FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID A. RALEY, 

No. 04-99008 Petitioner-Appellant,

D.C. No.

v. CV-93-02071-JW

EDDIE YLST, Acting Warden of the 

ORDER AND California State Prison at San AMENDED Quentin, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Northern District of California

James Ware, District Judge, Presiding

Argued and Submitted

February 16, 2006—San Francisco, California

Filed April 14, 2006

Amended November 30, 2006

Before: Barry G. Silverman, Susan P. Graber, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Graber

18847
COUNSEL

Robert D. Bacon, Oakland, California, for the petitionerappellant. 

Violet M. Lee, Deputy Attorney General, San Francisco, California, for the respondent-appellee. 

ORDER

The opinion filed on April 14, 2006, slip opinion page 4145

and published at 444 F.3d 1085 (9th Cir. 2006), is amended

by the opinion filed concurrently with this order. 

With these amendments, the panel has voted to deny the

petition for rehearing and petition for rehearing en banc. 

The full court has been advised of the petition for rehearing

en banc. A judge of the court called for a vote on whether to

rehear the matter en banc. A majority of the nonrecused active

judges failed to vote in favor of en banc rehearing. 

RALEY v. YLST 18851
The petition for rehearing and petition for rehearing en

banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc may be filed.

OPINION

GRABER, Circuit Judge: 

Petitioner David A. Raley was convicted in California state

court, and sentenced to death, for the kidnap and first-degree

murder of one victim and the kidnap, oral copulation by force,

and attempted murder of a second victim. In this habeas petition, brought pursuant to 28 U.S.C. § 2253, he challenges his

conviction on the grounds that he received ineffective assistance of counsel both at the trial and penalty phases and that

the jury committed prejudicial misconduct by considering

extrinsic evidence during sentencing. Additionally, he asserts

that the district court erred in denying his request for an evidentiary hearing on his claim that the prosecutor failed to produce jail medical records to the defense as required under

Brady v. Maryland, 373 U.S. 83 (1963). Because Petitioner

received constitutionally sufficient assistance of counsel,

because deliberations that are intrinsic to the jury process are

not grounds for reversal, and because the records in question

were not Brady material, we affirm. 

PROCEDURAL HISTORY

Petitioner was charged with the kidnap, attempted oral copulation by force, and first-degree murder of victim J.G. in violation of California Penal Code sections 207(a), 664-

288a(c)(2), and 187, respectively. He also was charged with

the kidnap, oral copulation by force, and attempted murder of

victim L.M. in violation of sections 207(a), 288a(c)(2), and

664-187, respectively. A jury convicted him on all counts and

found two special circumstances in relation to the murder of

18852 RALEY v. YLST
J.G.: (1) murder in the commission of a kidnap, and (2) torture murder. The jury found that Petitioner used a deadly or

dangerous weapon in murdering J.G. and that he used such a

weapon and inflicted great bodily injury upon L.M. 

The first penalty jury deadlocked. A second penalty jury

sentenced Petitioner to death. During deliberations, the second penalty jury discussed Petitioner’s decision not to testify,

his possible eligibility for release if sentenced to life without

parole, and the comparative costs of death and life sentences.

Petitioner pursued both a direct appeal and habeas relief

through the state courts. On direct appeal, the California

Supreme Court reversed Petitioner’s conviction for attempted

oral copulation of J.G. and affirmed the remaining convictions

and the sentence. The California Supreme Court denied the

habeas petition. 

Petitioner then filed an original petition for habeas relief

with the district court, before Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

The petition was stayed pending exhaustion of some claims at

the state level and, ultimately, was denied on all grounds. The

district court issued a Certificate of Appealability for four

claims: ineffective assistance of counsel during the guilt

phase, ineffective assistance during the penalty phase, jury

misconduct, and competency to stand trial. Petitioner timely

appealed all but the competency claim.1

FACTUAL HISTORY

Petitioner does not challenge the state court’s factual find1Petitioner asks us to grant a Certificate of Appealability on two additional issues. See Fed. R. App. P. 22(b) (governing appeals in habeas

cases). We decline because Petitioner has not met the standards set forth

in 28 U.S.C. § 2253(c)(2) and Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983). 

RALEY v. YLST 18853
ings. Thus, the findings of the California Supreme Court are

presumed correct, 28 U.S.C. § 2254 (e)(1), and we summarize

those findings here. 

In 1985, Petitioner worked as a security guard at the Carolands Mansion in Hillsborough, California. Although the

mansion was not generally open to the public, Petitioner occasionally gave unauthorized tours to young people. Witnesses

who had taken such tours with Petitioner testified that he had

asked them to go into certain rooms of the mansion and

scream to show that the rooms were soundproof. He commented to one young woman that he could kill someone in the

basement of the mansion and no one would hear any screams.

Petitioner reportedly also made sexually suggestive comments

to young women during these tours. 

On Saturday, February 5, 1985, victims L.M. and J.G. came

to Carolands Mansion. L.M. was 17 and J.G. was 16. Petitioner was on duty guarding the house. The girls asked Petitioner for a tour and he agreed, but on the condition that they

park their car out of sight. They did so. During the tour, Petitioner told the girls that some guards received sexual favors

in exchange for giving tours. 

As the tour reached its conclusion, sounds were heard outside. Petitioner said that the police were there with training

dogs and that the girls needed to hide or Petitioner would lose

his job. He led them to a walk-in safe in the basement. The

young women resisted entering the safe, but Petitioner

insisted and promised that he would not close the door. They

complied; he closed the door behind them. 

After five minutes inside, the girls heard Petitioner calling

L.M.’s name in a sing-song voice. He then told them that he

would let them out of the safe, but only if they removed their

clothes. He directed them to throw their clothes out of the safe

when he opened the door. They came out of the safe wearing

only their underwear. Petitioner handcuffed their hands

18854 RALEY v. YLST
behind their backs. He was holding a large knife. He told

them that they had to “fool around” with him for five minutes

and then he would let them go. 

He took them to a workroom and tied L.M.’s handcuffs to

a rope that was already attached to the leg of a bench. He led

J.G. away. L.M. heard her friend scream. Petitioner led J.G.

back into the workroom 15 minutes later. She was dressed,

but she appeared frightened and her lips and face were purple.

Petitioner gave J.G. his coat and tied her to the workbench.

He then led L.M. to another room, ordered her to remove her

underwear, and told her to “kiss me and like it.” She tried but

could not comply. Petitioner told her to get onto her knees and

unbuckle his pants. He then told her to “play with him” and

“suck him.” Again, she tried to comply but gagged when she

touched her mouth to his penis. He demurred and ordered her

to “play with him,” instead. L.M. manually manipulated him

until he ejaculated. Petitioner asked her to let him “come

inside”; she refused. 

Petitioner told L.M. he would let the two young women go

but, if they told anyone what had happened, he would kill

them. He then walked them to a door near the safe. J.G. asked

to go first. Petitioner handcuffed L.M. to a door. L.M. heard

noises after Petitioner and J.G. left and then saw the two running back toward her with Petitioner gripping J.G.’s arm.

Petitioner told J.G. to wait there, and then he left. J.G. told

L.M. that Petitioner had hit her with a club. Petitioner

returned and again led J.G. away, leaving L.M. L.M. heard

bumping noises and heard J.G. screaming. After 15 minutes

of those noises, L.M. heard a dragging sound. 

Petitioner then returned and pulled L.M. into the dark hallway, where he stabbed her in the abdomen. Petitioner stabbed

L.M. 35 times and hit her with a club. He then rolled her into

a carpet and dragged her out of the house and put her into the

trunk of his car. J.G. was already in the trunk with her hands

tied behind her back. She was bloody. The two remained in

RALEY v. YLST 18855
the trunk for an estimated 2 hours before Petitioner began

driving. 

At some point during the course of events inside the mansion, a police officer, who was acquainted with Petitioner,

arrived. He found the gates wired shut and the front door of

the house locked. He sounded the horn in Petitioner’s car and

Petitioner came out of the house. The two discussed Petitioner’s purchase of a citizen band radio. 

After Petitioner had secured the two victims in the trunk of

his car, Petitioner’s supervisor arrived at the mansion. The

relief guard had not yet arrived for his shift. Petitioner told his

supervisor that he could not stay any later because he had an

appointment with his father that evening. Soon thereafter,

Petitioner drove away from the mansion. 

Petitioner drove the two women to the house in which he

lived with his father and sister. He parked the car in the

garage and opened the trunk. He allowed both women to get

out of the trunk to stretch their legs. He gave them a sleeping

bag or a blanket because they complained of being cold.

While Petitioner cleaned blood from the trunk, L.M. tried to

engage him in conversation, but he was unresponsive. He did

not answer her questions about what he was planning to do

with them or whether he would take them to a hospital. He

only gave her what she described as a “death stare.” Petitioner

then left the garage and returned with a rifle, which he pointed

at L.M. He told her that if she did not remain quiet, “Bob”

would kill her. 

Upon hearing voices in the house, Petitioner placed the

young women back into the trunk. He said that “Bob” had

arrived and that he would try to convince “Bob” not to kill

them. Petitioner went into the house. He refused to eat dinner,

saying that he was not feeling well. But he watched television

with his sister and then played a game of Monopoly with her

that lasted until 11 p.m. Later in the night, Petitioner had a

18856 RALEY v. YLST
conversation with his father about cleaning the garage and

talked with some friends about their new car stereo. 

At some point in the night, L.M. awoke and felt the car

moving. Petitioner stopped the car several times along the

way until he made his final stop at a remote location. He

opened the trunk. He removed J.G. and threw her down a

ravine. Then he removed L.M., beat her around the head and

neck with a club 10 or 11 times, and threw her down the

ravine with her hands still tied. She rolled next to J.G. The

two women remained in the ravine until daybreak. In the

morning, L.M. managed to crawl up the hill and find help.

One of the rescuers tried to administer first aid but thought

that the wounds were too numerous and severe for his skills.

The two women were taken to the emergency room. J.G. bled

to death during surgery. 

Defendant presented evidence at trial showing that he was

not the only guard at Carolands who gave tours of the mansion and that he had given tours to young men, not just to

young women. He also presented the expert testimony of a

physician who opined that J.G. received improper medical

treatment at the emergency room and that the improper treatment may have led to her death. 

Lawyer Bryan Shechmeister represented Petitioner during

the guilt phase of his trial. Shechmeister consulted three psychiatric experts in preparation for trial: Drs. Spiegel, French,

and Livingston. He gave each doctor a brief summary of Petitioner’s life history. Each doctor interviewed Petitioner and

provided an opinion to Shechmeister. Shechmeister decided

not to present a psychiatric witness during the guilt phase. 

Shechmeister represented Petitioner for the first penalty

trial as well, assisted by lawyer Mary Yale. Counsel did not

call a psychiatric expert at the first penalty trial, either. However, counsel did present Petitioner’s father and sister, who

testified to the abuse that Petitioner suffered, both as a child

RALEY v. YLST 18857
and into adulthood, at the hands of his mother. The first penalty jury deadlocked, and the court declared a mistrial. 

Mary Yale alone represented Petitioner at the second penalty trial. Before the second trial, Yale interviewed the members of the first jury and reinterviewed Dr. Spiegel. She,

again, decided against calling an expert psychiatric witness. 

Instead, Yale first presented several young people who testified to uneventful tours that they had received from Petitioner at Carolands before the February 5 incident. One

witness testified about another security guard who had frightened her during a tour and had invited her and her friends to

return during the night for a “party” at the mansion. In support

of the theory that J.G.’s death resulted from poor medical

treatment at the hospital, Yale called the rescuing paramedics

who testified that the two victims were both conscious and

alive when the paramedics answered the rescue call and that

J.G.’s blood pressure was stronger than L.M.’s at that time.

Two women, who were acquainted with Petitioner because he

frequented the strip club in which they worked, testified that

Petitioner was kind and protective toward women and that he

was a caring, quiet, and lonely individual. Yale also called

Petitioner’s sister and father. They testified that Petitioner’s

mother was an alcoholic who had been emotionally and physically abusive to him. Finally, a police officer testified to Petitioner’s cooperation during his arrest and to his admission of

culpability. A tape of Petitioner’s confession to the police was

played for the jury to demonstrate his distress over his acts.

STANDARD OF REVIEW

Because Petitioner filed his original habeas petition in the

district court before the effective date of AEDPA, the provisions of AEDPA do not apply. Alcala v. Woodford, 334 F.3d

862, 868 (9th Cir. 2003). We review de novo a district court’s

denial of a petition for a writ of habeas corpus. McNeil v.

18858 RALEY v. YLST
Middleton, 344 F.3d 988, 994 (9th Cir. 2003), rev’d on other

grounds, 541 U.S. 433 (2004) (per curiam). 

DISCUSSION

A. Ineffective Assistance of Counsel

Petitioner argues that he received ineffective assistance of

counsel at both the guilt phase and the penalty phase because

his lawyers decided not to present expert testimony in support

of a mental defect defense. To prevail on a habeas claim of

ineffective assistance of counsel, Petitioner must establish

both (1) that counsel’s performance was so deficient that it

fell below an “objective standard of reasonableness” and (2)

that the deficient performance rendered the results of his trial

unreliable or fundamentally unfair. Strickland v. Washington,

466 U.S. 668, 688 (1984). 

1. Counsels’ Performance

In analyzing the performance of counsel, judicial scrutiny

is deferential. “[T]he court should recognize that counsel is

strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 466 U.S. at 690. The burden is on Petitioner to “identify the acts or omissions of counsel that are alleged not to have been the result of reasonable

professional judgment.” Id.

Petitioner argues that his lawyers provided ineffective

assistance during both the guilt and the penalty phases

because they failed to develop fully, and to offer, expert evidence to support a mental defect defense or a mental impairment as a mitigating factor at sentencing. On this record, we

are not persuaded. 

[1] A defense lawyer must make reasonable investigations

in the course of representation. Strickland, 466 U.S. at 691.

RALEY v. YLST 18859
Counsel’s investigation must, at a minimum, permit informed

decisions about how best to represent the client. Sanders v.

Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994). However, “strategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable.”

Strickland, 466 U.S. at 690. A disagreement with counsel’s

tactical decisions does not provide the basis for declaring that

the representation was constitutionally deficient. United

States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981) (per

curiam). 

a. Guilt Phase

Petitioner’s trial counsel, Shechmeister, consulted three

mental health experts in preparation for Petitioner’s trial: Drs.

Alfred French, David Spiegel, and James Livingston. Petitioner does not challenge their qualifications, nor the selection

of these three individuals to render opinions to the defense.

Each expert interviewed Petitioner once. All three experts

reported their results and opinions to Shechmeister before the

guilt phase trial began. After reviewing the expert opinions,

Shechmeister decided against calling any mental health expert

at trial. 

From the record, it appears that Dr. French administered

the Rorschach Test and the Minnesota Multiphasic Personality Inventory (“MMPI”) during his evaluation and also conducted a broader interview of Petitioner. Dr. French reported

the MMPI results as “suggesting Major Depression with Psychotic Features and Schizophrenia, Paranoid Type, with

superimposed affective [disorder] as probable Axis I diagnosis and no probable Axis II diagnosis.” His interview revealed

evidence suggesting the possibility that Petitioner suffered

from Multiple Personality Disorder and recommended further

investigation into this possibility, including hypnosis of Petitioner, if possible. The Rorschach Test indicated “depression

and poor ego boundaries, a sense of passivity about his situation, eccentric behavior and a basic conflict concerning his

18860 RALEY v. YLST
interpersonal relationships.” But Dr. French made no definitive diagnosis. 

Dr. Spiegel examined Petitioner after Dr. French had done

so. Dr. Spiegel did not use standardized psychiatric tests, but

he did evaluate Petitioner’s hypnotizability and determined

that it was “moderate at best.” Dr. Spiegel did not opine that

Petitioner suffered from Multiple Personality Disorder or any

other diagnosable mental defect. Dr. Spiegel believed that

Petitioner did not experience sexual excitement during the

attack. He suggested that Petitioner’s actions were related to,

and a result of, the parental abuse that he had suffered. He

recommended that Petitioner be subjected to a “traditional

psychiatric examination” to rule out psychosis and potentially

to diagnose an Axis II personality disorder. 

Notes of Dr. Spiegel’s findings contain a number of statements that could have damaged Petitioner’s case. For example, Dr. Spiegel’s evaluation stated: 

D[efendant] does not have the type pattern of

a psychopath. D was able to control himself —

control the outward signs of his illness. D was

making a choice in a sense — he knew what he

was doing was wrong.

Is D treatable? “Don’t send him to me.” D is dangerous — may be dangerous to the therapist. D is

not motivated toward therapy, inside himself he does

not feel the desire to change. 

D is unpredictable — he did not plan to do this

when he went to the mansion. No signs to see the

violence coming. No way to predict when this will

happen again.

D played/cheated at monopoly while V[ictim]s in

car bleeding: CALLOUS. 

RALEY v. YLST 18861
Shechmeister also retained Dr. Livingston, who conducted

a battery of standardized psychiatric tests. The record indicates only that Dr. Livingston diagnosed Petitioner as a “sexual psychopath.” 

Petitioner argues that our precedents require a finding of

ineffective assistance of counsel because Shechmeister presented a mental defect argument to the jury without the support of expert testimony. Petitioner cites Bloom v. Calderon,

132 F.3d 1267 (9th Cir. 1997), and Jennings v. Woodford, 290

F.3d 1006 (9th Cir. 2002). Those cases demonstrate that, to

provide adequate representation of a criminal defendant who

may suffer from a mental defect, counsel must conduct a reasonable investigation into such a defense. In each of the cited

cases, counsel conducted either no investigation at all, or a

blatantly minimal investigation. See Bloom, 132 F.3d at 1271-

77 (holding that counsel was ineffective where he failed to

retain a mental health expert until days before trial, delegated

preparation of the expert to an assisting law student, and

failed to uncover evidence of the defendant’s lengthy history

of severe abuse, family history of mental illness, and the

defendant’s own then-recent diagnosis of mental illness); see

also Jennings, 290 F.3d at 1013-15 (setting out an extensive

list of the reasonable steps the defendant’s counsel failed to

take to investigate a possible mental defect defense and noting

that counsel “claims he did not conduct any investigation into

possible mental defenses because he had settled early on an

alibi defense”). 

[2] In sharp contrast, the investigation that Shechmeister

conducted was reasonable and careful. He retained not one,

but three, mental health experts, each of whom interviewed

Petitioner and provided a report in advance of trial. In the

light of the equivocal evidence provided by the three retained

experts, counsel’s decision not to call an expert witness during the guilt phase was a reasonable strategic decision. 

Petitioner argues that Shechmeister’s reliance on the expert

reports cannot be credited as a valid strategic decision,

18862 RALEY v. YLST
because Shechmeister failed to provide them with enough

information about Petitioner’s childhood to support an

informed expert opinion. We disagree. It is undisputed that

Shechmeister gave the three experts basic background information about Petitioner. Both Drs. French and Spiegel testified in depositions that they knew that Petitioner had been

abused by his mother, and there is no evidence that either doctor requested additional life history information. The experts

interviewed Petitioner and thus had an opportunity to question

him directly about his childhood. Additionally, during the

habeas proceeding both doctors were given an exhaustive

report regarding Petitioner’s history. Neither said that the

additional information would have changed his expert opinion

significantly. 

[3] In summary, Shechmeister conducted a reasonable

investigation and made a reasonable strategic choice not to

present expert testimony regarding a mental defect claim.

Consequently, we reject Petitioner’s claim of ineffective

assistance of counsel as to the guilt phase. 

b. First Penalty Trial

Petitioner argues that Shechmeister provided ineffective

assistance during the first penalty trial by failing to offer a

mental health expert to present mental impairment evidence

as mitigation. We need not address the performance prong of

Strickland here. Petitioner clearly failed to demonstrate prejudice as the first penalty trial resulted in a hung jury. 

c. Second Penalty Trial

Petitioner likewise argues that he received ineffective assistance of counsel from lawyer Mary Yale during the second

penalty trial because Yale, too, decided against presenting a

mental health expert witness. We hold that Yale’s decision

was a valid strategic choice warranting judicial deference. 

RALEY v. YLST 18863
In the context of assessing mental impairment evidence,

“[w]e have repeatedly held that counsel may render ineffective assistance if he ‘is on notice that his client may be mentally impaired,’ yet fails ‘to investigate his client’s mental

condition as a mitigating factor in a penalty phase hearing.’ ”

Caro v. Woodford, 280 F.3d 1247, 1254 (9th Cir. 2002) (quoting Hendricks v. Calderon, 70 F.3d 1032, 1043 (9th Cir.

1995)). We have recognized a defendant’s right to habeas

relief in cases where counsel failed to investigate mitigating

mental health evidence adequately. See id. at 1255 (holding

that counsel was ineffective where he knew of the defendant’s

lifelong exposure to toxic pesticides but failed to retain any

expert to assess potential brain damage); see also Deutscher

v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989), judgment

vacated on other grounds, 500 U.S. 901 (1991) (holding that

counsel was ineffective where he conducted no investigation

into the defendant’s psychiatric history even though health

records revealed that the defendant had been born prematurely

and had been diagnosed with mental illness). 

[4] By contrast, Yale conducted a reasonable investigation

into Petitioner’s mental condition. She had assisted Shechmeister during Petitioner’s first penalty trial. She therefore had

the benefit of his earlier preparations, including his consultations with three mental health professionals, and she knew

that the first penalty trial successfully avoided the imposition

of the death penalty without an expert on the defense side. 

In preparation for the second penalty trial, Yale discussed

with Shechmeister the findings and opinions of the three

retained experts. Yale also reinterviewed Dr. Spiegel twice

and provided him with additional background information

related to aggravation evidence that the prosecution planned

to offer during the penalty retrial. Additionally, she interviewed the jurors from the first penalty trial, seeking insight

into their perspectives on the strengths and weaknesses of the

defense’s case. 

18864 RALEY v. YLST
[5] After this additional investigation, and given Shechmeister’s success in attaining a hung jury without the use of

expert testimony, Yale decided to continue to rely on the lay

testimony of Petitioner’s father and sister as the means of

informing the jury of Petitioner’s history of abuse. Yale, like

Shechmeister, conducted a reasonable investigation and made

an informed tactical decision not to present expert testimony.

Thus, we reject Petitioner’s claim of ineffective assistance of

counsel as to the second penalty trial. 

2. Prejudice

[6] Even if we were persuaded that counsel performed ineffectively, we would have to conclude that Petitioner failed to

show prejudice. As we have noted, in order to prevail on a

claim of prejudice, Petitioner must demonstrate that counsels’

failure to call expert witnesses rendered the results of his trial

unreliable or fundamentally unfair. Strickland, 466 U.S. at

694. The bar for establishing prejudice is set lower in deathpenalty sentencing cases than in guilt-phase challenges and

noncapital cases. See Deutscher, 884 F.2d at 1161 (stating

that “we must be especially cautious in protecting a defendant’s right to effective counsel at a capital sentencing hearing”). Even in the context of a challenge to a death sentence,

however, Petitioner must show that it is reasonably probable

that the outcome would have been different had counsel performed adequately. Strickland, 466 U.S. at 694. 

[7] Here, Petitioner’s mental defect defense was based on

the physical and emotional abuse that he suffered throughout

his childhood and into adulthood, primarily at the hands of his

alcoholic mother. The jury heard evidence of that abuse. Petitioner’s father and sister both testified to the history of abuse

within the Raley home. Cf. Deutscher, 884 F.2d at 1161 (finding prejudice where defense counsel failed to present any mitigating evidence at all). 

Petitioner argues that the absence of an expert to explain

the link between abusive treatment and Petitioner’s subseRALEY v. YLST 18865
quent mental state requires a finding of prejudice. He points

to the fact that, during deliberations, the second penalty jury

sent a note to the judge asking whether psychiatric evidence

was available. This argument is unavailing for three reasons.

First, as we have explained, none of the three experts

retained by defense counsel conclusively opined that Petitioner had a mental defect. Second, the experts’ reports contained damaging content that would have come to light

through cross-examination and, on balance, would have hurt

more than helped. Third, the link between suffering abuse as

a child and later committing abusive acts is not so esoteric as

to be beyond the understanding of a lay jury. Cf. Caro v. Calderon, 165 F.3d 1223, 1227 (9th Cir. 1999) (noting the need

for expert testimony to explain a possible causal connection

between the defendant’s exposure to toxic pesticides and

aggressive behavior because an understanding of that kind of

link is not within the common knowledge of lay persons). 

[8] Given the fact the jury heard detailed factual evidence

of Petitioner’s history of abuse, given the equivocal nature of

the expert evidence available to defense counsel, and given

the grim facts of the crimes themselves, there is no reasonable

probability that Petitioner would have escaped the death penalty had counsel presented expert testimony at sentencing. 

B. Jury Misconduct

Petitioner argues that his death sentence must be overturned

because the penalty jury considered constitutionally forbidden

topics during sentencing. Petitioner submitted the depositions

of two jurors who testified that, during deliberations, the jury

considered Petitioner’s decision not to testify, his possible eligibility for release if sentenced to life without parole, and the

comparative costs of death and life-without-parole sentences.

[9] The Sixth Amendment’s guarantee of a trial by jury

requires that the jury base its verdict on the evidence pre18866 RALEY v. YLST
sented at trial. Turner v. Louisiana, 379 U.S. 466, 472-73

(1965). A jury’s exposure to extrinsic evidence deprives a

defendant of the rights to confrontation, cross-examination,

and assistance of counsel embodied in the Sixth Amendment.

Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995). “Evidence

not presented at trial, acquired through out-of-court experiments or otherwise, is deemed ‘extrinsic.’ ” United States v.

Navarro-Garcia, 926 F.2d 818, 821 (9th Cir. 1991) (citing

Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987)). 

[10] The fact that Petitioner did not testify in his own

defense is not extrinsic evidence. United States v. Rodriquez,

116 F.3d 1225, 1226-27 (8th Cir. 1997). Although the jury’s

discussion of this issue clearly violated the trial court’s

instructions, what happened (or did not happen) in the courtroom was a part of the trial, not extrinsic to it. We may not

inquire into a jury’s deliberations concerning the evidence at

trial. Belmontes v. Brown, 414 F.3d 1094, 1124 (9th Cir.

2005), rev’d on other grounds, Ayers v. Belmontes, 2006 WL

3257143 (U.S. Nov. 13, 2006) (No. 05-493). 

[11] The jury’s discussion of the practical effect of imposing a sentence of life without parole also does not constitute

reversible error. In Belmontes, we held that a death penalty

jury’s consideration whether a sentence of life without parole

would actually keep the defendant in jail for life was part of

the “intrinsic jury processes” and not a ground for reversal. Id.

Although we did not, in Belmontes, directly address the

related issue of considering the sentences’ comparative costs,

the same logic and the same holding apply. 

C. Brady Claim

Petitioner argues that the prosecution violated his right to

due process under Brady, by failing to disclose exculpatory

and mitigating evidence contained in Petitioner’s medical

records from his pretrial confinement at the Santa Clara

RALEY v. YLST 18867
County Jail, and that the district court erred in denying him

an evidentiary hearing on this claim. 

[12] Brady holds that the prosecution violates a defendant’s

due process rights if it fails to turn over evidence that is “material either to guilt or to punishment.” 373 U.S. at 87. In

order to prevail on a Brady claim, a defendant must demonstrate that: (1) the evidence at issue is favorable, either

because it is exculpatory or because it is impeaching; (2) such

evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice resulted. Strickler v. Greene, 527

U.S. 263, 281-82 (1999). Nonetheless, “where the defendant

is aware of the essential facts enabling him to take advantage

of any exculpatory evidence, the Government does not commit a Brady violation by not bringing the evidence to the

attention of the defense.” United States v. Brown, 582 F.2d

197, 200 (2d Cir. 1978); see also United States v. Dupuy, 760

F.2d 1492, 1501 n.5 (9th Cir. 1985) (citing Brown). 

[13] In this case, Petitioner possessed the salient facts

regarding the existence of the records that he claims were

withheld. Petitioner knew that he had made frequent visits to

medical personnel at the jail. He knew that he was taking

medication that they prescribed for him. Those facts were sufficient to alert defense counsel to the probability that the jail

had created medical records relating to Petitioner. Because

Petitioner knew of the existence of the evidence, his counsel

could have sought the documents through discovery. See, e.g.,

United States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983)

(per curiam) (holding that the prosecutor did not violate

Brady by failing to turn over statements by government witnesses where the defendant had access to a list of potential

government witnesses). 

AFFIRMED. 

18868 RALEY v. YLST