him and once even hit

him with a frying pan; his childhood was difficult — he

exhibited abandonment and attachment problems, had difficulty sleeping, and had violent temper tantrums even at a very

early age; Landrigan had serious drug and alcohol problems

while very young, and he even overdosed in class in eighth or

ninth grade; at the time he committed the murder in Arizona,

he had used amphetamines for forty-two straight days and had

slept on only about fourteen of those days. 

In 1998, following a thorough neuropsychological evaluation, Dr. Thomas Thompson reported that the convergence of

the above-mentioned factors — Landrigan’s genetic makeup,

in utero exposure to teratogenic substances, early maternal

rejection, and his troubled interactions with his adoptive family — resulted in disordered behavior that was “beyond the

control of Mr. Landrigan,” and left him unable to “function in

a society that expects individuals to operate in an organized

and adaptive manner, taking into account the actions and consequences of their behavior and their impact on society and its

individual members.” 

[7] 2. A comparison of the results of the minimal investigation by Farrell with the amount of available mitigating evidence Landrigan claims was available leaves us with grave

doubts whether Landrigan received effective assistance of

counsel during his penalty phase proceeding. The state urges,

however, that Farrell’s investigatory shortcomings are irrelevant because Landrigan would not permit the introduction of

mitigating evidence in the sentencing phase of his trial. 

The state misreads what occurred at the sentencing hearing.

Landrigan’s counsel had lined up only two witnesses to testify

2340 LANDRIGAN v. SCHRIRO
on his behalf during the sentencing phase: Landrigan’s exwife and birth mother. Landrigan, however, opposed putting

them on the stand. His lawyer explained Landrigan’s wishes

to the sentencing judge as follows:

MR. FARRELL: Your Honor, at this time . . . I

have two witnesses that I wished to testify before

this Court, one I had brought in from out of state and

is my client’s ex-wife, Ms. Sandy Landrigan. The

second witness is my client’s natural mother, Virginia Gipson. I believe both of those people had

some important evidence that I believed the Court

should take into mitigation concerning my client.

However, Mr. Landrigan has made it clear to me—

Jeffrey, the defendant—that he does not wish anyone

from his family to testify on his behalf today. 

I have talked with Sandra Landrigan, his ex-wife.

I have talked a number of times with her and confirmed what I thought was important evidence that

she should present for the Court. And I have also

talked with Ms. Gipson, and her evidence I think is

very important and should have been brought to this

Court’s attention. Both of them, after talking with

Jeff today, have agreed with their, in one case son

and the other ex-husband, they will not testify in his

behalf. 

THE COURT: Why not? 

MR. FARRELL: Basically it’s at my client’s

wishes, Your Honor. I told him that in order to effectively represent him, especially concerning the fact

that the State is seeking the death penalty, any and

all mitigating factors, I was under a duty to disclose

those factors to this Court for consideration regarding the sentencing. He is adamant he does not want

any testimony from his family, specifically these two

LANDRIGAN v. SCHRIRO 2341
people that I have here, his mother, under subpoena,

and as well as having flown in his ex-wife.

I have advised him and I have advised him very

strongly that I think it’s very much against his interests to take that particular position. I have also

advised both the witnesses I could have them sworn

in and ask them questions, but they are under an

obligation to do what they feel is right, Your Honor.

They are looking after Jeff’s interests. 

I’m coming from the position that I have to bring

certain evidence before this Court. I’m at a loss. I

don’t know what this Court wishes to do. 

[Emphasis added.] 

[8] The state trial court was thus confronted with a situation

where the defense lawyer had only prepared to present two

mitigation witnesses—Landrigan’s ex-wife and birth mother

—and Landrigan objected to putting them on the stand. It is

clear from this statement by counsel that Landrigan was

unwilling to have these two particular people testify, but there

is no mention of any other witnesses, and there is no indication that Landrigan would have precluded the introduction of

mitigating evidence by other means.3 The possibility of other

evidence or witnesses simply never came up, doubtless

because defense counsel had no other evidence to present. 

The colloquy that followed between the sentencing judge

and Landrigan must be read against this backdrop:

3

See Summerlin, 427 F.3d at 637-39 (spontaneous objection to presentation of one witness does not excuse failure to present penalty phase

defense); Stankewitz v. Woodford, 365 F.3d 706, 721-22 (9th Cir. 2004)

(opposition to calling family members or experts as witnesses does not

excuse an attorney from interviewing experts and family members to

obtain mitigating evidence). 

2342 LANDRIGAN v. SCHRIRO
THE COURT: Mr. Landrigan, have you instructed

your lawyer that you do not wish for him to bring

any mitigating circumstances to my attention? 

THE DEFENDANT: Yeah. 

THE COURT: Do you know what that means? 

THE DEFENDANT: Yeah. 

THE COURT: Mr. Landrigan, are there mitigating

circumstances I should be aware of? 

THE DEFENDANT: Not as far as I’m concerned.

At the time the sentencing judge asked Landrigan whether

he instructed his lawyer not to present any mitigating circumstances, the only mitigating evidence that the lawyer could

have brought to the court’s attention was the testimony of the

two witnesses. Landrigan’s response to the court’s rather

vague question cannot, in context, be construed as anything

more than confirmation that he did not want his birth mother

and ex-wife testifying on his behalf. Indeed, due to his lawyer’s meager investigation, there was no other mitigating evidence available to which Landrigan could object or not object.

When the sentencing judge then asked Landrigan whether

there were any other mitigating circumstances to be taken into

account, Landrigan replied that there were not. This, of

course, was a direct consequence of the fact that his counsel

had not presented him with any options other than the two

witnesses he opposed. Had his lawyer conducted an investigation and uncovered other types of mitigating evidence, Landrigan might well have been able to direct the court to other

mitigating circumstances. Viewing the entire colloquy in

proper context, it is clear that the sentencing judge was only

inquiring about Landrigan’s willingness to allow his birth

LANDRIGAN v. SCHRIRO 2343
mother and ex-wife to testify, and that Landrigan simply confirmed that he was not. 

[9] It was not until the Arizona Supreme Court (on direct

appeal) and the Arizona Superior Court (on habeas review)

examined the colloquy that the sentencing judge’s questioning

was taken out of context. The state supreme court found that,

“[a]t the sentencing hearing, defendant instructed his lawyer

not to present any mitigating evidence.” And the state habeas

court similarly found that Landrigan “instructed his attorney

not to present any evidence at the sentencing hearing.” In

light of what actually transpired at the sentencing hearing,

such an overly broad characterization of the colloquy is not

supported by the record and thus amounts to an “unreasonable

determination of the facts.” 28 U.S.C. § 2254(d)(2). 

[10] 3. Even were we to overlook the state habeas court’s

flawed factual finding that Landrigan unequivocally waived

presentation of all mitigating evidence, the court’s conclusion

that Landrigan’s claim was therefore necessarily “frivolous”

and “meritless” was an unreasonable application of United

States Supreme Court precedent. See id. § 2254(d)(1). Landrigan’s apparently last-minute decision cannot excuse his counsel’s failure to conduct an adequate investigation prior to the

sentencing. Cf. Wiggins, 539 U.S. at 522-23 (focus should be

on whether investigation was itself reasonable, not whether

counsel should have presented a mitigation case);4see also

Stankewitz, 365 F.3d at 722 (counsel has duty to investigate

what evidence potentially could have been presented and discuss this evidence with accused in order to obtain an informed

4Although Wiggins is a recent Supreme Court case, it applied the familiar Strickland inquiry applicable to ineffective assistance claims in a postAEDPA case. Indeed, the Court in Wiggins expressly stated that the case

presented the same issue as in Strickland and that it was applying the

“clearly established precedent of Strickland.” 539 U.S. at 521. Wiggins’s

trial took place in 1989, one year prior to Landrigan’s 1990 trial. Id. at

514-15. Therefore, the Court’s reasoning in Wiggins is fully applicable to

Landrigan’s case. 

2344 LANDRIGAN v. SCHRIRO
and knowing waiver); Silva, 279 F.3d at 839-40 (instruction

not to call parents as witnesses did not preclude counsel from

investigating background). There is no indication in the current record that Landrigan in any way prohibited or impeded

Farrell’s ability to investigate or assemble a mitigation

defense. And even if he had, the prevailing standards, even at

the time of Landrigan’s trial, “suggest that a lawyer’s duty to

investigate is virtually absolute, regardless of a client’s

expressed wishes.” Silva, 279 F.3d at 840 (citing 1 ABA Standards for Criminal Justice 4-4.1 cmt. at 4-55); see also T. Williams, 529 U.S. at 396 (citing same). 

[11] Nor does the record indicate that Landrigan’s decision

was informed and knowing. It is “difficult for an attorney to

advise a client of the prospects of success or the potential consequences of failing to present mitigating evidence when the

attorney does not know that such evidence exists.” Douglas

v. Woodford, 316 F.3d 1079, 1089 (9th Cir. 2003); see also

Stankewitz, 365 F.3d at 722 (petitioner’s objection to mitigating evidence apparently not “informed and knowing” because

counsel did not conduct an adequate investigation). The trial

court’s dialogue with Landrigan tells us little about his understanding of the consequences of his decision: After asking

whether Landrigan had instructed his attorney not to present

mitigating circumstances, the court asked only, “Do you know

what that means?” Landrigan simply responded, “Yeah.”

There was no further exploration by the court into Landrigan’s understanding, or what advice his attorney had given

him outside of court. 

As we recently explained:

If a client has elected to forego legal proceedings

that could avert the imposition of the death penalty,

then a court must make the determination “whether

he has capacity to appreciate his position and make

a rational choice with respect to continuing or abandoning further litigation or on the other hand

LANDRIGAN v. SCHRIRO 2345
whether he is suffering from a mental disease, disorder, or defect which may substantially affect his

capacity in the premises.” 

Summerlin, 427 F.3d at 639 (quoting Rees v. Peyton, 384 U.S.

312, 314 (1966)). The trial court’s cursory inquiry into Landrigan’s purported waiver of all mitigating evidence did not

satisfy this requirement. 

[12] For all of the foregoing reasons, Landrigan has not

waived the right to assert a claim for ineffective assistance of

counsel. Moreover, Landrigan has alleged facts that, if true,

would establish that his counsel was ineffective for failing to

investigate and discover important mitigating evidence. This

alone, however, would not entitle Landrigan to habeas relief

or even to an evidentiary hearing. We therefore turn to the

issue of prejudice.

B.

To establish prejudice, Landrigan must demonstrate a reasonable probability that Farrell’s deficiencies “undermine

confidence in the outcome” of the proceeding. Strickland, 466

U.S. at 694 (“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”) To assess

prejudice in a capital penalty phase proceeding, the Supreme

Court has directed us to “reweigh the evidence in aggravation

against the totality of available mitigating evidence.” Wiggins,

539 U.S. at 534. 

That evidence includes both the evidence adduced at trial

and the evidence adduced in habeas proceedings. See id. at

536; T. Williams, 529 U.S. at 397-98. In evaluating prejudice,

the district court improperly refused to consider additional

facts proffered by Landrigan, such as expert testimony regarding Landrigan’s organic brain dysfunction, because the court

erroneously concluded that Landrigan had failed to exhaust

this claim in state court. In state court, Landrigan asserted that

2346 LANDRIGAN v. SCHRIRO
his counsel was ineffective because Farrell had failed to

undertake a reasonable investigation of mitigating factors,

including information that could have been derived from Landrigan’s biological father and his adoptive sister. Landrigan

summarized his claim as follows:

Where a defendant’s crime is attributable to a disadvantaged background or emotional or mental problems the defendant is less culpable than one without

the excuse. California v. Brown, 479 U.S. 538, 545

(1987) (O’Connor, J., concurring). See also, State v.

Wallace, 160 Ariz. 424, 427, 773 P.2d 983, 986

(1989), cert. denied, 494 U.S. 1047 (1990). Due to

ineffective assistance from trial counsel at sentencing, this Honorable Court did not have a complete

and accurate picture of Petitioner’s background. 

The additional information offered by Landrigan in support

of his federal habeas claim does not “fundamentally alter” the

ineffective assistance claim presented to the state court. It

simply provides additional evidentiary support for the claim,

in particular with respect to the prejudice prong of Strickland.

See Vasquez v. Hillery, 474 U.S. 254, 260 (1986); see also

Belmontes v. Brown, 414 F.3d 1094, 1117-18 (9th Cir. 2005)

(“[N]ew factual allegations do not render a claim unexhausted

unless they fundamentally alter the legal claim already considered by the state courts.” (quoting Chacon v. Wood, 36

F.3d 1459, 1468 (9th Cir. 1994) (quoting Vasquez, 474 U.S.

at 260))) (internal quotation marks omitted). 

[13] As discussed above, there was a significant amount of

potential mitigating evidence that was not unearthed or presented to the sentencing judge. Landrigan alleges he was

exposed to alcohol and drugs in utero, which may have

resulted in cognitive and behavioral deficiencies consistent

with fetal alcohol syndrome. He was abandoned by his birth

mother and suffered abandonment and attachment issues, as

well as other behavioral problems throughout his childhood.

LANDRIGAN v. SCHRIRO 2347
His adoptive mother was also an alcoholic, and Landrigan’s

own alcohol and substance abuse began at an early age. Based

on his biological family’s history of violence, Landrigan

claims he may also have been genetically predisposed to violence. 

[14] If true, Landrigan’s allegations are “the very sort of

mitigating evidence that ‘might well have influenced the

[judge’s] appraisal of [Landrigan’s] moral culpability.’ ”

Earp, 431 F.3d at 1179 (quoting T. Williams, 529 U.S. at

398). “Evidence regarding social background and mental

health is significant, as there is a ‘belief, long held by this

society, that defendants who commit criminal acts that are

attributable to a disadvantaged background or to emotional or

mental problems, may be less culpable than defendants who

have no such excuse.’ ” Douglas, 316 F.3d at 1090 (quoting

Boyde v. California, 494 U.S. 370, 382 (1990)).5 We also note

that in finding Landrigan’s background or emotional character

was not a mitigating circumstance, the state sentencing judge

specifically noted that he had “received very little information

concerning the defendant’s difficult family history,” implying

a more complete picture could have tipped the scale in Landrigan’s favor. 

In comparison, there were two aggravating circumstances

relied upon by the sentencing judge: (1) the defendant had

5The dissent seizes upon Landrigan’s expert’s diagnosis of antisocial

personality disorder and analyzes whether such a disorder is sufficient to

justify mitigation. [Dissent at 2351-52]. Yet this diagnosis is only a small

piece of the puzzle; the crux of Landrigan’s argument is that the sentencing judge was never apprised of the full panoply of circumstances that, in

the expert’s opinion, converged to result in “disordered behavior [that]

was beyond the control of Mr. Landrigan.” The dissent also suggests that

Landrigan’s trial behavior would have negated any attempt to elicit sympathy [Dissent at 2353-55], yet Landrigan contends this behavior was consistent with the expert’s analysis of limited impulse control and an

inability to take into account the consequences of his behavior. Indeed, if

Landrigan’s counsel had offered such mental health information, it could

have actually explained his courtroom behavior and tempered its effect. 

2348 LANDRIGAN v. SCHRIRO
prior felony convictions involving the use or threatened use of

violence on another person, and (2) the defendant committed

the offense with the expectation of receiving pecuniary gain.

See Ariz. Rev. Stat. §§ 13-703(F)(2), (5). There was limited

evidence regarding the pecuniary gain aggravator. The judge

noted that the victim’s apartment had been ransacked as if the

perpetrator were looking for something, and that this demonstrated an expectation of pecuniary gain, even though Landrigan did not actually steal anything of value. On the other

hand, Landrigan had been previously convicted of two violent

crimes — second degree murder for the stabbing death of an

individual in Oklahoma and assault and battery with a deadly

weapon for stabbing another inmate while serving his second

degree murder sentence. 

[15] Notwithstanding these obviously serious prior

offenses, Landrigan still may have been prejudiced by his

attorney’s alleged shortcomings. Even in cases involving particularly heinous murders, or substantial criminal histories, a

defendant can be prejudiced by an attorney’s failure to investigate and present mitigating evidence that could influence the

judge’s appraisal of moral culpability. See T. Williams, 529

U.S. at 398; Stankewitz, 365 F.3d at 724 (mitigating evidence

could have fostered sympathy for defendant and could also

have diminished the aggravating impact of the prosecution’s

case). Presented with the additional mitigating evidence

regarding Landrigan’s background and emotional and mental

problems, there is a reasonable probability that, if Landrigan’s

allegations are true, the sentencing judge would have reached

a different conclusion.

III.

Of course, to this point, Landrigan’s evidence has not been

tested. Farrell has not been given an opportunity to explain

what steps were taken in his investigation or why he did not

do more; Landrigan’s accounts of his childhood have not been

explored; and the state has not had an opportunity to crossLANDRIGAN v. SCHRIRO 2349
examine his experts or challenge the strength of their opinions. We note this only to emphasize that we are not opining

on what the district court’s ultimate resolution of this issue

should be; we conclude only that Landrigan has surpassed the

relatively “low bar” of alleging a colorable claim for relief.

Earp, 431 F.3d at 1170. 

[16] We conclude Landrigan has alleged facts that, if demonstrated to be true, present a colorable claim that he received

ineffective assistance of counsel in his capital sentencing proceeding. Landrigan has demonstrated a proper basis for an

evidentiary hearing.6

AFFIRMED in part, REVERSED in part, and

REMANDED for an evidentiary hearing. 

BEA, Circuit Judge, with whom Circuit Judge Callahan joins,

dissenting: 

Although I agree with the majority’s conclusion that counsel’s limited investigation of Landrigan’s background fell

below the standards of professional representation prevailing

in 1990, I would not remand this case for an evidentiary hearing because Landrigan has failed to allege facts that, if

proven, would demonstrate Strickland prejudice. 

We “review de novo [a] district court’s interpretation of

AEDPA standards governing the grant or denial of an evidentiary hearing.” Earp, 431 F.3d at 1166. We may reverse the

denial of an evidentiary hearing only if the district court

abused its discretion. Id.

6We adopt the panel’s holdings with respect to the additional sentencing

issues raised in Landrigan’s certificate of appealability. 272 F.3d at 1229-

31. 

2350 LANDRIGAN v. SCHRIRO
To establish entitlement to an evidentiary hearing, Landrigan must demonstrate an objectively reasonable probability

that, had counsel proved the mitigating facts now alleged, the

sentencing judge would not have imposed the death penalty.

See Summerlin, 427 F.3d at 643. Landrigan alleges that his

birth mother exposed him to alcohol and drugs in utero and

later abandoned him, that he has a genetic predisposition for

violence, that his adoptive mother was an alcoholic, and that,

as a result of all these factors, he has antisocial personality disorder.1

 Whether these alleged facts create an objectively reasonable probability that Landrigan would have received a

different sentence must be considered in light of the particular

circumstances of his case. See Smith v. Stewart, 140 F.3d

1263, 1270 (9th Cir. 1998) (explaining that the mitigating

effect of antisocial personality disorder is context-dependent

and that, in Arizona, the disorder “has often been treated on

appeal as insufficient to justify mitigation”). Under these standards, three separate factors convince me there is no reasonable probability that Landrigan would have received a

different sentence had his counsel proved the mitigating facts

now alleged. 

First, the mitigating effect of antisocial personality disorder

is greater when there is evidence that the disorder “controlled

[the] defendant’s conduct or impaired his mental capacity”

than when evidence suggests that, at the time of the crime, the

defendant “possessed the ability to restrain himself.” State v.

Brewer, 826 P.2d 783, 802-03 (Ariz. 1992). For example, in

Brewer, the defendant’s antisocial personality disorder was

1Contrary to the majority’s contention, to focus on the potential mitigating effect of Landrigan’s purported antisocial personality disorder is not

to “seize” on a “small piece” of some larger “puzzle” of mitigating circumstances that counsel failed to investigate or present. Maj. Op. at 2348

n.5. As the majority opinion itself acknowledges, all the mitigating circumstances Landrigan faults counsel for not raising “converge” to support

the suggestion that he suffers from antisocial personality disorder and cannot control his actions. See id. at 2340. Antisocial personality disorder is

the crux of Landrigan’s ineffective assistance of counsel claim. 

LANDRIGAN v. SCHRIRO 2351
insufficient to tilt the balance of mitigating and aggravating

factors in favor of leniency because, notwithstanding his disorder, he had “resisted whatever impulses he may have experienced long enough to insure his own safety by locking the

[victim’s] roommate’s dog in another room before commencing his attack on the victim.” Id. at 803. 

Here, Landrigan has submitted an expert declaration suggesting in passing that because of his antisocial personality

disorder he has “very limited impulse control.” The evidence,

however, is that on the occasion of the murder at issue Landrigan was able to control his impulses long enough to cultivate

the victim’s trust and attempt to profit from their encounter.

The trial testimony of one of the victim’s friends, “Michael,”

was that prior to the murder the victim called him three times.

During the first phone call, the victim reported that he and

Landrigan were together drinking beer. Approximately fifteen

minutes later, the victim called a second time to say he was

in the middle of sexual intercourse with Landrigan. Shortly

thereafter, the victim called to ask whether Michael could get

Landrigan a job. Thus, just as the defendant in Brewer was

able to control his impulses long enough to take steps to protect his physical safety, Michael’s testimony suggests Landrigan was able to control his murderous impulses long enough

to earn his victim’s trust, engage him in sexual relations, and

allow the victim to try to get him a job. This evidence diminishes the mitigating effect of his alleged antisocial personality

disorder. 

Second, as the three-judge panel that initially heard Landrigan’s appeal correctly recognized, in Landrigan’s case the

mitigating value of any proven genetic predisposition for violence would not have outweighed its aggravating tendency to

suggest Landrigan was undeterrable and, even from prison,

would present a future danger to society. Landrigan v. Stewart, 272 F.3d 1221, 1228-29 (9th Cir. 2001). One of the two

statutory aggravating factors the sentencing judge found was

that Landrigan had prior felony convictions involving the use

2352 LANDRIGAN v. SCHRIRO
or threatened use of violence on another person. See Ariz.

Rev. Stat. § 13-703(F)(2). Landrigan had murdered his best

friend and then, while incarcerated for that crime, had brutally

stabbed a fellow inmate. In light of this history, and the fact

that Landrigan committed the murder for which he was convicted in the present case after escaping from prison, the

potential for future dangerousness—including peril to future

fellow inmates—inherent in Landrigan’s alleged genetic predisposition for violence would have negated its mitigating

capacity for evoking compassion in the sentencing judge. See

People v. Franklin, 656 N.E.2d 750, 761 (Ill. 1995)

(“Although this evidence [regarding defendant’s psychological problems and violent family history] could have evoked

compassion in the jurors, it could have also demonstrated

defendant’s potential for future dangerousness and the basis

for defendant’s past criminal acts. The evidence of defendant’s mental illness may also have shown that defendant was

less deterrable or that society needed to be protected from

him.”). 

Third, but by no means least, Landrigan’s behavior at trial

would have negated any effort by counsel to elicit sympathy

based on a genetic or biological predisposition toward violence. The three-judge panel that originally heard this appeal

aptly described Landrigan’s behavior as follows: 

Landrigan was not willing to merely express his

opinions to counsel and, once having given those

indications about his feelings, recede into comparative silence as counsel went about the business of

conducting the proceeding. Quite the contrary; Landrigan took an actively aggressive posture, which

ensured that counsel’s attempts to place mitigating

factors before the sentencing court would come a

cropper. Each of counsel’s feints in the mitigation

direction brought a statement from Landrigan that

painted an even bleaker picture and made matters

even worse. But we will not merely resort to characLANDRIGAN v. SCHRIRO 2353
terization; we will illustrate the situation with Landrigan’s own words. 

In an attempt to soften the effect of the fact that

Landrigan had previously murdered his best friend,

Greg Brown, counsel said that as Landrigan was

walking away, Brown, a much larger man, rushed up

and attacked him. Landrigan, who happened to be

carrying a knife, defended himself and unfortunately

killed Brown. A plausible story, but Landrigan

would have none of it. His attorney got it all wrong.

Rather, said he, “When we left the trailer, Greg went

out of the trailer first. My wife was between us. I

pulled my knife out, then I was the one who pushed

her aside and jumped him and stabbed him. He

didn’t grab me. I stabbed him.” In other words, Landrigan had come from behind and acted in a murderous way. That was all there was to it. 

Landrigan behaved similarly when counsel tried to

envelop the assault on another prison inmate in a

brume of self defense by suggesting that Landrigan

had been threatened by the victim, who was a friend

of Greg Brown and Greg’s father. Landrigan

responded thusly: “That wasn’t Greg Brown’s dad’s

friend or nothing like that. It was a guy I got in an

argument with. I stabbed him 14 times. It was lucky

he lived. But two weeks later they found him hung

in his cell.” Again, Landrigan had unnecessarily

behaved in an extremely violent and murderous way

toward another human being. 

And when counsel tried to burnish Landrigan’s

benighted past by indicating that before Brown’s

murder, Landrigan, for at least one brief shining

moment, was a “loving, caring husband,” who had

married and was taking care of his wife and her child

by “working . . . at a golf course during the year-and2354 LANDRIGAN v. SCHRIRO
a-half” preceding the killing, Landrigan demurred.

He explained: “Well, I wasn’t just working. I was

doing robberies supporting my family. We wasn’t

married. We wasn’t married in Arizona. We lived in

Oklahoma. I mean, you know, he’s not getting the

story straight. Why have him tell somebody else’s

story in the first fucking place?” 

If that were not enough, Landrigan made the following presentation when the court asked if he

would like to say anything in his own behalf: 

Yeah. I’d like to point out a few things

about how I feel about the way this shit,

this whole scenario went down. I think that

it’s pretty fucking ridiculous to let a fagot

be the one to determine my fate, about how

they come across in his defense, about I

was supposedly fucking this dude. This

never happened. I think the whole thing

stinks. I think if you want to give me the

death penalty, just bring it right on. I’m

ready for it. 

Landrigan, 272 F.3d at 1226-27.2

In light of (1) the evidence that Landrigan could and did

control his murderous impulses, (2) the probability that any

mitigating value of evidence of genetic or biological predisposition for violence would have been overwhelmed by the evi2

It appears that Landrigan continues to question his counsel’s

approaches to this case, as indicated by his hand-written letter to this court

of August 16, 2005, stating: 

As of today, I want to withdraw my petition and drop all appeals.

I no longer wish to pursue any action from your court or any others, and want my execution date to be set as soon as possible.

Thank you. 

LANDRIGAN v. SCHRIRO 2355
dence’s aggravating tendency to show that Landrigan was

undeterrable, and (3) Landrigan’s menacing behavior at trial,

Landrigan has not alleged facts that if proven would create an

objectively reasonable probability that he would have

received a different sentence. Accordingly, it was not an

abuse of discretion for the district court to deny him an evidentiary hearing. I would affirm the district court’s decision

in its entirety. 

2356 LANDRIGAN v. SCHRIRO