FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL RAY WHITE,

Petitioner-Appellant,

v.

CHARLES L. RYAN, Warden, 

Director, Arizona Department of 

Corrections; JAMES O’NEIL, Warden, 

Arizona State Prison - Eyman 

Complex,

Respondents-Appellees.

No. 15-99011

D.C. No.

3:08-cv-08139-

SPL

OPINION

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, District Judge, Presiding

Argued and Submitted October 4, 2017

Pasadena, California

Filed July 11, 2018

Before: Milan D. Smith, Jr., Mary H. Murguia,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen
2 WHITE V. RYAN

SUMMARY*

Habeas Corpus/Death Penalty

The panel reversed the district court’s judgment denying 

Arizona state prisoner Michael Ray White’s petition for a 

writ of habeas corpus based on ineffective assistance of 

counsel at resentencing, and remanded with instructions to 

grant a conditional writ.

Regarding counsel’s performance, the panel held (1) that 

counsel performed deficiently by failing to challenge 

evidence that White committed the murder for pecuniary 

gain, and by failing to conduct an adequate investigation of 

mitigating factors, including the unreasonable decision not 

to hire any experts to assist with the penalty phase; and 

(2) that the state post-conviction court’s contrary conclusion 

was an unreasonable application of Strickland v. 

Washington, 466 U.S. 668 (1984), and Wiggins v. United 

States, 539 U.S. 510 (2003).

The panel evaluated prejudice without AEDPA 

deference because the state post-conviction court applied a 

test for prejudice contrary to Strickland. Reviewing de novo, 

the panel concluded that there is a reasonable likelihood that 

White would have received a different sentence if counsel 

had investigated and presented mitigating evidence.

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

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

COUNSEL

Jennifer Y. Garcia (argued), Assistant Federal Public 

Defender; Jon M. Sands, Federal Public Defender; Office of 

the Federal Public Defender, Phoenix, Arizona; for 

Petitioner-Appellant.

John Pressley Todd (argued), Assistant Attorney General, 

Capital Litigation Section; Lacey Stover Gard, Chief 

Counsel; Mark Brnovich, Attorney General; Office of the 

Attorney General, Phoenix, Arizona; for RespondentsAppellees.

OPINION

NGUYEN, Circuit Judge:

Michael White shot and killed David Johnson (“David”), 

the husband of White’s lover, Susan Johnson (“Susan”). The 

only question is why. White was initially sentenced to death 

based on the state court’s finding of one aggravating 

factor—that he committed the murder for pecuniary gain. 

David had a life insurance policy, and there was some 

evidence that Susan was going to share the payout with 

White. After White lost his direct appeal, the state court 

granted him post-conviction relief as to the penalty phase 

and ordered a new mitigation hearing and sentencing. 

During these proceedings, however, White’s new counsel 

abandoned any challenge to the sole aggravating factor 

relied on by the state court despite compelling evidence that, 

rather than financial gain, White acted out of love for Susan 

and killed David only after she repeatedly pressured him to 

do so. Counsel’s failure to challenge the aggravating factor 

was not based on any strategic decision; instead, it was 
4 WHITE V. RYAN

simply due to his mistaken belief that the issue already had 

been conclusively decided in a prior appeal.

Worse still, counsel utterly failed to investigate White’s 

background for mitigating circumstances. Had he done so, 

counsel would have found abundant and readily available 

evidence that White was suffering from serious mental 

illness as well as Graves’ disease and its attendant 

neuropsychological effects. White also struggled with low 

intellectual functioning and had a troubled and abusive 

childhood. None of this background evidence was presented 

at his resentencing hearing. Instead, counsel relied on and 

presented White’s statement to the probation officer that “he 

had a normal childhood and enjoyed growing up.”

White filed a federal petition for a writ of habeas corpus 

based on ineffective assistance of counsel at his 

resentencing, which the district court denied.1 We reverse 

and remand with instructions to grant a conditional writ. 

Under similar circumstances, the United States Supreme 

Court has held that even less egregious lapses by defense 

counsel violated the defendant’s Sixth Amendment rights. 

The state court’s finding that counsel performed reasonably 

was an unreasonable application of this precedent, and the 

 1 The district court certified only the portion of White’s ineffective 

assistance claim regarding counsel’s failure to investigate and present 

mitigating evidence. This was error. White has but a single claim 

regarding his right to the effective assistance of counsel at the penalty 

phase of resentencing. See Browning v. Baker, 875 F.3d 444, 471 (9th 

Cir. 2017). Because “he ‘has made a substantial showing of the denial’ 

of that right,” id. (quoting 28 U.S.C. § 2253(c)(2)), we grant his request 

to expand the certificate of appealability to include the aggravation 

portion of his ineffective assistance claim, which has been fully briefed 

and argued.
WHITE V. RYAN 5

state court’s prejudice determination was contrary to 

Strickland v. Washington, 466 U.S. 668 (1984).

We hold White’s counsel performed deficiently by 

failing to challenge evidence that White committed the 

murder for pecuniary gain, and by failing to conduct an 

adequate investigation of mitigating factors, including the 

unreasonable decision not to hire any experts to assist with 

the penalty phase. Reviewing de novo, we conclude that but 

for counsel’s errors, it is reasonably likely that the result 

would have been different. This was a relatively weak case 

for imposition of the death penalty. Even the trial 

prosecutors believed that the death penalty was 

inappropriate because this was a “run-of-the-mill” case, 

Susan was the “mastermind” behind the murder, and White 

succumbed to pressure from her to commit the crime. White 

had no criminal record when he committed the murder at age 

36, pecuniary gain was the only aggravating factor, and there 

was substantial evidence that White acted out of love or 

infatuation rather than profit.

I. Factual Background

White met Susan in January 1987 when they worked 

together at a nursing home in Prescott, Arizona.2 At the 

time, Susan was in a relationship with David. White was 

living with another woman, Becky Fisher, whom he had 

recently married. White began visiting Susan at her home 

every day, and they began a romantic relationship.

That April, White and Susan went to Michigan, where 

they lived together and worked at the same nursing home. 

David apparently felt “burned” by Susan, but still continued 

 2 All events relevant to White’s conviction took place in 1987.
6 WHITE V. RYAN

contact with her despite his friends’ “serious misgivings.” 

One friend believed that Susan was “taking advantage of 

him” based on things that David had said.

In October, Susan returned to Bagdad, Arizona, and 

White to Prescott. They continued their sexual relationship 

notwithstanding Susan’s engagement and subsequent 

marriage to David. White and Susan spoke on the phone up 

to six times each day when David was at work, and White 

was frequently at Susan’s house. At a restaurant where 

White worked for a few weeks that fall, he told a server about 

his “girlfriend.” According to White, he and his girlfriend 

“were planning on getting married sometime” although “she 

was living with someone else in Bagdad.” This other 

boyfriend “had money,” which White’s girlfriend “was 

going to use . . . to start a business.” White said that he and 

his girlfriend were planning to go to Phoenix, where they 

would start the business or go to school.

After Susan’s marriage, White began to visit Fisher, 

purportedly to visit their children and “get back with” Fisher, 

but he used her phone to call Susan. Around November 1, 

White told Fisher that Susan had asked him to help kill 

David. He explained that Susan “wanted to be with [him].” 

White also said that Susan was marrying David “[b]ecause 

of his money” and that “as soon as David put everything into 

[Susan’s] name . . . something was going to happen to 

David.” Several days later, White admitted to Fisher that he 

was “confused” and “didn’t know what to do” about Susan’s 

request that he kill David. White also told another friend, 

Carol Sexton, that “Susan was planning to kill David” and 

“wanted [him] to do it.”

In early November, Susan called several insurers about 

life insurance policies. She called Colonial Penn Insurance 

in Prescott to inquire about the “time frame on life insurance 
WHITE V. RYAN 7

policies,” and in particular, “when you can receive monies.” 

She also called Mutual of Omaha Insurance in Prescott to 

inquire about a $100,000 life insurance policy. Susan 

expressed concern about how long it would take the insurer 

to pay out if David were accidentally killed in the mine 

where he worked. Later that month, Susan told the agent 

that the payout would be enough to open a nursing home in 

Michigan, where she had family. Susan also arranged with 

David’s employer to add herself and her two children from 

a previous marriage to David’s life insurance policy.

Around November 10, White and Sexton had another 

conversation about Susan. Susan had told White that David 

“just took out a big life insurance policy” for $100,000. A 

few days later, White told Sexton that “Susan still had the 

crazy idea about killing David, and she still wanted [him] to 

do it.” Sexton “tried to talk [White] out of it.” White agreed 

with Sexton that “you just don’t take another man’s life.”

On November 19, at a pawn shop, White made a down 

payment on the .357 magnum revolver that he used to kill 

David. He made a second payment the next day, and on 

November 27 he returned to pay the remaining balance and 

pick up the weapon.

Around November 20, when Fisher was upset with 

White for not making child support payments, he told her 

that she “didn’t have to worry about money” because he 

would be getting $100,000 from Susan. A few days later he 

told Fisher that “he didn’t get the money.” Sometime in 

November, White asked Fisher if he could stay with her on 

December 15 and 16 because he “needed a place to stay.” 

When pressed, he admitted to Fisher that “something might 

happen to David” and he needed an alibi. Fisher refused.
8 WHITE V. RYAN

On December 12, at approximately 11:00 p.m., David 

and Susan’s neighbors heard gunshots at the Johnson 

residence. Neighbors saw a man run from the Johnsons’ 

carport, get into a green car, and drive off. Shortly thereafter, 

David walked to a neighbor’s home, where he collapsed, 

covered in blood. He had been shot in his chin and lower 

back with a .357 magnum revolver.3 Before he died, David 

stated that his assailant was an unknown man wearing a 

mask. Susan claimed that David had identified the shooter 

as her ex-husband, Clifford Minter. Minter’s name and the 

description of the green car were broadcast over the police 

radio.

An officer on his way to the murder scene stopped a 

green sedan heading away from Bagdad. White was the sole 

occupant. White stated that he had just dropped off a 

companion in Bagdad and was heading back to Prescott. 

Because the officer was looking for Minter, he let White 

proceed.

The police soon discovered that Minter was not involved 

in the shooting and began to focus their investigation on 

White and Susan. White traveled to Phoenix, where he sold 

the revolver used to kill David to a pawn shop. While White 

was staying at various motels in Phoenix, he and Susan made 

several calls to each other.

White was arrested in Phoenix on December 18. 

Officers searched his car and found an empty box of 

 3 These injuries caused only slight blood loss. David ultimately died 

when his lungs filled with fluid. Although some of the fluid was blood 

aspirated from his chin wound, other contributing factors were his 

diminished respiratory reserve from being overweight and the 

intravenous fluids being given to him that leaked into his vascular system 

and pooled in his lungs.
WHITE V. RYAN 9

.38 caliber bullets, a holster, a ski mask, and a bag of 

potatoes. They concluded that the murderer had placed a 

potato over the barrel of the revolver to act as a silencer due 

to pieces of dried potato with gunpowder particles found at 

the scene of the shooting and potato starch found on the 

barrel of the revolver and David’s glasses. White’s car also 

contained a glove with human blood stains on it and an 

envelope. On the back of the envelope was written: “Susie, 

I love you. We will be careful. I will call soon. Love, 

Michael.”

The police arrested Susan on December 23. While in the 

booking area of the Yavapai County Jail, she encountered 

White. He asked her, “is everything still the same, Susie”?

II. Procedural Background

A. Trial, original sentencing, and first direct appeal

White and Susan were tried separately on the same 

charges—conspiracy to commit first degree murder and first 

degree murder.

White’s trial counsel, Chester Lockwood, moved for a 

competency examination due to his strong suspicion that 

White suffered from “mental dysfunction.” In addition to 

his strange behavior, White repeatedly disregarded 

Lockwood’s instruction not to discuss his case by 

communicating with inmates, prosecution witnesses, and 

others, including Susan’s counsel and the prosecutor. The 

trial court denied the motion without oral argument. The 

jury convicted White of both charges.

At sentencing, Lockwood presented no mitigation 

evidence other than the presentence report to highlight 

White’s lack of a prior felony record. Lockwood argued that 
10 WHITE V. RYAN

White did not commit the murder for pecuniary gain because 

it was “Susan . . . who wanted the insurance money.” 

Lockwood acknowledged that White “may have benefitted 

from being with [Susan],” but argued that this fact did not 

show “that his participation in the murder was for anything 

other than his love or infatuation with Susan.” Lockwood 

submitted a five-page sentencing memorandum, only half of 

which addressed the death penalty.

The trial court found that the state had proven the sole 

statutory aggravating factor alleged—that White committed 

the murder for pecuniary gain based on the insurance 

proceeds—beyond a reasonable doubt. The court found no 

statutory mitigating factors but considered several nonstatutory factors: White’s lack of a prior criminal record, his 

natural father leaving home when White was 18 months old, 

White’s alcoholic stepfather, White’s substance-dependent 

personality, his inability to form and maintain close 

relationships, his employment record, his lack of a record of 

abusive or violent behavior, and his expression of sorrow for 

David’s death. The court found that these mitigating 

circumstances did not warrant leniency and sentenced White 

to death for the first degree murder, and to imprisonment for 

25 years to life for the conspiracy conviction.

White’s appellate counsel, John Williams, moved the 

Arizona Supreme Court to remand for appointment of 

mental health experts to determine whether White was 

competent to assist counsel. Williams asserted, based on 

discussions with White, his counselor, and an inmate 

acquaintance of White’s, that White appeared to be 

“suffering from a severe mental disease or defect which 

render[ed] him incapable of assisting counsel.” Specifically, 

Williams noted that White claimed that the Arizona 

Department of Corrections (“ADOC”) was “monitoring his 
WHITE V. RYAN 11

thoughts through some sort of electrical device which [was] 

somehow tied into the electro-shock therapy machine at the 

prison”; Susan (who was housed at the women’s prison in 

Perryville) “visit[ed] him outside his cell to taunt him”; and 

“he knows which portion of his head the electrical apparatus 

is connected to and is sending counsel a diagram.” In 

addition, White’s counselor told Williams that White “is 

very mentally unbalanced.” Another inmate stated that 

White “has gradually withdrawn from reality since he 

arrived at [the prison] and that he is engaging in ‘VERY 

bizarre behavior.’” White’s “letters to counsel [were]

bizarre and . . . of no help in the preparation of his case. In 

one instance he wrote three letters in one day and stated that 

he was intentionally closing to ‘start a new letter.’” The 

Arizona Supreme Court denied the motion.

White moved pro se for a medical evaluation because he 

believed that the ADOC had “implant[ed] a listening device 

in which they could monitor their victims[’] words and 

deeds.” The Arizona Supreme Court denied this motion as 

well, and affirmed White’s conviction and sentence. See

State v. White (White I), 815 P.2d 869 (Ariz. 1991).

B. First PCR petition

White sought post-conviction relief in the trial court. In 

May 1992, after attorney Douglas McVay was appointed, he 

requested the appointment of an investigator and 

“anticipated that a substantial effort must be made to unearth 

all mitigating circumstances.” The PCR court granted the 

motion and appointed investigator Arthur Hanratty.

In August 1995, after McVay had been representing 

White for more than three years, White moved pro se for a 

new trial. His motion consisted of various factual assertions 

and diagrams regarding his claimed version of events in 
12 WHITE V. RYAN

which Susan shot David. He also claimed that he was being 

“tortured” while incarcerated. White’s motion was denied.

Like prior counsel, McVay noticed troubling signs of 

mental health issues. At an October 1995 telephonic status 

conference, McVay stated, “[o]ne of the difficulties in 

representing . . . White is I have a three-inch stack of stuff 

from him that I have some questions, sometimes, and I 

expressed, sometimes he did not appear to be close to being 

lucid; other times he seemed to be quite okay.”

The PCR court held an evidentiary hearing on White’s 

amended PCR petition, which alleged ineffective assistance 

of counsel at trial, sentencing, and appeal.

1. Prosecutor Marc Hammond’s testimony

Marc Hammond testified. He and his co-counsel, Jill 

Lynch, prosecuted White’s case. After the trial, Lynch left 

the office, and Hammond handled White’s sentencing and 

later Susan’s prosecution alone.

Hammond believed that the death penalty was not 

appropriate because Susan was the “mastermind” behind the 

crime and White had no prior felony conviction or history of 

violence or abuse. Hammond told his supervisor, County 

Attorney Charles Hastings, that he “felt that White was just 

a run-of-the-mill loser who hooked up with his co-defendant 

on the case and that this murder would not have occurred but 

for the chemistry between the two of them.” Based on the 

evidence, Hammond believed that White “probably would 

have gone through his entire life without this kind of an 

offense” if not for Susan. Hastings told Hammond that the 

office policy was to ask for the death penalty in every first 

degree murder case where aggravating circumstances were 
WHITE V. RYAN 13

present and to let the judge make the decision. Hammond 

felt that he “should follow the policy” or quit.

2. Trial counsel Chester Lockwood’s testimony

Lockwood testified that he simply “miscalculated” the 

potential risk of a death sentence. He believed “[i]t couldn’t 

be a death penalty case” based on his experience 

representing the defendant in State v. Madsen, 609 P.2d 1046 

(Ariz. 1980). Lockwood “was convinced that [if] White had 

committed this offense he didn’t do it for money,” but rather 

because “[Susan] . . . convinced him to do it.” Had 

Lockwood appreciated the sentencing risk, he would have 

handled the case differently, such as developing “lots of 

other evidence” in mitigation. After the trial, White’s 

appellate counsel pointed out to Lockwood that “White must 

have some type of either emotional problem or health-related 

problems” because “he didn’t react to things.” Lockwood 

stated that at trial he “didn’t take any clue” from White’s 

behavior “as to why and how [White] reacted physically 

certain ways, but, boy, the mannerisms were all there.” In 

fact, White’s behavior “was so obvious” that Lockwood 

instructed him “not to answer certain ways” that Lockwood 

later came to think “were psychological or physiological for 

him.”

Lockwood failed to present mitigation evidence due to 

his “serious miscalculation” about the risk of the death 

penalty. Just prior to sentencing, Hammond told Lockwood 

that the hearing would not be long “[be]cause it’s not a death 

penalty case.” Although Lockwood took this as a statement 

of Hammond’s opinion rather than a guarantee of what the 

trial court would do, Lockwood “wrongfully formed the 

opinion that [the court] couldn’t give [White] the death 

penalty.”
14 WHITE V. RYAN

Lockwood stated that, in retrospect, he would have hired 

a second defense attorney to develop mitigating 

circumstances. He felt “there was [a] mitigating 

circumstance definitely that should have been developed 

psychologically about . . . White.” White’s appellate 

counsel, John Williams, similarly testified that the lack of a 

mitigation hearing was the “most obvious” sign that 

Lockwood was ineffective at sentencing.

The PCR court denied White’s petition as to the trial 

claims but granted it as to the sentencing claims and ordered 

a new mitigation hearing and sentencing. The Arizona 

Supreme Court subsequently denied review of White’s PCR 

claims regarding ineffective assistance of counsel at trial.

C. Resentencing proceedings

1. Mitigation hearing

McVay presented two witnesses at the mitigation 

hearing: Hammond and White. McVay also submitted an 

affidavit from Dr. Philip Keen, the Yavapai County Medical 

Examiner, who had testified as a prosecution witness at trial. 

Dr. Keen opined that David’s wounds “were not fatal” and, 

but for “intervening medical . . . carelessness, [he] wouldn’t 

have died in the first place.” Dr. Keen indicated that the 

Bagdad Clinic had given David “twice as much [lactate 

ringer solution] as they should have to replace the blood loss, 

and that was the immediate cause of the death.”

a. Prosecutor Marc Hammond’s testimony

Hammond reiterated his belief that this was not a death 

penalty case, but he felt bound by county policy to seek the 

death penalty, adding that his co-counsel agreed with him. 

He opined that Susan’s punishment, two consecutive 25-
WHITE V. RYAN 15

years-to-life sentences, was the appropriate punishment for 

White as well. Hammond believed that Susan was the 

“instigator” and “brains behind” the crime, and that “White 

was having . . . some difficulty making up his mind whether 

he was going to go through with the conspiracy.” White 

“had spoken to several witnesses” and said things to the 

effect that “Susan wants me to kill her husband. I don’t 

know what I’m going to do.” Hammond did not know what 

he was thinking when he argued to the court that “there was 

no evidence that . . . White was the dupe of Susan.” 

Hammond felt it “was pretty clear” that Susan “kept pushing

. . . White until he made up his mind to kill her husband.”

Although Hammond did not think capital punishment 

was warranted, he believed that White committed the murder 

for pecuniary gain and felt it “was well proven in the 

evidence.”

b. White’s testimony

White testified that he tried to be a “model inmate” while 

on death row. He did not participate in the gangs there. 

White also discussed his six children. His daughter Isabel, 

who lived with her mother in Wisconsin, had been 

experiencing problems—she was raped and some friends 

committed suicide—which “threw her into a drug situation,” 

and she “tried to take her own life.” During their 

correspondence, White was “able to help her out” because 

he had “been through a lot of different things in [his] life.” 

He believed he had “saved her life.” Isabel and her mother 

were planning to move to Arizona so that they could be 

closer to him.

White also was in contact with his other two oldest 

children, Jeremiah and Matthew. White felt that he could 

assist them avoid some of the mistakes that he had made. He 
16 WHITE V. RYAN

had “no association whatsoever” with his three youngest 

children.

2. Resentencing memoranda

a. McVay’s memorandum

McVay argued four mitigating factors. First, he 

discussed the prosecutors’ belief that the death penalty was 

not appropriate. He cited the subsequent change in Arizona 

Rule of Criminal Procedure 15.1—requiring prosecutors to 

give notice of their intention to seek the death penalty within 

30 days of arraignment—as evidence of “the acknowledged 

role of the prosecutor in determining the appropriateness of 

the death penalty.”

Second, McVay pointed to evidence that White could be 

rehabilitated. White had no felony criminal record, did well 

in his employment in nursing homes despite problems 

accepting responsibility, was productive during various 

periods of his life, had no record of prior abusive or violent 

behavior, and expressed sorrow for David’s death. McVay 

noted White’s exemplary behavior in prison, his contact with 

his children and assistance to his daughter, and his 

acceptance that his life would be spent in prison and would 

have value there.

Third, McVay focused on the gross disparity between 

White and Susan’s sentences. McVay argued that their 

culpability was equal because Susan planned the crime and 

pushed White to commit it. McVay claimed that the “weight 

of their mitigating circumstances” was similar because 

White, like Susan, had no prior record of crime or violence 

and was a caring parent whose death would likely be 

“devastating” for his children.
WHITE V. RYAN 17

McVay conceded that Susan had mitigating factors that 

White did not—a difficult childhood, marriage, and divorce, 

as well as a jury recommendation of leniency. McVay 

acknowledged White’s statement to the probation officer 

“that his childhood was normal,” but added, “one is left to 

wonder about that conclusion when [White’s] natural father 

left the home when [he] was 18 months old and his first 

stepfather was an alcoholic.” McVay speculated that it was 

“not inconceivable” that a jury might recommend leniency 

for White if told the prosecutor’s opinion that Susan was the 

“mastermind” behind the murder who had “pushed” White 

to commit it. And McVay argued that Susan’s additional 

mitigating factors were balanced by White’s potential for 

rehabilitation.

Fourth, McVay argued that the aberrant nature of 

White’s actions and his lack of a criminal record were 

themselves mitigating factors.

b. White’s letters and memoranda

White submitted at least two pro se filings. In a 

statement dated December 3, 1996, White claimed that the 

ADOC placed biometric implants in him against his will to 

transmit and receive electrical signals between his auditory 

cortex and remote computers in order to monitor his thought 

processes and cause him to hear voices and other sounds. He 

believed that the ADOC used the implants as mental and 

physical torture and that ADOC employees derived sexual 

satisfaction from these acts. He claimed the implants caused 

him brain damage and memory loss. White also pointed out 

that the ADOC had classified him as “mentally unfit” and 

that he might not have long to live due to his Graves’ disease. 

White argued that he should be sentenced to “time served” 

as a deterrent so that the ADOC would never again use 

implants and torture a human being.
18 WHITE V. RYAN

In a “Victim Witness Report”4 dated December 4, 1996, 

White similarly alleged that he was being tortured with 

various types of implants, “such as Laser Mic, S, and 

Telemeters,” exposing him to radiation and causing physical 

and mental damage. White claimed that since 1988, the 

ADOC had “raped” his memories and deprived him of all of 

his privacy because of the “mind to mind contact.” ADOC 

employees sent him thought signals from the “Implant 

Projection Room,” projected multiple personalities into his 

mind and forced him to perform sexual and violent acts for 

as long as six hours.

White believed that for nine years, each of the six 

“defendant[s]” and “co-conspirator[s]” had forced their 

thoughts into him, inflicting a total of 54 years of torture on 

him. His bones were aging faster than those of a pregnant 

woman, and he conservatively estimated that he has suffered 

32 years of bone loss. He then calculated that the 54 years 

of torture plus the 32 years of bone loss, combined with a 

“Normal sentence Reduction Rate of 18 Years,” amounted 

to 104 years of sentencing relief for which he was eligible.

3. Resentencing decision

The PCR court resentenced White to death, finding “no 

evidence which would invalidate [its] previous finding . . . 

that [White] committed the crime of first degree murder for 

the receipt of something of pecuniary value.” The court 

 4 White sent pleadings captioned “Witness Report” by “Victim 

White” to the Arizona Supreme Court, among other recipients, on more 

or less a weekly basis from at least April to October 1995. These 

pleadings alleged similar acts of torture and apparently related to one of 

several civil lawsuits he attempted to file against the ADOC and various 

ADOC employees.
WHITE V. RYAN 19

cited White’s statements that Susan had asked him to help 

her kill David, that Fisher did not have to worry about child 

support because he would be getting $100,000, and that he 

would use the money to start a business. The court also cited 

its mistaken belief that White and Susan had attempted to 

collect the insurance proceeds immediately after the 

murder.5

Turning to the statutory mitigation factors,6 the trial 

court again found that none were present. The court 

 5 There was no evidence that they attempted to collect on David’s 

policy, and the prosecutor made no such argument in support of the 

pecuniary gain aggravator. During trial, Hammond represented to the 

court that Susan had made an insurance claim, though he and his cocounsel disagreed whether she had done so before or after her arrest. 

This evidence, if it existed, was never presented to the jury. Although 

one witness overheard Susan ask White “something about insurance 

papers” a few days after the murder, the context of this conversation was 

unclear. More importantly, there was no evidence that White had 

pressured Susan to collect on the policy that would indicate his interest 

in (as opposed to knowledge of) the pecuniary gain. See Madsen, 

609 P.2d at 1053 (overturning pecuniary gain aggravator where the 

insurance agent, rather than the defendant beneficiary, “brought up the 

subject of the insurance policy,” because “the receipt of the money must 

be a cause of the murder, not a result of the murder”).

6 Arizona expressly provides that the following non-exclusive 

circumstances are “relevant in determining whether to impose a sentence 

less than death”:

1. The defendant’s capacity to appreciate the 

wrongfulness of his conduct or to conform his 

conduct to the requirements of law was 

significantly impaired, but not so impaired as to 

constitute a defense to prosecution.
20 WHITE V. RYAN

considered several non-statutory mitigation factors: White 

had no record of prior felonies; his natural father left home 

when he was 18 months old and his first stepfather was an 

alcoholic; he had “dependent personality traits” and had a 

history of using and being addicted to heroin, cocaine, and 

amphetamine; he was unable to form and maintain close 

relationships; he was “unable to take responsibility well” 

despite having “done well at his employment” and having 

“been productive during various periods of his life”; he 

expressed sorrow for David’s death; he had no prior record 

of abusive or violent behavior; he had tried to be a model 

inmate since his arrest; his and Susan’s relative culpability; 

he had contact with and was able to help some of his 

children; he accepted that the remainder of his life would be 

spent in prison and would have value there; he believed “that 

he is controlled by biotelemetry implants”; he probably 

 2. The defendant was under unusual and substantial 

duress, although not such as to constitute a 

defense to prosecution.

3. The defendant was legally accountable for the 

conduct of another . . . , but his participation was 

relatively minor, although not so minor as to 

constitute a defense to prosecution.

4. The defendant could not reasonably have foreseen 

that his conduct in the course of the commission 

of the offense for which the defendant was 

convicted would cause, or would create a grave 

risk of causing, death to another person.

5. The defendant’s age.

Ariz. Rev. Stat. Ann. § 13-751(G) (formerly codified at Ariz. Rev. Stat. 

§ 13-703(G) (1996)).
WHITE V. RYAN 21

helped his daughter Isabel with her problems; and he 

believed that he could be rehabilitated.

The court rejected the prosecutors’ opinions as 

“irrelevant.” It found that White and Susan’s sentences were 

not disparate because White “was the triggerman [who] 

planned, plotted, and executed [the] killing.” White was 

criminally responsible for the murder regardless of any fault 

of the medical personnel because David would not have died 

but for the gunshot wounds that White inflicted. Finally, the 

court found that White’s “aberrant behavior in connection 

with [his] rehabilitation argument” was “nonsensical.” The 

court concluded that “there are no mitigating factors which 

are sufficiently substantial to call for a sentence other than 

death. The mitigating circumstances are insufficient to 

warrant leniency.”

D. Appeal from the resentencing proceedings

By a three-to-two vote, the Arizona Supreme Court 

affirmed the death sentence. State v. White (White II), 

982 P.2d 819 (Ariz. 1999). The majority rejected the trial 

court’s complete dismissal of the prosecutors’ opinions 

about the appropriateness of a capital sentence as 

“inconsistent with prevailing authority.” Id. at 825. It 

nevertheless concluded that the prosecutors’ opinions were 

“easily outdistanced by White’s and [Susan’s] premeditated 

scheme to murder David . . . and thereby reap the benefits of 

his life insurance,” which was “an expectation of pecuniary 

gain in the most classic sense.” Id.

The majority agreed with White that “the potential for 

rehabilitation [is] a mitigating factor,” but observed that 

there was “no clear test under Arizona law as to how a 

defendant might demonstrate [it].” Id. at 826. Other cases 

had relied on expert testimony, the majority explained, but 
22 WHITE V. RYAN

none was offered by White. The majority agreed with the 

trial court that White’s “own testimony [was] not sufficient.” 

Id. The majority concluded that the other asserted mitigating 

factors carried little or no weight. Id. at 827–30.

The dissent argued that the majority, despite recognizing 

the trial court’s clear error in treating the prosecutors’ 

opinions as irrelevant, nonetheless afforded the opinions 

insufficient weight. Noting that the “pecuniary gain 

aggravator covers such a wide range of behavior that it easily 

lends itself to uneven application,” id. at 831, the dissent 

would not have applied the aggravator because “death is 

reserved for the worst of the worst” and “both this crime and 

its perpetrator fall short of the mark.” Id. at 832.

Citing “the inflexible policy of the Yavapai County 

Attorney . . . to automatically seek capital punishment in 

every case where evidence of at least one statutory 

aggravating factor was present,” the dissent would have 

“treat[ed] [the prosecutors’] failure to exercise . . . discretion 

as a non-statutory mitigating circumstance.” Id. The dissent 

also criticized the majority’s analysis of the sentencing 

disparity given that Susan “masterminded and solicited the 

killing of her husband, duping [White] into committing the 

crime.” Id.

The United States Supreme Court denied certiorari. 

White v. Arizona, 529 U.S. 1005 (2000). On January 8, 

2001, the Arizona Supreme Court issued its mandate.
WHITE V. RYAN 23

E. Second PCR petition

1. Protective PCR petition and preliminary 

investigations

Concurrently with issuing the mandate, the Arizona 

Supreme Court appointed counsel Daphne Budge to 

represent White in post-conviction proceedings. Budge filed 

a preliminary PCR petition on July 5, 2001, to stop the clock 

on the one-year federal statute of limitations, 28 U.S.C. 

§ 2244(d). The PCR court authorized funding for a paralegal 

and mitigation expert. Budge was unable to obtain White’s 

trial records because Lockwood had given them to Williams, 

who was by then deceased. After three years, Budge was 

replaced by David Goldberg.

2. PCR counsel David Goldberg’s requests for 

expert funding

Goldberg moved for $4,500 in funding for 

neuropsychologist Marc Walter to prepare a comprehensive 

neurological evaluation of White. Goldberg explained that 

this evaluation would support a claim of ineffective 

assistance of counsel at sentencing by showing that White 

had been “chronically seriously mentally ill since prior to the 

commission of the murder,” which would have been “a 

major statutory and non-statutory mitigating circumstance.”

The ADOC had provided to Goldberg “594 pages of 

medical and psychological records pertaining to [White] 

since his initial incarceration in 1988,” and “[e]arly progress 

notes indicate[d] [he] was suffering from paranoia and 

hallucinations.” Medical records further reflected that White 

was suffering from untreated hyperthyroidism. According 

to Goldberg, McVay “never bothered to obtain [White’s] 

records” even though he must have known that White was 
24 WHITE V. RYAN

likely mentally ill given White’s several letters to McVay 

indicating that doctors were prescribing him anti-psychotic 

medications and containing allegations of torture with brain 

implants and “other nonsensical ramblings.”

The PCR court denied the request, as well as a motion to 

fund a rehabilitation expert, without explanation. However, 

the court granted Goldberg’s request for additional funding 

for mitigation expert Keith Rohman.

Upon discovering a school record showing that White 

had been evaluated with an IQ of 74 as a child, Goldberg 

moved for appointment of an independent expert to conduct 

IQ testing. The PCR court denied this motion in part but, at 

the state’s urging, appointed Dr. Ann Herring to conduct an 

initial IQ evaluation to comply with Atkins v. Virginia, 

536 U.S. 304 (2002) (holding that execution of the 

intellectually disabled violates the Eighth Amendment). Dr. 

Herring reported that White’s verbal IQ at the time was 95 

and his full-scale IQ was 91, both of which fell within “the 

low end of the average range.” White’s performance IQ was 

86, which fell within “the low average range.” Dr. Herring 

concluded that White was “of average general intelligence 

with verbal slightly stronger than nonverbal intellectual 

abilities.”

Goldberg renewed his motion for funding for a 

neuropsychologist, this time proposing to hire Dr. Herring at 

an estimated cost of $4,000. Goldberg explained that he was 

“attempting to prove . . . that prior PCR counsel was 

ineffective for failing to investigate and present mitigation 

evidence related to [White’s] mental functioning and 

illnesses.” Goldberg was concerned that White’s “low 

average IQ” would “not carry much weight” without an 

expert such as Dr. Herring to explain it and provide meaning. 

The PCR court denied the motion without explanation.
WHITE V. RYAN 25

3. Amended PCR petition

Goldberg filed an amended PCR petition on May 2, 

2005, which included a declaration by Rohman with 

numerous exhibits. Rohman believed, based on his 17 years 

of experience conducting mitigation investigations in capital 

cases, including regular trainings with mental health 

professionals, that there were “strong indications of mental 

and physical illnesses suffered by . . . White.” However, he 

acknowledged that he was “not qualified to diagnose 

psychiatric illness, neurological illnesses or damage, or 

thyroid disease,” and did “not have the qualifications to 

provide expert testimony on the impact of drug and alcohol 

addiction on . . . White or the impact of thyroid aliments on 

his behavior.” In every other capital case where Rohman 

had served as a mitigation specialist, at least one mental 

health expert—“many times” three or four—was appointed 

to assist the defendant.

Rohman’s investigation turned up 13 categories of 

mitigation evidence that in his opinion should have been 

presented at resentencing to show that White’s “capacity to 

appreciate the wrongfulness of his conduct or to conform his 

conduct to the law was significantly impaired.”

a. Hyperthyroidism

In August 1988, while in custody, White was diagnosed 

with hyperthyroidism stemming from Graves’ disease. 

White was successfully treated with radioactive iodine for 

several months at the Maricopa Medical Center.

Graves’ disease causes symptoms including insomnia, 

disorganized thinking, paranoia, erratic behavior, mood 

swings, nervousness, anxiety, and increased heart rate and 

blood pressure. White recalled feeling nervous and anxious 
26 WHITE V. RYAN

most of his life. As he and various relatives recounted, he 

had stomach ulcers as a child and nervously chewed his 

fingernails all of the time. He was hyperactive and unable 

to sit still or focus in school. He had wide emotional swings 

and explosive fits, and he was always screaming. His school 

attendance and academic performance slipped during 

adolescence. His IQ, which measured 86 at age 13 and 91 at 

age 14, dropped to 74 at age 16. He repeated seventh grade 

and struggled to finish eighth grade at age 15. He had not 

finished tenth grade by age 17.

As an older teen and adult, White experienced excess 

energy. To control it, he engaged in physical activity, 

sometimes working double shifts or two jobs. His three exwives recall him being hyperactive, nervous, and unable to 

sit still. He slept fitfully and could not seem to “shut down” 

his mind. His second wife, Ellouise Boettcher, thought that 

White was insane because of his irrational thought patterns 

and paranoia. His third wife, Fisher, remembered his 

making peculiar religious comments, such as telling her that 

Lucifer lived down the street from him and that St. Peter was 

coming to take care of Lucifer. Fisher observed White 

talking to himself when nobody else was around.

b. Psychological impairments

ADOC mental health experts diagnosed White as 

suffering from schizophrenia and other psychiatric 

disorders. Although untreated Graves’ disease can account 

for cognitive dysfunction, White’s “outlandish and paranoid 

ideas” persisted years after he received thyroid treatment, 

suggesting that he suffered from both Graves’ disease and 

psychiatric disorders.
WHITE V. RYAN 27

i. Irrational thoughts and behavior

Boettcher thought White was “insane” because at times 

he would place his family at risk but irrationally think they 

were not at risk. When Boettcher was pregnant with their 

third child, Jeremiah, the family lived “on the desert 

ground.” After Jeremiah was born, they kept him by the 

river in a bassinet covered with a mosquito net. Boettcher 

insisted that they move after Jeremiah’s face “turned beet red 

and poured sweat.” Fisher recalled that White sometimes 

would not get medication that the doctor said was necessary 

for their infant son when he was extremely ill.

ii. Paranoid thoughts and behavior

When White and Boettcher were living in Maine, White 

“came home one day and thought their car was being 

watched. They immediately left town on a bus and never 

went back to their apartment for their possessions.”

Fisher recalled White exhibiting bizarre and paranoid 

behavior during the two years before David’s murder. White 

became angry when she tried to register to vote. He told her 

that their lives would be over if the government found them. 

He always insisted on using back roads and staying off 

highways when they traveled. When Fisher observed White 

talking to himself and asked him who he was talking to, he 

would say, “nothing, never-mind.”

iii. Grandiose illusions and delusional 

thoughts

Throughout his life, White told many people, including 

Fisher and his first wife, Nadeen Higginson, that he was a 

police informant, CIA agent, or federal narcotics agent. 

When White met Susan, he told her he was a doctor but was 
28 WHITE V. RYAN

actually a nurse’s aide. Dr. Fred Markham, who examined 

White while he was in custody, reported that White claimed 

to have had four years of law school and was planning to go 

to medical school as soon as he went to college, though in 

fact he had not completed high school. White told the 

probation officer that he graduated from the Florida Air 

Academy despite having attended for only one semester in 

eighth or ninth grade.

iv. Diagnoses while in custody

Within weeks of his incarceration, White was observed 

to be suffering from visual and auditory hallucinations and 

paranoia. White was “sure he saw a bullet” and heard 

someone putting together a gun in his cell. In October 1988, 

White attempted to demonstrate thought-broadcasting to a 

doctor. He displayed “bizarre facial expressions” and 

appeared to be responding to internal stimuli. In November 

1988, an inmate reported that White seemed “around the 

bend” and talked to himself all day. A March 1989 ADOC 

memo stated that White was suffering from “a biological 

mental disorder,” and he was diagnosed with organic anxiety 

disorder. The following month, White was taking 

Chlorazepam, which is used to treat seizures and panic 

disorders.

An ADOC psychiatrist suggested that White’s 

“occasional bizarre behavior may well be attributed to the 

thyroid condition.” By August 1989, his medical records 

indicated that his thyroid was functioning normally 

following iodine treatment. However, he continued to be 

diagnosed with organic anxiety disorder.

White wrote many letters to the courts and others 

describing ADOC’s torture of him through the use of 

implanted devices. He wrote letters to Boettcher and their 
WHITE V. RYAN 29

children, asking them not to leave him in prison because 

experiments were being conducted on him. He wrote to 

ADOC Director Samuel Lewis, Arizona Attorney General 

Grant Woods, U.S. Attorney Janet Napolitano, Senator John 

McCain, and President Bill Clinton, among others, 

requesting that they stop the torture. In a 1992 letter, he 

described witnessing the recent execution of another inmate 

through the inmate’s eyes, which he claimed the ADOC had 

forced him to watch via an implanted “laser mic.” White 

attempted to file five lawsuits against the ADOC, but each 

one was dismissed as “irrational and wholly incredible.”

c. Borderline intellectual functioning or low 

intelligence

White repeated the second and seventh grades. He 

received all F’s in sixth grade. In seventh through tenth 

grades, he received 25 F’s, 41 D’s, 27 C’s and 5 B’s. White 

withdrew from school during eleventh grade after failing all 

subjects but math, in which he received a D. His IQ scores 

ranged from 74, associated with “Borderline Intellectual 

Functioning,” in the ninth grade, to 91 in his second seventh 

grade year. On the stanine scale,7 his scores ranged from 1, 

the lowest possible, to 3.2.

As an adult, White held low-skilled jobs, each of which 

was, according to Rohman, “essentially a repetitive, manual 

occupation appropriate for someone of low intelligence.” 

These included picking mushrooms, working on a fishing 

wharf in Maine, washing dishes and cooking at restaurants, 

cleaning houses, selling rabbit fur and Native American 

 7 A stanine score is on a nine-point scale where 5 reflects average 

performance relative to other pupils at that grade level. Only 4% of 

students have a score of 1, while 23% score at 3 or below.
30 WHITE V. RYAN

jewelry, assisting as a nurse’s aide, and doing odd jobs for 

church members in exchange for land or housing.

Except for White’s relationship with Susan, his 

significant relationships with women “began when the 

women were unsophisticated and poorly educated teens.” 

As a teenager, White fathered two children with two 

different women, one of whom (Higginson) he married. He 

married Boettcher when he was 25 and she was 18 and had 

just come from a childhood of abuse. He met Fisher when 

he was 33 and she was 19. Fisher had never left the town of 

Wickenberg, Arizona, and believed White when he told her 

that he was an undercover CIA agent. Rohman opined that 

White continued to have relationships “with young women 

with emotional and psychological problems” even as he aged 

because these “deficiencies . . . allowed Michael to 

emotionally dominate them.”

Rohman asserted that White’s low intelligence 

manifested itself in various situations throughout his adult 

years. White once bought a horse but left it tied to a water 

pipe for several days without food or water while he left 

town. The horse pulled the water pipe, which burst and 

flooded the yard. White apparently did not know his 

mother’s correct maiden name when he married Boettcher 

based on their marriage certificate. When he and Boettcher 

moved to Oregon with their infant son, they camped out in a 

lean-to hoping to get squatter’s rights to the property, not 

realizing that the homesteading law had been repealed in 

1975.

Rohman also cited the facts of the offense as evidence of 

White’s low intelligence and limited ability to reason. White 

shared Susan’s plan for him to murder David with both 

Fisher and Sexton. His idea to use a potato as a silencer—

which would not work, according to an expert at Susan’s 
WHITE V. RYAN 31

trial—was apparently taken from a Hawaii 5-0 episode. 

Rather than disposing of the weapon where it would not be 

found, he sold it to a pawn shop. He left the ski mask and 

bag of potatoes in his car for a week after the murder even 

though they linked him to the crime.

d. Susan’s culpability

Rohman recognized that the trial court found that 

White’s greater sentence as compared to Susan’s was not 

disparate because he was the perpetrator. Rohman focused 

on showing that Susan “was the motivating force and actor 

in this crime” because she manipulated White, who was 

“psychologically vulnerable and emotionally impaired.”

Sexton testified at Susan’s trial that White told her that 

“Susan had planned to kill David and she wanted [White] to 

do the shooting.” White “tried to talk Susan out of it,” telling 

her “it was a crazy idea.” Three days later he called Susan 

again and she “still had the same idea.” One day White told 

Sexton that “he just [gave] up the whole idea.” Sexton 

thought that White was “infatuated” with Susan because 

“[h]e just didn’t talk about anything else but [her].” Sexton 

believed that White would not have committed the crime if 

Susan had not manipulated him.

The night of David’s death, Susan seemed more scared 

than upset. Two days afterwards, Susan’s kindergarten-age 

daughter, Heather, told her teacher, “Mommy’s kind of 

anxious right now.” The teacher replied, “And sad?” 

Heather said, “Just anxious.” That night, Susan went 

drinking with a friend. She appeared to be in a good mood. 

She took off her wedding rings and said, “I’m not going to 

get anywhere with these.” She went home with the bar’s 

bouncer, whom she had just met, and had sex with him. The 

following night, she told the bouncer that David was 
32 WHITE V. RYAN

murdered over a narcotics transaction, that the police had 

arrested an old boyfriend of hers, but that he was innocent 

and a federal narcotics agent was working with her to clear 

him.

Several people described Susan as manipulative and a 

liar. James Clubb, a high school classmate, described her as 

very manipulative—the “kind of person who would go out 

and get what she wanted no matter what.” Susan testified 

that she was originally going to blame the crime on her own 

brother. Hammond, the prosecutor, believed that she clearly 

“was the instigator and she kept pushing . . . White until he 

made up his mind to kill her husband.”

e. Family history of violence and criminality

White’s natural father could be aggressive and hostile. 

He was expelled from junior high school for fighting with a 

student and hitting a teacher with a chair. As an adult, 

White’s father was followed home from a bar by the police 

after he got into a fight there. One time he became angry 

when White’s mother did not immediately clear the dishes 

from the dining table after he finished eating. He kicked the 

dinner table across the room and ordered her to pick it up.

One of White’s stepfathers, Eugene Perlow, frequently 

struck White with his hands and a belt while bending him 

over a chair. Once when White reached across the dinner 

table, Perlow back-handed him, knocking him to the ground. 

White’s mother became upset, and White ran away from 

home for the first time.

One of Perlow’s sons, six years White’s senior, was 

abusive to him. They would play a game called “who could 

hit the easiest.” White usually lost and wound up hurt. He 

recalled getting hit in the shoulder and nose, which left scars. 
WHITE V. RYAN 33

Once, this stepbrother locked White in the trunk of a car and 

left him there while he went to a drive-in movie. White’s 

behavioral problems started around the time he was exposed 

to his violent step-family. Perlow was stricter with White 

than with his own children, but White’s mother generally did 

not intervene.

White’s uncle unsuccessfully tried to kill a truant officer 

with six sticks of dynamite and later went to prison for 

robbery. White’s first cousin is serving a life sentence for 

first degree murder.

f. Family history of alcoholism and substance 

abuse

White’s maternal grandfather was a violent, abusive 

alcoholic who died of cirrhosis of the liver. White’s uncle 

died of alcohol-related issues. White’s first cousin also had 

a history of using alcohol, marijuana, cocaine, heroin, and 

methamphetamines. He was arrested for selling rock 

cocaine and possessing paraphernalia. He committed four 

misdemeanors as a child and was jailed on three occasions. 

White’s mother was addicted to prescription medication 

while he was a baby and toddler. White’s stepfather Millard 

Forrester was an alcoholic who would have screaming 

arguments with his mother.

White first experimented with drugs around the age of 

14. By the age of 19, he smoked marijuana on virtually a 

daily basis. White reported being high on marijuana almost 

daily during his trial. He also used LSD, cocaine, heroin, 

and methamphetamines. Around the age of 25, he moved to 

San Francisco, where he became addicted to heroin and 

contracted Hepatitis C.
34 WHITE V. RYAN

White believed that his use of LSD, cocaine, and 

marijuana contributed to the demise of his first marriage to 

Higginson, since he refused her requests to go to counseling. 

His second wife, Boettcher, thought he did not like life and 

that he needed the drugs to live with himself. When sober 

for a few months, White “seemed like he could be a decent 

person,” but once he began using again he would become 

irritable and abusive if he ran out of the drugs.

g. Family instability and lack of a father

Between the ages of one and thirteen, White had four 

different father figures. His birth parents separated when he 

was 18 months old. Around this time, his mother met 

George Willard, a customer at the restaurant where she 

worked. White’s mother became pregnant with Willard’s 

son, Michael’s half-brother Norman. White, his mother, and 

Norman moved in with Willard and Willard’s daughter from 

another relationship. After White’s mother and Willard 

separated a year later, Norman maintained a relationship 

with Willard but White was not allowed to do so.

White’s mother married Forrester when White was about 

three years old. Forrester regularly took them on camping, 

hunting, and fishing trips. White felt like they were building 

a family and called Forrester “Dad.” After three or four 

years, the marriage ended due to Forrester’s alcoholism. 

White was not supposed to talk to Forrester after that, but he 

recalled running up to him at school one day to talk to his 

“Dad.”

Around the time of the divorce, White was diagnosed 

with stomach ulcers from “nerves,” which stopped after two 

years of medication and a restricted diet. White thought the 

ulcers were caused by family stress.
WHITE V. RYAN 35

When White was 13, his mother married Perlow, who 

was her much older supervisor. He brought two of his 

children from a former marriage into the home, and they 

received preferential treatment. White and Norman felt like 

outsiders in the family.

Throughout his life, White talked about finding his 

natural father. White asked his mother for help, but she 

refused. As a teenager, White went to California to search 

for him. Higginson recalled that at age 21, White insisted 

that she call him by his father’s name, “Ray.”

h. Neglectful parenting

White suffered a broken collarbone at age two, 

reportedly from falling off a picnic table. His arm needed to 

be kept in a sling, but his mother failed to ensure that this 

happened. At the age of four, White suffered a severe head 

injury from striking his head while running around a pool. 

His mother did not take him to a doctor. White still has a 

dent in his forehead from this incident. Around the same 

age, he slipped on wet wood and sustained a hairline fracture 

to his hip. White’s mother smoked cigarettes throughout her 

pregnancy with White which, according to Rohman, may 

have contributed to White’s low intelligence and childhood 

behavioral problems.

White was asked to step into an adult role as a very 

young child. Around the age of five, he was made 

responsible for caring for and feeding Norman, who was in 

diapers at the time, while his mother was at work. After his 

mother and Forrester divorced, when White was seven years 

old, his mother told him that he was now the “man” of the 

family.
36 WHITE V. RYAN

White’s mother was lax in disciplining White and 

generally ignored his misbehavior. She also neglected his 

education and did not insist that he go to school. The family 

moved frequently, forcing White to attend several different 

schools—three for second grade alone. When he had to 

repeat seventh grade, his mother did not seek tutoring help.

Boettcher, White’s second wife, recalled that White’s 

mother favored Norman over White. White’s mother was 

very critical of and “cold” to White. She told him that she 

had become “higher class” than when he was a child and did 

not want him to “ruin their name.”

i. Transience

Rohman believed it “may be impossible to know how 

many times [White] moved from house to house, and 

community to community as he was growing up.” White 

lived, at a minimum, with his birth father in Los Angeles, 

with maternal uncles and cousins for approximately a year 

after the separation, with Willard and his daughter for a year, 

in and out of various relatives’ homes for several years after 

that relationship ended, with Forrester for three to four years, 

again with various relatives after that divorce, and in 

numerous homes with Perlow and his children. White 

attended at least 10 different schools from kindergarten 

through high school, and there were “gaps of several grades” 

where Rohman was “unable to even identify what school he 

attended.”

j. Head injury

Rohman opined that the head injury White sustained 

from running around the pool when he was four years old 

likely caused him damage to his brain. The dent in White’s 

forehead indicated that White took the brunt of the fall with 
WHITE V. RYAN 37

the front of his head, potentially wounding his frontal lobe. 

Rohman cited evidence that frontal lobe injury can cause 

behavioral and personality abnormalities, such as 

impulsivity, aggression, poor judgment and insight, poor 

self-regulation of behavior, mood swings, attentional and 

memory deficits, amotivation, apathy, and disorganization.

k. Hyperactivity

White displayed many symptoms of Attention Deficit 

Hyperactivity Disorder (“ADHD”) as a child. As early as 

kindergarten, White’s teachers reported they could not keep 

him in his seat long enough to focus on schoolwork. At 

home, White was a very nervous child with little impulse 

control. White recalled being jittery for as long as he could 

remember. His writing was impaired by shaky hands, a 

symptom of Graves’ disease. White had trouble 

concentrating in school. Around the time he was in second 

grade, White’s mother took him to a counselor or 

psychologist for these problems. Without testing White, the 

counselor diagnosed him as hyperactive, recommending 

medication and opining that White would eventually “grow 

out of this behavior.” White’s mother refused to medicate 

him and stopped taking him to the counselor after several 

visits because she “did not see any progress.” This was the 

only mental health-related treatment that White received as 

a child.

l. Inability to support himself and poverty

Higginson, White’s first wife, recalled that White could 

not earn enough to support her and their son, Shawn. She 

believed that the pressure of this failure caused White to 

leave them when Shawn was four years old.
38 WHITE V. RYAN

White and Boettcher, his second wife, moved to 

Wisconsin to live on a farm. White was supposed to make 

monthly payments to Boettcher’s father, who had taken out 

a loan for the farm. White was never able to do so, and after 

eight months he and Boettcher were forced to move away.

White traded in a trailer for two mules, a harness, and a 

wagon. After he converted the wagon, he took Boettcher and 

their two kids back to Wickenberg, Arizona, to two gold 

claims. In addition to the mules, White had horses, chickens, 

goats, and dogs. They had no running water where they 

lived, so they hauled it. While White looked for work, 

Boettcher would stay in the truck with the kids in the desert. 

Boettcher eventually got a job working as an aide at a 

hospital.

White and Boettcher lived mainly on charity during this 

time. They were extremely poor, living by the riverbank in 

a tent and sleeping on the ground in the dirt. Because there 

was no water in the river, the family was always filthy. 

When Boettcher went into labor with their third child, the 

pastor’s wife and other people from the church cleaned her 

up and took her to the hospital.

White and Fisher, his third wife, lived in Texas for 

months without a bed while she was pregnant. They slept on 

the floor of a room. They stayed in “rundown hotels,” 

usually the cheapest in town.

In mid-1987, the pastor of a church in Prescott gave 

White rides to and from church and fed him. White “seemed 

like a loner” and down on his luck. He always sat by himself 

at church, dressed shabbily. He once worked in the pastor’s 

yard for money. Shortly before the murder, White was 

sleeping on the floor of an upholstery shop and showering at 

Sexton’s home.
WHITE V. RYAN 39

m. Inability to maintain relationships

In high school, White began dating Joan Quinn when 

they were around 15 years old. Quinn became pregnant, and 

her parents forced her to give the baby up for adoption and 

forbade her from talking to White. White recalled having 

only one other friend in high school.

White met Higginson when he was 19 years old. 

Higginson did not think White had any friends of his own 

during their four years together. Although White blamed the 

failure of their relationship on his drug problem, Higginson 

believed it was caused by his inability to support the family 

financially or deal with issues in their marriage. When 

White and Higginson’s son Shawn was 12, White went to 

Oregon to visit him. He wanted Shawn to know that he had 

a father, because White never saw his own father. White 

spent only a couple of hours with Shawn and called it a “nice 

visit.”

White met Boettcher in San Francisco. They began 

doing drugs together and traveling around the United States. 

During the eight years they were together, White never 

maintained any long-term friendships with others. He was 

extremely possessive of her. He would bring home the 

groceries so that she had no reason to leave the house without 

his permission. They moved frequently. White would 

sometimes come home and tell her they were leaving that 

day. They were married in Wisconsin, and their children 

were likely born in South Carolina, Arizona, and California. 

Even when they accepted charity from the church in 

Wickenberg, White and Boettcher remained isolated from 

the community.

White and Fisher met in 1985 while working together at 

a nursing home. They left together to travel around the 
40 WHITE V. RYAN

country. They returned to Arizona, had two children, and 

were married in December 1986. White met Susan the 

following month. He wanted to build a stable family with 

Susan and never seemed to leave her side while they were 

together in Michigan.

4. Further denial of funding for a neuropsychologist 

and changes of counsel

After Goldberg withdrew from the representation to 

pursue a nursing degree, the Arizona Supreme Court 

appointed Thomas Gorman to replace him. Gorman, who 

also later withdrew, felt that White was “clearly presently 

mentally ill and not presently competent or able to assist in 

his case in any way.” Gorman believed that White’s claims 

involved “complex medical and psychological issues never 

previously presented to any court” and required 

“consultation with experts.”

After attorney Kerrie Droban replaced Gorman as 

White’s counsel, she renewed Goldberg’s motion to fund a 

neuropsychologist on the ground that a comprehensive 

neuropsychological evaluation was necessary to establish 

White’s ineffective assistance of counsel claim and bolster 

the mitigation expert’s findings. The court denied the 

motion without explanation.

5. Evidentiary hearing

The superior court held an evidentiary hearing on 

November 5, 2007, at which McVay and Rohman testified.8

 8 Droban attempted to examine a third witness, John Sears, to testify 

“about the general standards for capital defense litigation and the 

particular funding issues relative to this case.” The court denied 
WHITE V. RYAN 41

a. Resentencing counsel McVay’s testimony

McVay became involved in White’s case when he 

encountered a lawyer who told him that Judge Hancock was 

looking for a PCR lawyer with death penalty experience. At 

the time, McVay’s practice involved “[m]ostly [criminal] 

appeals” with “a substantial domestic relations component.” 

He was unsure whether, prior to White’s case, he had had 

any experience with capital sentencing proceedings or had 

read the applicable 1989 American Bar Association 

guidelines for capital litigation (“ABA guidelines”).

The only other person McVay hired to work on White’s 

case, an investigator, was a former police officer who had no 

known specialization in mitigation evidence. McVay did not 

hire a mitigation expert because he “felt that the investigator 

that [he] had was sufficient to the purpose.” He did not recall 

reviewing the transcript of Susan’s trial prior to White’s 

resentencing. He spoke with White’s trial counsel, 

Lockwood, but “not at considerable length.”

McVay recalled receiving “a number of letters” from 

White about biotelemetry implants in his brain but did not 

order copies of White’s medical or psychological records 

from the ADOC because he “just flat didn’t think of it.” 

McVay was unaware that ADOC records diagnosed White 

with “a biological mental disorder,” Graves’ disease, and a 

thyroid problem that may cause occasional bizarre behavior, 

and documented White’s complaints of auditory 

hallucinations, his observed “bizarre facial expressions” that 

 Droban’s request without explanation. The court also denied Droban’s 

renewed motions for funding for a neuropsychologist, a rehabilitation 

expert, a lethal injection expert, and a defense investigator.
42 WHITE V. RYAN

seemed “to be responding to internal stimuli,” and, 

according to another inmate, his talking to himself all day.

Although it occurred to McVay that White did not 

genuinely believe his claims of brain implants, McVay had 

no strategic reason not to request the ADOC records. 

McVay stated that in hindsight, he should have obtained the 

records and requested a mitigation specialist.

McVay assumed that his investigator would have 

obtained White’s school records, but he never saw them and 

was unaware that White’s IQ had been measured at 74. He 

had no strategic reason not to request the school records. 

McVay felt White’s life circumstances and social history did 

not warrant further investigation based on “the facts of the 

case,” “some information [he received] from the 

investigator,” and the few times he spoke with White.

While aware of his duty to contest aggravating factors, 

McVay thought he had stipulated to the existence of the 

pecuniary gain aggravating circumstance because “the issue 

was resolved on the [first] direct appeal.” He thought the 

Yavapai County Attorney’s policy of seeking the death 

penalty whenever there was any evidence of an aggravating 

circumstance “was so offensive and such [an] abandonment 

of what . . . their prosecutorial role should be that . . . it 

would be extremely persuasive.”

b. Mitigation expert Rohman’s testimony

Rohman testified that a mitigation investigation 

proceeds without an agenda, “looking for signs of mental, 

emotional, [or] physical impairments that might impact [the 

defendant’s] conduct [and] development,” as well as any 

other relevant evidence. He attempted to corroborate 
WHITE V. RYAN 43

mitigation evidence from multiple sources to strengthen the 

presentation.

A mitigation specialist uses the information collected to 

identify other experts that may be useful, such as 

psychologists, psychiatrists, and neuropsychologists, who in 

turn use it in their own investigations and as the basis for 

their testimony. In 1996, it was standard for defense counsel 

in capital litigation to follow the recommendations of the 

ABA guidelines, including the use of mitigation specialists.

Based on Rohman’s review of the ADOC records and 

White’s other medical records, he recommended obtaining a 

medical expert in hyperthyroidism and Graves’ disease, a 

psychiatrist or psychologist to look at how the illness 

impacted White’s life, and an expert in special education 

needs to evaluate the disease’s impact on White’s 

developmental history and educational background. 

Regarding the effects of White’s low IQ, Rohman believed 

an expert in the area of learning disabilities, mental 

retardation, and particularly neurology, would be 

appropriate.9 In Rohman’s nearly two decades of work on 

capital litigation, this was the only case in which a mental 

health professional was not appointed.

 9 The PCR court repeatedly stopped Rohman from offering an

opinion as to how White’s background, symptoms, and diagnosed 

afflictions could potentially affect his behavior on the ground that 

Rohman was unqualified. Yet in finding that there was no prejudice 

from McVay’s failure to investigate and present evidence of White’s 

hyperthyroidism, the PCR court stated that it “would have concluded that 

[the] symptoms did not contribute to his conduct.”
44 WHITE V. RYAN

6. PCR court’s decision denying White’s petition

The PCR court summarily denied relief and dismissed 

the petition. On March 24, 2008, the court adopted the 

state’s proposed findings of fact and conclusions of law. It 

found that “White did not make the showing necessary to 

obtain a neuropsychologist”—“that his sanity would be or 

was a significant factor in his defense”—because there was 

no evidence that he was mentally impaired when he 

murdered David. The court concluded that White “failed to 

show that any impairment would carry significant weight in 

mitigation and failed to show that impairment as alleged 

would play a significant role in his defense against the death 

penalty.”

As for McVay’s failure to challenge the pecuniary gain 

aggravator, the court concluded that it “was based on sound 

trial strategy” and McVay’s representation was reasonable 

under the circumstances; that “[t]here was no reasonable 

probability that this Court would not have found the 

aggravator proven had McVay challenged it with the 

proffered evidence”; and that “[t]he State was not required 

to prove that pecuniary gain was White’s exclusive motive 

for killing [David].” Therefore, McVay neither performed 

deficiently nor prejudiced White.

The court next turned to the various types of mitigation 

evidence that White asserted McVay should have presented 

and one by one rejected them as a basis for granting White’s 

PCR petition. The court determined that McVay either had 

no reason to investigate the mitigation evidence or made a 

strategic decision not to do so. For each category of 

mitigation evidence, the court stated that even if it had 

considered the evidence, the evidence was insufficient to call 

for leniency and the court would have imposed the same 

sentence.
WHITE V. RYAN 45

The Arizona Supreme Court denied review of the PCR 

court’s decision on October 28, 2008.

F. Federal habeas proceedings

White filed a habeas petition in the district court on 

December 22, 2008. The district court stayed the 

proceedings pending a competency determination. 

Following White’s examination by a court-appointed expert, 

the parties stipulated that he was incompetent to assist 

counsel. White was transferred to the Arizona State 

Hospital, but a disagreement between the hospital and an 

ADOC doctor prevented the development of a restoration 

plan.

Later, the Supreme Court held that a stay of federal 

habeas proceedings on account of a petitioner’s 

incompetency is inappropriate if “there is no reasonable 

hope of competence.” Ryan v. Gonzales, 568 U.S. 57, 77 

(2013). In light of Gonzales, the district court lifted its stay, 

and denied White’s amended petition on July 10, 2015.

III. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 2253(a), and we 

review the district court’s denial of habeas relief de novo. 

Earp v. Davis, 881 F.3d 1135, 1142 (9th Cir. 2018). Because 

White filed his federal habeas petition after April 24, 1996, 

it is subject to the Antiterrorism and Effective Death Penalty 

Act of 1996 (“AEDPA”). See Murray v. Schriro, 745 F.3d 

984, 996 (9th Cir. 2014) (citing Valerio v. Crawford, 

306 F.3d 742, 763 (9th Cir. 2002) (en banc)).

Under AEDPA, we may not grant habeas relief on 

White’s ineffective assistance claim unless the state court 

adjudication of it “was contrary to, or involved an 
46 WHITE V. RYAN

unreasonable application of, clearly established Federal law, 

as determined by the Supreme Court of the United States,” 

28 U.S.C. § 2254(d)(1), or “was based on an unreasonable 

determination of the facts in light of the evidence presented 

in the State court proceeding,” id. § 2254(d)(2). In making 

this determination, we look to the last reasoned state court 

decision to address the claim. See Wilson v. Sellers, 138 

S. Ct. 1188, 1192 (2018). Here, the last such decision was 

the PCR court’s March 24, 2008 findings of fact and 

conclusions of law.

IV. Discussion

The clearly established federal law governing ineffective 

assistance of counsel claims is Strickland. See Cullen v. 

Pinholster, 563 U.S. 170, 189 (2011). To meet that standard 

requires a showing that counsel performed deficiently in a 

way that prejudiced the defense. Strickland, 466 U.S. at 687.

A. Deficient performance

Deficient performance means that “counsel’s 

representation fell below an objective standard of 

reasonableness” as measured by “prevailing professional 

norms.” Id. at 688. Given the “countless ways to provide 

effective assistance in any given case,” we “must indulge a 

strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance.” Id. at 

689. Our examination of counsel’s performance “must be 

highly deferential,” id. at 689, and when conducted through 

AEDPA’s lens our review is “doubly deferential,” Cheney v. 

Washington, 614 F.3d 987, 995 (9th Cir. 2010) (quoting 

Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003) (per curiam)).
WHITE V. RYAN 47

1. McVay’s failure to challenge the aggravating 

factor

The PCR court, citing Strickland, concluded that 

McVay’s failure to challenge the pecuniary gain aggravator 

was “based on sound trial strategy.” It was clear, however, 

that McVay did not make a strategic choice. Rather, his 

decision not to challenge the State’s evidence that White 

acted for pecuniary gain was based on his erroneous belief 

that “the issue was resolved on the [first] direct appeal.” A 

decision based on a misunderstanding of the law is not sound 

trial strategy. See Strickland, 466 U.S. at 690–91 (requiring 

deference only to “strategic choices made after thorough 

investigation of [the] law” or after reasonable professional 

judgment not to investigate); see also United States v. Span, 

75 F.3d 1383, 1390 (9th Cir. 1996).

At resentencing, the parties were entitled to present new 

arguments and evidence regarding the pecuniary gain factor 

and the court was required to find anew that the state had 

established the factor before reimposing the death penalty. 

See Ariz. Rev. Stat. § 13-703(C), (E) (1996); State v. 

Rumsey, 665 P.2d 48, 53 (Ariz. 1983) (stating that the statute 

governing capital sentencing procedure at least 

presumptively applies on resentencing, entitling the parties 

“to introduce new contentions or evidence with regard to 

aggravating circumstances”), aff’d, 467 U.S. 203 (1984). In 

once again finding the pecuniary gain aggravator, the court 

commented on the lack of evidence to alter its original 

finding. There was no strategic reason for McVay not to 

have challenged the pecuniary gain factor.

In concluding that McVay acted reasonably, the PCR 

court relied on our decision in Coleman v. Calderon, 

150 F.3d 1105, 1113 (9th Cir.), rev’d on other grounds, 

525 U.S. 141 (1998) (per curiam). Coleman does not 
48 WHITE V. RYAN

support the PCR court’s decision. The claim in Coleman

was that counsel “failed to properly investigate the physical 

evidence.” 150 F.3d at 1113. We observed that “[i]n any 

given case . . . , one would expect an attorney to examine the 

physical evidence, especially in a prosecution involving the 

death penalty.” Id. Yet the attorney’s performance was not 

constitutionally deficient in part because he hired an expert 

to examine the evidence. Id. Here, McVay made no attempt 

to uncover—let alone examine—evidence rebutting a 

pecuniary motive.

2. McVay’s failure to investigate and present 

mitigating evidence

“[C]ounsel has a duty to make reasonable investigations 

or to make a reasonable decision that makes particular 

investigations unnecessary.” Strickland, 466 U.S. at 691. 

McVay initially “anticipated that a substantial effort must be 

made to unearth all mitigating circumstances.” Yet he failed 

to investigate any mitigating circumstances relating to 

White’s background despite having ample time to do so.

For example, McVay did not order White’s readily 

obtainable medical and other records from his time in 

custody. Normally, “a particular decision not to investigate 

must be directly assessed for reasonableness in all the 

circumstances, applying a heavy measure of deference to 

counsel’s judgments.” Id. But that presumes counsel made

a judgment not to investigate. The state court was well 

aware that McVay did not. McVay testified that he had no 

strategic reason for not acquiring White’s records. When 

asked why he did not obtain them, he testified that he “just

flat didn’t think of it.” We “may not indulge ‘post hoc

rationalization’ for counsel’s decisionmaking that 

contradicts the available evidence of counsel’s actions.” 
WHITE V. RYAN 49

Harrington v. Richter, 562 U.S. 86, 109 (2011) (quoting 

Wiggins v. United States, 539 U.S. 510, 526–27 (2003).

McVay knew that White’s mental health was an issue. 

The record, which McVay should have reviewed, was filled 

with evidence that White suffered from mental illness. 

Before trial, Lockwood requested a competency hearing 

because he “strongly suspect[ed]” that White “would not be 

able to adequately assist defense counsel” on account of his 

“strange behavior.” White’s first appellate counsel, 

Williams, also requested a competency hearing because 

White appeared to be “suffering from a severe mental 

disease or defect which renders him incapable of assisting 

counsel.” The Arizona Supreme Court discussed appellate 

counsel’s assertion that “after [White] was sent to prison, he 

began exhibiting bizarre behavior.” White I, 815 P.2d at 883. 

White I dismissed White’s claim that this behavior may have 

been “the result of a mental impairment that predated the 

murder” due to the lack of a record on direct appeal. Id. The 

state supreme court advised White that he “may present this 

issue for determination by the trial court” in a PCR petition. 

Id.

At the first PCR hearing, McVay elicited testimony from 

Lockwood that White’s appellate counsel thought “White 

must have some type of either emotional problem or healthrelated problems” because of his behavior, and Lockwood 

realized that White’s “mannerisms” in fact “were 

psychological or physiological for him.” Lockwood 

expressed regret because he “definitely . . . should have . . . 

developed [a] psychological[]” mitigating circumstance. 

And McVay should have suspected something was wrong 

when he received “a number of letters” from White about the 

biotelemetry implants in his brain.
50 WHITE V. RYAN

The PCR court found that “White behaved normally and 

rationally during face-to-face meetings with [McVay].” 

That White sometimes behaved normally is irrelevant when, 

as McVay told the court ten months before the resentencing, 

“sometimes [White] did not appear . . . close to being lucid.” 

To the extent the PCR court found that White always 

behaved normally in front of McVay, that was an 

unreasonable factual determination. It was also irrelevant 

given the substantial evidence that McVay had from other 

sources regarding White’s questionable mental health.

The PCR court found that McVay “questioned whether 

White truly believed the accusations he made in 

correspondence.” At the second PCR hearing, more than a 

decade after the events in question, McVay agreed that it had 

“cross[ed] his mind” that White may not genuinely have 

believed that he had implants in his brain because McVay 

recalled him behaving normally on the few occasions they 

met. But McVay at least suspected that White might have 

mental health issues worth investigating, because he directed 

his investigator to speak with White’s mother “regarding her 

capability in affording a mental examination,” which McVay 

and his investigator had “spoke[n] about.”

While McVay’s skepticism about White’s letters and the 

possibility of malingering was understandable, McVay was 

not a neutral factfinder—he was an advocate. Given the 

substantial evidence from multiple sources that White may 

have mental health issues and the possibility that such issues 

would have a mitigating effect on his sentence, it was 

unreasonable of McVay not to investigate further or request 

funding for an expert investigation.

The PCR court concluded that McVay “was not required 

under Strickland to request White’s mental health records 

absent some suggestion that they might contain information 
WHITE V. RYAN 51

with mitigating value.” The court’s factual premise was 

unreasonable given the evidence of White’s mental illness. 

Moreover, even if there had been no readily available 

evidence, McVay had an obligation to thoroughly 

investigate White’s background, and his decision not to do 

so was unreasonable. “It is unquestioned that under the 

prevailing professional norms [in 1988, four years before 

McVay began representing White], counsel had an 

‘obligation to conduct a thorough investigation of the 

defendant’s background.” Porter v. McCollum, 558 U.S. 30, 

39 (2009) (per curiam) (quoting Williams v. Taylor, 529 U.S. 

362, 396 (2000)) (reviewing de novo); see also Robinson v. 

Schriro, 595 F.3d 1086, 1108–09 (9th Cir. 2010) (“Certain 

forms of investigation are fundamental to preparing for 

virtually every capital sentencing proceeding. At the very 

least, counsel should obtain readily available documentary 

evidence such as school, employment, and medical records, 

and obtain information about the defendant’s character and 

background.” (citing Boyde v. California, 494 U.S. 370, 382 

(1990); Ainsworth v. Woodford, 268 F.3d 868, 877 (9th Cir. 

2001))).

Medical history, including any mental illness, is the first 

category that the 1989 ABA Guidelines direct counsel to 

consider presenting at a mitigation hearing. The guidelines 

direct counsel to make “efforts to discover all reasonably 

available mitigating evidence,” including medical and 

mental health evidence. 1989 ABA Guidelines § 11.4.1(C), 

(D)(2)(c). The commentary admonishes counsel not to “sit 

idly by, thinking that investigation would be futile.”

The Supreme Court has “long . . . referred [to the ABA 

guidelines] as ‘guides to determining what is reasonable.’” 

Rompilla v. Beard, 545 U.S. 374, 387 (2005) (quoting 

Wiggins, 539 U.S. at 524). In Rompilla, the Court 
52 WHITE V. RYAN

specifically highlighted the 1989 guidelines “devoted to 

setting forth the obligations of defense counsel in death 

penalty cases.” Id. at 387 n.7. Here, as in Rompilla, we have 

been presented with no “reason to think the [relevant ABA] 

standard impertinent.” Id. at 387.

The PCR court turned counsel’s obligation to investigate 

on its head. It is one thing for counsel to decide not to 

investigate further if counsel has made some effort and there 

is reason to believe further effort in a particular area would 

be fruitless. “Questioning a few more family members and 

searching for old records can promise less than looking for a 

needle in a haystack, when a lawyer truly has reason to doubt 

there is any needle there.” Id. at 389; see also id. at 383 

(“[R]easonably diligent counsel may draw a line when they 

have good reason to think further investigation would be a 

waste.”). Here, however, “counsel did not even take the first 

step of interviewing witnesses or requesting records.” 

Porter, 558 U.S. at 39; cf. Rompilla, 545 U.S. at 381 

(observing that “a number of counsel’s choices in this case 

are subject to fair debate” in contrast to “a case in which 

defense counsel simply ignored their obligation to find 

mitigating evidence”).

The State points out, with respect to the hyperthyroidism 

investigation, that “Judge Hancock found that White had 

informed the court in his pro per sentencing memorandum 

that he suffered from this condition and there was no 

evidence that White told McVay about that condition or 

asked him to proffer it as mitigation.” The state contends 

that the reasonableness of McVay’s actions “may be 

determined or substantially influenced” by White’s own 

actions. Strickland, 466 U.S. at 691. This quotes Strickland

out of context. “Counsel’s actions are usually based, quite 

properly, on informed strategic choices made by the 
WHITE V. RYAN 53

defendant and on information supplied by the defendant.” 

Strickland, 466 U.S. at 691 (emphasis added). In the usual 

case, “when the facts that support a certain potential line of 

defense are generally known to counsel because of what the 

defendant has said, the need for further investigation may be 

considerably diminished or eliminated altogether.” Id.

(emphasis added).

Here, there is no evidence that McVay relied on White’s 

statement to the court about his Graves’ disease when 

deciding whether to investigate. White submitted that 

statement to the court five days before he was resentenced, 

whereas McVay had been preparing for the resentencing for 

more than four years. White’s claim of having Graves’ 

disease was only one of many claims in his memorandum. 

Most were fantastical, such as his claim that he was being 

tortured by biotelemetry implants. Even if McVay had 

believed that White had Graves’ disease, McVay “[did]n’t 

know what Graves’ Disease is.” At a minimum, he would 

have needed to hire an expert to explain Graves’ disease and 

how it can potentially affect someone in White’s 

circumstances. As the PCR court repeatedly pointed out, 

even a mitigation specialist (which McVay did not hire) is 

unqualified to make those assessments. In Rohman’s nearly 

two decades of experience in death penalty mitigation, he 

had never before seen a case in which a mental health 

professional was not appointed.

The State cites the reasonable performance in Strickland

where the “attorney did not conduct any extensive interview 

of family and friends.” In Strickland, however, “[t]he 

aggravating circumstances were utterly overwhelming” and 

“counsel could reasonably surmise from his conversations 

with [the defendant] that character and psychological 

evidence would be of little help.” 466 U.S. at 699. Here, in 
54 WHITE V. RYAN

contrast, there was only one aggravating factor and the 

evidence of it was fairly weak. Evidence of mental health 

and other problems in White’s life would certainly have been 

important. And it was unreasonable to surmise that further 

investigations into White’s mental health would have been 

of little help based solely on a few uneventful interactions 

with him in light of the considerable evidence known to 

McVay that White likely suffered from mental health issues.

In Strickland, moreover, the attorney’s strategy 

reasonably “ensured that contrary character and 

psychological evidence and respondent’s criminal history, 

which counsel had successfully moved to exclude, would not 

come in.” Id. Here, McVay had no countervailing strategic 

reason to think that mental health and other background 

evidence might harm White’s case. Its usefulness simply did 

not occur to him.

Strickland’s counsel chose a reasonable strategy “to rely 

as fully as possible on [the defendant’s] acceptance of 

responsibility for his crimes” given the court’s “well known” 

views on its importance. Id. McVay adopted a strategy of 

blaming the victim’s death on the attending medical 

personnel notwithstanding that it was, he acknowledged, “a 

problematical issue” given “the look on the Court’s face.”

In Porter, the Supreme Court concluded that counsel—

who had just “a little over a month prior to the sentencing 

proceeding” for the investigation—was deficient because 

“[h]e did not obtain any of [the defendant’s] school, medical, 

or military service records or interview any members of [the 

defendant’s] family.” 558 U.S. at 39. As here, counsel also 

“ignored pertinent avenues for investigation of which he 

should have been aware.” Id. at 40. The only difference is 

that McVay had far longer to investigate this type of 
WHITE V. RYAN 55

evidence, and his failure to do was correspondingly more 

egregious.

Although Strickland was applied de novo in Porter

rather than with AEDPA deference, it is hard to see how 

even with the requisite deference to the PCR court McVay’s 

failure to investigate was reasonable. As in Wiggins, which 

applied AEDPA deference in deeming counsel’s 

performance deficient, the investigation was largely limited

to the presentence report. See Wiggins, 539 U.S. at 524 

(faulting counsel for “abandon[ing] their investigation of 

petitioner’s background after having acquired only 

rudimentary knowledge of his history from a narrow set of 

sources”). “In assessing the reasonableness of an attorney’s 

investigation . . . , 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.” Id. at 527.

McVay’s failure to investigate and present mitigating 

evidence, as well as evidence rebutting the State’s evidence 

of pecuniary gain, was objectively unreasonable in light of 

Strickland and Wiggins. The PCR court’s contrary 

conclusion was an unreasonable application of those cases.

B. Prejudice

“In assessing prejudice [under Strickland], we reweigh 

the evidence in aggravation against the totality of available 

mitigating evidence.” Wiggins, 539 U.S. at 534. Prejudice 

requires “a reasonable probability that, absent the errors, the 

sentencer—including an appellate court, to the extent it 

independently reweighs the evidence—would have 

concluded that the balance of aggravating and mitigating 

circumstances did not warrant death.” Strickland, 466 U.S. 

at 695. A “reasonable probability” means “a probability 
56 WHITE V. RYAN

sufficient to undermine confidence in the outcome.” Id. at 

694.

The PCR court’s prejudice determination was contrary 

to Strickland in two respects. First, the court determined 

whether it would have imposed a death penalty if it had 

considered the mitigation evidence that McVay failed to 

present. However, the test for prejudice is an objective one. 

See Strickland, 466 U.S. at 695 (“The assessment of 

prejudice should proceed on the assumption that the 

decisionmaker is reasonably, conscientiously, and 

impartially applying the standards that govern the decision. 

It should not depend on the idiosyncracies of the particular 

decisionmaker . . . .”). It considers the likelihood of a 

different result not just by the trial court but by an appellate 

court that “independently reweighs the evidence.” Id. The 

Arizona Supreme Court “is required” to conduct “an 

independent review of the death penalty as imposed.” White 

II, 982 P.2d at 829. The PCR court erred by applying a 

subjective test of prejudice that failed to consider the 

probability of a different outcome in the Arizona Supreme 

Court.

The PCR court’s prejudice determination was also 

contrary to Strickland because the court analyzed prejudice 

separately for each of 12 different types of mitigating 

evidence that McVay failed to present rather than 

considering the prejudice resulting from the omission of this 

evidence in the aggregate. The test is whether it is 

reasonably likely that the result of the proceeding would 

have been different but for counsel’s “errors.” Strickland, 

466 U.S. at 694 (emphasis added). In reweighing the 

aggravating and mitigating evidence, a state court’s failure 

“to evaluate the totality of the available mitigation 

evidence—both that adduced at trial, and the evidence 
WHITE V. RYAN 57

adduced in the habeas proceeding”—is an unreasonable 

application of Strickland’s prejudice test. Williams, 

529 U.S. at 397–98.

The State argues that the PCR court’s consideration of 

the cumulative mitigating evidence is implicit in its ruling 

because the court recited “the totality of the mitigation that 

[it] had considered during the course of the case.” But the 

State is referring to the procedural history portion of the 

ruling in which the court set forth the mitigation evidence it 

previously had considered at resentencing. Nowhere in its 

ruling did the PCR court state that it was considering the 

totality of the mitigating evidence that McVay should have 

presented. It did not even set forth a correct statement of the 

law suggesting it was applying the correct standard despite 

the appearance to the contrary.

The PCR court’s analysis of prejudice was flatly 

inconsistent with its considering the mitigation evidence 

cumulatively. For example, in rejecting the claim that 

McVay should have investigated evidence of Susan’s 

relative culpability, the court gave only one reason for 

determining there was no prejudice: “White has failed to

show prejudice because this Court did in fact consider the 

exact evidence in finding that White’s conduct was more 

egregious that Susan’s.” That would hardly be a sufficient 

reason for a lack of prejudice if the court were weighing all 

of the evidence McVay should have uncovered against the 

aggravating factor. More generally, there was no reason for 

the court to engage in 12 separate prejudice analyses if it 

were truly assessing the cumulative impact of counsel’s 

errors. With respect to each type of mitigating evidence, the 

PCR court concluded that, had the evidence been presented, 

the court would have found it insufficient to call for 

leniency.
58 WHITE V. RYAN

Because the PCR court applied a test for prejudice 

contrary to Strickland, we do so independently without 

AEDPA deference. See Crace v. Herzog, 798 F.3d 840, 846, 

850 (9th Cir. 2015). “This is not a case in which the new 

evidence ‘would barely have altered the sentencing profile 

presented to the sentencing judge.’” Porter, 558 U.S. at 41 

(quoting Strickland, 466 U.S. at 700). The judge at White’s 

resentencing “heard almost nothing that would humanize 

[White] or allow [the court] to accurately gauge his moral 

culpability.” Id. The court heard only that the prosecutors 

did not personally view this as a death penalty case; White 

had no prior felony convictions; White believed himself 

capable of being rehabilitated (in part because he had no 

prior felony convictions); and Susan was at least as culpable. 

In fact, White’s sentencing memorandum acknowledged that 

White “claimed that his childhood was normal.” The court 

was “left to wonder about that conclusion” and informed 

only that White’s “natural father left the home when [White] 

was 18 months old and his first stepfather was an alcoholic.”

McVay’s presentation of mitigating background 

evidence did not discuss White’s four father figures, the 

physical and emotional abuse and neglect that he suffered 

growing up, and the poverty, transience, and difficulties 

forming relationships that he experienced throughout his life 

as related by his family and three ex-wives. Nor did the court 

hear about White’s childhood IQ test score in the 

“Borderline Intellectual Functioning” range and his dismal 

performance in school when he was even able to attend. This 

“graphic description of [his] childhood, filled with abuse and 

privation, or the reality that he was ‘borderline [intellectually 

disabled],’ might well have influenced the [court’s] appraisal 

of his moral culpability.” Williams, 529 U.S. at 398 (citing 

Boyde, 494 U.S. at 387); see also Penry v. Lynaugh, 492 U.S. 

302, 319 (1989) (discussing “the belief, long held by this 
WHITE V. RYAN 59

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 California v. Brown, 

479 U.S. 538, 545 (1987) (O’Connor, J., concurring))), 

abrogated on other grounds by Atkins v. Virginia, 536 U.S. 

304 (2002).

Moreover, White’s schizophrenia (or biological mental 

disorder), Graves’ disease, and possible ADHD were not 

presented to the sentencing court at all. Because the state 

courts steadfastly refused funding for experts who could 

explain the likely effect of these issues, alone or in 

combination, at this stage we can only speculate how these 

factors might have impacted White’s decision to commit the 

crime. Regardless, they are independently relevant as “the 

kind of troubled history [the Supreme Court has] declared 

relevant to assessing a defendant’s moral culpability.” 

Wiggins, 539 U.S. at 535 (citing Penry, 492 U.S. at 319).

“On the other side of the ledger, the weight of evidence 

in aggravation is not as substantial as the sentencing judge 

thought.” Porter, 558 U.S. at 41. There was only one 

aggravating factor—that White committed the murder for 

pecuniary gain. Even without McVay attempting to rebut 

this finding, two out of the five justices on the Arizona 

Supreme Court in White II felt that it was insufficient to 

warrant death. “[A] verdict or conclusion only weakly 

supported by the record is more likely to have been affected 

by errors than one with overwhelming record support.” 

Strickland, 466 U.S. at 696.

Evidence from multiple sources showed that Susan 

repeatedly pressured White into perpetrating the crime on 

her behalf and that White struggled with the decision but 

eventually agreed because he was infatuated or in love with 
60 WHITE V. RYAN

her. Susan was described as manipulative and a liar; White 

as psychologically vulnerable and emotionally impaired. 

Susan was the one who, days before marrying a man while 

seeing White on the side, contacted insurers to arrange a 

payoff from the murder of her soon-to-be husband.

Susan herself made statements suggesting White acted 

out of love rather than pecuniary gain. As the PCR court 

found, “Susan made statements to police asserting that 

White did not expect to receive a portion of [David’s] 

insurance proceeds and killed [David] because [David] had 

abused Susan.” Although she gave contradictory testimony 

at her own trial suggesting White was interested in the 

money, this could have been discredited as a self-serving 

story concocted after the fact to shift blame onto White.

The strongest evidence of White acting out of a 

pecuniary motive was his statement to Fisher indicating he 

expected Susan to give him $100,000, presumably from the 

insurance proceeds. While this statement supported the 

pecuniary gain finding, it was not unambiguous. Clearly, 

White expected that Susan was going to share the insurance 

proceeds with him. But a neutral factfinder could have 

reasonable doubts as to whether the insurance funds were a 

causal factor in White’s agreeing to commit the murder or 

whether he simply succumbed to Susan’s pressure because 

he loved her. See Madsen, 609 P.2d at 1053 (“[T]he receipt 

of the [insurance] money must be a cause of the murder, not 

a result of the murder.”). A finding that White acted solely 

out of love because Susan manipulated him would have been 

considerably more likely if the sentencer had learned of 

White’s troubled background, mental health issues, and low 

intelligence. Consequently, there is a reasonable likelihood 

White would have received a different sentence if McVay 

had investigated and presented mitigating evidence.
WHITE V. RYAN 61

V. Conclusion

The Sixth Amendment guarantees that criminal 

defendants receive reasonably effective assistance of 

counsel at sentencing. See Strickland, 466 U.S. at 686–88. 

The PCR court’s determination that White received what the 

Constitution requires was both contrary to and an 

unreasonable application of Strickland. White is therefore 

entitled to habeas relief. Accordingly, we reverse the district 

court’s judgment and remand with instructions to grant a 

conditional writ with respect to White’s sentence unless the 

State, within a reasonable period, either holds a new 

sentencing hearing or vacates White’s sentence and imposes 

a lesser sentence in accordance with state and federal law.

REVERSED and REMANDED.