FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL C. BOLIN,

Petitioner-Appellant,

v.

RONALD DAVIS, Warden, San 

Quentin State Prison,

Respondent-Appellee.

No. 16-99009

D.C. No.

1:99-cv-05279-

LJO-SAB

OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted June 2, 2021

Pasadena, California

Filed September 15, 2021

Before: M. Margaret McKeown, Jacqueline H. Nguyen, 

and Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress
2 BOLIN V. DAVIS

SUMMARY*

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of 

California state prisoner Paul Bolin’s habeas corpus petition 

challenging his jury conviction for two counts of first-degree 

murder and his capital sentence.

Applying the deferential standards of review in the 

Antiterrorism and Effective Death Penalty Act, the panel 

held that the district court properly denied Bolin’s claims 

that his trial counsel was ineffective in not renewing a 

motion to change venue based on pretrial publicity and in 

failing to develop additional mitigating evidence.

The panel held that Bolin did not show that the California 

Supreme Court’s denial of his claim that his trial counsel was 

ineffective in failing to renew the change of venue motion 

after jury selection was an unreasonable application of 

Strickland v. Washington. The panel held that reasonable 

jurists could conclude that Bolin could not overcome the 

strong presumption that his counsel acted reasonably and 

appropriately in failing to renew the motion based on pretrial 

publicity, including episodes of America’s Most Wanted. 

Bolin did not show that it would be objectively unreasonable 

for the state court to conclude that counsel could, as a matter 

of strategy, forego a likely quixotic change of venue motion 

in exchange for trying to secure a jury that would be more 

favorable to Bolin.

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

has been prepared by court staff for the convenience of the reader.
BOLIN V. DAVIS 3

In connection with Bolin’s claim that his counsel acted 

ineffectively in not seeking a further continuance to develop 

additional mitigating evidence for the penalty phase, the 

panel granted Bolin’s request to expend the certificate of 

appealability to include the entirety of his claim of 

ineffective assistance in counsel’s failure to investigate and 

prepare for the penalty phase. The panel held that Bolin was 

not entitled to relief under Strickland for counsel’s 

investigation and presentation of mitigating evidence at the 

penalty phase or for counsel’s related determination not to 

seek a further continuance. Assuming without deciding that 

counsel’s performance was constitutionally defective, the 

panel held that Bolin could not show prejudice under 

AEDPA’s deferential standard of review. That is, a 

fairminded jurist could reasonably conclude that the further 

investigation and presentation of mitigating evidence Bolin 

claimed should have occurred was not substantially likely to 

change the outcome. The panel concluded that the 

mitigating evidence that Bolin claimed his counsel should 

have discovered and presented was either cumulative of 

other evidence that counsel did present, or was inconclusive 

and insufficiently compelling. Further, a reasonable jurist 

could also conclude that the new mitigating evidence did not 

overcome the serious aggravating factors associated with 

Bolin’s crimes and his history of violent criminal conduct.

COUNSEL

Robert D. Bacon (argued), Oakland, California; Heather E. 

Williams, Federal Defender; Brian Abbington, Assistant 

Federal Defender; Office of the Federal Public Defender, 

Sacramento, California; for Petitioner-Appellant.
4 BOLIN V. DAVIS

Rachelle A. Newcomb (argued) and Sean M. McCoy, 

Deputy Attorneys General; Michael P. Farrell, Senior 

Assistant Attorney General; Office of the Attorney General,

Sacramento, California; for Respondent-Appellee.

OPINION

BRESS, Circuit Judge:

A California jury convicted Paul Bolin of two counts of 

first-degree murder and he was sentenced to death. Bolin 

now seeks federal habeas relief, arguing that his trial counsel 

was ineffective in not renewing a motion to change venue 

and in failing to develop additional mitigating evidence. 

Applying the deferential standards of review in the 

Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA), we hold that Bolin is not entitled to relief.

I

A

On Labor Day weekend in 1989, Paul Bolin shot three 

men, killing two of them. Bolin killed one man as he pleaded 

for his life in the fetal position. He shot the other man’s 

motionless body with a second firearm and staged the scene 

to make the murders look like a drug deal gone bad. When 

his third victim escaped, Bolin disabled the man’s truck and 

left him to die in a secluded area of the Sierra Nevada 

foothills. Given the testimony of two eyewitnesses, the 

events were not in significant dispute. We now summarize 

the facts based on the record before us and the California 

Supreme Court’s decision on Bolin’s direct appeal. See 

People v. Bolin, 956 P.2d 374 (Cal. 1998).
BOLIN V. DAVIS 5

In 1989, Bolin was living in a cabin in a remote, 

mountainous part of Walker Basin in Kern County, 

California. Vance Huffstuttler lived on the property in a 

trailer and assisted Bolin in growing marijuana there. Steve 

Mincy and Jim Wilson were spending their Labor Day 

weekend with family and friends at a campsite that Mincy’s 

father owned in the vicinity. On the Saturday, Mincy and 

Wilson went to a local bar and were drinking there with a 

group of people that included Huffstuttler and Bolin. 

Sometime after Bolin returned to his cabin, Wilson agreed 

to drive Huffstuttler back to his trailer. Mincy went along 

for the ride. Tragically, that decision would prove fateful.

When the trio arrived at the cabin, they saw Bolin there 

with his friend Eloy Ramirez. Huffstuttler took Wilson and 

Mincy across a creek bed by the cabin to show them a patch 

of marijuana plants he and Bolin were cultivating. Bolin 

then became agitated. He followed the three men across the 

creek bed and confronted Huffstuttler about bringing 

outsiders to see the marijuana grow operation.

According to Wilson, who testified at Bolin’s trial, Bolin 

and Huffstuttler crossed back over to the other side of the 

creek bed, heading toward the cabin and leaving Wilson’s 

view. Then Wilson heard a gunshot from that direction. A 

moment later, Bolin “came out from behind the tree line with 

a gun [a revolver] in his hand.” He “started apologizing to” 

Wilson and Mincy, and said, “I have got nothing against you 

guys, . . . but.” When Bolin said “but,” Wilson turned and 

ran. As he turned, Bolin shot him in the shoulder. Wilson 

ducked behind a tree.

From behind the tree, Wilson heard Bolin shoot Mincy. 

Wilson could hear Mincy pleading with Bolin, saying, “no, 

please don’t. You don’t have to do this. Please don’t.” 
6 BOLIN V. DAVIS

Wilson then heard several more gunshots ring out. Staying 

hidden behind trees, Wilson ran away up and over a hill.

Ramirez confirmed Wilson’s testimony and provided 

additional details for the jury. Ramirez testified that once 

Wilson had fled, Bolin retrieved a rifle he kept by his bed. 

Using the rifle, Bolin shot Huffstuttler’s inert body several 

times as he lay collapsed on the ground. Then, Bolin 

searched for Wilson after he escaped wounded into the 

forest; when he could not find him, Bolin commented to 

Ramirez that Wilson “would bleed to death” before he got 

off the hill.

After shooting Huffstuttler and Mincy, Bolin told 

Ramirez that he was going to make the scene “look like a 

bad dope deal.” Bolin broke bottles and poured both 

marijuana and what Ramirez thought was chili on the dead 

bodies. Bolin placed the revolver in Huffstuttler’s dead 

hand. Bolin also disabled Wilson’s truck by removing wires 

and throwing them in a gully. Bolin and Ramirez then fled 

for southern California.

Later analysis revealed that Mincy was shot four times, 

once while he was upright and three more times while he was 

in the fetal position lying in the creek bed. Huffstuttler was 

also shot four times. Wilson, who had traveled all night 

through the remote, mountainous area, managed to survive 

after finding refuge in a nearby ranch.

Law enforcement found Ramirez at his girlfriend’s 

house in southern California shortly after the killings. But 

they were unable to find Bolin for several months. Finally, 

after the television program America’s Most Wanted

featured a reenactment of Bolin’s murders, one of Bolin’s 

family members alerted the police that Bolin was staying in 

Chicago. That led to Bolin’s arrest.
BOLIN V. DAVIS 7

As discussed further below, Bolin had a history of 

violent crime. In addition to domestic violence incidents 

during the 1970s, in 1983 a California jury convicted Bolin 

of attempted voluntary manslaughter for shooting his 

goddaughter’s then-boyfriend, Kenneth Ross, in the chest. 

Bolin was sent to state prison and paroled in May 1985. In 

January 1986, Bolin was arrested in Oklahoma for stabbing 

Jack Baxter. A jury acquitted Bolin based on Bolin’s claim 

of self-defense, but California still revoked his parole. Bolin 

was released from prison in March 1987.

Then, on September 2, 1989, Bolin murdered 

Huffstuttler and Mincy. Since shooting Ross in 1981, up 

until the day he murdered Huffstuttler and Mincy in 1989, 

Bolin was out of custody for less than forty months.

B

Bolin was charged in Kern County Superior Court with 

two counts of first-degree murder, one count of attempted 

murder, and cultivation of marijuana. Bolin was eligible for 

the death penalty because the state tried him for multiple 

murders. See Cal. Penal Code § 190.2(a)(3).

The state trial court appointed Charles Soria as Bolin’s 

lead counsel and William Cater as second chair. Soria and 

Cater were both experienced attorneys. Soria had worked as 

a criminal defense lawyer in Kern County for almost a 

decade, and in that time he served as counsel in 

approximately fifteen murder cases, three of which were 

capital cases. Cater had served in the local public defender’s 

office and defended “lots of cases” before entering private 

practice. He had also tried two other capital cases. Cater 

was familiar with the California Death Penalty Defense 

Manual, and he had attended the Capital Case Defense 

Seminar at least twice.
8 BOLIN V. DAVIS

Defense counsel initially filed a motion to change venue 

due to allegedly prejudicial pretrial publicity. This motion 

was largely based on the America’s Most Wanted

reenactment. The trial court reserved judgment on the 

motion to see how this issue came up in voir dire of potential 

jurors. Following jury selection, defense counsel did not 

renew the change of venue motion. This issue is the basis 

for one of Bolin’s claims of ineffective assistance of counsel, 

and we provide more background on it below.

On December 12, 1990, the jury found Bolin guilty on 

all charges. The following day, after the guilt phase closed, 

Bolin expressed unhappiness with his lead counsel, Soria. 

The trial judge granted Bolin’s request to remove Soria 

under People v. Marsden, 465 P.2d 44 (Cal. 1970), based on 

a breakdown in the attorney-client relationship. With 

Bolin’s agreement and at his request, the trial judge 

appointed Cater to handle the penalty phase.

On December 14, 1990, the judge granted a continuance 

until January 7, 1991 to give Cater more time to prepare 

Bolin’s penalty phase defense. On January 7, 1991, Cater 

requested and received another two-week extension. The 

penalty phase began on January 22, 1991. The jury in the 

penalty phase was the same jury that had convicted Bolin 

during the guilt phase.

The jury returned a death verdict on January 24, 1991. 

We discuss at greater length below Cater’s investigation into 

Bolin’s mitigating circumstances and his presentation of 

mitigating evidence, which forms the basis for Bolin’s other 

ineffective assistance of counsel claim.

The California Supreme Court affirmed Bolin’s 

convictions and sentence on direct appeal. Bolin, 956 P.2d 
BOLIN V. DAVIS 9

at 348. The United States Supreme Court then denied 

certiorari. Bolin v. California, 526 U.S. 1006 (1999) (mem.).

C

Bolin filed state and federal habeas petitions on August 

8, 2000. His federal habeas petition was held in abeyance 

through completion of his state habeas proceedings. In his 

state habeas petition, Bolin asserted numerous claims, 

including the two ineffective assistance claims now before 

us.

In his state habeas proceedings, Bolin did not submit 

declarations from trial counsel, nor did he submit a 

declaration on his own behalf. But he did come forward with 

some additional evidence, including: a declaration from 

Dr. Zakee Matthews, M.D., a psychiatrist who evaluated 

Bolin in 1999 and 2000; a declaration from Dr. Natasha 

Khazanov, Ph.D., a clinical psychologist who evaluated 

Bolin in 2000; the pretrial report of Dr. Ronald Markman, 

M.D., a forensic psychiatrist who evaluated Bolin in 1990; 

reports from Roger Ruby, Bolin’s investigator for the 

penalty phase; declarations from family members and a 

friend; and a letter Bolin sent to Jerry Halfacre, Bolin’s 

daughter’s former boyfriend. The California Supreme Court 

summarily denied Bolin’s state habeas petition “on the 

merits.”

Bolin then filed an amended federal habeas petition. In 

support, Bolin included 51 exhibits that he had used to 

support his state habeas petition. Bolin also requested an 

evidentiary hearing on numerous claims. On April 27, 2012, 

the district court granted a hearing on Claim C2, regarding 

Bolin’s counsel not renewing the change of venue motion 

based on pretrial publicity. The district court held the 

evidentiary hearing on May 14, 2013.
10 BOLIN V. DAVIS

On June 9, 2016, the district court denied all of Bolin’s 

claims, most of which are not at issue here, in a 305-page 

ruling. The district court issued a certificate of appealability 

on four claims:

Claim C2: whether trial counsel was 

ineffective for failing to renew the change of 

venue motion following voir dire of the jury.

Claim I13: whether trial counsel was 

ineffective because of irregularities and 

improprieties that occurred during the jury’s 

view of the crime scene and related locations.

Claim L (L1–L4): whether the jury view of 

the crime scene violated [Bolin’s] state and 

federal rights.

Claim W2: whether trial counsel was 

ineffective by failing to move for a further 

continuance at the penalty phase.

In this court, Bolin presses only two of the four certified 

claims—Claims C2 and W2.1 He does not argue Claims I13 

and L, thus abandoning them. See, e.g., Styers v. Schriro, 

547 F.3d 1026, 1028 n.3 (9th Cir. 2008) (per curiam). Bolin 

also seeks a certificate of appealability on two additional 

claims.

1 For ease of reference, we will use the claim numbering and 

lettering conventions used in the district court.
BOLIN V. DAVIS 11

II

We review a district court’s denial of a 28 U.S.C. § 2254 

petition de novo. Cain v. Chappell, 870 F.3d 1003, 1012 

(9th Cir. 2017).

Bolin claims that his counsel violated his Sixth 

Amendment rights by providing ineffective assistance. The 

Supreme Court’s decision in Strickland v. Washington, 

466 U.S. 668 (1984), provides the established federal law 

governing ineffective assistance of counsel claims. To 

prevail on such a claim, a petitioner needs to “show both that 

his counsel provided deficient assistance and that there was 

prejudice as a result.” Harrington v. Richter, 562 U.S. 86, 

104 (2011).

Under Strickland’s performance prong, “[a] convicted 

defendant making a claim of ineffective assistance must 

identify the acts or omissions of counsel that are alleged not 

to have been the result of reasonable professional judgment.” 

Strickland, 466 U.S. at 690. We “must then determine 

whether, in light of all the circumstances, the identified acts 

or omissions were outside the wide range of professionally 

competent assistance.” Id. We evaluate whether “counsel’s 

representation fell below an objective standard of 

reasonableness.” Richter, 562 U.S. at 104 (quoting 

Strickland, 466 U.S. at 688). “Representation is 

constitutionally ineffective only if it ‘so undermined the 

proper functioning of the adversarial process’ that the 

defendant was denied a fair trial.” Id. at 110 (quoting 

Strickland, 466 U.S. at 686).

In evaluating counsel’s performance after the fact, we 

must also be careful to “apply the strong presumption of 

competence that Strickland mandates,” Cullen v. Pinholster, 

563 U.S. 170, 196 (2011), namely, that “counsel’s conduct 
12 BOLIN V. DAVIS

falls within the wide range of reasonable professional 

assistance,” Strickland, 466 U.S. at 689. We are required not 

only to give Bolin’s attorneys the benefit of the doubt, but to 

consider the possible reasons they may have had for their 

decisions. See Pinholster, 563 U.S. at 196. Strickland 

applies to counsel’s decisions in the penalty phase of a 

capital case. “Under Strickland, ‘counsel has a duty to make 

reasonable investigations or to make a reasonable decision 

that makes particular investigations unnecessary’ during the 

penalty phase of a trial.” Carter v. Davis, 946 F.3d 489, 513 

(9th Cir. 2019) (per curiam) (emphasis in original) (quoting 

Strickland, 466 U.S. at 691).

Bolin also bears the burden of showing that counsel’s 

ineffective performance prejudiced him. To make that 

showing, Bolin must first demonstrate that “there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different.” Strickland, 466 U.S. at 694. “In the capital 

sentencing context, the prejudice inquiry asks ‘whether there 

is 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.’” Shinn v. Kayer, 

141 S. Ct. 517, 522–23 (2020) (per curiam) (quoting 

Strickland, 466 U.S. at 695). This standard is “highly 

demanding.” Id. at 523 (quoting Kimmelman v. Morrison, 

477 U.S. 365, 382 (1986)). It requires showing a 

“‘substantial,’ not just ‘conceivable,’ likelihood of a 

different result.” Id. (quoting Pinholster, 563 U.S. at 189).

Moreover, Bolin’s Strickland claims must be evaluated 

under AEDPA’s additionally deferential standard of review 

because he filed his § 2254 petition after AEDPA’s effective 
BOLIN V. DAVIS 13

date. See, e.g., Woodford v. Garceau, 538 U.S. 202, 207 

(2003). Although the California Supreme Court’s denial of 

state habeas relief consisted of a summary denial on the 

merits, that decision must still be reviewed under AEDPA. 

See Richter, 562 U.S. at 98 (“[D]etermining whether a state 

court’s decision resulted from an unreasonable legal or 

factual conclusion does not require that there be an opinion 

from the state court explaining the state court’s reasoning.”).

AEDPA substantially constrains our review of Bolin’s 

claims. Under AEDPA,

[a]n application for a writ of habeas corpus 

on behalf of a person in custody pursuant to 

the judgment of a State court shall not be 

granted with respect to any claim that was 

adjudicated on the merits in State court 

proceedings unless the adjudication of the 

claim—

(1) resulted in a decision that was 

contrary to, or involved an unreasonable 

application of, clearly established Federal 

law, as determined by the Supreme Court 

of the United States; or

(2) resulted in a decision that was based 

on an unreasonable determination of the 

facts in light of the evidence presented in 

the State court proceeding.

28 U.S.C. § 2254(d).

This is a challenging standard to meet. To satisfy 

AEDPA’s “unreasonable application of” prong, a petitioner 

“must show far more than that the state court’s decision was 
14 BOLIN V. DAVIS

‘merely wrong’ or ‘even clear error.’” Kayer, 141 S. Ct. 

at 523 (quoting Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 

(2017) (per curiam)). Instead, “[t]he prisoner must show that 

the state court’s decision is so obviously wrong that its error 

lies ‘beyond any possibility for fairminded disagreement.’” 

Id. (quoting Richter, 562 U.S. at 103). That is, the state 

court’s application of clearly established federal law “must 

be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 

63, 75 (2003).

When, as here, the California Supreme Court did not 

offer reasoning when denying Bolin’s state habeas petition 

on the merits, “the habeas petitioner’s burden still must be 

met by showing there was no reasonable basis for the state 

court to deny relief.” Richter, 562 U.S. at 98. In that 

circumstance, we “must determine what arguments or 

theories . . . could have supported[] the state court’s 

decision; and then [we] must ask whether it is possible 

fairminded jurists could disagree that those arguments or 

theories are inconsistent with the holding in a prior decision 

of [the Supreme] Court.” Id. at 102.2

We will address Bolin’s claims in the order in which they 

arose in the guilt and penalty phases. We thus begin with 

the motion to change venue. We then turn to Bolin’s claim 

2 Bolin insists that the California Supreme Court as a matter of state 

law accepted his allegations as true. But Bolin’s reliance on California 

pleading rules is inapposite, and his description of California law is in 

any event incomplete. See Pinholster, 563 U.S. at 188 n.12 (explaining 

that while the California Supreme Court “generally assumes the 

allegations in the petition to be true,” it “does not accept wholly 

conclusory allegations” and “will also ‘review the record of the trial . . .

to assess the merits of the petitioner’s claims’” (quoting In re Clark, 

855 P.2d 729, 742 (Cal. 1993)).
BOLIN V. DAVIS 15

that his counsel failed to develop and present mitigating 

evidence.

III

In Claim C2, Bolin argues that his trial counsel was 

ineffective in failing to renew a change of venue motion after 

jury selection. We hold that under AEDPA, Bolin has not 

shown that the state court’s rejection of this claim was an 

unreasonable application of Strickland. We first set forth the 

relevant factual background for this claim. We then explain 

why under AEDPA, Bolin is not entitled to relief.

A

Before voir dire of prospective jurors, Bolin moved for a 

change of venue based on pretrial publicity that, in Bolin’s 

view, unfairly prejudiced the jury pool in Kern County. 

Besides his crime being featured on an episode of America’s 

Most Wanted and his later arrest being mentioned in a second 

episode, the local print and television media also had 

covered the murders. In connection with his venue motion, 

Bolin submitted videotapes of the America’s Most Wanted

episodes and newspaper clippings. Bolin, 956 P.2d at 385. 

In particular, Bolin argued that the first episode of America’s 

Most Wanted included an inflammatory and misleading 

reenactment of his crimes.

Bolin also submitted in connection with his motion 

results from a public opinion survey specific to Kern County 

that his counsel commissioned. Id. His counsel 

“represented that 45 percent of the people responding 

indicated they had some knowledge of the case due to the 

media attention,” while approximately 20 percent of those 

respondents said they had seen the America’s Most Wanted

reenactment. Id.
16 BOLIN V. DAVIS

The trial judge initially said he was “very, very 

concerned” about the America’s Most Wanted program. But 

the court also stated: “I’m not inclined to grant the motion to 

change venue.” The judge instead “reserve[d] ruling on” the 

venue motion, indicating that he wanted to see the responses 

given by potential jurors during voir dire. The court also 

“ma[d]e it perfectly clear, but for this reenactment on 

America’s Most Wanted, I do not think there are grounds to 

change the venue.” The trial court allowed, however, that it 

might consider granting requests to strike jurors for cause 

based on their reactions to the television program.

In conducting voir dire, Bolin’s counsel asked jurors a 

variety of questions to get a sense of how they may react to 

the evidence, including prospective jurors’ likely 

perspectives on the death penalty and their exposure to the 

America’s Most Wanted episodes. Bolin’s counsel

challenged for cause every juror who had seen the America’s 

Most Wanted program. The trial court denied these requests. 

Bolin’s counsel did not use peremptory challenges on every 

juror who acknowledged having seen the show. Bolin’s 

counsel also did not renew the motion to change venue at the 

close of voir dire. The trial thus took place in Kern County, 

where the murders occurred.

On direct appeal, Bolin asserted that counsel was 

incompetent for failing to renew the change of venue motion. 

The California Supreme Court rejected this argument 

because counsel’s decision “did not result from ignorance or 

inadvertence and reflected a reasonable trial strategy.” 

Bolin, 956 P.2d at 386. The pretrial publicity, especially 

from America’s Most Wanted, “was a critical focus of the 

voir dire.” Id. And “[a]lthough many prospective jurors had 

been exposed to some pretrial publicity, including the 

segment reenacting the killings, for the most part few 
BOLIN V. DAVIS 17

recalled the specifics or had formed a resolute impression of 

defendant’s guilt.” Id. The court also found it relevant that 

the impaneled jurors “all gave assurances they would decide 

the case based solely on the courtroom evidence.” Id.

The California Supreme Court on direct appeal thus 

concluded that “counsel could well have recognized the 

effect of the publicity had not been as substantial as feared, 

especially after an 11-month interim.” Id. at 386–87. This 

made renewing the venue motion “futile” because the trial 

court had indicated a willingness to reconsider its tentative 

denial of the motion only on a showing that an impartial jury 

could not be seated. Id. at 387. Bolin then reasserted this 

ineffective assistance claim again in his state and federal 

habeas petitions.3

B

The California Supreme Court’s rejection of Bolin’s 

ineffective assistance Claim C2 was not objectively 

unreasonable. Instead, fairminded jurists could conclude 

that Bolin’s counsel was not deficient.

3 The district court held an evidentiary hearing on Claim C2, which 

included testimony from Cater and Soria. In Pinholster, however, the 

Supreme Court clarified that “review under § 2254(d)(1) is limited to the 

record that was before the state court that adjudicated the claim on the 

merits.” 563 U.S. at 181. In other words, “evidence later introduced in 

federal court is irrelevant to § 2254(d)(1) review.” Id. at 184; see also 

id. at 203 n.20 (“We are barred from considering the evidence Pinholster 

submitted in the District Court that he contends additionally supports his 

claim.”). We thus limit our discussion to the record before the state 

habeas court. We note, however, that the result would be the same even 

if we were to consider the additional evidence developed in connection 

with the federal evidentiary hearing.
18 BOLIN V. DAVIS

Under Strickland’s performance prong, “counsel should 

be ‘strongly presumed to have rendered adequate assistance 

and made all significant decisions in the exercise of 

reasonable professional judgment.’” Pinholster, 563 U.S. 

at 189 (quoting Strickland, 466 U.S. at 690). This means 

that “[e]ven under de novo review, the standard for judging 

counsel’s representation is a most deferential one.” Richter, 

562 U.S. at 105. But with AEDPA’s overlay, our review is 

even more forgiving: “[t]he standards created by Strickland

and § 2254(d) are both ‘highly deferential,’ and when the 

two apply in tandem, review is ‘doubly’ so.” Id. (citations 

omitted) (first quoting Strickland, 466 U.S. at 689; and then 

quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

In this case, reasonable jurists could conclude that Bolin 

cannot overcome the strong presumption that his counsel 

acted reasonably and appropriately in not renewing the 

change of venue motion. That is because counsel could have 

concluded that the motion stood little chance of success and 

that using peremptory strikes on jurors only to support this 

likely futile motion would result in striking jurors potentially 

favorable to Bolin.

In evaluating change of venue motions, California courts 

consider “the gravity and nature of the crime or crimes, the 

extent and nature of the pretrial publicity, the size and nature 

of the community, the status of the victim, the status of the 

accused, and any indication from the voir dire of prospective 

and actual jurors that the publicity did in fact have a 

prejudicial effect.” People v. Coleman, 768 P.2d 32, 41–42 

(Cal. 1989). Even before the trial court’s skeptical 

comments on the motion to change venue, Bolin faced an 

uphill battle under the governing legal standards.

Although the crimes were sensational, there is no 

indication Bolin or the victims were well-known in the 
BOLIN V. DAVIS 19

community. Kern County’s size, perhaps the most important 

factor in California’s change of venue cases, also weighed 

heavily against Bolin. See People v. Balderas, 711 P.2d 480, 

497–98 (Cal. 1985) (“Kern County, with a 1981 population 

of 405,600, ranked 14th among California’s 58 counties in 

that respect. Cases in which venue changes were granted or 

ordered on review have usually involved counties with much 

smaller populations.” (citation omitted)). In addition, the 

America’s Most Wanted broadcast was some time in the past 

by the time of jury selection. See Coleman, 768 P.2d at 43 

(“The publicity did not pervade the proceedings so as to give 

rise to any inference or presumption of prejudice.”).

Bolin’s counsel also could have taken cues from the trial 

court when it initially reserved ruling on the change of venue 

motion. Although the trial court had expressed concern 

about the America’s Most Wanted episodes, it also indicated 

it was not inclined to grant the motion. The court wanted to 

see how potential jurors responded to the issue in voir dire, 

while making clear that the television show was the only 

possible basis for changing venue.

But voir dire all but confirmed that any renewed venue 

motion would fail. Compared to the survey results counsel 

had commissioned, a similar percentage of jurors at voir dire 

indicated they had seen or believed they may have seen the 

America’s Most Wanted program. But voir dire revealed that 

those respondents did not necessarily remember much, if 

anything, of the program a year later. Jurors also gave 

credible assurances that they would decide the case based 

only on the evidence presented in court, not based on the 

reenactment. Having observed the voir dire, the trial court 

denied defense counsel’s for-cause challenges to jurors that 

were based solely on jurors having acknowledged seeing the 

America’s Most Wanted episode. As the district court 
20 BOLIN V. DAVIS

reasoned, “it is unlikely that a trial judge who may have just 

denied a challenge to a juror for cause based on prejudice 

stemming from publicity will grant a motion to change 

venue a short time later.” (quoting Jeffrey G. Adachi et al., 

California Criminal Law Procedure and Practice § 15.17 

(2013)).

Renewing the change of venue motion also carried 

considerable risks as well. Under California law, counsel’s 

failure to exhaust all their peremptory challenges is at the 

very least a “significant” factor supporting the denial of a 

renewed motion to change venue. Coleman, 768 P.2d at 43–

44; see also People v. Sommerhalder, 508 P.2d 289, 297–98 

(Cal. 1973). Without having exercised all available 

peremptory challenges, the change of venue motion, if 

renewed, would have had a limited prospect of success. But 

using all of Bolin’s peremptory challenges would have 

meant striking jurors that counsel thought could be favorable 

to Bolin, including jurors perceived as less likely to vote for 

the death penalty. Especially when the venue motion was 

unlikely to succeed, Bolin’s experienced counsel could have 

decided that knocking out potentially favorable jurors was 

not a wise strategy. Under AEDPA, Bolin’s defense lawyers 

were not required to pursue a change of venue motion at all 

costs.

Much of Bolin’s briefing has less to do with whether his 

counsel were constitutionally ineffective by not renewing 

the motion for a change of venue. Instead, Bolin’s opening 

brief primarily argues that “at the time voir dire began, no 

meaningful investigation had been undertaken. As a result, 

trial counsel had no knowledge of Mr. Bolin’s life 

experience and social history upon which to base strategic 

decisions regarding jurors.” Although this argument relates 

to voir dire, Bolin does not explain how it relates to the 
BOLIN V. DAVIS 21

change of venue motion or the America’s Most Wanted

episodes. We explain below why, under AEDPA, Bolin has 

not shown that counsel’s investigation and presentation of 

mitigating circumstances prejudiced him. To the extent 

Bolin repackages that argument as support for Claim C2 

regarding the change of venue motion, it fails for the reasons 

we explain below.

In short, Bolin has not shown that it would be objectively 

unreasonable for the state court to conclude that counsel 

could, as a matter of strategy, forego a likely quixotic change 

of venue motion in exchange for trying to secure a jury that 

would be more favorable to Bolin.

IV

We turn next to Claim W2, that Cater acted ineffectively 

in not seeking a further continuance to develop additional 

mitigating evidence for the penalty phase. Within this 

certified claim, the parties have briefed the broader question 

of whether trial counsel conducted an inadequate 

investigation into mitigating circumstances.

In connection with Claim W2, Bolin also asks us to 

expand the certificate of appealability to include the entirety 

of Claim W. See 28 U.S.C. § 2253(c)(2); Ninth Cir. R. 

22-1(d), (e). Claim W consists of counsel’s alleged 

“wholesale failure to investigate and prepare for” the penalty 

phase. Because of the nature of Claim W2, Bolin’s 

arguments under Claims W and W2 largely overlap. And 

the State’s briefing of Claim W2 is already responsive to 

Bolin’s request for an expanded certificate of appealability 

on Claim W. We grant Bolin’s request to expand the 

certificate of appealability to include Claim W, to the extent 

of Bolin addressing Claim W in his opening brief. See White 
22 BOLIN V. DAVIS

v. Ryan, 895 F.3d 641, 645 n.1 (9th Cir. 2018) (citing 

Browning v. Baker, 875 F.3d 444, 471 (9th Cir. 2017)).4

We hold that under AEDPA’s deferential standard of 

review, Bolin has not shown he is entitled to relief under 

Strickland for counsel’s investigation and presentation of 

mitigating evidence at the penalty phase or for counsel’s 

related determination not to seek a further continuance. 

Although we question whether Bolin could make the 

required showing given Cater’s substantial efforts to develop 

mitigating evidence, we will assume without deciding that 

Cater’s performance was constitutionally deficient (and that 

under AEDPA, no reasonable jurist could conclude 

otherwise). Even so, Bolin cannot show prejudice under 

AEDPA’s deferential standard of review. That is, a 

fairminded jurist could reasonably conclude that the further 

investigation and presentation of mitigating evidence Bolin 

claims should have occurred was not substantially likely to 

4 Claim W also includes subparts that Bolin has not briefed. For 

example, Claim W8 relates to alleged ineffectiveness in not objecting to 

certain penalty phase jury instructions. By not raising these arguments 

in his opening brief, Bolin has forfeited them. See Floyd v. Filson, 

949 F.3d 1128, 1138 n.2 (9th Cir.), cert. denied, 141 S. Ct. 660 (2020); 

Ninth Cir. R. 22-1(e).

We also deny Bolin’s request to expand the certificate of 

appealability to include whether we should remand under Martinez v. 

Ryan, 566 U.S. 1 (2012). Martinez held that “[i]nadequate assistance of 

counsel at initial-review collateral proceedings may establish cause for a 

prisoner’s procedural default of a claim of ineffective assistance at trial.” 

Id. at 9. Bolin has not demonstrated that Martinez is relevant here or that 

he would be entitled to relief under it. Thus, Bolin has not made a 

“substantial showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
BOLIN V. DAVIS 23

change the outcome. See, e.g., Kayer, 141 S. Ct. at 522–23; 

Pinholster, 563 U.S. at 197–98.

To explain this holding, it is necessary first to recount 

Cater’s investigation of mitigating evidence. Next, we 

discuss the penalty phase presentations that both sides made 

to the jury. We then examine the additional mitigating 

evidence that Bolin claims his counsel should have 

discovered and presented. As we will explain, that 

mitigating evidence either is cumulative of other evidence 

that counsel did present, or it is inconclusive and 

insufficiently compelling. A reasonable jurist could also 

conclude that the new mitigating evidence does not 

overcome the serious aggravating factors associated with 

Bolin’s crimes and his history of violent criminal conduct.

Considered as a whole, the record thus shows that at the 

very least, under AEDPA, Bolin cannot establish Strickland

prejudice based on Cater’s alleged failure to develop 

additional mitigating evidence and to seek a further 

continuance for that purpose.

A

1

We start with Cater’s investigation of mitigating 

evidence. When the trial judge on December 14, 1990 

granted Bolin’s motion to have Soria removed as counsel, 

Cater was appointed lead counsel for the penalty phase. At 

that hearing, Cater said that he was “quite familiar with the 

case, obviously, and somewhat prepared and very much 

acquainted with the theory of the death penalty 

presentation,” so he thought he could be ready by January 7, 

1991. Thus, the judge granted Cater a continuance of three 

and a half weeks. On January 7, 1991, after Cater expressed 
24 BOLIN V. DAVIS

dissatisfaction with the investigatory work done by Soria and 

Soria’s investigator, Bruce Binns, Cater requested and 

received another two-week continuance.

Among the more significant documents that Cater 

received from Soria was a report from Dr. Ronald Markman, 

who had conducted a psychiatric evaluation of Bolin at 

Soria’s direction. Dr. Markman had conducted that 

evaluation on September 22, 1990, and he sent a written 

report to Soria on November 12, 1990.

Dr. Markman diagnosed Bolin with polysubstance 

dependence and a personality disorder with paranoid, 

explosive, and antisocial features. But Dr. Markman’s 

“examination revealed [Bolin] to be fully oriented in all 

spheres, alert, cooperative and of above normal intelligence 

with an excellent fund of knowledge.” Dr. Markman also 

wrote that “[t]here was no evidence of a major mental 

diso[r]der, thought disorder or psychosis, judgment was not 

impaired and insight into his status was adequate.” The 

report contains some background life history on Bolin while 

noting that Bolin was unwilling to provide much 

information.

Dr. Markman reported that Bolin had “no history of 

previous psychiatric treatment or hospitalization.” Bolin 

“admit[ted] to poly-drug abuse ‘years ago—you name it,’ to 

include intravenous heroin and cocaine.” He also had “an 

extended history of daily alcohol use.” Bolin reported to 

Dr. Markman that he had “consumed a substantial amount of 

alcohol, both beer and bourbon ‘to calm my nerves’ and 

smoked cocaine prior” to killing Huffstuttler and Mincy. 

Dr. Markman’s report also discusses Bolin’s “extensive and 

repeated history of aggressive behavior,” including Bolin’s 

prior convictions.
BOLIN V. DAVIS 25

When he spoke with Dr. Markman, Bolin claimed he was 

injured in Vietnam when his boat was hit by a “rocket.” 

Dr. Markman noted that this claim had “not been 

corroborated” and that Bolin’s claims about his injury and 

subsequent discharge were “highly unusual.” (In a much 

more detailed account of Bolin’s time in Vietnam prepared 

for the state habeas proceedings, Dr. Matthews did not 

mention that Bolin was injured in the conflict. Dr. Matthews 

did report, however, that when Bolin was later stationed in 

San Diego, he seriously injured his back while working on a 

ship.)

When it came to other investigative reports and work 

product, however, Cater determined that the record was 

lacking. Cater thus undertook substantial efforts to 

investigate mitigating circumstances that he could raise on 

Bolin’s behalf. Within two days of Cater being appointed as 

sole counsel, he and Ruby went to interview Bolin in jail. 

Bolin told them that he had behaved well when he had been 

incarcerated previously and had received several 

commendations from the prison for maintenance work he 

had done.

When Cater requested a two-week continuance at the 

January 7, 1991 hearing, Cater told the judge that he had 

made good progress on the investigation. Ruby had 

“practically closed down his office” and was “working full 

time” investigating Bolin’s life history. By that time, Ruby 

had already traveled to Oklahoma, Chicago, Arizona, and 

several places in California to meet with potential witnesses.

Among others, Ruby spoke to Mary and Paula (Bolin’s 

daughters), Pamela Castillo (Bolin’s stepdaughter), Fran and 

Rosemary (Bolin’s sisters), and various other relatives, 

including Gary Monto (cousin), Marilyn Perez (cousin), 

Trina Perez (Marilyn’s daughter), Florence Monto (Gary’s 
26 BOLIN V. DAVIS

wife), Betty Monto (aunt), Jeremiah Monto (Gary and 

Florence’s son), Sylvester Monto (uncle), and David 

Alexander (Bolin’s probation officer in Oklahoma). After 

the hearing, Ruby (with Cater) went to southern California 

as part of the investigation. These various meetings yielded 

considerable information about Bolin’s background and 

upbringing.

In Chicago in particular, Bolin’s sisters and other 

relatives “gave [Ruby] a wealth of information on [Bolin’s] 

background,” and Ruby determined that several relatives 

would be appropriate witnesses. Ruby learned of the 

family’s claims that Bolin’s childhood included physical 

abuse at the hands of his father William Bolin, and that Bolin 

spent time bouncing from place to place, including time 

living on the streets when he was nine or ten years old.

According to Ruby’s notes, Bolin’s sister Fran told Ruby 

that when they were growing up, their “father would beat 

them for nothing.” After their parents divorced, Bolin tried 

living with his father and stepmother. This did not work out 

because the stepsiblings would blame Bolin for anything 

they did wrong, and Bolin’s father “would then beat Paul 

until the dad could no longer raise his arms.”

Fran did not remember Bolin ever needing to go to a 

hospital but relayed that one time their father had “hit him 

and knocked him into the wall,” and that Bolin “was out for 

over an hour from the blow.” Bolin “never tried to fight 

back, he finally just left home and lived from place to place 

[wherever] he could. Most of the time the grandmother 

raised him or at least tried to.” According to Ruby’s notes, 

Fran said that Bolin “became an orphan on the streets at age 

10 and his first ten years were a living hell.”
BOLIN V. DAVIS 27

Rosemary, Bolin’s other sister, also told Ruby that her 

father had physically abused the children and their mother. 

Rosemary claimed that her father once tried to stab her 

mother in front of the children. She also recalled that her 

father beat her with a leather strap, and, as a result, she had 

trouble with her legs as an adult. Rosemary recalled that 

Bolin “went to the streets at about age 9.” He moved from 

place to place but mostly lived with his grandmother. When 

he would try to return home, it ended with Bolin being 

beaten by his father. Ruby concluded, however, that 

Rosemary likely would not make a good witness because she 

would “come across to the jury as one that is better than the 

rest of the family.” Rosemary also expressed some 

unwillingness to attend the proceedings due to her family 

obligations.

Ruby further learned that Bolin’s living situation became 

more stable when he was fourteen and his mother married 

his stepfather, Jim. According to Fran, Jim wanted to “put 

the family back together.” The family moved around with 

some frequency. The family had been living in Salt Lake 

City for about a year when Bolin joined the military. Fran 

did not see Bolin much, if at all, until he came to Chicago 

after the murders.

Other family members in Chicago conveyed to Ruby 

their positive recollections of Bolin. For example, Marilyn 

Perez, Bolin’s cousin, told Ruby that Bolin loved his family, 

and that Bolin had helped perform home renovations for her 

when he was in Chicago (after the murders). Marilyn’s 

daughter Trina discussed Vietnam with Bolin, and he told 

her that it was a “horr[i]d place and was not a place for any 

man to have to be.”

From Pamela Castillo, Bolin’s stepdaughter, and Mary 

Bolin, Bolin’s daughter, Ruby obtained information about 
28 BOLIN V. DAVIS

Bolin’s role as a protective parent figure. When Mary was 

five and Bolin was serving in the Navy, Mary’s mother 

began a relationship with another man. She abandoned her 

two daughters, leaving it to friends and neighbors to care for 

them. Bolin eventually obtained custody of Mary and Paula. 

Ruby’s notes indicate that he also spoke with Paula as well. 

Ruby also learned how Bolin allowed Pamela to come and 

live with him after Pamela’s mother left the country for a 

new relationship.

In southern California, Cater and Ruby talked to more 

than twice as many people as Binns, Soria’s investigator. 

They found “several important witnesses,” and they were 

evaluating whether to use them.

2

The penalty phase began on January 22, 1991. In 

addition to emphasizing the murders for which the jury had 

already convicted Bolin, the State presented evidence of 

other incidents when Bolin engaged in violent and 

threatening conduct.

The State first called Kenneth Ross, Bolin’s victim on 

his conviction for attempted voluntary manslaughter, for 

which Bolin was sentenced to five years in prison. Ross told 

the jury that in 1981, Bolin shot him in the chest while Ross 

was having an argument with Bolin’s goddaughter, Nyla 

Olson (now Nyla Ross, Kenneth’s wife). Ross testified that 

the shot Bolin fired “tore up my liver, punctured my 

diaphra[g]m, front and rear, went through my lung, broke my 

rib,” and that pieces of the bullet were still inside him. Bolin 

also beat Ross with his rifle after he shot him. As a result of 

this incident, Ross was hospitalized for several weeks. Nyla 

Ross also testified, and she confirmed that Kenneth was 

unarmed when Bolin shot him.
BOLIN V. DAVIS 29

The State then put on Matthew Spencer. Spencer 

testified that in 1979, he and his friend Brian Martinez went 

over to Bolin’s house at the invitation of “Becky,” who was 

renting a room from Bolin. Bolin became upset at Spencer’s 

presence in the home and assaulted Spencer with help from 

a friend, Ricky Balsamico. Balsamico beat Spencer with a 

stick, and Bolin beat him with a pipe. Bolin was not charged 

for this conduct.

The State also presented evidence that Bolin sent a 

threatening letter to his daughter Paula’s former boyfriend, 

Jerry Halfacre. In the letter, which Bolin sent while he was 

awaiting his double-murder trial, Bolin warned Halfacre that 

if he saw Bolin’s daughter again, Bolin would have him 

“permanently removed from the face of this Earth.”

In her closing argument, the prosecutor emphasized 

Bolin’s callousness for his victims, his failure to take 

responsibility, and his gravitation toward violence. The 

prosecutor also reminded the jury of the crimes for which 

Bolin was convicted, reiterating Bolin’s heartlessness in the 

killings, including how he left Wilson to die in the 

mountains.

3

For the defense presentation at the penalty phase, Cater 

put on eight witnesses: Mary Bolin (Bolin’s daughter), Paula 

Halfacre (Bolin’s other daughter), Pamela Castillo (Bolin’s 

former stepdaughter), Nancy Belden (a correctional officer 

who had observed Bolin’s earlier behavior in prison), Fran 

Bolin (Bolin’s sister), Marilyn Perez (Bolin’s cousin), Trina 

Perez (Marilyn’s daughter), and Jeremiah Monto (Bolin’s 

first cousin once removed). Through these witnesses, Cater 

largely focused on eliciting Bolin’s positive attributes and 

redeeming qualities and how Bolin had helped his family. 
30 BOLIN V. DAVIS

But Cater also had witnesses touch on Bolin’s difficult 

upbringing and military service, albeit briefly, and the 

incidents of other violent crimes that the State had raised in 

aggravation.

Bolin’s daughters, Mary and Paula, testified that Bolin 

took them in and cared for them as a single father after his 

first wife abandoned the girls while Bolin was serving in the 

Navy. Pamela Castillo, Bolin’s stepdaughter, similarly told 

the jury how Bolin had allowed her to live with him after her 

mother left the country, even though Bolin and Pamela’s 

mother were no longer married by that point. Pamela 

recalled how Bolin provided food, shelter, and money for the 

household, and how he also allowed Pamela’s friend, Nyla 

Olson (later Nyla Ross), to live at the home too. Paula and 

Pamela both noted Bolin’s positive relationships with their 

own children.

Bolin’s daughters filled in other details about Bolin’s 

life. Paula explained the circumstances of Bolin coming to 

live in his remote mountain cabin, testifying that Bolin had 

relocated there after Bolin’s fiancée, Rhonda, died in a car 

accident. Mary testified about her father’s service in the 

Navy, including in Vietnam.

Mary Bolin was the only defense witness to testify about 

the Spencer and Ross incidents. She claimed that Bolin was 

not the one to strike Spencer and that Bolin was trying to 

protect her because Spencer was trying to touch her 

inappropriately and was using drugs in the house. As to the 

Ross shooting, Mary testified that Kenneth Ross was acting 

violently toward Nyla and was carrying a stick as a weapon. 

(The prosecution later cross-examined Mary based on 

inconsistencies between her accounts of the incidents and the 

police reports.)
BOLIN V. DAVIS 31

Bolin’s sister Fran, who is four years younger than Bolin, 

testified as well. Cater did not ask Fran about the physical 

abuse she had recounted to Ruby. Fran did, however, tell the 

jury some of Bolin’s life story. When their parents divorced 

(Fran was then four or five years old, and Bolin eight or 

nine), Fran went to live with their grandmother, but Bolin 

stayed with their father, William Bolin. Fran testified about 

the difficult relationships Bolin had with both William and 

Bolin’s first stepfather. She also spoke about the general 

hardship Bolin endured during his childhood, recalling that 

Bolin sometimes “lived with his friends on the street, in 

cars.”

Fran and other Chicago relatives also emphasized 

Bolin’s good character, telling the jury how, after Bolin 

returned to Chicago following the murders, he tried to get 

family members to spend time together, took the lead on 

home renovation projects, and served as a mentor figure to 

younger family members. Nancy Belden, a correctional 

officer assigned to Bolin’s housing unit while he was 

incarcerated for shooting Kenneth Ross, recalled Bolin as a 

“cooperative inmate” and was unaware of him having caused 

problems in prison.

In his closing argument, Cater argued that Bolin should 

be sentenced to life in prison. Cater focused on Bolin’s 

positive attributes, including his military service and how he 

provided for Mary, Paula, and Pamela after their mothers 

abandoned them: “This is not a man whose life is not without 

redemption. He provided a shelter, he provided food, he 

provided a home and a father to these children, and this is 

not a man that has sought out and gone and done things that 

you have [to] execute[] him for.”
32 BOLIN V. DAVIS

B

Bolin’s principal claim on appeal is that Cater should 

have sought more time to develop mitigating evidence and 

that had he done so, Cater would have discovered new 

evidence that would have led the jury to sentence Bolin to 

life in prison instead of death. Under AEDPA, we are 

constrained to disagree. We hold that a reasonable jurist 

could conclude that a further continuance of the penalty 

phase, and Cater’s discovery and presentation of the 

additional mitigating evidence Bolin now identifies, was not 

reasonably likely to have changed the result in Bolin’s case.

The reason lies in the “balance of aggravating and 

mitigating circumstances” that Bolin’s case presents. 

Strickland, 466 U.S. at 695; see also Pinholster, 563 U.S. 

at 198 (explaining that courts evaluating Strickland

prejudice must “reweigh the evidence in aggravation against 

the totality of available mitigating evidence” (quoting 

Wiggins v. Smith, 539 U.S. 510, 534 (2003)). The new 

mitigating evidence that Bolin has developed in connection 

with his habeas petition is “hardly overwhelming.” Kayer, 

141 S. Ct. at 525 (quoting Kayer v. Ryan, 923 F.3d 692, 727 

(9th Cir. 2019) (Owens, J., dissenting)). Although that 

evidence presents Bolin in a more sympathetic light in some 

respects, it also suffers from a variety of shortcomings. At 

times, it is variously speculative, double-edged, ambiguous, 

or otherwise unpersuasive. In other instances, it is 

cumulative of evidence and mitigation themes that Cater had 

presented. Especially when compared to the “undisputedly 

strong aggravating factor[s],” id. (quoting Kayer, 923 F.3d 

at 727 (Owens, J., dissenting)), a reasonable jurist could 

conclude that the claimed ineffective assistance of counsel 

during the penalty phase did not prejudice Bolin.
BOLIN V. DAVIS 33

We first address the several areas of allegedly 

undeveloped mitigating evidence that Bolin identifies. We 

explain why, taken as a whole, they are insufficiently 

compelling. We then turn to the aggravating factors that the 

State presented.

1

Bolin argues that his counsel should have investigated 

and presented evidence that primarily consists of the 

following: (1) Bolin’s possible neurological deficits; (2) his 

substance abuse prior to the murders; (3) his traumatic 

childhood; (4) his military service, including his time in 

Vietnam; (5) his good character, based on Bolin’s role as a 

protective parent and his good behavior in prison; and 

(6) expert testimony to synthesize his life history. While we 

must necessarily address each of these areas individually, 

our ultimate conclusion turns not only on deficiencies within 

each category of mitigation evidence, but in all the 

mitigation theories when considered as a collective whole.

Neurological deficits. Bolin claims that his counsel 

failed to inform the jury that Bolin had “neuropsychological 

dysfunction localized to the frontal lobes” of his brain, which 

Bolin attributes to “[h]is numerous head injuries, alcohol 

abuse, and exposure to neurotoxins on a daily basis for 

fifteen years, including solvents, petroleum products and 

lead particles.” According to Bolin, “[b]ecause his frontal 

lobes have been damaged, [he] has profound impairments in 

flexibility (the ability to shift or adapt thinking or behavior 

to changed circumstances) and the ability to inhibit 

unwanted responses.”

The basis for this theory is the expert declarations of 

Drs. Khazanov and Matthews. Dr. Khazanov performed a 

neurological assessment on Bolin and concluded that Bolin 
34 BOLIN V. DAVIS

exhibited evidence of brain damage, which Dr. Khazanov 

attributed to potential head trauma from Bolin’s childhood, 

exposure to neurotoxins from his time in the Navy and his 

work as a pipefitter and welder, and his excessive 

consumption of alcohol. Dr. Khazanov opined that because 

of his brain damage, Bolin is “prone to confabulate and fill 

in the large gaps in his memory with incorrect information,” 

and is further “unable to adequately plan complex actions, 

learn from his mistakes, or . . . shift his thinking or behaviors 

in response to environmental or verbal cues.”

In his separate report, Dr. Matthews relied on both 

Bolin’s life history, including childhood trauma and alleged 

neurotoxin exposure, and Dr. Khazanov’s conclusions, to 

opine that Bolin “is psychiatrically and 

neuropsychologically impaired,” and that “such deficits 

were causally related to his behavior at the time of the 

offenses for which he has been sentenced to death.” 

Dr. Matthews echoed Dr. Khazanov’s determination that 

Bolin “has a tendency to confabulate” and that because of 

his brain damage, “he unintentionally fills in the gaps with 

misinformation.” Dr. Matthews concluded that based on 

Bolin’s impairments, “at the time of the crime [Bolin] 

became frightened and suddenly perceived great danger to 

himself in the actions of Vance Huffstuttler, which caused 

him to believe that he had to defend himself against that 

danger.”

Drs. Khazanov and Matthews conducted their analyses 

approximately ten years after the murders. And their 

assessment of Bolin is largely at odds with the conclusions 

of Dr. Ronald Markman, who evaluated Bolin prior to trial 

and whose report (which Cater received) concluded that 

“[t]here was no evidence of a major mental disorder.” Even 

setting these points aside, there are a number of significant 
BOLIN V. DAVIS 35

shortcomings in Bolin’s neurological deficits theory. We 

need identify only some of them to show that a reasonable 

jurist could conclude that this theory lacks support and is 

thus unlikely to have affected the jury’s decision.

As an initial matter, while Dr. Khazanov concluded that 

Bolin’s test results were consistent with brain injury, she 

acknowledged that Bolin’s medications, “underlying 

depression and anxiety,” and possible malingering could 

affect the results. More importantly, while Drs. Khazanov 

and Matthews tried to connect Bolin’s claimed neurological 

deficits to childhood trauma and neurotoxin exposure, that 

connection was speculative, or at least a reasonable jurist 

could so conclude. Cf. Leavitt v. Arave, 646 F.3d 605, 614 

(9th Cir. 2011) (“[S]peculative mitigation evidence is not 

entitled to significant weight.”).

Dr. Khazanov suggested that Bolin may have developed 

brain injuries from his father’s abuse. But she based this on 

several scars on Bolin’s head, a “definite indentation” she 

identified near a scar site, and one incident in which Bolin’s 

father allegedly threw Bolin against a wall. Dr. Matthews 

similarly asserted that based on “reports that Paul was 

knocked unconscious by his father’s blows on more than one 

occasion, it is quite likely that [Bolin’s] brain was damaged 

by his injuries.” Dr. Matthews further suggested that Bolin 

“may have experienced neuropsychological damage in utero 

before he was born.” A reasonable jurist could conclude that 

opinions such as these fail to draw a sufficient causal 

connection between Bolin’s childhood and his later claimed 

brain damage. See Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 

2009).

The same is true of his alleged neurotoxin exposure. 

Dr. Khazanov opined that Bolin had been exposed to 

neurotoxins, such as lead paints, solvents, and fuels, which 
36 BOLIN V. DAVIS

“may result in organic brain damage.” Dr. Matthews 

similarly tried to connect Bolin’s alleged psychological 

impairments to neurotoxins, including based on his parents 

working in a Chicago factory where they “were exposed to 

noxious fumes and vapors.” But as was true with possible 

brain damage from childhood injuries, a reasonable jurist 

could conclude that the relationship between Bolin’s alleged 

mental deficiencies and his (or his family’s) neurotoxin 

exposure is insufficient—and that it is inconsistent with the 

lack of any other medical records bearing on this issue.

Finally, a reasonable jurist could conclude that Bolin’s 

neurological deficits theory is of uncertain relevance to the 

offenses for which he was convicted. Drs. Khazanov and 

Matthews linked Bolin’s brain injuries to his confabulating. 

But it is unclear how Bolin’s confabulation explains his 

murdering Huffstuttler and Mincy. Similarly, a reasonable 

jurist (and jury) could well find the opinions of Bolin’s 

medical experts unpersuasive given Bolin’s deliberate 

shooting of three people and his strategic thinking after the 

murders, when Bolin recreated the scene as a failed drug deal 

and disabled Wilson’s vehicle to prevent his escape. 

Although Bolin’s experts have pointed to possible 

neurological deficiencies attributable to childhood trauma 

and environmental exposures, “reasonable jurists could 

debate the extent to which these factors significantly 

impaired his ability to appreciate the wrongfulness of his 

conduct or to conform his conduct to the law at the time of 

the murder.” Kayer, 141 S. Ct. at 525.

Substance abuse at time of murders. Bolin maintains his 

counsel should have also argued to the jury that Bolin’s 

“ingestion of alcohol and cocaine before the crime, along 

with the many stressors in his life, exacerbated the effects of 

his deficits and made it even more likely that he would act 
BOLIN V. DAVIS 37

in response to perceived danger.” Once again, Bolin does 

not demonstrate prejudice under AEDPA.

As an initial matter, it is not self-evident that under the 

circumstances of this case, the jury would necessarily regard 

Bolin’s alleged contemporaneous substance abuse as 

mitigating. See, e.g., Pinholster, 563 U.S. at 201 (explaining 

that some mitigating evidence, such as “more serious 

substance abuse,” can be a “two-edged sword” because it 

might cause the jury to conclude the petitioner is “simply 

beyond rehabilitation” (quoting Atkins v. Virginia, 536 U.S. 

304, 321 (2002))); Wackerly v. Workman, 580 F.3d 1171, 

1178 & n.1 (10th Cir. 2009) (discussing case law 

“demonstrat[ing] that substance abuse evidence often can 

have more aggravating than mitigating effect”); Clisby v. 

Alabama, 26 F.3d 1054, 1056 (11th Cir. 1994) (“[M]any 

lawyers justifiably fear introducing evidence of alcohol and 

drug use.”).

Nor is it apparent that a jury would regard an intoxication 

theory as mitigating alongside Cater’s dominant theory that 

Bolin was a loving and protective father who cared for 

others. As the Supreme Court has explained, the prejudicial 

impact of not presenting certain potentially mitigating 

evidence is lessened if that evidence would “undercut” a 

mitigation theory that counsel did present. Pinholster, 

563 U.S. at 202.

Regardless, the evidence that Bolin was under the 

influence of drugs and alcohol when he killed Huffstuttler 

and Mincy is seemingly based only on Bolin’s own 

statements to Drs. Markman and Matthews, the latter some 

ten years after the fact. A reasonable jurist could thus 

conclude not only that Bolin’s theory of drug and alcohol 

inducement was not mitigating, but also that it was 

unsupported.
38 BOLIN V. DAVIS

Childhood trauma. We turn next to Bolin’s claim that 

Cater failed to develop and present evidence about Bolin’s 

traumatic childhood. The evidence of Bolin’s childhood is 

set forth most comprehensively in Dr. Matthews’s expert 

declaration, which describes, among other things, how 

Bolin’s father William was prone to violent outbursts, 

including screaming, beating his wife and children, and on 

one occasion throwing Bolin down the stairs and knocking 

him unconscious.

We note at the outset that Bolin’s arguments 

notwithstanding, Cater did investigate Bolin’s childhood by 

having Roger Ruby, his investigator, speak with Bolin’s 

sisters, Fran and Rosemary, and other members of Bolin’s 

extended family. As we discussed above, these interviews 

yielded information about Bolin’s difficult upbringing, 

including the physical abuse at the hands of his father. It is 

thus not clear that a further continuance would have made a 

material difference in the information Cater was able to 

obtain.

We also note that though Bolin claims the jury was not 

told about his childhood, Bolin’s sister Fran did shed some 

light on it in her testimony. While it was not a dominant 

theme of Cater’s overall presentation, Fran told the jury 

about how their parents divorced when the children were 

young and how neither Bolin’s father nor his first stepfather 

wanted him in their homes. Fran recalled for jurors how 

Bolin was “thrown out” of the house and how he lived “on 

the streets.”

It is true, of course, that Fran did not testify about her 

father’s physical abuse, which she had disclosed to Ruby 

during her meeting with him. We acknowledge that the 

accounts of Bolin’s difficult upbringing are disturbing. And 

we do not deny their potential value as a mitigation theory. 
BOLIN V. DAVIS 39

It is possible, of course, that Cater may have had a reasonable 

strategic judgment in avoiding this topic or not dwelling on 

Bolin’s childhood further—an issue we do not decide. 

Regardless, under AEDPA, we cannot conclude that the state 

court would be objectively unreasonable in determining that 

further development of this issue was unlikely to have 

changed the result.

Based on Ruby’s investigation, Bolin’s sister Fran 

offered the most extensive account of Bolin’s father’s abuse. 

But Bolin’s parents divorced when Bolin was eight or nine 

years old, and Fran was four years younger than Bolin. The 

impact of her testimony would thus need to be considered 

alongside the fact that Fran was only four or five years old 

when she last lived with Bolin on a regular basis. And while 

Fran provided Ruby with information about Bolin’s father 

beating Bolin following their parents’ divorce, it is not 

apparent Fran and Bolin lived in the same home at this time. 

In evaluating the prejudice from Fran not testifying about 

Bolin’s childhood abuse, a reasonable jurist could thus 

consider that Fran’s base of knowledge may have been 

limited.

And while Bolin’s other sister, Rosemary, corroborated 

some of Fran’s account, Rosemary lacked knowledge of the 

full timeframe, and Ruby otherwise questioned whether she 

would make a good witness. The prejudice to Bolin of 

Rosemary not testifying therefore must include the 

possibility that the jury may have viewed Rosemary 

unfavorably, as Ruby feared.

Further affecting the potential mitigation value of 

Bolin’s abusive childhood is the fact that William’s violent 

conduct, while deplorable, was not so severe that it resulted 

in Bolin receiving medical attention. The extent of harm that 

Bolin experienced as a child makes this case analogous to 
40 BOLIN V. DAVIS

other cases involving either comparable or far more 

egregious childhood abuse where § 2254 relief was 

nonetheless denied. See, e.g., Pinholster, 563 U.S. at 201 

(denying relief even though petitioner came forward with 

additional evidence that he was “beaten with fists, belts, and 

even wooden boards”); Apelt v. Ryan, 878 F.3d 800, 815–16 

(9th Cir. 2017) (denying relief despite counsel’s failure to 

present evidence that “Apelt ‘came from a family 

background of gross poverty, alcoholism and violence which 

included emotional, physical and sexual abuse’”; that 

Apelt’s “abusive,” “alcoholic” father “beat his wife and 

children, including Apelt, with an iron rod”; and that Apelt 

was sexually assaulted as a child); Cain v. Chappell, 

870 F.3d 1003, 1021 (9th Cir. 2017) (denying relief even 

though petitioner endured “severe beatings and punishment” 

during his childhood, including an “untreated head injury”).

William’s violent conduct toward Bolin, we also must 

note, does not rise nearly to the level of Bolin’s own 

depraved and lethal conduct. That as well makes Bolin’s 

difficult upbringing a more uncertain basis for mitigation. 

See, e.g., Wong v. Belmontes, 558 U.S. 15, 21, 27–28 (2009) 

(per curiam) (explaining that while petitioner endured a 

“‘terrible’ childhood” with an “extremely abusive” father, 

“[i]t is hard to imagine expert testimony and additional facts 

about [petitioner’s] difficult childhood outweighing the facts 

of [the] murder” for which he received a death sentence 

(emphasis omitted)); Benson v. Chappell, 958 F.3d 801, 833 

(9th Cir. 2020) (explaining that evidence of petitioner’s 

childhood sexual abuse “does not explain or justify [his] 

murder of Laura and her three children”); Samayoa v. Ayers, 

649 F.3d 919, 929 (9th Cir. 2011) (similar).

Further, a reasonable jurist could also discount the 

prejudicial value of Bolin’s childhood experience based on 
BOLIN V. DAVIS 41

the amount of time that had elapsed between Bolin’s 

childhood and his much later murders of Huffstuttler and 

Mincy. Dr. Matthews, who provided the most extensive 

account of Bolin’s abuse, focuses largely on the period 

before Bolin’s parents divorced, when Bolin was eight or 

nine years old. And while Bolin allegedly continued to 

experience beatings after that (even though he was evidently 

spending less time with his father at this point), by the time 

Bolin was fourteen he had moved in with his mother and her 

new husband, James Amsbury (Bolin’s second stepfather). 

Thereafter, according to Dr. Matthews, Bolin’s “life changed 

dramatically” because Amsbury “took both Fran and [Bolin] 

in as though they were his own” and “did his best to be a 

father to [Bolin].” Meanwhile, Bolin would not murder 

Huffstuttler and Mincy until he was 42 years old.

A reasonable jurist could conclude that the substantial 

gap in time between Bolin’s worst childhood experiences 

and his murders of Huffstuttler and Mincy is another feature 

of the record that weakens the mitigatory effect of William’s 

abusive conduct. See, e.g., Callahan v. Campbell, 427 F.3d 

897, 937 (11th Cir. 2005) (holding that when evidence of 

physical abuse predated crimes by “several decades,” its 

mitigation value was “minimal”).

Finally, if Cater had introduced evidence of Bolin’s own 

childhood abuse, it risked opening the door to rebuttal 

evidence of Bolin’s domestic abuse of his wife and children. 

See Belmontes, 558 U.S. at 18–19, 24–26 (recognizing 

counsel’s “grave concerns” that, under “California 

evidentiary rules,” if his mitigation argument “swept too 

broadly,” evidence counsel had succeeded in having 

excluded “would come in for rebuttal”).

The record indicates that Bolin had been arrested for 

battery of his second wife and for assault with a deadly 
42 BOLIN V. DAVIS

weapon and child cruelty toward one of his stepdaughters.

When asked about the latter, he told his probation officer, “I 

whipped my stepdaughter’s ass with a belt.” Bolin had also 

been arrested for assault with a deadly weapon involving one 

of his stepdaughter’s teenage friends. As Bolin explained, a 

boy came at him, so he “kicked the shit out of him.” These 

incidents would have at least provided a counterpoint to 

Bolin’s own history of abuse as a child. And they would 

have likely dampened the mitigation impact of Cater’s 

central theory that Bolin was unworthy of the death penalty 

because of how he cared for his family. See Pinholster, 

563 U.S. at 202.

In short, while Bolin’s violent upbringing may be the 

most compelling mitigation evidence that Cater did not 

present, a reasonable jurist could conclude that it is not so 

compelling, in combination with the other mitigating and 

aggravating factors, to indicate that it could have changed 

the result in Bolin’s case.

Military service. Bolin also argues that Cater should 

have developed and presented more evidence about Bolin’s 

military service. But contrary to the suggestion that the jury 

was unaware of this aspect of Bolin’s life, Cater during the 

penalty phase peppered his witness questioning with 

references to Bolin’s service in the Navy and Vietnam. The 

jury heard from Mary and Frances that Bolin had served in 

the Navy in Vietnam when Mary was a young child. And 

Cater repeatedly reminded the jury in his closing argument 

about Bolin’s military service in Vietnam and how Bolin had 

“served his country.”

Although Cater could have presented more detail about 

the specifics of Bolin’s experience in the Navy, it is not 

apparent that this additional information creates a materially 

different portrait in mitigation. Although Bolin now 
BOLIN V. DAVIS 43

suggests that his service in Vietnam caused him to develop 

unidentified mental health problems, including through 

possible neurotoxin exposure, Bolin’s time in Vietnam was 

short (approximately 6 months).

Bolin does point to some positive reviews from military 

superiors, his stay in a military hospital for an “anxiety

reaction” (prior to going to Vietnam), and the back injury he 

sustained on a ship after returning from Vietnam. But this 

further background information does not change our 

conclusion. We can agree that, like Bolin’s military service 

generally, these additional details may have additional value 

in mitigation. Nonetheless, a reasonable jurist could 

conclude that Bolin identifies nothing in his military service 

that presents a supported and compelling basis from which 

the jury would have reached a different conclusion in the 

penalty phase.

That is especially so considering that the more favorable 

or sympathetic aspects of Bolin’s time in the Navy must be 

considered alongside other more negative aspects, which the 

State might have used in rebuttal had Cater dwelled on the 

issue more. See Belmontes, 558 U.S. at 26 (courts must 

consider evidence “that would have been presented had [the 

petitioner] submitted the additional mitigation evidence”). 

Among other things, Dr. Matthew’s report discusses how 

Bolin’s stepfather pushed Bolin to join the service, hoping 

the Navy would straighten Bolin out after he was arrested 

and put on probation for burglary. Once in the Navy, Bolin 

had further disciplinary problems, including a court martial, 

for offenses that included intoxication on duty from 

“chemicals” and alcohol, unauthorized absence, and use of 

an “unissued identification card.” Bolin also had told a Navy 

psychiatrist that he wanted to “beat up someone” and 

reportedly showed hostility to others. That Bolin’s military 
44 BOLIN V. DAVIS

career does not tell a consistently positive story—or even a 

consistent one—means that a reasonable jurist could 

determine that more information on Bolin’s military service 

would not have likely changed the jury’s decision.

Good character. Bolin argues that Cater should have 

developed and presented additional evidence of his good 

character, based on Bolin’s role as a protective parent and 

his positive prison adjustment. We need not dwell on this 

point for long. As we described above, the jury heard 

considerable testimony about Bolin’s role as a protective 

parent to his daughters and stepdaughters. Indeed, this was 

the primary theme of Cater’s presentation to the jury. 

Additional evidence on this point would have been 

cumulative, and thus unlikely to affect the result. See, e.g., 

Pinholster, 563 U.S. at 200 (rejecting Strickland claim under 

AEDPA when “[t]he ‘new’ evidence largely duplicated the 

mitigation evidence at trial”).

A similar point answers Bolin’s argument that Cater 

should have said more about Bolin’s ability to adjust to 

prison life. Cater had already called as a witness Nancy 

Belden, a correctional officer, and she told the jury that Bolin 

was cooperative and did not cause problems in custody, 

agreeing that he was a “model inmate” while he was 

incarcerated in 1985. Cater used that testimony in his 

closing to argue that Bolin functioned well in a structured 

environment, lumping in his time in the Navy. Once again, 

Bolin has not demonstrated that additional information on 

his behavior in prison would have altered the result in his 

case. See, e.g., id.

Expert testimony. Finally, we consider Bolin’s argument 

that Cater should have put on expert testimony to support 

Bolin’s penalty phase defense. Contrary to Bolin’s premise,

Cater was not without expert opinion: he had Dr. Markman’s 
BOLIN V. DAVIS 45

evaluation, which was largely unfavorable. But once again, 

even assuming Cater was deficient in not consulting further 

experts and bringing forward expert testimony to synthesize 

Bolin’s life history, we cannot conclude Bolin has shown 

prejudice under AEDPA on the facts of this case.

Bolin cites no authority suggesting that a defense 

lawyer’s determination not to use an expert witness during 

the penalty phase constitutes per se prejudice under 

Strickland. And we are aware of no such authority either, 

especially in the AEDPA context. Such a rule would be 

contrary to counsel’s well-established discretion, within the 

bounds of reasonable professional judgment, as to whether 

to use experts. See Richter, 562 U.S. at 106–07 (“Rare are 

the situations in which the ‘wide latitude counsel must have 

in making tactical decisions’ will be limited to any one 

technique or approach. . . . Here it would be well within the 

bounds of a reasonable judicial determination for the state 

court to conclude that defense counsel could follow a 

strategy that did not require the use of experts . . . .” (quoting 

Strickland, 466 U.S. at 689)); Bonin v. Calderon, 59 F.3d 

815, 834 (9th Cir. 1995) (“[T]he presentation of expert 

testimony is not necessarily an essential ingredient of a 

reasonably competent defense.”).

Instead, we must evaluate Bolin’s charge that Cater 

should have used an expert based on the expert testimony 

Bolin now proffers and the overall record in this case. For 

the reasons we have discussed above, the expert testimony 

that Bolin advanced to the state habeas court—from 

Drs. Khazanov and Matthews—has limited mitigation 

value.

Further weakening Bolin’s focus on the lack of expert 

testimony is that if Bolin had offered such testimony, the 

State could have offered its own expert in rebuttal. See
46 BOLIN V. DAVIS

Pinholster, 563 U.S. at 201 (psychiatric evidence could have 

“opened the door to rebuttal by a state expert”); Belmontes, 

558 U.S. at 25 (explaining that the “‘more-evidence-isbetter’ approach” “might seem appealing” but carried 

significant risks of rebuttal evidence in response to 

“heavyhanded” attempts to “portray [the defendant] in a 

positive light, with or without experts”).

We need look no further than Dr. Markman, the expert 

Bolin’s own counsel had retained prior to trial. 

Dr. Markman evaluated Bolin in 1990, not long after the 

murders. And his conclusions were not helpful to Bolin’s 

current theory of mental impairment. In particular, and 

among other things, Dr. Markman opined that Bolin was 

“fully oriented in all spheres,” of “above normal intelligence 

with an excellent fund of knowledge,” with “no evidence of 

a major mental disorder, thought disorder[,] or psychosis.” 

Dr. Markman also cited Bolin’s “repeated history of 

aggressive behavior” while noting that if Bolin had 

“fabricated” information he provided to Markman, Bolin 

was “fully aware that he is doing so.”

While Bolin now maintains that Dr. Markman’s 

evaluation was not translatable for penalty phase purposes 

and that Markman based his opinions on insufficient 

information, those arguments misunderstand the relevance 

of Dr. Markman’s report for purposes of our present 

analysis. Dr. Markman’s opinions could themselves have 

had some shortcomings. But they reflect the type of expert 

opinions that the State could have put on, had Cater put on 

an expert like Drs. Matthews or Khazanov. That 

Dr. Markman had evaluated Bolin more contemporaneously 

with the murders, and was an expert that Bolin’s own 

counsel had retained, only further underscore the State’s 

ability to offer its own expert in rebuttal. It would be 
BOLIN V. DAVIS 47

objectively reasonable for the state habeas court to conclude 

that under the facts of this case, Bolin was not prejudiced by 

the lack of expert testimony because the prosecution could 

have presented an opinion similar to Dr. Markman’s, which 

was unhelpful to Bolin.

2

Viewed as a collective whole, the additional mitigating 

evidence Bolin has brought forward in habeas is not 

inevitably compelling under AEDPA. This on its own would 

be sufficient to deny relief under § 2254. Pinholster, 

563 U.S. at 202. But that conclusion is bolstered when the 

new mitigating evidence is considered alongside the 

aggravating circumstances that the State presented.

As the Supreme Court has explained, even before the 

AEDPA overlay, “to establish prejudice” Bolin “must show 

a reasonable probability that the jury would have rejected a 

capital sentence after it weighed the entire body of 

mitigating evidence . . . against the entire body of 

aggravating evidence.” Belmontes, 558 U.S. at 20; see also 

Mickey v. Ayers, 606 F.3d 1223, 1245 (9th Cir. 2010) 

(explaining that the Supreme Court has “reaffirmed that the 

facts of the crime play an important role in the prejudice 

inquiry”). And under AEDPA, Bolin must show even more: 

that the state habeas court’s reweighing of the aggravating

and mitigating circumstances was not merely unpersuasive, 

but “objectively unreasonable.” Andrade, 538 U.S. at 75. 

Bolin cannot make this showing.

The crimes that lead to capital convictions often present 

highly aggravated circumstances. This case is no exception. 

But if anything, it involves uniquely cruel and unjustified 

conduct that reflected an appreciable indifference to human 

life. In an apparent effort to maintain the secrecy of his 
48 BOLIN V. DAVIS

marijuana grow operation, Bolin shot two men four times 

each. Mincy implored Bolin to spare him, but Bolin killed 

him anyway. Bolin took the effort to get a second weapon 

to use on Huffstuttler’s motionless body after he had already 

shot him once. And Bolin then elaborately dressed the scene 

with broken glass, marijuana, and chili, placing a gun in 

Huffstuttler’s dead hand. Bolin also shot Wilson in the 

shoulder, hunted for him in the forest, and, when he failed to 

find him, immobilized Wilson’s vehicle and left Wilson to 

perish in an unforgiving mountainous terrain. And this is to 

say nothing of the other past incidents of violent conduct that 

the State presented involving Kenneth Ross and Matthew 

Spencer—conduct that resulted in serious injury and, in the 

case of Ross, could have resulted in death.

Taken as a whole, “[t]he State presented extensive 

aggravating evidence.” Pinholster, 563 U.S. at 198. A 

reasonable jurist could easily conclude that the additional 

mitigating evidence Bolin now proffers was unlikely to have 

led the jury to choose a different sentence. We thus hold that 

even if Cater acted deficiently in failing to develop and 

present more mitigating evidence and in failing to seek 

additional time for that endeavor, under AEDPA Bolin 

cannot show he was prejudiced.

V

Lastly, we address Bolin’s request for new counsel. On 

two earlier occasions, Bolin filed pro se requests for 

alternative counsel, and both times we ordered his appointed 

counsel to respond. Both times, we concluded that his 

counsel’s response was satisfactory under Martel v. Clair, 

565 U.S. 648 (2012). Thus, we denied Bolin’s requests.

Since then, Bolin has filed several additional pro se 

motions requesting alternative counsel and related relief.
BOLIN V. DAVIS 49

We have carefully reviewed those filings as well. We deny 

Bolin’s latest requests. Although Bolin has not prevailed in 

this appeal, his appointed counsel ably discharged their 

duties in representing him before this Court.

* * *

The judgment of the district court is AFFIRMED.