FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THEODORE WASHINGTON,

Petitioner-Appellant,

v.

DAVID SHINN, Director,

Respondent-Appellee.

No. 05-99009

D.C. No.

CV-95-02460-JAT

ORDER AND 

AMENDED 

OPINION

Appeal from the United States District Court

for the District of Arizona

James A. Teilborg, District Judge, Presiding

Argued and Submitted September 8, 2021

San Francisco, California

Filed December 20, 2021

Amended August 29, 2022

Before: Ronald M. Gould, Consuelo M. Callahan, and 

Lawrence VanDyke, Circuit Judges.

Order;

Opinion by Judge Callahan;

Concurrence by Judge Gould
2 WASHINGTON V. SHINN

SUMMARY*

Habeas Corpus/Death Penalty

The panel (1) filed an amended opinion along with Judge 

Gould’s separate concurrence, (2) denied a petition for panel 

rehearing, and (3) denied on behalf of the court a petition for 

rehearing en banc, in a case in which the panel affirmed the 

district court’s denial of Theodore Washington’s habeas 

corpus petition challenging his Arizona conviction and death 

sentence for first-degree murder.

Washington asserted that he is entitled to relief on 

several grounds, the majority of which the panel addressed 

in a memorandum disposition filed on January 15, 2021. In 

this opinion, as amended, the panel addressed Washington’s 

certified claim for ineffective assistance of trial counsel—

that counsel did not investigate and present mitigating 

evidence at the penalty phase, including evidence of diffuse 

brain damage, childhood abuse, and substance abuse. 

Because Washington filed his habeas petition before the 

enactment of the Antiterrorism and Effective Death Penalty 

Act of 1996 (AEDPA), the panel reviewed the claim under 

the standard set out in Strickland v. Washington, 466 U.S. 

668 (1984), and its progeny, without the added deference 

required under AEDPA. 

The panel recognized that certain forms of investigation 

such as readily available school, employment, and medical 

records are fundamental to preparing for virtually every 

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

has been prepared by court staff for the convenience of the reader.
WASHINGTON V. SHINN 3

capital sentencing proceeding, but wrote that there is a strong 

presumption that counsel’s representation was within the 

wide range of reasonable professional assistance. This 

presumption of reasonableness means that not only does the 

court give the attorneys the benefit of the doubt, but the court 

must also affirmatively entertain the range of possible 

reasons counsel may have had for proceeding as they did. 

Accordingly, in reviewing specific claims of ineffective 

assistance of counsel based on counsel’s alleged failure to 

investigate, the court must consider what information was 

readily available to trial counsel at the time and whether 

there is any evidence that undermines counsel’s decisions at 

that time not to conduct further investigations.

The panel held that Washington did not meet his burden 

under the first Strickland prong of showing constitutionally 

deficient performance by failing to obtain and review 

Washington’s education and incarceration records, where 

counsel did not ignore Washington’s education and 

correction records, but believed that his interviews with 

Washington, Washington’s common law wife, and others 

were sufficient; where counsel presented testimonial 

evidence of Washington struggling in school and dropping 

out in the tenth or eleventh grade; and where there was no 

showing that those records contained meaningful mitigation 

evidence.

The panel held that Washington did not meet his burden 

of showing that trial counsel erred by not further 

investigating Washington’s childhood abuse, to the extent 

that he could have, or by not presenting the information he 

did not have regarding abuse at sentencing hearing. 

The panel held that Washington’s allegation that trial 

counsel erred by not investigating and presenting evidence 
4 WASHINGTON V. SHINN

of his substance abuse fails because counsel was not timely 

informed of Washington’s substance abuse. 

The panel held that Washington also did not show that 

trial counsel erred by not seeking a psychological evaluation, 

where (1) counsel testified that nothing in his extensive 

interviews with Washington’s family and friends triggered 

any red flags signaling that further investigation of 

Washington’s mental condition would have been fruitful; 

(2) counsel for the most part knew neither of later assertions 

of diffuse brain damage, a dysfunctional family background, 

and alcohol and cocaine addiction, nor of evidence 

supporting the assertions; and (3) the record of postconviction review (PCR) proceedings does not contain any 

medical records substantiating Washington’s claims of head 

injuries.

The panel concluded that under the deferential standard 

required by Strickland and its progeny, counsel’s 

investigation was more than adequate, and his performance 

was reasonable.

The panel held that even if trial counsel’s performance 

had been deficient, Washington would not be entitled to 

relief because he cannot show prejudice, where the 

sentencing judge said that Washington’s new evidence in the 

PCR hearing would not have made a difference, and a fair 

evaluation of the evidence in light of Supreme Court 

precedent confirms the soundness of the sentencing judge’s 

finding of no prejudice.

The panel wrote that it is not insensitive to the fact that 

Washington is the only one of the three perpetrators who 

continues to face the death penalty. The panel emphasized, 

however, that the critical questions—whether counsel’s 
WASHINGTON V. SHINN 5 

performance was constitutionally deficient and whether any 

deficiency resulted in prejudice—must be individually 

considered and separately considered in each case.

The panel rejected Washington’s argument that trial 

counsel was ineffective because he allowed the state court to 

require a nexus between his proffered mitigating evidence 

and the crime. The panel wrote that the sentencing judge did 

consider the evidence of substance abuse, and that the 

judge’s conclusion that the evidence of substance abuse 

lacked a causal nexus to the crime was appropriate because 

a court is free to assign less weight to mitigating factors that 

did not influence a defendant’s conduct at the time of the 

crime.

 Judge Gould concurred in part and concurred in the 

judgment. He joined the opening paragraph (except for the 

language on page 7 stating that “Washington has not shown 

either that his trial counsel’s performance was 

constitutionally deficient or”), Sections I, II, III, V, VI, and 

VII, but did not join Sections IV and VIII, which he 

concluded are unnecessary to resolve the Strickland

ineffective assistance of counsel issue.

COUNSEL

Nathaniel C. Love (argued), Grace L.W. St. Vicent, Andrew 

F. Rodheim, and Julia G. Tabat, Sidley Austin LLP, 

Chicago, Illinois; Jean-Claude André, Sidley Austin LLP, 

Los Angeles, California; Gilbert H. Levy, The Law Offices 

of Gilbert H. Levy, Seattle, Washington; Mark E. Haddad, 

University of Southern California Gould School of Law, Los 

Angeles, California; for Petitioner-Appellant.
6 WASHINGTON V. SHINN

Laura P. Chiasson (argued), Assistant Attorney General; 

Lacey Stover Gard, Acting Chief Counsel, Capital Litigation 

Section; Mark Brnovich, Attorney General; Office of the 

Attorney General, Tucson, Arizona; for RespondentAppellee.

ORDER

The opinion filed on December 20, 2021, is amended by 

the opinion along with Judge Gould’s separate concurrence 

filed concurrently with this order. 

With these amendments, the panel has voted to deny the 

petition for panel rehearing and the petition for rehearing en 

banc. The full court has been advised of the petition for 

rehearing en banc, and no judge of the court has requested a 

vote on it. Fed. R. App. P. 35. 

The petition for panel rehearing and the petition for 

rehearing en banc are otherwise DENIED, and no further 

petitions will be accepted. 

OPINION

CALLAHAN, Circuit Judge:

Arizona state prisoner Theodore Washington appeals the 

district court’s denial of his petition for a writ of habeas 

corpus under 28 U.S.C. § 2254. In 1987, a jury convicted 

Washington for the murder of Sterleen Hill and the 

attempted murder of Ralph Hill, and the trial court judge 

sentenced him to death. 
WASHINGTON V. SHINN 7

In his habeas corpus petition, Washington challenges his 

conviction and sentence on the first-degree murder charge. 

He asserts that he is entitled to habeas relief on several 

grounds, the majority of which we addressed in our 

memorandum disposition filed on January 15, 2021, 

Washington v. Ryan, 840 F. App’x 143 (9th Cir. 2021). In 

this opinion we again address Washington’s certified claim 

for ineffective assistance of trial counsel.1 Washington 

contends that his counsel did not investigate and present 

mitigating evidence at the penalty phase, including evidence 

of diffuse brain damage, childhood abuse, and substance 

abuse. Applying the standard for evaluating ineffective 

assistance of counsel set forth in Strickland v. Washington, 

466 U.S. 668 (1984),2 we conclude that Washington has not 

shown either that his trial counsel’s performance was 

constitutionally deficient or that the deficiencies were 

prejudicial. Accordingly, we affirm the district court’s

denial of his habeas petition.

I

At around 11:45 p.m. on the night of June 8, 1987, at 

least two men forced their way into Ralph and Sterleen Hill’s 

home in Yuma, Arizona. The men forced the Hills to lie face 

down on the floor of the master bedroom with their hands 

bound in preparation to be shot execution-style. One of the 

men intermittently “screwed” a pistol in Ralph’s ear while 

1 Our previous opinion, Washington v. Ryan, 922 F.3d 419 (9th Cir. 

2019), was withdrawn on January 15, 2021. Washington v. Ryan, 840 F. 

App’x 143 (9th Cir. 2021). In that order we requested that the parties 

file supplemental briefs addressing the significance of Shinn v. Kayer, 

141 S. Ct. 517 (2020). Following the submission of supplemental briefs, 

we heard re-argument on September 8, 2021.

2 This opinion omits parallel citations.
8 WASHINGTON V. SHINN

both men yelled at the couple demanding that the Hills give 

them drugs or money. Ralph glimpsed one of the assailants 

as he ransacked the drawers and closets in the room. 

Sterleen was forced to listen helplessly as her husband was 

shot first and then wait as the shotgun was reloaded, 

knowing that she would be next. Had the Hills’ teenage son, 

LeSean, not run off, it is evident that he would have suffered 

the same fate. (Ralph testified he heard a voice in the 

background say, “We better get the kid.”). The Hills were 

discovered lying face down in their bedroom. Ralph 

survived the horrendous shot to his head, but was seriously

injured. Sterleen did not survive the shooting.

Police arrested Fred Robinson shortly after the incident. 

Robinson was the common law husband of Susan Hill, Ralph 

Hill’s daughter from a prior marriage. Police also arrested 

Jimmy Mathers and Theodore Washington in connection 

with the crimes. Arizona charged the three men with firstdegree murder for the death of Sterleen Hill, attempted first 

degree murder, aggravated assault causing serious physical 

injury, aggravated assault using a deadly weapon, burglary 

in the first degree, and armed robbery. The three men were 

tried together, and the jury convicted on all counts.

A.

The penalty phase of the trial commenced on January 8, 

1988. Washington’s trial counsel, Robert Clarke, called 

three witnesses to testify on Washington’s behalf: 

Washington’s friend, Steve Thomas; Washington’s mother, 

Willa Mae Skinner; and Washington’s half-brother, John 

Mondy.

Steve Thomas testified that he knew Washington for two 

years. He testified that Washington was easily influenced 

but not violent. He also testified that Washington was a 
WASHINGTON V. SHINN 9

dedicated father. When asked if Washington had a drug 

problem, Thomas testified that he had not noticed one. 

Skinner testified that Washington was a good child and that 

he dropped out of school when he was in high school. She 

also testified that Washington was a good father, and that he 

was gentle and “liked to party.” Finally, Mondy reiterated 

that Washington was affable but easily led. He also 

confirmed that Washington had trouble in school as a child.

During closing argument, Clarke focused primarily on 

attacking the sufficiency of the court’s findings under 

Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. 

Arizona, 481 U.S. 137 (1987). Regarding mitigation, Clarke 

urged the court to consider Washington’s age, his relatively 

minor criminal record, his good relationship with his son, 

and his general demeanor as a caring individual.

The trial court found that the state had established two 

aggravating factors beyond a reasonable doubt: (1) that the 

murder was committed in an especially cruel, heinous, or 

depraved manner, and (2) that the murder was committed 

for, or motivated by, pecuniary gain. With respect to 

mitigation, the court found that Washington’s age was not a 

mitigating factor and that the remaining mitigating factors 

did not outweigh the aggravating factors. The court 

sentenced all three defendants to death on the first-degree 

murder charges.

B.

Washington, Robinson, and Mathers each appealed his 

conviction and sentence to the Arizona Supreme Court. The 

state high court affirmed Washington and Robinson’s 

convictions and sentences, State v. Robinson, 796 P.2d 853 

(Ariz. 1990), but found insufficient evidence to convict 
10 WASHINGTON V. SHINN

James Mathers and vacated his conviction, State v. Mathers,

796 P.2d 866 (Ariz. 1990).

Following the direct appeal process, Washington and 

Robinson challenged their convictions and sentences on 

post-conviction review (“PCR”). The trial court held a joint 

PCR hearing on September 8, 1993. The Honorable Stewart 

Bradshaw, the same judge who presided over the trial, 

presided over the post-conviction review proceeding. 

Washington, through his appellate counsel, argued that 

Clarke was ineffective at the penalty phase due to his failure 

to present mitigating evidence. Specifically, Washington 

argued that Clarke erred by failing to conduct a more 

thorough review of his school, medical, and incarceration 

records. Washington also argued that Clarke should have 

obtained a psychological evaluation and presented the 

results to the court.

The bulk of the new evidence presented at the PCR 

hearing was elicited through the testimony of Dr. Tod Roy, 

the defense counsel’s retained psychologist. Dr. Roy 

evaluated Washington in 1992. He conducted clinical 

interviews and several psychological tests. Dr. Roy’s 

interviews with Washington revealed that he suffered abuse 

as a child in the form of daily whippings with straps and belts 

and that adults in the home used alcohol to sedate him as a 

child. Dr. Roy’s review of Washington’s school and 

Department of Corrections (“DOC”) records revealed that 

Washington was placed in classes for the “educable mentally 

retarded” when he was five years old and that he had been 

marked as low-IQ while incarcerated. However, Dr. Roy 

testified that these records conflicted with his own clinical 

findings because Washington tested at a low-to-average IQ 

of 96.
WASHINGTON V. SHINN 11

Dr. Roy’s interviews with Washington also disclosed 

that Washington had substance abuse problems relating to 

cocaine and alcohol use. Washington told Dr. Roy that he 

began drinking recreationally at age eight and was a 

functional alcoholic by age fourteen. He also told Dr. Roy 

that he was heavily intoxicated on the night of the murder. 

Washington also said that he was a heavy cocaine user and 

that he used about $175 in cocaine per day at the time of the 

crime.

Finally, Dr. Roy testified that he believed that 

Washington suffered from diffuse brain damage resulting 

from early and prolonged drug and alcohol use and 

numerous traumatic head injuries. Dr. Roy testified that 

diffuse brain damage can result in disinhibition and poor 

social judgment as well as poor impulse control and an 

inability to appreciate the long-term consequences of one’s 

actions. Dr. Roy testified that, in his opinion, Washington’s 

cocaine addiction and his impaired impulse control likely 

contributed to his ability to be manipulated by others into 

making poor decisions.

The state called Dr. Eva McCullars, a psychiatrist who 

also evaluated Washington. Dr. McCullars reviewed 

Dr. Roy’s report and conducted clinical interviews with 

Washington in June 1993. Dr. McCullars testified that she 

did not review Washington’s DOC records, school records, 

or adult incarceration records. Dr. McCullars agreed that 

Washington suffered from diffuse brain damage, but 

concluded that Washington also suffered from antisocial 

personality disorder. On direct examination, the state asked 

Dr. McCullars whether diffuse brain damage could cause 

hyperkinesis (hyperactive behavior or attention deficit 

disorder). Dr. McCullars explained that “[hyperkinesis] is 

one example of diffuse brain damage.” She went on to 
12 WASHINGTON V. SHINN

explain that several prominent individuals including Walt 

Disney and Thomas Edison exhibited hyperkinetic behavior 

as children. When questioned on cross examination, 

Dr. McCullars acknowledged that Washington came from a 

“significantly dysfunctional family.” She also admitted that 

several of the markers for antisocial personality disorder, 

such as early truancy and an inability to maintain 

employment, were more frequently associated with lower 

socio-economic status Black adolescents, such as 

Washington, when compared to the general population.

Clarke, Washington’s trial counsel, also testified at the 

PCR hearing. He testified that he did not request 

Washington’s education or corrections records because he 

believed his interviews with Washington, Skinner, Mondy, 

and Washington’s common law wife, Barbara Bryant, were 

sufficient. Clarke testified that he had “very extensive 

discussions” with Washington about what his life was like 

and any possible substance abuse issues. Clarke also 

testified that he had “relatively extensive” discussions with 

Washington’s mother, half-brother, and girlfriend. Clarke 

testified that, based on these interviews, “there wasn’t 

anything that clued me in that there was a special problem 

that would suggest I should obtain those types of records.” 

With respect to Washington’s drug use, Clarke testified that 

Washington never told him that he was addicted to cocaine 

or that he was using cocaine on the night of the murder. 

When questioned on the matter, Clarke acknowledged that 

Bryant had told him that Washington had a “cocaine 

problem,” but that he did not investigate further.

In a written order, Judge Bradshaw held that Washington 

was not entitled to relief for ineffective assistance of counsel 

at the penalty phase. Judge Bradshaw credited 

Dr. McCullars’s findings that Washington had antisocial 
WASHINGTON V. SHINN 13

personality disorder and was poorly adjusted to living in 

society. However, Judge Bradshaw concluded that “there is 

nothing . . . which lessened his ability to differentiate right 

from wrong or conform his actions with the law.” Judge 

Bradshaw also explained that he had been aware at the time 

of sentencing that Washington had been doing well while 

incarcerated. Judge Bradshaw further reasoned that any 

drug and alcohol dependency “taken separately or with any 

other mitigating circumstance or circumstances would [not] 

have mitigated against the sentence [Washington] has 

received.”

On April 25, 1995, the Arizona Supreme Court 

summarily denied Washington’s petition for review of the 

PCR court’s decision.

C.

Washington then commenced his habeas action in the 

federal district court, culminating in this appeal. In his 

amended federal habeas corpus petition, Washington raised 

seventeen claims. The district court determined that certain 

claims were procedurally barred, and on April 22, 2005, the 

district court rejected the remaining claims on their merits 

and dismissed the petition. Washington filed a motion to 

alter the judgment on May 5, 2005, which the district court 

denied on June 8, 2005.

On July 11, 2005, Washington filed an untimely notice 

of appeal from the district court’s denial of habeas relief. A 

three-judge panel of this court held that it lacked jurisdiction 

and affirmed the district court’s denial of Rule 60(b) relief. 

Washington v. Ryan, 789 F.3d 1041 (9th Cir. 2015). We then 

granted Washington’s motion for en banc rehearing. 

Washington v. Ryan, 811 F.3d 299 (9th Cir. 2015). In a 6–5 

decision, we held that Washington was entitled to relief 
14 WASHINGTON V. SHINN

under Rule 60(b)(1) and (6) from his untimely notice of 

appeal and ordered the district court to “vacate and reenter 

its judgment denying Washington’s petition for writ of 

habeas corpus, nunc pro tunc, June 9, 2005,” to render the 

notice of appeal timely. Washington v. Ryan, 833 F.3d 1087, 

1102 (9th Cir. 2016). The U.S. Supreme Court denied the 

state’s petition for writ of certiorari. Ryan v. Washington, 

137 S. Ct. 1581 (2017) (mem.).

Meanwhile, in 2005, the district court issued a 48-page 

memorandum and order denying Washington’s habeas 

petition. In his PCR proceedings, Washington had “alleged 

that Clarke rendered ineffective assistance of counsel by 

failing to interview him regarding potential mitigation and 

by failing to present evidence of good behavior during 

incarceration, his unstable family background, and the 

absence of a violent history or propensity.”

In rejecting Washington’s claims of ineffective 

assistance of counsel, the district court held that Washington 

had to “identify the acts or omissions of counsel that are 

alleged not to have been the result of reasonable professional 

judgment.” It further noted that Washington had to 

“overcome the presumption that under the circumstances, 

the challenged action might be considered sound trial 

strategy,” and that it must “judge the reasonableness of 

counsel’s challenged conduct on the facts of the particular 

case, viewed as of the time of counsel’s conduct.”

The district court recognized that counsel had a duty to 

conduct a reasonable investigation and that a failure to 

adequately investigate and present mitigating evidence can 

constitute deficient performance. However, the district court 

concluded that while Clarke could have conducted 

additional investigation of Washington’s background for 

potential mitigation, it could not conclude “that Clarke 
WASHINGTON V. SHINN 15

performed deficiently by failing to do so.” The court noted 

that Clarke was an experienced attorney who had worked 

both as a prosecutor and as defense counsel, had tried thirty

to fifty jury trials, and had tried three or four capital cases 

before he was appointed to represent Washington. The 

district court stated that Clarke had “began investigating 

possible mitigation as he investigated the facts of the case,” 

had very extensive discussions with Washington “regarding 

what his life was like from when he was a young man to the 

present,” and had rather extensive discussions with 

Washington’s common-law wife (Bryant), brother, and 

mother. The court observed that Clarke testified that he had 

questioned Washington very closely about his drug use and 

alcohol intake and about possible physical abuse during his 

childhood.

Clarke acknowledged that he did not seek Washington’s 

school records because he relied on family members to 

provide information regarding Washington’s education. 

Clarke did not seek Washington’s incarceration records 

because they were “unlikely to have records relevant to 

potential mitigation, such as psychological records, because 

Petitioner had only been incarcerated for two years for 

burglary and was not ‘a hardened criminal.’” Clarke also 

explained that he did not seek a mental health evaluation of 

Washington because “he had not observed anything from his 

many lengthy meetings with Petitioner, or interviews of 

Petitioner’s family, that suggested that such an evaluation 

was warranted.” Clarke also testified that he had questioned 

family members about any “medical problems” or “anything 

out of the ordinary” in Washington’s background, but had 

not requested his medical history. Finally, Clarke

acknowledged that Bryant had told him that Washington had 

a “cocaine problem,” but noted that Washington had never 

told Clarke that Washington was addicted to cocaine or had 
16 WASHINGTON V. SHINN

used cocaine the day of the crime; he had only stated that he 

had been intoxicated.

The district court noted that Washington “presented no 

evidence at the state PCR evidentiary hearing to contradict 

Clarke’s testimony.” Although Washington in his affidavit 

averred that Clarke did not discuss the penalty phase with 

him until twenty minutes before the hearing, the district 

court determined that “Clarke’s presentation of three 

witnesses at sentencing, each of whom had traveled to Yuma 

from at least as far away as Banning[,] is alone sufficient to 

discredit the implication that Clarke failed to prepare for the 

sentencing until minutes before the aggravation/mitigation 

hearing.” The district court further found at his PCR hearing 

in state court, Washington had not presented any evidence 

from Bryant or family members that contradicted Clarke’s 

testimony and that the PCR court “clearly found Clarke more 

credible than Petitioner’s affidavit on these points.” 

Furthermore, Washington presented no evidence that his 

school records or his incarceration records would have 

revealed potential mitigation. Rather, the single reference in 

Washington’s school records that he was “educable mentally 

retarded” was contradicted by Dr. Roy’s own testing of 

Washington, which showed that he had average or lowaverage intelligence and “was not retarded.”

The district court determined that Washington had not 

shown that Clarke acted unreasonably in not seeking a 

mental health evaluation. The court observed that there was 

“scant evidence” that Washington had been treated for any 

prior mental illness or had any mental health history, and that 

there was no evidence that Washington, his family members, 

or friends ever disclosed any concerning incidents to Clarke 

or suggested that such incidents would have led to relevant 
WASHINGTON V. SHINN 17

mitigation.3 The district court noted that there was no 

evidence that anyone had told Clarke that Washington had 

suffered several head injuries during his childhood and 

adolescence.

The district court further credited Clarke’s statements

that Washington only told him that he was intoxicated the 

night of the crime and never said that he had also used 

cocaine and was an alcoholic and a drug addict. The court 

concluded that Clarke had little reason to further investigate 

Washington’s substance abuse and that Clarke had not 

“conducted an unreasonable investigation.” The district 

court concluded that “Clarke’s investigation and 

presentation of mitigation was reasonable and that he did not 

perform deficiently.”

The district court further found that even if Clarke had 

performed deficiently, Washington had not shown that he 

was prejudiced. Again citing Strickland, the court noted that 

“an error by counsel, even if professionally unreasonable, 

does not warrant setting aside the judgment of a criminal 

proceeding if the error had no effect on the judgment,” that 

the petitioner “must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different,” and that 

a reasonable probability is a probability sufficient to 

3 In his affidavit Washington reported that after he got into trouble 

when he was fifteen, he received psychiatric counseling as part of his 

rehabilitation. He told Dr. Roy that the psychologist concluded that the 

death of Washington’s father had left him without a male figure in his 

life and this was responsible for the difficulties he experienced. 

Washington also told Dr. Roy that in 1981 he was taken to the 

Sacramento County Hospital after overdosing on LSD and passing out, 

and was admitted to the psychiatric unit, but Dr. Roy noted that there 

was no evidence regarding the length of his stay, treatment, or diagnosis.
18 WASHINGTON V. SHINN

undermine confidence in the outcome. The court noted that 

it is “asked to imagine what the effect might have been upon 

a sentencing judge, who was following the law, especially 

one who had heard the testimony at trial.”4

The district court noted that the state PCR court (Judge 

Bradshaw), “before whom Petitioner was tried, heard all of 

the additional mitigation evidence proffered by Petitioner, 

. . . credited Dr. McCullars’s finding of antisocial 

personality disorder and concluded that Petitioner had not 

demonstrated a reasonable probability that his sentence 

would have been different if that mitigation had been 

presented at trial.”

Addressing Washington’s intoxication on the night of 

the crime, the district court noted that under Arizona law, 

intoxication at the time of a crime can constitute a statutory 

mitigation if the defendant establishes that his capacity to 

appreciate the wrongfulness of his conduct or his ability to 

conform his conduct to the requirements of law was 

significantly impaired, but not so impaired as to constitute a 

defense to prosecution. The burden is on the defendant to 

establish this mitigation. See State v. Woratzeck, 657 P.2d 

870, 870–71 (Ariz. 1982) (holding “appellant had failed to 

4 The district court noted that “[a]t the time [Washington] was 

sentenced, Arizona’s death penalty statute required a judge to impose a 

death sentence if one or more aggravating circumstance were proven 

beyond a reasonable doubt and the mitigation established by a 

preponderance of the evidence was not sufficiently substantial to call for 

leniency.” In Ring v. Arizona, 536 U.S. 584, 609 (2002), the Supreme 

Court ruled that a sentencing judge, sitting without a jury, may not find 

an aggravating factor necessary for imposition of the death penalty. 

However, in Schriro v. Summerlin, 542 U.S. 348, 358 (2004), the 

Supreme Court held that Ring does not apply retroactively to cases such 

as Washington’s that were already final on direct review at the time Ring 

was decided.
WASHINGTON V. SHINN 19

show as a mitigating circumstance that intoxication caused 

significant impairment of his capacity to appreciate the 

wrongfulness of his conduct or to conform his conduct to the 

requirement of law”). The district court noted that under 

Arizona case law, “self-reports of voluntary intoxication at 

the time a crime was committed are subject to searching 

skepticism because of the obvious motive to fabricate,” “a 

defendant’s claim of alcohol or drug impairment may be 

rebutted by evidence that he took steps to avoid detection 

shortly after the murder or when it appears that intoxication 

did not overwhelm the defendant’s ability to control his 

physical behavior,” and “a long history of drug dependence, 

absent evidence that a defendant was actually impaired at the 

time of the crime, does not constitute mitigation.”

The district court concluded that the newly proffered 

evidence of impairment would be accorded little weight. It 

noted that the only evidence, other than self-reporting, “was 

Bryant’s testimony that Petitioner sounded intoxicated when 

he called her at least two hours after the offense.” The court 

noted that although Washington told the experts that he was 

intoxicated the night of the crime, neither expert opined as 

to Washington’s capacity to appreciate the wrongfulness of 

his conduct. Moreover, “evidence supports that Petitioner 

fled from the Hills’ home immediately after they were shot, 

that he called Bryant, and ultimately purchased a bus ticket 

to return to Banning.”

Addressing the proffered evidence of mental 

impairment, the district court noted that under Arizona law, 

“major mental impairments, such as mental illness or brain 

damage, carry far more mitigating weight than does a 

personality disorder if such impairments demonstrate a 

defendant’s inability to control his conduct or to appreciate 

the differences between right and wrong.” See Ariz. Rev. 
20 WASHINGTON V. SHINN

Stat. § 13-703(G)(1) (2008). The court noted that although 

Dr. Roy concluded that Washington had diffuse brain 

damage, he did not find that such damage significantly 

impaired Washington’s capacity to appreciate the 

wrongfulness of his conduct or to conform his conduct to the 

requirement of law. Dr. McCullars found no indication that 

diffuse brain damage impaired Washington’s capacity. The 

district court concluded that the proffered evidence of mental 

impairment was entitled to minimal weight.

Addressing evidence of a dysfunctional family 

background, the district court noted that under Arizona law 

“while a difficult family background, including childhood 

abuse, may be relevant mitigation at the penalty phase, 

dysfunctional family history is entitled to significant 

mitigating weight only if it had a causal connection to the 

offense-related conduct.” Moreover, the weight accorded a 

difficult family background may be discounted for an adult 

offender. The district court concluded that the additional 

evidence of Washington’s family background was entitled to 

little weight because neither expert identified any causal 

connection to Washington’s participation in the murder and 

Washington was 27 years old at the time of the crime.

The district court concluded that there was no reasonable 

probability that the additional mitigation proffered by 

Washington would have altered his sentence. The court 

noted that even if Washington “was not the actual shooter,” 

there was evidence that he “went into the Hills’ home 

seeking drugs and money and that he knew before entering 

the home that one or more of its occupants might be shot, ‘if 

things [got] rough,’” and that he “participated in forcing 

entry into the home, tying up the elderly occupants (face 

down on the floor) and ransacking their bedroom for 

valuables.” The district court concluded that Washington’s 
WASHINGTON V. SHINN 21

proffered evidence of voluntary intoxication at the time of 

the crime, a chronic substance abuse problem, diffuse brain 

damage, an antisocial personality disorder, and a 

dysfunctional family background, did not, separately or 

combined, impair “his capacity to control his conduct to the 

law’s requirements or know the difference between right and 

wrong.” Moreover, Washington had failed to show any 

causal connection between these factors and the crime that

might help explain and thus mitigate his role in the murder. 

Accordingly, the district court found that Washington had 

not demonstrated that he was prejudiced by counsel’s 

alleged deficient performance.

II

We review de novo a district court’s decision to grant or 

deny a habeas petition under 28 U.S.C. § 2254. See Bean v. 

Calderon, 163 F.3d 1073, 1077 (9th Cir. 1998). Because 

Washington filed his habeas petition before the enactment of 

the Antiterrorism and Effective Death Penalty Act of 1996 

(“AEDPA”), the provisions of AEDPA do not apply to this 

case. Id. (citing Jeffries v. Wood, 114 F.3d 1484, 1495–96 

(9th Cir. 1997) (en banc)). Instead, we review the claim 

under the familiar standard set out in Strickland and its 

progeny without the added deference required under 

AEDPA.5

5 Although we held this appeal for the Supreme Court’s opinion in 

Shinn, 141 S. Ct. 517, its treatment of AEDPA is not applicable to this 

appeal. However, the Supreme Court reaffirmed that Strickland provides 

the framework for assessing claims of ineffective assistance of counsel. 

Id. at 522.
22 WASHINGTON V. SHINN

III

Although the principles underlying and governing a 

claim of ineffective assistance of counsel are familiar, they 

bear repeating. “The right to counsel is a fundamental right 

of criminal defendants; it assures the fairness, and thus the 

legitimacy, of our adversary process.” Kimmelman v. 

Morrison, 477 U.S. 365, 374 (1986). “[T]he right to counsel 

is the right to the effective assistance of counsel.” Strickland, 

466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 

759, 771 n.14 (1970)). Under Strickland’s two-part test for 

claims of ineffective assistance of counsel, a convicted 

defendant must show (1) constitutionally deficient 

performance by counsel (2) that prejudiced the defense. Id. 

at 687.

“The essence of an ineffective-assistance claim is that 

counsel’s unprofessional errors so upset the adversarial 

balance between defense and prosecution that the trial was 

rendered unfair and the verdict rendered suspect.” 

Kimmelman, 477 U.S. at 374. “As is obvious, Strickland’s 

standard, although by no means insurmountable, is highly 

demanding.” Id. at 382; see also Padilla v. Kentucky, 

559 U.S. 356, 371 (2010) (“Surmounting Strickland’s high 

bar is never an easy task.”). “Only those habeas petitioners 

who can prove under Strickland that they have been denied 

a fair trial by the gross incompetence of their attorneys will 

be granted the writ . . . .” Kimmelman, 477 U.S. at 382.

“When counsel focuses on some issues to the exclusion 

of others, there is a strong presumption that he did so for 

tactical reasons rather than through sheer neglect.” 

Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (citing 

Strickland, 466 U.S. at 690). Even if inadvertence (not 

tactical reasoning) results in non-pursuit of a particular issue, 

“relief is not automatic. The Sixth Amendment guarantees 
WASHINGTON V. SHINN 23

reasonable competence, not perfect advocacy judged with 

the benefit of hindsight.” Id.

To prevail on his claim for ineffective assistance of 

counsel, Washington must establish that Clarke’s 

performance was deficient and that Washington suffered 

prejudice as a result. See Strickland, 466 U.S. at 687. To 

establish deficient performance, Washington must show that 

“counsel’s representation fell below an objective standard of 

reasonableness.” Id. at 688. To establish prejudice, 

Washington must show that there is “a reasonable 

probability that, but for counsel’s unprofessional errors, the 

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

at 694.

In articulating the standard against which counsel’s 

performance should be judged, Strickland emphasized the 

deference due to a lawyer’s decisions both as to scope of 

investigation and decisions made after investigation: 

“[S]trategic choices made after thorough investigation of 

law and facts relevant to plausible options are virtually 

unchallengeable . . . .” Strickland, 466 U.S. at 690. We have 

likewise recognized the wide latitude to be given to 

counsel’s tactical choices. See, e.g., United States v. 

Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986) 

(“Review of counsel’s performance is highly deferential and 

there is a strong presumption that counsel’s conduct fell 

within the wide range of reasonable representation.”). Yet 

our deference to counsel’s performance is not unlimited. As 

the Court explained in Strickland, counsel’s strategic choices 

made after less than complete investigation are reasonable 

only to the extent that “reasonable professional judgments 

support the limitations on investigation.” 466 U.S. at 690–

91.
24 WASHINGTON V. SHINN

IV

Washington has not met his burden under the first 

Strickland prong of showing that Clarke provided 

constitutionally deficient performance by failing to obtain 

and review Washington’s education and incarceration 

records, failing to investigate possible child abuse and 

substance abuse, and not seeking a psychological 

explanation for Washington’s conduct.

We recognize that “certain forms of investigation” such 

as “readily available . . . school, employment, and medical 

records” “are fundamental to preparing for virtually every 

capital sentencing proceeding.” Robinson v. Schriro, 

595 F.3d 1086, 1108–09 (9th Cir. 2010). However, we are 

required to engage in a “‘strong presumption’ that counsel’s 

representation was within the ‘wide range’ of reasonable 

professional assistance.” Harrington v. Richter, 562 U.S. 

86, 104 (2011) (quoting Strickland, 466 U.S. at 689). This 

presumption of reasonableness means that not only do we 

“give the attorneys the benefit of the doubt,” we must also 

“affirmatively entertain the range of possible” reasons 

counsel may have had for proceeding as they did. Cullen v. 

Pinholster, 563 U.S. 170, 196 (2011) (cleaned up); McGill 

v. Shinn, 16 F.4th 666, 689 (noting that we begin our analysis 

with a “strong presumption” that counsel’s decisions reflect 

“reasonable professional judgment”) (quoting Cullen, 

563 U.S. at 190)); Gallegos v. Ryan, 820 F.3d 1013, 1025 

(9th Cir. 2016) (holding that “[w]e are ‘highly deferential’ 

in reviewing counsel’s performance and must be careful not 

to ‘conclude that a particular act or omission of counsel was 

unreasonable’ simply because the defense was ultimately 

unsuccessful”) (quoting Strickland, 466 U.S. at 689). 

Accordingly, in reviewing specific claims of ineffective 

assistance of counsel based on counsel’s alleged failure to 
WASHINGTON V. SHINN 25

investigate, we must consider what information was “readily 

available,” Robinson, 595 F.3d at 1109, to trial counsel at the 

time and whether there is any evidence that undermines 

counsel’s decisions at that time not to conduct further 

investigations.

A.

Clarke did not ignore Washington’s education and 

correction records. Rather he believed that his interviews 

with Washington, Bryant, and others were sufficient. Clarke

presented testimonial evidence of Washington struggling in 

school and dropping out in the tenth or eleventh grade. 

Moreover, there is no showing that the education records 

themselves contain meaningful mitigation evidence. The 

single proffered item of mitigation in Washington’s 

education records is a 1965 comment (from when 

Washington was five years old) that he should be placed in 

special classes for the “educable mentally retarded.” But 

that single, decades-old notation is inconsequential when 

compared with more than ten additional years of schooling 

in the general population. Also, any suggestion that the 

school records showed a meaningfully low IQ is 

contradicted by later IQ testing by Washington’s own expert, 

Dr. Roy. Indeed, Washington has never even suggested the 

possibility of intellectual disability. Thus, the sufficiency of 

Clarke’s investigation of Washington’s educational records 

is affirmed by the district court’s observation that 

Washington “presented no evidence that his school records 

. . . would have revealed potential mitigation.”

Similarly, Clarke reasonably thought that Washington’s 

incarceration records were unlikely to contain “records 

relevant to potential mitigation” because he “had only been 

incarcerated for two years for burglary and was not a 

‘hardened criminal.’” Washington has not countered that 
26 WASHINGTON V. SHINN

assertion by showing that his California incarceration 

records contained any meaningful mitigating materials. 

Furthermore, Judge Bradshaw stated that he was aware at the 

time of sentencing of Washington’s good behavior during 

his incarceration.

B.

Washington has also not met his burden of showing that 

Clarke erred by not investigating and presenting evidence of 

his childhood abuse. In his conversations with Dr. Roy, 

Washington revealed that he suffered physical abuse as a 

child in the form of daily whippings and beatings. Roy was 

also told that Washington was given alcohol as a child to 

control his behavior. Both psychological experts who 

testified at the PCR hearing agreed that Washington’s 

childhood was significantly dysfunctional. However, none 

of this information had come to Clarke’s attention before or 

during the trial. Clarke, at least initially, had to rely on 

representations by Washington and his family members in 

determining the extent to which Washington suffered 

childhood abuse. At the time of his trial, neither Washington 

nor his family members had indicated to Clarke that 

Washington had suffered extreme abuse growing up. 

Accordingly, Clarke did not err by not further investigating 

Washington’s childhood abuse, to the extent that he could 

have, or by not presenting at the sentencing hearing

information he did not have regarding abuse. See Strickland, 

466 U.S. at 691 (“[W]hen a defendant has given counsel 

reason to believe that pursuing certain investigations would 

be fruitless or even harmful, counsel’sfailure to pursue those 

investigations may not later be challenged as 

unreasonable.”).
WASHINGTON V. SHINN 27

C.

Similarly, Washington’s allegation that Clarke erred by 

not investigating and presenting evidence of Washington’s 

substance abuse fails because Clarke was not timely

informed of Washington’s substance abuse. Clarke 

reasonably relied on his conversations with Washington and 

his friends and family, which did not indicate any substance 

abuse. Washington had told Clarke that he was heavily 

intoxicated on the night of the crimes, but he did not mention 

any ongoing problems with drugs or with alcohol. Similarly, 

Washington’s mother described him as someone who “liked 

to party,” but also did not say that Washington had problems 

with addiction. Perhaps the single clue Clarke had that 

might have raised his suspicions about substance abuse was 

the statement of Washington’s common-law wife that 

Washington had a “cocaine problem.” However, when set 

against Washington’s own statements and those of his family 

members, Clarke’s decision not to further investigate 

Washington’s drug addiction was not objectively 

unreasonable.

D.

Finally, Washington has not shown that Clarke erred by 

not seeking a psychological evaluation. Clarke’s 

investigation included extensive discussions with 

Washington and Washington’s family and friends. Clarke 

asked Washington and his family members about whether 

Washington “had any propensity to violence,” “about his 

drug use,” “about his alcohol intake,” “about whether or not 

he was abused, growing up,” about “what discipline was 

like,” and “things of that nature.” At the PCR hearing, 

Clarke testified that, in all the interviews with Washington 

and his family, nothing triggered any red flags signaling that 

further investigation of his mental condition would have 
28 WASHINGTON V. SHINN

been fruitful. There does not appear to have been anything 

in Washington’s education and incarceration records which

contradicts this conclusion. Washington’s later assertions of 

diffuse brain damage, a dysfunctional family background, 

and alcohol and cocaine addiction, if supported by evidence, 

might lead competent counsel to seek a psychological 

evaluation, but Clarke, for the most part, knew neither of the 

assertions nor of evidence supporting the assertions. At the 

PCR hearing, the experts disagreed as to whether diffuse 

brain damage was disabling6 and the proffered evidence of 

head injuries was less than compelling. Dr. McCullars found 

that Washington’s historical reporting varied from one 

interviewer to another. Indeed, the record of the PCR 

proceedings does not contain any medical records 

substantiating Washington’s claims of head injuries. Also, 

Clarke had extensive discussions with Washington and his 

family and friends about whether he had been abused 

growing up, and reasonably determined that Washington’s 

family members would make better witnesses than a 

psychologist who might examine Washington for a 

relatively brief period (and might not offer any mitigating 

conclusions). In addition, Washington’s claims of addiction, 

for the most part, were self-reported well after his trial and 

do not square with his prior statements to Clarke only that he 

had been drinking on the day of the crime.

Under the deferential standard required by Strickland

and its progeny, Clarke’s investigation was more than 

adequate, and his performance was reasonable.

6 Dr. McCullars stated that diffuse brain damage was present in 

approximately ten to fifteen percent of the population and did not 

necessarily impair an individual’s functioning.
WASHINGTON V. SHINN 29

V

A.

But even if Clarke’s performance had been deficient, 

under Strickland, Washington would not be entitled to relief 

unless he could also show that the deficiency was 

prejudicial. “The benchmark for judging any claim of 

ineffectiveness must be whether counsel’s conduct so 

undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a just 

result.” Strickland, 466 U.S. at 686. Strickland “requires 

showing that counsel’s errors were so serious as to deprive 

the defendant of a fair trial, a trial whose result is reliable.” 

Id. at 687. To prove prejudice, a defendant must show “a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.” Id. at 694.

“It is not enough ‘to show that the errors had some 

conceivable effect on the outcome of the proceeding.’ 

Counsel’s errors must be ‘so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.’”

Harrington, 562 U.S. at 104 (citations omitted) (quoting 

Strickland, 466 U.S. at 687). Although the reasonable 

probability standard “does not require a showing that 

counsel’s actions ‘more likely than not altered the outcome,’ 

. . . the difference between Strickland’s prejudice standard 

and a more-probable-than-not standard is slight and matters 

‘only in the rarest case.’” Id. at 111–12 (quoting Strickland, 

466 U.S. at 693, 697); see id. at 112 (“The likelihood of a 

different result must be substantial, not just conceivable.”).

To determine whether Washington has met his burden of 

showing prejudice, we must “reweigh the evidence in 
30 WASHINGTON V. SHINN

aggravation against the totality of available mitigating 

evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). 

This comparison cannot be made without first clearly 

identifying the evidence in mitigation that would have been 

offered at the penalty phase of trial but for counsel’s grossly 

incompetent performance. As noted in our prior retracted 

opinion, perhaps Washington’s best argument is that Clarke 

was incompetent in failing to present “evidence concerning 

Washington’s potentially impaired cognitive functions.” 

This refers to Dr. Roy’s assertions that Washington had 

symptoms of diffuse brain damage, likely caused by multiple 

head injuries incurred when Washington was young, and that 

diffuse brain damage contributes to a “lack of judgment” and 

an “inability to establish stability in life.”

In reweighing this evidence, we must take as our baseline 

the evidence of aggravation and mitigation offered at trial 

and the resulting sentence. After considering the details of 

the brutal, execution-style murder and attempted murder, 

and weighing it against the mitigation evidence 

Washington’s counsel presented, Judge Bradshaw sentenced 

Washington to death. With that starting point in mind, we 

undertake the theoretical inquiry of determining whether it 

is reasonably likely that Washington would have received a 

different sentence if the new mitigation evidence were to be 

added to the mix of mitigation evidence that was presented 

at trial.

Of course, no guesswork is needed here. We know that 

Washington’s new evidence would not have made a 

difference because the sentencing judge said so. See Cook v. 

Ryan, 688 F.3d 598, 612 (9th Cir. 2012) (finding no 

prejudice where “the same trial judge who sentenced” the 

petitioner to death stated that the new evidence “would not 

have made any difference”). Judge Bradshaw “considered 
WASHINGTON V. SHINN 31

all of [the new] information in the post-conviction hearing 

and” definitively “held that none of it would have altered his 

judgment as to the proper penalty for” Washington. 

Gerlaugh v. Stewart, 129 F.3d 1027, 1036 (9th Cir. 1997).

B.

A fair evaluation of the evidence in light of Supreme 

Court precedent confirms the soundness of Judge 

Bradshaw’s finding of no prejudice. Because of Strickland’s 

“highly demanding” standard, Kimmelman, 477 U.S. at 382, 

it is no surprise that petitioners have historically found little 

success bringing ineffective assistance of counsel claims. 

However, beginning in 2000, the Supreme Court found 

Strickland’s “high bar” satisfied in four cases involving 

claims of ineffective assistance of counsel at the penalty 

phase of a capital trial: Williams v. Taylor, 529 U.S. 362 

(2000); Wiggins, 539 U.S. 510; Rompilla v. Beard, 545 U.S. 

374 (2005); and Porter v. McCollum, 558 U.S. 30 (2009). 

These decisions serve as guideposts for determining when 

relief is warranted in such cases.

In Williams, the jury fixed the punishment at death after 

hearing evidence of a long history of criminal conduct 

including armed robbery, burglary and grand larceny, auto 

thefts, violent assaults on elderly victims, and arson. 

529 U.S. at 368–70. At sentencing, defense counsel offered 

very little evidence. Id. at 369. In addressing Williams’ 

Strickland claim, the Supreme Court cited “graphic” details 

“of Williams’ childhood, filled with abuse and privation,” 

evidence that Williams was “borderline mentally retarded,” 

and other significant mitigation evidence that was not 

unearthed only because of counsel’s deficient performance:

[C]ounsel did not begin to prepare for that 

phase of the proceeding until a week before 
32 WASHINGTON V. SHINN

the trial. They failed to conduct an 

investigation that would have uncovered 

extensive records graphically describing 

Williams’ nightmarish childhood, not 

because of any strategic calculation but 

because they incorrectly thought that state 

law barred access to such records. Had they 

done so, the jury would have learned that 

Williams’ parents had been imprisoned for 

the criminal neglect of Williams and his 

siblings, that Williams had been severely and 

repeatedly beaten by his father, that he had 

been committed to the custody of the social 

services bureau for two years during his 

parents’ incarceration (including one stint in 

an abusive foster home), and then, after his 

parents were released from prison, had been 

returned to his parents’ custody.

Id. at 395, 398 (citation and footnote omitted). In concluding 

that Williams had shown prejudice, the Court noted that the 

same judge who presided over the criminal trial heard 

Williams’ post-conviction review claims. Id. at 396. That 

trial judge, who initially “determined that the death penalty 

was ‘just’ and ‘appropriate,’ concluded that there existed ‘a 

reasonable probability that the result of the sentencing phase 

would have been different’” if evidence developed in the 

post-conviction proceedings had been offered at sentencing. 

Id. 396–97.

In Wiggins, trial counsel focused their strategy at 

sentencing on arguing that the defendant was not directly 

responsible for the murder, and they did not present any 

other mitigation evidence, despite knowledge of at least 

some of the defendant’s troubled background. 539 U.S. 
WASHINGTON V. SHINN 33

at 515–16. The Court cited “powerful” mitigation evidence 

that counsel either had, or should have, discovered. Id.

at 534–35. When Wiggins was a young child, his alcoholic 

mother frequently left him and his siblings home alone for 

days without food, “forcing them to beg for food and to eat 

paint chips and garbage.” Id. at 516–17. The mother beat 

Wiggins and his siblings and had sex with men while her 

children slept in the same bed. Id. at 517. On one occasion, 

the mother forced Wiggins’ hand against a hot stove burner, 

resulting in his hospitalization. Id. After being removed 

from his mother’s custody and placed in foster care, Wiggins 

was physically abused and “repeatedly molested and raped” 

by one foster father, and gang-raped on multiple occasions 

by a foster mother’s sons. Id. He ran away from one foster 

home and began living on the streets. Id. The Court held 

that had the jury been presented with Wiggins’ “excruciating 

life history,” rather than virtually no mitigation evidence, 

“there is a reasonable probability that at least one juror 

would have struck a different balance.” Id. at 537.

In Rompilla, trial counsel undertook a number of efforts 

to investigate possible mitigating evidence, “including 

interviews with Rompilla and some members of his family,

and examinations of reports by three mental health experts 

who gave opinions at the guilt phase,” but none of these 

sources was helpful. 545 U.S. at 381. Notwithstanding these 

efforts, the Court found one “clear and dispositive” error by 

counsel. Id. at 383. Defense counsel knew the prosecution 

intended to seek the death penalty and would hinge its 

penalty case on Rompilla’s prior conviction for rape and 

assault. Id. Counsel nevertheless failed to even look at the 

court file for the prior conviction; had they done so “they 

would have found a range of mitigation leads that no other 

source had opened up.” Id. at 384, 390. The mitigation 
34 WASHINGTON V. SHINN

evidence that would have been available from simply 

looking at the files included, among other things:

Rompilla’s parents were both severe 

alcoholics who drank constantly. His mother 

drank during her pregnancy with Rompilla, 

and he and his brothers eventually developed 

serious drinking problems. His father, who 

had a vicious temper, frequently beat 

Rompilla’s mother, leaving her bruised and 

black-eyed, and bragged about his cheating 

on her. His parents fought violently, and on 

at least one occasion his mother stabbed his 

father. He was abused by his father who beat 

him when he was young with his hands, fists, 

leather straps, belts and sticks. All of the 

children lived in terror. There were no 

expressions of parental love, affection or 

approval. Instead, he was subjected to 

yelling and verbal abuse. His father locked 

Rompilla and his brother Richard in a small 

wire mesh dog pen that was filthy and 

excrement filled. He had an isolated 

background, and was not allowed to visit 

other children or to speak to anyone on the 

phone. They had no indoor plumbing in the 

house, he slept in the attic with no heat, and 

the children were not given clothes and 

attended school in rags.

Id. at 391–92. All the evidence counsel failed to discover 

simply by failing to look at the court file of the prior 

conviction “add[ed] up to a mitigation case that bears no 

relation to the few naked pleas for mercy actually put before 

the jury.” Id. at 393. The Court thus concluded there was a 
WASHINGTON V. SHINN 35

reasonable probability of a different result had counsel 

performed adequately. Id.

In Porter, penalty phase counsel offered scant evidence 

on behalf of Porter. “The sum total of the mitigating 

evidence was inconsistent testimony about Porter’s behavior 

when intoxicated and testimony that Porter had a good 

relationship with his son.” Porter, 558 U.S. at 32. Postconviction review proceedings revealed several facts about 

Porter’s “abusive childhood, his heroic military service and 

the trauma he suffered because of it, his long-term substance 

abuse, and his impaired mental health and mental capacity.” 

Id. at 33.

Porter routinely witnessed his father beat his 

mother, one time so severely that she had to 

go to the hospital and lost a child. Porter’s 

father was violent every weekend, and by his 

siblings’ account, Porter was his father’s 

favorite target, particularly when Porter tried 

to protect his mother. On one occasion, 

Porter’s father shot at him for coming home 

late, but missed and just beat Porter instead.

Id. Porter’s company commander in the Army also offered 

a “moving” account of Porter’s heroic efforts “in two of the 

most critical—and horrific—battles of the Korean War,” for 

which Porter “received two Purple Hearts and the Combat 

Infantryman Badge, along with other decorations.” Id. at 30, 

34–35, 41. A neuropsychologist “concluded that Porter 

suffered from brain damage that could manifest in 

impulsive, violent behavior.” Id. at 36. The expert also 

testified that “[a]t the time of the crime . . . Porter was 

substantially impaired in his ability to conform his conduct 

to the law and suffered from an extreme mental or emotional 
36 WASHINGTON V. SHINN

disturbance,” which would have provided a basis for two 

statutory mitigating circumstances. Id.

In concluding Porter established prejudice, the Court 

reasoned that “[t]he judge and jury at Porter’s original 

sentencing heard almost nothing that would humanize Porter 

or allow them to accurately gauge his moral culpability. 

They learned about Porter’s turbulent relationship with [the 

victim], his crimes, and almost nothing else.” Id. at 41. The 

Court emphasized the significance of Porter’s military 

service, both because “he served honorably under extreme 

hardship and gruesome conditions” and because “the jury 

might find mitigating the intense stress and mental and 

emotional toll that combat took on Porter.” Id. at 43–44

(footnote omitted).

A comparison of the failures by counsel in Williams, 

Wiggins, Rompilla, and Porter, with Washington’s situation 

confirms the adequacy of counsel’s representation of 

Washington and that Washington was not prejudiced by any 

alleged shortcoming on Clarke’s part. First, Porter is 

distinguishable because of the Court’s emphasis on the 

unique significance of military service in potentially 

mitigating against aggravating factors. See Porter, 558 U.S. 

at 43 (“Our Nation has a long tradition of according leniency 

to veterans in recognition of their service, especially for 

those who fought on the front lines as Porter did.”). 

Likewise, Rompilla is distinguishable because there is no 

analog here to the “dispositive” failure of trial counsel in

Rompilla to look at the records that prosecution had 

indicated would serve as the basis for its case for the death 

penalty.

Second, although the evidence of Washington’s head 

injuries suggests a difficult childhood and perhaps might 

provide a more complete picture of his background than was 
WASHINGTON V. SHINN 37

presented at trial, that evidence is not nearly as substantial or 

extreme as the mitigating evidence in the four Supreme 

Court decisions. The possible head injuries and the 

suggested harsh discipline of Washington’s mother are not 

comparable to the outright beatings and criminal neglect of 

Williams’ parents, the starvation, neglect, physical abuse, 

molestation and rape, and gang-rape Wiggins suffered at the 

hands of his mother and foster families, Rompilla being 

locked up with his brother “in a small wire mesh dog pen 

that was filthy and excrement filled,” deprived of clothing, 

and beaten by his alcoholic father, or the other harrowing 

facts in those cases. See Rhoades v. Henry, 638 F.3d 1027, 

1051 (9th Cir. 2011) (“Even the more complete picture 

portrayed in the proffer of Rhoades’s dysfunctional family 

with its alcoholism, abuse, aberrant sexual behavior, and 

criminal conduct does not depict a life history of Rhoades 

himself that is nightmarish as it was for the petitioners in 

cases such as Rompilla, Wiggins, and Williams . . . .”).

Thus, even if Judge Bradshaw’s finding of no prejudice 

were not dispositive, we would nonetheless find that 

Washington has not met his burden of showing that his 

counsel’s failure to present additional evidence at sentencing 

was prejudicial.

VI

We are not insensitive to the fact that Washington is the 

only one of the three perpetrators who continues to face the 

death penalty. All three were initially sentenced to death. 

On appeal, the Arizona Supreme Court affirmed Washington 

and Robinson’s convictions and sentences, State v. 

Robinson, 796 P.2d 853 (Ariz. 1990), but found insufficient 

evidence to convict James Mathers and vacated his 

conviction, State v. Mathers, 796 P.2d 866 (Ariz. 1990). 

Even though the record suggests that Mathers was the 
38 WASHINGTON V. SHINN

shooter, and Judge Bradshaw thought that the evidence 

against Washington was no greater than the evidence against 

Mathers, Judge Bradshaw nonetheless denied Washington’s 

PCR petition.

In 2010, in a split decision, we granted a writ of habeas 

corpus vacating the sentence of Washington’s co-defendant 

Fred Robinson in large part because he received ineffective 

assistance of counsel. Robinson, 595 F.3d at 1086.7 As 

noted, Washington and Robinson were tried and sentenced 

together, and their convictions and sentences were affirmed 

in state court following joint PCR proceedings, in nearly 

identical written orders. Like Washington, Robinson alleged 

that he received ineffective assistance of counsel based on 

his trial counsel’s failure to present mitigation evidence at 

the penalty phase. Id. at 1108–10. As he did with 

Washington, Judge Bradshaw concluded that the mitigation 

evidence Robinson produced in the state PCR proceeding 

would not have made a difference.

7 Judge Rawlinson dissented. She concluded:

The state post-conviction court fully considered the 

mitigation evidence presented by Robinson. Its 

subsequent emphatic ruling that the mitigation 

evidence would not have affected the sentence 

imposed compels a conclusion of no prejudice under 

the rationale of Van Hook and Wong. For that reason 

and because Robinson’s challenge to the cruelty prong 

of the statutory aggravating factors is procedurally 

barred, I respectfully dissent.

595 F.3d at 1118–19. Robinson was resentenced to 67 years to 

life. Robinson has since passed away. Ariz. Dep’t of Corrections, 

Inmate Death Notification – Robinson (Mar. 7, 2016),

https://corrections.az.gov/article/inmate-death-notification-robinson.
WASHINGTON V. SHINN 39

However, the sharing of a procedural history does not 

make two cases analogous. Rather, the critical questions—

whether counsel’s performance was constitutionally 

deficient and whether any deficiency resulted in prejudice—

must be individually considered and separately considered 

in each case. See, e.g., Strickland, 466 U.S. at 705 (Brennan, 

J. concurring in part and dissenting in part) (“In the 

sentencing phase of a capital case, ‘[w]hat is essential is that 

the jury have before it all possible relevant information about 

the individual whose fate it must determine.’”) (alteration in 

original) (citing Jurek v. Texas, 428 U.S. 262, 276 (1976) 

(opinion of Stewart, Powell, and Stevens, J.J.). Indeed, 

Judge Bradshaw commented: “[h]owever one may view the 

reversal of Mathers’ conviction, it does not follow, either 

legally or logically, that this petitioner is entitled to the same 

treatment as his co-defendant, James Mathers. It most 

certainly does not mandate a change in his sentence.” He 

instructed the jury in Washington’s case at the trial court to 

“consider the charge against each defendant separately.” 

Thus, even though the record suggests that Robinson was the 

mastermind of the crime, in reviewing the Washington’s 

state conviction and sentence we are limited to considering 

the facts and legal arguments particular to his case.

On the issues of attorney competence and prejudice, the 

facts of Robinson differ starkly from the facts here. 

Robinson’s trial counsel “engaged in virtually no 

investigation” and “did not call a single witness or introduce 

any evidence” at the sentencing hearing. Robinson, 595 F.3d 

at 1109. In contrast, here, Clarke investigated potential 

mitigation evidence by having “very extensive” discussions 

with Washington about his background and by 

interviewing—both before trial and after the verdict—

Washington’s mother, brother, and common-law wife. 

Clarke also called three witnesses, each of whom offered 
40 WASHINGTON V. SHINN

testimony supporting a cogent narrative that Washington 

was friendly yet gullible, non-violent, and a loving father 

(and son) and that he desired to make something of his life.

In Robinson, the utter failure of Robinson’s counsel was 

critical. We based our finding of prejudice on counsel’s nonperformance because, under Arizona’s death penalty statute 

at the time of sentencing, the “failure to present a mitigation 

defense all but assured the imposition of a death sentence.” 

Robinson, 595 F.3d at 1111 (quoting Summerlin v. Schriro, 

427 F.3d 623, 640 (9th Cir. 2005)). We also distinguished 

two Supreme Court cases—Bobby v. Van Hook, 558 U.S. 4 

(2009) and Wong v. Belmontes, 558 U.S. 15 (2009)—on the 

basis that Robinson’s counsel failed to put on any mitigation 

evidence. Robinson, 595 F.3d at 1111 n.21 (stating that in 

both Van Hook and Wong “defense counsel presented a 

significant amount of mitigating evidence”). Here, Clarke 

presented substantial mitigating evidence and Washington 

has not shown that the evidence proffered in his PCR was 

likely to make a difference.

VII

Washington also argues that counsel was ineffective 

because he allowed the state court to require a nexus between 

his proffered mitigating evidence and the crime. A similar 

issue was raised in Robinson. The state had argued that the 

new evidence should be disregarded altogether because it 

lacked a “causal connection” to the crime. See id. at 1111–

12. We rejected that argument based on Supreme Court 

precedent holding that evidence of a defendant’s background 

and mental capacity is relevant to mitigation and cannot be 

ruled inadmissible simply because the defendant fails to 

show a causal connection between the evidence and the 

crime. Id. at 1112; see Smith v. Texas, 543 U.S. 37, 45 

(2004) (reaffirming the holdings of Eddings v. Oklahoma, 
WASHINGTON V. SHINN 41

455 U.S. 104 (1982), and Tennard v. Dretke, 542 U.S. 274 

(2004)).

Washington argues that in his PCR proceeding the state 

court failed to consider his proffered mitigating evidence 

because of a lack of causal nexus. We do not agree. There 

is a critical difference between the admissibility of evidence 

and the weight given to that evidence. Although a court must 

allow a defendant to present any mitigation evidence, see 

Smith, 543 U.S. at 44–45, Eddings, 455 U.S. at 114, and 

Tennard, 542 U.S. at 284–85, “the failure to establish . . . a 

causal connection may be considered in assessing the quality 

and strength of the mitigation evidence,” State v. Newell, 

132 P.3d 833, 849 (Ariz. 2006). See McKinney v. Ryan, 

813 F.3d 798, 817–18 (9th Cir. 2015) (en banc) (referring to 

Newell’s rule as “proper[]”).

In discussing Washington’s evidence of substance abuse, 

Judge Bradshaw concluded that the asserted drug and 

alcohol dependence did not affect Washington’s “ability to 

conform his actions to the demands of society.” This could 

be construed as echoing Arizona’s former improper causal 

nexus test. See McKinney, 813 F.3d at 810; Ariz. Rev. Stat. 

§ 13-703(G)(1) (2008). Had Judge Bradshaw said nothing 

more, it might be inferred that he failed to consider 

Washington’s evidence for purposes of non-statutory 

mitigation. But Judge Bradshaw didn’t stop there; the very 

next sentence in his order shows that he in fact considered 

the evidence. He concluded that the evidence of substance 

abuse, considered alone or together with other mitigation 

evidence, would not “have mitigated against the sentence 

[Washington] has received.”

The district court recognized that the state court properly 

considered Washington’s mitigating evidence. It 

commented that the state court “neither [mis]understood 
42 WASHINGTON V. SHINN

state law to preclude consideration of relevant proffered 

mitigation, nor to impose a minimum threshold before such 

mitigation could be considered.” The district court 

understood Judge Bradshaw to have “considered the 

mitigation [evidence] proffered to show prejudice, but 

[Judge Bradshaw] determined that it carried insufficient 

weight to alter the sentence.”

Thus, the conclusion that the evidence of substance 

abuse lacked a causal nexus to the crime was appropriate 

because “a court is free to assign less weight to mitigating 

factors that did not influence a defendant’s conduct at the 

time of the crime.” Hedlund v. Ryan, 854 F.3d 557, 587 n.23 

(9th Cir. 2017). The state court’s weighing of Washington’s 

evidence of substance abuse does not support his claims of 

ineffective assistance of counsel.8

VIII

Washington and his two co-defendants were convicted 

and sentenced to death for the murder of Sterleen Hill and 

the attempted murder of Ralph Hill. Over the past 30 years, 

one of Washington’s co-defendants had his conviction 

overturned and the other had his sentence vacated (and has 

died). Under these circumstances, there may be a temptation 

to bend the governing legal standards to equalize the 

outcomes for the three defendants in an effort “to achieve 

what appears a just result.” Holland v. Florida, 560 U.S. 

631, 673 (2010) (Scalia, J., dissenting). However enticing 

the impulse, that is not our role. Although Judge Bradshaw 

had the power to temper justice with mercy, in our role as a 

8 Washington’s able and zealous habeas counsel does not contend 

Judge Bradshaw committed an Eddings error as to the psychological 

evidence.
WASHINGTON V. SHINN 43 

federal court on habeas review, we do not. Ours is the duty 

to determine whether Washington has met his high burden 

of showing pursuant to Strickland that his attorney 

performed deficiently to his prejudice. The Supreme Court 

reiterated in Harrington, 562 U.S. at 104, that to be entitled 

to relief, the petitioner “had to show both that his counsel 

provided deficient assistance and that there was prejudice as 

a result.” A failure to heed this standard would constitute 

“an improper intervention in state criminal processes,” and 

violate “the now well-settled meaning and function of 

habeas corpus in the federal system.” Id. at 104. 

Accordingly, we may not ignore this exacting standard to 

“remedy” Judge Bradshaw’s choice against leniency.

Rather, applying the familiar standard articulated in 

Strickland, we assess the state court record to determine 

whether Washington’s counsel was constitutionally 

deficient and whether the deficient performance resulted in 

prejudice. See Van Hook, 558 U.S. at 7 (applying the 

Strickland analysis in a pre-AEDPA case). We conclude that 

Washington has not met his burden of showing that his 

counsel performed deficiently or that the alleged deficiency 

was prejudicial. He has not shown that the omission of the 

new mitigation evidence deprived him of “a fair trial,” see 

Strickland, 466 U.S. at 687, or that the omission undermines 

our confidence that the trial “produced a just result,” see id. 

at 686. Accordingly, the district court’s denial of 

Washington’s habeas petition is AFFIRMED. 

GOULD, Circuit Judge, concurring in part and concurring in 

the judgment:

I concur in part, joining the opening paragraph (except 

for the language on page 7 stating that “Washington has not 
44 WASHINGTON V. SHINN

shown either that his trial counsel’s performance was 

constitutionally deficient or”), Sections I, II, III, V, VI, and 

VII, but do not join Sections IV and VIII, which I conclude 

are unnecessary to resolve the Strickland ineffective 

assistance of counsel issue. I also concur in the judgment.