FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIEQUON AUNDRAY COX, 

No. 07-99010 Petitioner-Appellant,

D.C. No.

v. CV-92-03370-CBM

ROBERT L. AYERS, Warden, 

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

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted

February 5, 2009—Pasadena, California

Filed December 10, 2009

Amended July 22, 2010

Before: Harry Pregerson, Susan P. Graber, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Graber;

Dissent by Judge Pregerson

10415
COUNSEL

Jeannie R. Sternberg, Habeas Corpus Resource Center, San

Francisco, California, for the petitioner-appellant.

Jamie L. Fuster, Deputy Attorney General, State of California,

Los Angeles, California, for the respondent-appellee.

ORDER

The opinion filed December 10, 2009, slip opinion page

16243, and appearing at 588 F.3d 1038, is amended as follows:

On slip opinion page 16248, replace footnote 1 with the

following: “We dispose of three additional issues as to which

the district court did not issue a certificate of appealability,

but as to which we did issue such a certificate, in a separate

memorandum disposition filed this date.”

COX v. AYERS 10419
On slip opinion page 16250, replace the first sentence of

the first full paragraph with the following: “Ebora Alexander’s son, Neal, and her 14-year-old grandson, Ivan Scott,

were in the house when Williams and Petitioner entered.” 

On slip opinion page 16250, on line 4 of the first full paragraph after “gunshot,” add the following footnote 2: “The

California Supreme Court’s statement that Neal also was a

teenager is not supported by the record, which simply does

not reveal his age.”

On slip opinion page 16254, on line 8, at the end of the carryover paragraph, add the following footnote 3:

Petitioner argues before this court that he was

shackled at both the guilt and penalty phases. The

district court found, and the record supports the finding, that Petitioner was shackled during the guilt

phase only. Indeed, Petitioner asserted in his appellate brief to the California Supreme Court that he

was not restrained during the penalty phase. Before

the district court, Petitioner once again conceded that

he was not restrained in the penalty phase. The trial

transcript demonstrates that the trial court ordered

the removal of the restraints on the last day of the

guilt phase, and there is no mention of any restraint

during the penalty phase. No juror observed any

restraints during the penalty phase.

On slip opinion page 16257, replace the sentence starting

on line 7, with the following: “The desperate efforts of the

grandmother’s son to stop the rampage while her 14-year-old

grandson hid in a closet had no effect on Petitioner.”

With these amendments, Judges Graber and Wardlaw have

voted to deny the petition for rehearing and petition for

rehearing en banc, and Judge Pregerson has voted to grant it.

10420 COX v. AYERS
The full court was 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. On such vote, a majority of the

nonrecused active judges failed to vote in favor of en banc

rehearing. 

The petition for rehearing and petition for rehearing en

banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc will be entertained with respect to

the amended opinion. Petitions for rehearing and petitions for

rehearing en banc may be filed with respect to the memorandum disposition. 

OPINION

GRABER, Circuit Judge:

Petitioner Tiequon Aundray Cox was convicted in California state court, and sentenced to death, for the murders of four

victims. In this habeas proceeding, brought pursuant to 28

U.S.C. § 2254, he challenges his convictions and death sentence on the grounds that (1) the state trial court’s decision to

shackle him during the guilt phase of the trial prejudiced the

jury during both the guilt and penalty phases and (2) that he

received ineffective assistance of counsel during the penalty

phase.1 Because Petitioner was not prejudiced by the trial

court’s decision to shackle him during the guilt phase of the

trial, and because Petitioner received constitutionally sufficient assistance of counsel at the penalty phase, we affirm.

1We dispose of three additional issues as to which the district court did

not issue a certificate of appealability, but as to which we did issue such

a certificate, in a separate memorandum disposition filed this date. 

COX v. AYERS 10421
PROCEDURAL HISTORY

Petitioner was charged in a four-count indictment with the

first-degree murders of victims Ebora and Dietria Alexander,

Damon Bonner, and Damani Garner in violation of California

Penal Code section 187. As to each count, Petitioner was further charged with the special circumstance of multiple murders under California Penal Code section 190.2(a)(3). A jury

convicted him on all counts of first-degree murder and also

found true the multiple-murder special circumstance allegations. Approximately one month after finding Petitioner

guilty, the jury returned a verdict imposing the death penalty.

Petitioner pursued both a direct appeal and a petition for

habeas relief through the state courts. On direct appeal, the

California Supreme Court affirmed Petitioner’s convictions

and the judgment of death. Petitioner sought rehearing, which

was denied. The Superior Court of Los Angeles County filed

a warrant of execution. The California Supreme Court granted

Petitioner’s petition for a stay pending final disposition by the

United States Supreme Court on a petition for writ of certiorari, which was denied. Petitioner then filed two petitions for

writs of habeas corpus in the California Supreme Court, each

of which was denied on the merits and on procedural grounds.

Thereafter, Petitioner filed a petition for habeas relief with

the federal district court, before Congress enacted 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 two

claims: unconstitutionally shackling Petitioner during the

guilt phase, and ineffective assistance of counsel during the

penalty phase. Petitioner timely appealed.

FACTUAL HISTORY

On August 31, 1984, at about 5:30 or 6:00 a.m., Darren

Williams and Horace Burns arrived at the residence of Ida

10422 COX v. AYERS
Moore, where Lisa Brown was also present. Williams told

Burns to pick up someone; 5 or 10 minutes later, Burns

returned with Petitioner.

Williams, Burns, Moore, Brown, and Petitioner left in

Moore’s van, with Moore driving, Brown in the passenger

seat, and the three others in the back. The group stopped for

gasoline, for which Moore paid. Williams then directed them

to 59th Street in Los Angeles and began looking for an

address that he had written on a piece of paper. Once he had

located the residence, Williams told Moore to park down the

street but to leave the engine running. After they parked, Williams told Burns to stay behind. Moore asked Burns what they

were going to do; Burns answered that Williams and Petitioner were “just going to shoot it up.” Brown heard Williams

or Petitioner say that they were going “to kill everybody in

the house.” Williams and Petitioner got out of the van and

walked toward the Alexander residence. 

Moore had seen “a big gun” in the back of the van when

they stopped for gas. She also observed that Williams had a

handgun in his waistband and that Petitioner was carrying

something wrapped in a jacket. Shortly after Petitioner and

Williams entered the house, Moore and Brown heard gunfire.

Two or three minutes later, Williams ran back to the van with

the handgun and told Moore to leave. Petitioner followed a

minute or two later with a rifle in his hands. As he entered the

van, Petitioner exclaimed: “I just blew the bitch’s head off. So

drive.” At that point, Moore drove away quickly.

Ebora Alexander’s son, Neal, and her 14-year-old grandson, Ivan Scott, were in the house when Williams and Petitioner entered. Neal awoke when he heard a scream and the

sound of a gunshot.2 He saw a man standing in his sister

Dietria’s room holding a rifle. The man was facing away from

2The California Supreme Court’s statement that Neal also was a teenager is not supported by the record, which simply does not reveal his age.

COX v. AYERS 10423
Neal and toward his sister’s bed; Neal jumped on the man’s

back and started fighting with him. The fight occurred near a

red trunk in the bedroom, on which the police later found

Petitioner’s palm print. When the man hit Neal on the face,

Neal ran away through the back door. 

Ivan also awoke to the sound of gunshots and ran into a

closet to hide. From that vantage, he saw his uncle Neal run

down the hallway and heard an ensuing struggle. He also

glimpsed a man carrying a rifle.

Two neighbors also witnessed relevant events. Lashawn

Driver lived one or two doors away from the Alexander residence, on the opposite side of the street. She returned home

at about 7:30 a.m., noticed two men enter the Alexander

home, and heard about five gunshots. After Williams exited

the house, she heard another series of shots. She then saw

Petitioner leave the house while carrying a rifle. 

Venus Webb also lived across the street. On the morning

of the murders, she heard shooting and went to investigate.

When she looked out her front window, she saw Petitioner

leaving the Alexander house and walking rapidly toward a

van, which pulled around the corner at a fast pace and then

disappeared.

Upon returning to the van, Williams and Petitioner told

Moore to drive away. They had her stop at Vermont Avenue

and Gage Street, where Burns, Williams, and Petitioner got

out and entered a building known as the Vermont Club. One

or two hours later, Moore saw Williams at the home of James

Kennedy, where Williams gave her $50 to purchase some personal items for him and to pay her for the gasoline. At about

9:00 a.m., Williams called Brown and directed her to bring

his car to the Vermont Club. When she arrived, Brown saw

Petitioner put a rifle into the trunk of the car. Brown drove

Petitioner to an apartment building, into which he carried the

10424 COX v. AYERS
rifle after wrapping it in a jacket. That afternoon, Petitioner

purchased a 1975 Cadillac, paying $3,000 in cash for it.

James Kennedy was a friend of Petitioner, Williams, and

Burns through their gang association. Kennedy testified that,

on the morning of August 31, Petitioner brought him a semiautomatic .30-caliber carbine wrapped in a jacket and

instructed him to destroy it. Petitioner also asked Kennedy to

have his sister wash the jacket because it had gunpowder on

it. Kennedy took the jacket to his sister but did not destroy the

rifle, instead hiding it in some bushes near his residence. On

September 27, 1984, Kennedy was the subject of a narcotics

investigation during which he revealed the location of the

weapon to law enforcement officers.

Shortly after the shootings, the police were summoned to

a scene of horror at the Alexander house. They found the

bullet-riddled bodies of 57-year-old Ebora, her 23-year-old

daughter Dietria, and two of her grandsons, 8-year-old Damon

Bonner and 10-year-old Damani Garner. Ebora had been sitting at her kitchen table drinking coffee when she was killed.

She suffered one wound that caused part of her brain tissue

to be blown away. Dietria, Damon, and Damani lay dead in

a bedroom, still in their beds. The coroner determined that all

four had died of gunshot wounds to the head or body. In the

course of their investigation, the police lifted a latent palm

print from a red trunk located in the bedroom. Two experts

concluded that only Petitioner could have made the print. The

police also retrieved empty shell casings and spent bullets

from the vicinity of each body. Ballistics testing established

that they all came from the same semiautomatic .30-caliber

carbine that Petitioner gave Kennedy to destroy. 

Petitioner’s counsel waived both opening statement and

closing argument during the guilt phase of the trial and presented no evidence during that phase. On January 21, 1986,

the jury found Petitioner guilty of four counts of first-degree

murder with special circumstances.

COX v. AYERS 10425
During the penalty phase of the trial, Petitioner’s counsel

argued that the death penalty was not warranted because,

although Petitioner was involved with the murders, Williams

was the actual killer. In particular, Petitioner’s counsel argued

that Neal’s and Ivan’s descriptions of the shooter suggested

that Williams, not Petitioner, was the shooter. Petitioner’s

counsel further argued that Williams manipulated Petitioner

into participating in the murders.

The defense also presented mitigation evidence concerning

Petitioner’s upbringing, school environment, and gang activities. Petitioner had been abandoned at an early age by his

mother, who had a drinking problem and had gone to prison

for robbery. He had very little contact with his father throughout his childhood. Petitioner, along with his younger brother

and sister, had been raised by his 65-year-old greatgrandmother, whom Petitioner regarded as strict. For that reason, Petitioner ran away from her house at age 14 and went

to live with his grandmother. At about that time, Petitioner

became involved in a violent gang.

Also during the penalty phase, the defense presented vivid

testimony regarding the living conditions at San Quentin

Prison for those sentenced to life imprisonment without the

possibility of parole. The jury was told that life in prison is

very violent and lacks many amenities such as regular showers and laundry.

The prosecutor presented aggravating factors in the form of

evidence about two robberies in which Petitioner had participated as a juvenile. In the spring of 1981, Petitioner and a

companion accosted three junior high school students and

demanded their money. Petitioner hit two of them with his fist

and with a piece of mop handle. Approximately one month

later, Petitioner impliedly threatened a mother with a firearm

while she waited for her young son after school. Petitioner

took her car and led police on a high-speed chase for half an

hour through city streets, stopping only when he hit a tele10426 COX v. AYERS
phone pole. The police recovered a .32-caliber revolver from

the driver’s side of the car. The prosecutor also argued during

the penalty phase that Petitioner, not Williams, was the

shooter.

On February 18, 1986, after deliberating for three days, the

jury returned a verdict calling for a sentence of death.

STANDARD OF REVIEW

[1] 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 the district

court’s denial of this petition for writ of habeas corpus.

McNeil v. Middleton, 344 F.3d 988, 994 (9th Cir. 2003), rev’d

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

DISCUSSION

A. Shackling During Trial

Two months before the trial began, Petitioner’s counsel

reported to the trial court, outside of Petitioner’s presence,

that there was “some possibility of an escape attempt.” Consequently, the trial court ordered that Petitioner be handcuffed

to his chair during the first day of trial. On the first day of

trial, Petitioner’s counsel objected to the use of a single handcuff and requested its removal. The trial court denied that

request and, on the second day of trial, ordered that Petitioner

be placed in additional leg restraints because of a rumor

reported by a courtroom bailiff that Petitioner intended to

escape. Although Petitioner’s counsel asked the trial court to

remove the shackles, Petitioner remained in some form of

shackles throughout the remainder of the guilt phase of the

trial. At least four jurors saw the restraints restricting PetiCOX v. AYERS 10427
tioner during the guilt phase. But Petitioner was not shackled

during the penalty phase.3

[2] The appearance of a defendant in shackles before a jury

in either the guilt phase or the penalty phase of a trial may

constitute a violation of the defendant’s right to due process.

Deck v. Missouri, 544 U.S. 622 (2005). We have held that “a

defendant has the right to be free of shackles and handcuffs

in the presence of the jury, unless shackling is justified by an

essential state interest.” Ghent v. Woodford, 279 F.3d 1121,

1132 (9th Cir. 2002); see also Rhoden v. Rowland, 172 F.3d

633, 636 (9th Cir. 1999) (“Because visible shackling during

trial is so likely to cause a defendant prejudice, it is permitted

only when justified by an essential state interest specific to

each trial.”). To demonstrate that his shackling at trial

amounted to a constitutional violation, Petitioner must demonstrate: (1) that he was “physically restrained in the presence

of the jury,” (2) that “the shackling was seen by the jury,” (3)

that the “physical restraint was not justified by state interests,”

and (4) that “he suffered prejudice as a result.” Ghent, 279

F.3d at 1132 (citing United States v. Olano, 62 F.3d 1180,

1190 (9th Cir. 1995)).

[3] Here, Petitioner meets the first three prongs of the

inquiry. First, it is undisputed that Petitioner was shackled

during the guilt phase of the trial. Second, as noted, at least

four jurors observed Petitioner in shackles. Third, the shackling was not justified by state interests. A trial court may

3Petitioner argues before this court that he was shackled at both the guilt

and penalty phases. The district court found, and the record supports the

finding, that Petitioner was shackled during the guilt phase only. Indeed,

Petitioner asserted in his appellate brief to the California Supreme Court

that he was not restrained during the penalty phase. Before the district

court, Petitioner once again conceded that he was not restrained in the

penalty phase. The trial transcript demonstrates that the trial court ordered

the removal of the restraints on the last day of the guilt phase, and there

is no mention of any restraint during the penalty phase. No juror observed

any restraints during the penalty phase. 

10428 COX v. AYERS
order that a defendant be shackled during trial only if the

court first is “persuaded by compelling circumstances that

some measure is needed to maintain security of the courtroom” and if the court pursues “less restrictive alternatives

before imposing physical restraints.” Duckett v. Godinez, 67

F.3d 734, 748 (9th Cir. 1995) (internal quotation marks omitted). The California Supreme Court held, and the State does

not dispute, that the trial court erred in ordering Petitioner

shackled because the court had not attempted less restrictive

means and had not made an adequate inquiry into the need for

shackles. Accordingly, the resolution of Petitioner’s claim

turns on whether the shackling prejudiced either the guilty

verdict or the death sentence.

1. The Guilt Phase

[4] In the context of a habeas proceeding, a trial error prejudices a defendant if it “had substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (internal quotation

marks omitted). “[S]hackling during trial carries a high risk of

prejudice because it indicates that the court believes there is

a need to separate the defendant from the community at large,

creating an inherent danger that a jury may form the impression that the defendant is dangerous or untrustworthy.” Dyas

v. Poole, 317 F.3d 934, 937 (9th Cir. 2003) (per curiam)

(internal quotation marks omitted). Nevertheless, we have

held that the unconstitutional shackling of a defendant results

in prejudice only if the evidence of guilt is not “overwhelming.” Id. In particular, if a case is “close, an otherwise marginal bias created by the shackles may . . . play[ ] a significant

role in the jury’s decision.” Id.

[5] Here, we find no prejudice at the guilt phase. The evidence presented by the State was overwhelming. Petitioner’s

palm print was found at the center of the crime scene. Two

eyewitnesses testified that, just before the they heard gunshots, Petitioner and Williams entered the home where the

COX v. AYERS 10429
murders occurred. Ballistics tests proved that a rifle in Petitioner’s possession was used to fire four of the bullets found

at the crime scene. Immediately after the shootings, Petitioner

bragged to his compatriots that he “just blew the bitch’s head

off.” He then tried to have a friend destroy evidence—the rifle

used to kill the victims, and Petitioner’s jacket, which bore

gunpowder residue. Accordingly, we hold that the evidence

against Petitioner was so “overwhelming” that the “marginal

bias created by the shackles” had no prejudicial effect on the

guilty verdict. Dyas, 317 F.3d at 937.

2. The Penalty Phase

Because of the nature of the evidence, Petitioner also was

not prejudiced by the guilt-phase shackles during the later

penalty phase of his trial. When the jurors were considering

the proper punishment, they already had concluded that Petitioner was a very dangerous person by convicting him of four

cold-blooded killings.

[6] The Supreme Court has observed that “[v]isible shackling undermines the presumption of innocence and the related

fairness of the factfinding process” because it “suggests to the

jury that the justice system itself sees a ‘need to separate a

defendant from the community at large.’ ” Deck, 544 U.S. at

630 (quoting Holbrook v. Flynn, 475 U.S. 560, 569 (1986)).

Upon conviction, Petitioner lost the benefit of the presumption of innocence. But even assuming that the potential prejudicial effects of shackling generally would carry over from

the guilt phase to the penalty phase of a trial, they did not do

so here. Notably, first, Petitioner was not shackled during the

penalty phase. Thus, even though Petitioner already had been

convicted, and could have been viewed as even more dangerous than before conviction, if the jury drew any conclusion

about the removal of the shackles it likely was that authorities

no longer viewed Petitioner as particularly dangerous to society at large. Such an inference directly undercuts one of the

Supreme Court’s main rationales for finding prejudice when

10430 COX v. AYERS
a defendant is visibly shackled during the penalty phase. See

Deck, 544 U.S. at 633. 

[7] Second, with or without shackling, we are convinced

that the jury would not have spared Petitioner’s life. Petitioner

murdered four people in the space of a few minutes. He

gunned down four members of the Alexander family

execution-style. Two of the victims were only 8 and 10 years

old, shot in their beds where they lay sleeping. A third victim

was a young woman, also asleep in her bed. The fourth and

only awake victim was an elderly grandmother, drinking her

morning coffee at the breakfast table. The desperate efforts of

the grandmother’s son to stop the rampage while her 14-yearold grandson hid in a closet had no effect on Petitioner. The

circumstances of these heinous crimes lead us to conclude

that the fact that four members of the jury saw Petitioner in

shackles during the guilt phase a few weeks earlier did not

have a “substantial and injurious” effect on the jury’s consideration of the death sentence. Brecht, 507 U.S. at 623. 

Other circumstances of the crimes also had demonstrated to

the jury Petitioner’s extreme disregard for human life. Plaintiff and his companions set out for the Alexander home with

murder in mind. After killing the four victims, Petitioner said

to his co-defendants, “I just blew the bitch’s head off. So

drive.” Petitioner gave the rifle that he used to kill the family

members to a friend to destroy. 

Finally, the evidence showed that these were coldly premeditated murders for hire. The killings were committed

execution-style. In addition, Petitioner bought a $3,000 Cadillac with cash on the afternoon after the murders.4

Petitioner’s counsel argued to the jury that the death pen4The penalty-phase evidence offered by the defense, that Petitioner’s

great-grandmother had given him the money for the car, was discredited

by a disinterested third-party bank representative. 

COX v. AYERS 10431
alty was not warranted (and argues to us that there is prejudice) because Williams, not Petitioner, was the actual shooter.

But the jury rejected that theory on the facts. After three days

of deliberation, during which the jury asked for readbacks of

testimony regarding the identity of the shooter and for pictures of both Petitioner and Williams, the jury returned a

death sentence. And, as we have explained, the evidence overwhelmingly pointed to Petitioner, the wielder of the rifle, as

the killer.

[8] Considering these facts, we cannot find that even one

member of the jury would have voted for a sentence of life in

prison. Shackling Petitioner at the guilt phase did not have a

substantial and injurious effect or influence at the penalty

phase.

B. Ineffective Assistance of Counsel

[9] Petitioner argues that he received ineffective assistance

of counsel at the penalty phase because his counsel did not

obtain all public records regarding his family; did not interview additional family members, counselors, friends, or

teachers; and decided not to present retained experts as witnesses. 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. Counsel’s 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.” Id. at 690. The burden is on Peti10432 COX v. AYERS
tioner to “identify the acts or omissions of counsel that are

alleged not to have been the result of reasonable professional

judgment.” Id.

[10] A defense lawyer must make reasonable investigations

in the course of representation. Id. at 691. 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). But “strategic choices made after

thorough investigation of law and facts relevant to plausible

options are virtually unchallengable.” Strickland, 466 U.S. at

690. A disagreement with counsel’s tactical decisions does

not prove that the representation was constitutionally deficient. United States v. Mayo, 646 F.2d 369, 375 (9th Cir.

1981) (per curiam).

During the penalty phase, Petitioner’s counsel decided to

focus on four distinct arguments. First and foremost, they

argued that Williams, not Petitioner, was the shooter. Petitioner’s counsel relied on the physical descriptions provided by

Neal and Ivan, who testified during the guilt phase, to support

their argument that Petitioner was not the shooter. Petitioner’s

counsel then relied on significant mitigation evidence to support their remaining three arguments: (1) that a sentence of

life imprisonment is worse than a death sentence, (2) that

Petitioner is a valuable human being who had a traumatic

childhood, and (3) that Petitioner was unduly influenced or

manipulated by his gang.

Petitioner’s counsel called seven witnesses to testify on

Petitioner’s behalf during the penalty phase. Four of those

witnesses were Petitioner’s close relatives:

• Audrey Martin, Petitioner’s grandmother, testified that Petitioner’s mother had a drinking problem and that Petitioner’s great-grandmother

primarily raised him. She also testified that Petitioner rarely saw his father, that Petitioner was

COX v. AYERS 10433
skilled at sports, and that she wanted to see Petitioner live. 

• Edrina Meyers, Petitioner’s sister, testified that

she and Petitioner were raised by their greatgrandmother and that they rarely saw their parents. While crying on the stand, Ms. Meyers testified that she wanted to see Petitioner live. 

• Demontray Cox, Petitioner’s youngest brother,

testified that their mother was abusive and alcoholic and that Petitioner ran away from their

mother after she threw a vase at him. 

• Annie Ellsworth, Petitioner’s great-grandmother,

testified that she was the primary caregiver for

Petitioner and that she put him in the Boy Scouts,

gave him an allowance and a bike, and gave him

money to buy a car. 

Two witnesses knew Petitioner as an adolescent in junior high

school: 

• Horace Anderson, who was an administrator at

the school, testified that Petitioner displayed

good behavior until about the eighth grade, at

which point Mr. Anderson suspected that Petitioner became involved with a gang. At about

that time, he stated, Petitioner began extorting

money from younger students. He also testified

that Petitioner complained to him about being

attacked by older boys when Petitioner was in the

seventh grade. 

• Donald Baker, one of Petitioner’s teachers in the

eighth and ninth grades, testified that Petitioner

was a good basketball player and that he chose

Petitioner as the captain of his home room bas10434 COX v. AYERS
ketball team because of Petitioner’s athletic abilities and leadership qualities. Baker also testified

about the prevalence of gangs in Petitioner’s

neighborhood and the influence of gangs on Petitioner’s junior high school.

The defense’s final witness during the penalty phase was

Joey Upland, a former nurse at San Quentin State Prison. She

described the harsh conditions at San Quentin for inmates facing life imprisonment without the possibility of parole. The

apparent purpose of this testimony was to show the jury that

Petitioner would receive sufficient punishment, and would not

have a chance to hurt others, if his life were spared.

Petitioner argues that his counsel failed to provide effective

assistance by making the decision to limit the scope of the

investigation into potential mitigating evidence. Specifically,

Petitioner blames counsel for not obtaining all of Petitioner’s

social service records, not investigating the information in

those records, and not interviewing dozens of other character

witnesses. Without having conducted those investigations,

Petitioner argues, his counsel “made uninformed decisions

about their penalty phase presentation.” Petitioner also claims

that his counsel “failed to provide retained experts with relevant information and ultimately called none as witnesses.”

“To establish deficient performance, a petitioner must demonstrate that counsel’s representation ‘fell below an objective

standard of reasonableness.’ ” Wiggins v. Smith, 539 U.S.

510, 521 (2003) (quoting Strickland, 466 U.S. at 688). Here,

Petitioner’s counsel obtained preliminary information about

Petitioner’s upbringing from Petitioner himself and from his

uncle, Brady Armstrong. Counsel then instructed their investigators “to unearth as many . . . people as possible” to determine 

how long they have known [Petitioner], what their

opinion of him as an individual is, his reputation in

COX v. AYERS 10435
the community, knowledge of his family life, his

achievements as well as his failures, his personality,

potential for violence, what kind of child he was,

what kind of person he is now.

Counsel asked the investigators to locate, interview, and

obtain as much information as possible from nine family

members, as well as to locate and interview school, parks and

recreation, and California Youth Authority (“CYA”) personnel; church, Boy Scouts, and Cub Scouts members; and

employers who may have remembered Petitioner. 

Counsel subpoenaed, obtained, and read Petitioner’s CYA

and school records. The CYA records included a report in

which Petitioner referred to his mother as a child abuser but

described the relationships with his great-grandmother, with

whom he lived most of his life, and with his grandmother, as

satisfactory. A psychiatric report stated that Petitioner displayed no overt signs of anxiety or depression, that there were

no signs of organic impairment or psychotic thought process,

and that he was not suicidal or homicidal. Other reports

described him as having mastered the “appropriate response”

when confronted by authority figures but also as continuing

to be dangerous to the community. Petitioner was described

as having a leadership role in his gang. Aside from some

fights, nothing in the records suggested that Petitioner was

traumatized or subject to any mistreatment while at the CYA.

Counsel personally interviewed Petitioner’s father James,

mother Sondra, grandmother Audrey, great-grandmother Ellsworth, sister Edrina, and uncle Brady Armstrong. Other than

mentioning that Sondra had beaten and lost custody of her

children more than once, none of the witnesses mentioned that

Petitioner had suffered extensive or significant abuse or anything that might cause Petitioner to grow up emotionally disturbed. Petitioner and the other witnesses (except for Sondra)

identified Ellsworth as Petitioner’s main caretaker until the

age of 14. They pointed out that Ellsworth provided a safe and

10436 COX v. AYERS
fairly good home for him, as he participated in sports and the

Boy Scouts. Sondra was described as a prostitute and drug

addict who did not take care of Petitioner. Demontray Cox, in

a separate interview with one of counsel’s investigators, confirmed that he and his siblings were raised mostly by Ellsworth, that they had a fairly normal childhood, and that

Petitioner played sports and was in the Boy Scouts. CYA

records also corroborated counsel’s conclusion that Ellsworth

was Petitioner’s primary caregiver and that Petitioner had had

only sporadic contacts with his mother. 

Counsel requested their investigators to contact and interview 10 individuals identified in the CYA records. The investigators interviewed those individuals, who largely provided

negative or unhelpful information about Petitioner and his

gang activities.

Petitioner’s refusal to cooperate with certain potential

defenses, including abuse and gang domination, and his

wavering preference for death over life without parole, further

affected counsel’s actions. Counsel interviewed Petitioner at

least 10 times between November 1984 and November 1985.

Petitioner did not mention having suffered any physical or

mental abuse, refused to talk about abuse or other wrongdoing

by his mother, and threatened to cause a disturbance at trial

if negative information about Sondra were presented at trial.

Because counsel could retrieve no evidence of family abuse

from Petitioner, they attempted to obtain such evidence from

other family members, as described above.

Petitioner further refused to provide counsel with information that could have supported two penalty-phase strategies

that counsel were considering: that Petitioner was not the

shooter and that he was dominated by his gang at the time of

the murders. Instead, Petitioner simply denied being at the

crime scene, denied being controlled by his gang, and threatened to cause a disturbance at trial if counsel presented evidence to show that he was under the influence of his gang at

COX v. AYERS 10437
the time of the murders. To encourage Petitioner to open up

about his gang activities, counsel retained the services of two

former gang members who visited Petitioner several times in

an effort to bring him “to the full understanding of the importance for him to cooperate with” counsel. That strategy failed,

and Petitioner continued to refuse to cooperate in developing

the suggested defense.

Counsel also interviewed Larry Norman, a counselor at a

local youth center, to obtain information about Petitioner’s

gang involvement. Norman mentioned rumors that Petitioner

carried a gun frequently and was a gang “shooter” and “enforcer.” Counsel understandably did not try to corroborate this

highly damaging information.

Counsel retained two gang experts, John Quicker and Fred

Williams, to assist in the case. Counsel gave them information

about Petitioner and obtained a court order allowing Fred

Williams to interview Petitioner in jail. Counsel wanted Williams to encourage Petitioner to open up and discuss his gang

involvement. Ultimately, neither Quicker nor Williams

obtained any specific information that Petitioner was dominated or controlled by other members of his gang at the time

of the murders. Thus, if called as witnesses, they would not

have testified about any gang dominance by others.

[11] “While a lawyer is under a duty to make reasonable

investigations, a lawyer may make a reasonable decision that

particular investigations are unnecessary.” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Indeed, the

Supreme Court has stated:

It is all too tempting for a defendant to second-guess

counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to

conclude that a particular act or omission of counsel

was unreasonable. A fair assessment of attorney per10438 COX v. AYERS
formance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time. 

Strickland, 466 U.S. at 689 (citations omitted). Thus, as long

as a reasonable investigation was conducted, a reviewing

court should defer to counsel’s strategic choices.

[12] The Supreme Court’s recent decision in Bobby v. Van

Hook, 130 S. Ct. 13 (2009) (per curiam)—a pre-AEDPA case

like this one—further convinces us that counsel’s investigation in this case met the standard for constitutionally sufficient representation. There, the Court overturned the Sixth

Circuit’s grant of habeas relief to a murderer who had been

sentenced to death. Defense counsel in Van Hook spoke with

the defendant’s mother, father, and aunt, and with a family

friend; met with two expert witnesses; reviewed military and

medical records; and considered enlisting a mitigation specialist. Id. at 18. Counsel also presented evidence about the

defendant’s traumatic childhood experiences and about his

impairment (including consumption of drugs and alcohol) on

the day of the crime. Id. The Court found that the scope of

counsel’s investigation was reasonable even though counsel

did not interview all of the defendant’s relatives or the therapists who treated his parents. Id. at 19. As in Strickland,

defense counsel’s decision not to seek more mitigating evidence was a reasonable professional judgment; at some point,

additional evidence would be only cumulative, “and the

search for it distractive from more important duties.” Id.

[13] As summarized above, in the present case, counsel’s

thorough mitigation investigation was more than reasonable.

Counsel interviewed most of Petitioner’s close relatives, CYA

counselors, school teachers, and other people familiar with

Petitioner’s background. They received lengthy discovery

from the prosecution, as well as school and CYA records.

COX v. AYERS 10439
Counsel reasonably concluded that, aside from some abuse at

the hands of his mother, Petitioner did not suffer significant

abuse or impoverishment during his childhood. Petitioner’s

family members testified that Petitioner was loved and cared

for by Ellsworth, his primary caregiver, and that the only

abuse he suffered was by his mother, with whom he had

stopped living immediately after the abuse. 

Counsel reasonably decided not to present, and not to look

further for, evidence concerning Petitioner’s character and

emotional state. That decision reflected counsel’s strategic

choice to emphasize their primary argument at the penalty

phase: that Petitioner was not the shooter. Petitioner’s lead

counsel reasonably believed that it would not save Petitioner’s

life to argue to the jury that “this poor abused kid murdered

four people and you should feel sorry for him,” or that Petitioner “killed four people but he was beaten up by his mother

when she was drunk and wasn’t treated right as a kid, therefore, you should give him life.” Presenting all available evidence about Sondra’s abusive conduct and Petitioner’s

experiences with gang and CYA violence would only have

raised inferences that his abusive childhood turned him into

a hardened criminal who was quite capable of murdering four

people. Indeed, portraying Petitioner in such a way would

have shown that he was insensitive to violence because of his

active participation in a violent gang, which consequently

would have made it seem more likely that he was the shooter.

[14] In short, counsel conscientiously and extensively

investigated potential defenses. Because further evidence

about Petitioner’s childhood and gang activity would have

suggested violent propensities at odds with counsel’s goal of

portraying Petitioner as less culpable, counsel reasonably

decided not to present such evidence. Counsel’s performance

fully met constitutional standards. See Bible v. Ryan, 571 F.3d

860, 872 (9th Cir. 2009) (denying a habeas claim for ineffective assistance of counsel during the penalty phase where

there were a significant amount of aggravating circumstances

10440 COX v. AYERS
and the additional evidence would have been cumulative of

what had already been presented).5

2. Prejudice

[15] 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 counsel’s 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

death-penalty sentencing cases than in guilt-phase challenges

and noncapital cases. See Silva v. Woodford, 279 F.3d 825,

847 (9th Cir. 2002) (stating that “we must be especially cautious in protecting a defendant’s right to effective counsel at

a capital sentencing hearing” (internal quotation marks omitted)). Even in the context of a challenge to his death sentence,

though, 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.

Here, trial counsel considered, investigated, and presented

four theories at the penalty phase: (1) Petitioner was not the

shooter; (2) a sentence of life imprisonment without parole

was a greater punishment than death; (3) Petitioner was a

5

In Richter v. Hickman, 578 F.3d 944, 968 (9th Cir. 2009) (en banc), we

granted the habeas corpus petition of a convicted murderer, holding that

the defendant’s trial counsel rendered ineffective assistance by failing to

investigate and present expert testimony on forensic blood evidence that

would have supported the defendant’s self-defense claim and contradicted

the prosecution’s theory of how the crime occurred. The facts of that case

are easily distinguished from the facts here. The evidence that Petitioner

claims was not discovered or not presented by his trial counsel would have

been cumulative only or would have been at odds with trial counsel’s reasonable efforts to portray Petitioner as less culpable. Unlike the evidence

in Richter, the evidence here would neither have benefitted any of Petitioner’s claims nor have contradicted the prosecution’s theories. 

COX v. AYERS 10441
valuable human being whose family members wanted him to

live; and (4) Petitioner was dominated by his gang in general

and by Williams in particular, and gang activity was an

unavoidable part of Petitioner’s environment.

Counsel made the strategic decision that their best chance

to save Petitioner’s life was to show that Petitioner was not

the shooter or, at the very least, to raise a lingering doubt on

that score. The decision to focus on the non-shooter strategy

as a means to avoid the death penalty was entirely reasonable

when taking into account the horrendous circumstances of the

crimes and the prosecutor’s main argument that Petitioner, as

the sole shooter, was the most culpable of the perpetrators and

deserved the death penalty. Further, the defense of “residual

doubt has been recognized as an extremely effective argument

for defendants in capital cases.” Lockhart v. McCree, 476

U.S. 162, 181 (1986); see also Williams v. Woodford, 384

F.3d 567, 624 (9th Cir. 2004) (same). We have noted in the

past a comprehensive study on the opinions of jurors in capital cases that concluded that “ ‘[t]he best thing a capital defendant can do to improve his chances of receiving a life

sentence has nothing to do with mitigating evidence . . . . The

best thing he can do, all else being equal, is to raise doubt

about his guilt.’ ” Williams, 384 F.3d at 624 (quoting Stephen

P. Garvey, Aggravation and Mitigation in Capital Cases:

What Do Jurors Think?, 98 Colum. L. Rev. 1538, 1563

(1998)). 

Counsel’s second penalty-phase strategy was to show that

life without the possibility of parole was a very grave punishment, perhaps a fate worse than death, and would protect society from Petitioner. In support of this strategy, counsel

presented the testimony of Joey Upland, the head nurse at San

Quentin State Prison. While on duty, Ms. Upland was in

charge of medical care for 3,000 convicts. She testified that,

generally, two inmates lived in a cell approximately 54 square

feet in size. During lock-downs, the prisoners had no regular

exercise and could go three to four weeks without a shower.

10442 COX v. AYERS
There were no towels, books, toilet paper, or access to a laundry, forcing prisoners to wash their clothes in toilets. The temperature in the cell could swell to 105 degrees in the summer

and cool to nearly freezing in the winter. Ms. Upland testified

that prison gangs stirred up a lot of trouble and that stabbings

occurred two or three times a week. Due to high noise levels

in the cells, prisoners lacked sleep and became disoriented.

Sexual abuse among prisoners was also prevalent.

Counsel attempted to humanize Petitioner by presenting

testimony regarding Petitioner’s family, cultural and community background, the abuse and neglect he suffered at the

hands of his mother, the pervasiveness of street gangs in his

community and school, and the inherent problems of being

involved in gangs. Several of his family members asked for

mercy. Petitioner now argues that counsel should have investigated his past further and presented even more evidence

regarding his childhood. But counsel made a reasonable strategic decision not to emphasize the abuse evidence because

they deemed the non-shooter theory to have a higher likelihood of success. Counsel reasonably believed that it would

not save Petitioner’s life to argue to the jury that “this poor

abused kid” deserves their sympathy or that Petitioner should

be given life because his mother was an abusive alcoholic.

The pertinent inquiry here “is not what defense counsel could

have pursued, but rather whether the choices made by defense

counsel were reasonable.” Babbitt, 151 F.3d at 1173 (internal

quotation marks omitted); see also Williams, 384 F.3d at 616.

As long as a reasonable investigation was conducted, we must

defer to counsel’s strategic choices. Strickland, 466 U.S. at

690-91. As detailed above, counsel’s extensive investigation

was reasonable.

With regard to the gang-domination theory, counsel chose

not to emphasize that theory during the penalty phase because

doing so would have undermined the primary strategy of portraying Petitioner as the non-shooter. Counsel determined that

this “substantial domination” defense actually supported the

COX v. AYERS 10443
prosecution’s contention that Petitioner killed the victims

under Williams’ orders. Further, counsel was unable to obtain

evidence that the gang made Petitioner commit the murders

because he refused to cooperate with the strategy: He provided no useful information to counsel’s retained gang

experts, and he told counsel that he would cause a disturbance

in the courtroom if counsel presented gang-domination evidence. Counsel ultimately chose not to call the gang experts

as witnesses because they were unable to provide information

helpful to Petitioner’s case and because doing so may have

opened the door to damaging rebuttal evidence about Petitioner’s violent gang activities as an “enforcer.” In these circumstances, counsel’s decision not to emphasize the gangdomination strategy was reasonable.

Prejudice requires a showing that “there is a reasonable

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

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Petitioner cannot demonstrate that he was prejudiced by his

counsel’s strategies at the penalty phase. Petitioner’s counsel

reasonably chose to pursue the four theories discussed above;

additional information about Petitioner’s childhood and gang

activities would not have resulted in a different verdict by the

jury. Because “the probability that the result would have been

different is far from reasonable,” Laboa v. Calderon, 224 F.3d

972, 981 (9th Cir. 2000), we hold that Petitioner was not prejudiced by his counsel’s representation at the penalty phase. 

The United States Supreme Court’s recent decision in

Wong v. Belmontes, 130 S. Ct. 383 (2009) (per curiam),

underscores our conclusion. In that case, the Supreme Court

reversed a decision of our court holding that the defendant

was prejudiced by his counsel’s performance. The defendant

had been convicted of murdering a woman in the course of a

burglary; we held that counsel’s performance was both deficient and prejudicial because “counsel’s errors undermined

10444 COX v. AYERS
confidence in the penalty phase verdict.” Id. at 384. The

Supreme Court reversed. The Court first observed that the

additional mitigation evidence cited in our decision “was

merely cumulative of the humanizing evidence [that the

defendant’s counsel] actually presented; adding to what was

already there would have made little difference.” Id. at 387.

Further, the Court held that presenting that additional evidence “would have put into play aspects of [the defendant’s]

character that would have triggered admission of the powerful

. . . evidence [of a prior crime] in rebuttal. This evidence

would have made a difference, but in the wrong direction for

[the defendant].” Id. at 387-88 

Similarly, here, Petitioner was not prejudiced by his counsel’s decision to exclude additional mitigation evidence. Just

as in Wong, that evidence is cumulative of what was presented at the penalty phase, and “adding to what was already

there would have made little difference.” Id. at 387. The additional evidence also contradicts the theories propounded by

Petitioner’s counsel, thereby pushing his case “in the wrong

direction.” Id. at 388.

In Van Hook, too, the Supreme Court addressed the question of prejudice. In that case, the Court emphasized that the

testimony that the defendant claimed should have been presented would have added little; the defendant failed to show

“why the minor additional details the trial court did not hear

would have made any difference.” 130 S. Ct. at 19-20. Additionally, the Court relied on the awful nature of the crime. The

defendant was the sole perpetrator, who intended from the

start to rob the victim, and then killed him and disfigured the

body. Id. at 20. The defendant had committed several previous and subsequent robberies as well. Id. By ignoring the

weight of these aggravating factors, the Sixth Circuit “overstate[d] . . . the effect additional mitigating evidence might

have had.” Id.

[16] Again similarly, in this case the proposed additional

evidence was mostly cumulative of the information already

COX v. AYERS 10445
presented at the penalty phase trial. And, even more than in

Van Hook, the weight of the aggravating factors was staggering. Petitioner set out to kill everyone in the Alexander house,

including children sleeping in their beds, and he did so for

money.

The dissent argues that the aggravating evidence presented

during the penalty phase does not preclude a finding of prejudice, pointing to Hovey v. Ayers, 458 F.3d 892 (9th Cir.

2006), and Douglas v. Woodford, 316 F.3d 1079 (9th Cir.

2003), for support. Dissent at 10461-62. The dissent’s reliance on those cases is misplaced. In Hovey, 458 F.3d at 927-

28, the defendant’s lawyer did not provide his key witness, a

psychiatrist who examined the defendant for the first time just

before presenting expert testimony, with records regarding the

defendant’s long history of mental illness. Had counsel done

so, it would not have seemed to the jury that “the defense had

concocted the mitigating mental illness evidence.” Id. at 927.

Similarly, in Douglas, we found prejudice where the defendant’s counsel presented neither “a substantial amount of [his]

social history” nor any evidence of his “serious and outstanding mental illness.” Douglas, 316 F.3d at 1091.

Here, by contrast there was not a “total absence of evidence” regarding any aspect of Petitioner’s life. See id. Petitioner’s counsel, despite Petitioner’s refusal to cooperate,

presented testimony regarding his family, his background, and

his abusive mother. The evidence to which the dissent points

would have been cumulative or it would have undermined

counsel’s reasonable efforts to portray Petitioner as less culpable. Closely examining the record in this case makes clear

that Petitioner was not prejudiced by his counsel’s representation at the penalty phase. 

Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009), does not

compel a contrary result. Hamilton’s counsel’s performance

stands in stark contrast to that here. For example:

10446 COX v. AYERS
• There, defense counsel had never worked on a

capital case before Hamilton’s, and he failed to

associate co-counsel. Hamilton, 583 F.3d at

1114. See also Porter v. McCollum, No. 08-

10537, 2009 WL 4110975, at *5 (U.S. Nov. 30,

2009) (per curiam) (finding ineffective assistance

of counsel at the penalty phase where the lawyer

had never represented a defendant in a penaltyphase proceeding before). Here, by contrast, at

the time of Petitioner’s trial, defense counsel had

served as a public defender for more than ten

years, had tried a capital case in the past, and had

earned a Level IV ranking in the public defender’s office, meaning that defense counsel was the

top trial lawyer in that office. Moreover, the main

defense lawyer brought in an assistant to help in

both the guilt and penalty phases of the trial.

• There, the defense “investigation consisted of at

most five interviews,” which took place shortly

before jury selection began. Hamilton, 583 F.3d

at 1114; see also Porter, 2009 WL 4110975, at

*5 (holding that counsel was deficient for failing

to obtain any school, medical, or military records,

to interview any family members, or otherwise to

investigate the defendant’s mental health and

background). Here, by contrast, counsel began

the investigation well ahead of trial, seeking

information from nine family members, church

personnel, Boy Scout and Cub Scout leaders, and

employers; consulting several experts; and reading voluminous records and documents regarding

Petitioner’s past. That investigation yielded relevant information concerning several viable mitigation strategies.

• There, the defense “presented only one witness

. . . whose testimony occupies less than 5 pages

COX v. AYERS 10447
of the transcript.” Hamilton, 583 F.3d at 1119.

Counsel failed, without any legitimate explanation or reason, to uncover or to present evidence

regarding the utterly horrific childhood that Hamilton had endured; that information would have

been obvious with only the most cursory inquiry.

Id. at 1119-28. Here, by contrast, the defense

presented seven witnesses, who covered all the

essential points the defense argued to the jury.

For the most part, Petitioner’s home life was not

horrific. To the extent that it was, counsel pursued a reasonable strategy to downplay Petitioner’s problems in order to pursue a non-shooter

theory and create a lingering doubt about Petitioner’s guilt.

• With respect to the prejudice prong, in Hamilton

the defendant murdered his wife. Id. at 1102-04;

see also Porter, 2009 WL 4110975, at *1, *6

(noting that the defendant murdered his former

girlfriend and her new boyfriend). For that reason, evidence concerning the defendant’s history

of family abuse was highly relevant, both to

explain the reasons for his conduct and to demonstrate that he would not be a danger to society at

large. Hamilton, 583 F.3d at 1132-34. Here, by

contrast, the additional evidence was mostly

cumulative, and the nature of the crime itself

overwhelmingly demonstrated Petitioner’s danger to society.

Thus, Hamilton illustrates why, in this case, neither the performance nor the prejudice prong of Strickland is met.

[17] To summarize, given the fact that the jury heard substantial mitigating evidence and given the grim and gruesome

facts of the crimes themselves, there is no reasonable probability that Petitioner would have escaped the death penalty

10448 COX v. AYERS
had counsel presented additional mitigation evidence or

expert testimony at sentencing.

AFFIRMED.

PREGERSON, Circuit Judge, dissenting:

I part ways with the majority when it comes to the issue of

ineffective assistance of counsel at the penalty phase. The

majority opinion concludes that Cox’s attorneys did not provide ineffective assistance during the penalty phase even

though they failed to investigate critical, readily available

records that would have revealed the full extent of Cox’s abusive childhood. The majority reasons that this evidence would

have been cumulative and also would have been inconsistent

with trial counsel’s non-shooter theory. In the alternative, the

majority opinion concludes that any deficiency by Cox’s

attorneys during the penalty phase did not prejudice Cox

because the omitted mitigation evidence was cumulative and

the aggravating evidence was substantial. Because neither the

record nor the law supports these conclusions, I dissent.

To prevail on his ineffective assistance claim, Cox must

show: (1) “that counsel’s performance was deficient” and (2)

“that the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). Here,

Cox’s attorneys performed deficiently because they failed to

conduct a reasonable investigation of Cox’s abusive childhood. Cox’s attorneys were on notice of Cox’s juvenile

dependency records and his abusive mother’s arrest records

and court files, but failed to obtain and review them. These

records would have demonstrated that Cox suffered severe

abuse until he was eleven years old and that he routinely was

exposed to violence. Cox’s attorneys’s failure to obtain and

present this evidence prejudiced Cox. Had the jury known the

full extent of Cox’s abusive childhood, it is reasonable to conCOX v. AYERS 10449
clude that at least one juror would have voted that Cox suffer

a life sentence rather than a sentence of death. 

I. Cox’s Attorneys Provided Deficient Performance 

During the Penalty Phase of Cox’s Trial

Deficient performance exists when counsel’s representation

“[falls] below an objective standard of reasonableness.” Id. at

688. Because “[i]t is imperative that all relevant mitigating

information be unearthed for consideration at the capital sentencing phase,” Caro v. Calderon, 165 F.3d 1223 (9th Cir.

1999), counsel performs deficiently if it does not conduct a

reasonable investigation of the defendant’s background. This

inquiry should include investigation of the defendant’s history

of family abuse, Summerlin v. Schriro, 427 F.3d 623, 630 (9th

Cir. 2005) (en banc); a thorough examination of all readily

available records, Williams v. Taylor, 529 U.S. 362, 395-96

(2000); and the active pursuit of all relevant mitigation leads,

Lambright v. Schriro, 490 F.3d 1103, 1117 (9th Cir. 2007). 

A. Cox’s Attorneys Failed to Obtain All Reasonably

Available Mitigating Evidence

I agree with the majority opinion insofar as “[t]his is not a

case in which defense counsel simply ignored their obligation

to find mitigating evidence . . . .” Rompilla v. Beard, 545 U.S.

374, 381 (2005). I disagree, however, that conducting some

mitigation investigation is tantamount to conducting a reasonable investigation. Both this court and the Supreme Court

have found deficient performance when counsel conducted

some investigation into mitigating evidence, but failed to discover all reasonably available mitigating evidence. See, e.g.,

Rompilla, 545 U.S. at 381-83 (finding deficient performance

because defense counsel failed to examine a court file on

Rompilla’s prior conviction, even though counsel interviewed

Rompilla and several members of his family, and examined

reports by three mental health experts); Douglas v. Woodford,

316 F.3d 1079, 1087 (9th Cir. 2003) (finding deficient perfor10450 COX v. AYERS
mance even though counsel’s penalty-phase investigation

included interviews of Douglas’s “wife, son, friends, and

neighbors”). 

Here, Cox’s attorneys knew or should have known about

the existence of Cox’s juvenile dependency records and his

mother’s arrest records and court files, yet failed to obtain

them. These readily available records would have demonstrated that Cox, eighteen years old at the time of the murders,

had spent a substantial part of his formative years under the

primary care of his mother, Sondra Holt, an alcoholic and a

prostitute.1 While under the care of his mother, Cox experienced severe abuse and was routinely exposed to violence: 

• On June 3, 1970, when Cox was only four years

old, Cox watched his mother try to kill his sister,

Edrina Meyers.

• In August 1970, Everette Myers, the boyfriend

and pimp of Cox’s mother, was shot and killed

outside the mother’s door while Cox, four years

old at the time, was inside the house. 

• On December 15, 1970, when Cox was five years

old, Cox witnessed his mother attacking a police

officer with a knife.

• On January 23, 1971, when Cox was five years

old, Cox witnessed his mother being taken away

by ambulance after she was stabbed by a boyfriend.

1The juvenile dependency records reveal that Cox’s mother, Sondra

Holt (“Holt”), retained custody of Cox from when he was born on December 1, 1965, until he was declared a dependent child of the court on

December 8, 1977. Holt was Cox’s primary caretaker until 1971, although

he also lived intermittently with his great-grandmother during this time.

Moreover, Cox lived with Holt for eight or nine months in 1977. 

COX v. AYERS 10451
• In 1973 or 1974, when Cox was eight or nine

years old, Cox’s mother set fire to the front door

of the house of Cox’s grandmother, where Cox

was staying. 

• In July 1977, when Cox was eleven years old,

Cox’s mother was arrested in front of Cox for

assault with a deadly weapon. 

• In August 1977, when Cox was eleven years old,

Cox’s mother pushed Cox up against the wall,

struck him in the face several times, and gave

him a black eye.

• In September 1977, when Cox was eleven years

old, Cox’s mother threatened him with a steak

knife.

• On numerous occasions, Cox’s mother became

intoxicated to the extent that she could not provide care or supervision for Cox.

All of this evidence of abuse could have been discovered

in Cox’s dependency court file and in his mother’s arrest

records and court files.2 The State stipulated that Cox’s attorneys were on notice that these documents were available and

could have been easily obtained. The State also stipulated that

Cox’s attorneys “knew or should have known that Mr. Cox

and his siblings were removed from his mother’s care as the

2Had Cox’s attorneys interviewed additional family members, they

would have also discovered: (1) when Cox was slightly less than four

years old, his mother tried to kill Cox and his siblings; and (2) when Cox

was nine years old, he and his siblings witnessed their mother attempt suicide. I see no need to reach whether Cox’s attorneys’s failure to interview

these family members constituted deficient performance because Cox’s

attorneys’s failure to obtain and present the evidence in Cox’s dependency

court file and in his mother’s arrest records and court files clearly constituted deficient performance. 

10452 COX v. AYERS
result of court intervention” and that Cox’s attorneys were

“aware that Cox’s mother had been in and out of prison during the time she raised Cox.” Moreover, the State stipulated

that Cox’s attorneys had obtained Cox’s school records.

These records stated that Cox was placed in foster care at the

age of twelve, indicating that Cox may have spent substantially more time under his abusive mother’s care than other

evidence suggested. 

The majority opinion relies on the Supreme Court’s recent

decision in Bobby v. Van Hook, No. 09-144, 2009 WL

3712013 (U.S. Nov. 9, 2009) (per curiam) to conclude that

Cox’s attorneys performed a reasonable investigation because

the unexplored documents would have only produced cumulative evidence.3

 Maj. Op. 10439, 10440. Van Hook is inapposite. In Van Hook, the Supreme Court held that trial counsel

did not perform deficiently by failing to interview certain

family members because trial counsel already uncovered

extensive evidence of Van Hook’s traumatic childhood. Van

Hook, 2009 WL 3712013 at *19. The Court noted, “[t]his is

not a case in which defendant’s attorneys failed to act while

potentially powerful mitigating evidence stared them in the

face, or would have been apparent from documents any reasonable attorney would have obtained.” Id. (internal citations

omitted).

Unlike trial counsel in Van Hook, Cox’s trial counsel

“failed to act while potentially powerful mitigating evidence

3The majority also cites to Bible v. Ryan, 571 F.3d 860, 872 (9th Cir.

2009) to support its argument that Cox’s counsel did not perform deficiently because any additional investigation would have been cumulative.

Bible did not even reach the deficiency prong of the ineffective assistance

of counsel analysis. See id. at 872 ("We hold that the absence of evidence

that was cumulative of what had already been presented . . . does not

undermine our confidence in the outcome of Bible’s sentencing hearing.

. . . {W}e cannot properly say that the Arizona court’s decision that Bible

suffered no prejudice was an unreasonable application of Strickland.")

(emphasis added). Accordingly, reliance on this case is unfounded. 

COX v. AYERS 10453
. . . would have been apparent from documents any reasonable

attorney would have obtained.” Id. Cox’s trial counsel knew

that Cox’s mother had beaten and lost custody of her children

more than once. Maj. Op. 10436. Yet they failed to obtain and

review the documents that would be most relevant to demonstrating the severity of this abuse. It is hard to imagine documents more relevant to demonstrating the severity of Cox’s

childhood abuse than Cox’s juvenile dependency records or

Cox’s mother’s arrest records and court files. Cox’s attorneys

knew these records existed and could have easily obtained

them. Any reasonable attorney would have obtained these

documents and Cox’s attorneys’s failure to do so constitutes

deficient performance. See Lambright v. Schriro, 490 F.3d

1103, 1117 (9th Cir. 2007) (“[W]hen . . . indications in the

record suggest that certain mitigating evidence may be available, those leads must be pursued.”) (internal quotation marks

omitted).

B. Cox’s Attorneys’s Failure to Obtain Cox’s Juvenile

Dependency Records and Other Evidence of 

Childhood Abuse Was Not a Strategic Decision

The majority opinion also contends that Cox’s attorneys’

failure to investigate Cox’s traumatic childhood further was a

“strategic choice” because the evidence would have been “at

odds” with trial counsel’s primary non-shooter theory.4 Maj.

4There is also evidence that Cox’s attorneys provided ineffective assistance with respect to the non-shooter theory. Cox’s attorneys made no

attempt to interview Stanley Cheathem (“Cheathem”), who was present at

Ida Moore’s house, the location where all the co-defendants congregated

before the murders. Cox’s attorneys even made notes to interview Cheathem, but never followed through. 

Had Cox’s attorneys interviewed Cheathem, they would have discovered the following: 

• Williams had a “violent temperament,” was paranoid, and was

“scary to be with,” and became “increasingly paranoid and

unpredictable” when he was on crack. 

10454 COX v. AYERS
Op. 10418-19. The majority opinion speculates that presenting evidence of Cox’s abusive childhood “would only have

raised inferences that [Cox’s] abusive childhood turned him

into a hardened criminal who was quite capable of murdering

four people” and “made it seem more likely that he was the

shooter.” Maj. Op. at 10440. The majority opinion, however,

offers no support for such a conclusion. 

To the contrary, the evidence of childhood abuse could

have easily raised inferences that evoked sympathy for the

eighteen-year-old Cox. Such evidence could have explained

why Cox ended up in a gang and how Cox ended up in a position where he was aiding Williams in the perpetration of the

murders. Indeed, one of Cox’s attorneys acknowledged that

the omitted childhood abuse evidence “would have been helpful to [the] defense” and “consistent with the themes that

[they] presented in mitigation.” Where, as here, “counsel

offers no strategic reason for failing to perform what would

otherwise constitute the duty of a reasonably competent counsel, we may not invent such a strategy by engaging in a ‘post

hoc rationalization of counsel’s conduct.” See Richter v. Hick-

• In the weeks leading up to the murders, Williams was constantly hustling for crack, hustling for money for crack, and

smoking crack. 

• Cheathem did not take Williams seriously in the days leading

up to the murders because “[Williams] was so cracked out and

pumped up.” 

• The night before the murders Williams smoked crack. 

The above testimony would have bolstered Cox’s theory that Williams

was the actual shooter by demonstrating that Williams was likely under

the influence of crack cocaine when the murders occurred and that Williams had a strong propensity for violence, particularly while under the

influence of crack cocaine. Because Cox’s attorneys clearly rendered ineffective assistance of counsel by failing to obtain and present evidence of

the severe childhood abuse suffered by Cox, I see no need to reach the

question whether Cox’s attorneys also provided ineffective assistance by

failing to interview Stanley Cheathem. 

COX v. AYERS 10455
man, 578 F.3d 944, 959 (9th Cir. 2009) (holding that counsel’s failure to consult blood experts was not a strategic

choice because counsel offered no reasoned explanation for

the failure). 

Moreover, the Supreme Court has acknowledged that childhood abuse evidence is not at odds with a theory that the

defendant was not directly responsible for the crime, and that

its discovery may actually change counsel’s strategy. See

Wiggins v. Smith, 539 U.S. 510, 535 (2003). Accordingly,

Cox’s attorneys’s failure to obtain and present evidence of the

severe abuse suffered by Cox at the hands of his mother was

not a strategic decision, but a clear failure by defense counsel

to conduct a reasonable investigation.5

II. Absent the Deficient Performance of Cox’s Attorneys,

a Reasonable Probability Exists That at Least One

Juror Would Have Voted to Impose a Life Sentence

Rather than a Death Sentence

Prejudice is established where, “there is a reasonable probability that, absent the errors, the sentencer . . . would have

concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at

695. “A reasonable probability is one ‘sufficient to undermine

confidence in the outcome,’ but is less than the preponderance

more-likely-than-not standard.’ ” Lambright, 490 F.3d at 1121

5The majority opinion also notes that Cox refused to cooperate and

threatened to “cause a disturbance” in court if negative information about

his mother was presented. Maj. Op. 10437. Cox’s failure to cooperate with

his attorneys did not eliminate his attorneys’s duty to investigate, and thus

did not excuse his attorneys’s deficient performance. See, e.g., Douglas,

316 F.3d at 1089-90 Moreover, the record clearly indicates that Cox’s

attorneys did not even heed his instructions, and in fact presented negative

information about his mother to the court. Accordingly, Cox’s attorneys’s

deficient investigation of Cox’s severe childhood abuse cannot be excused

by Cox’s uncooperativeness or his instructions not to present negative

information about his mother. See Douglas, 316 F.3d at 1089. 

10456 COX v. AYERS
(quoting Summerlin, 427 F.3d at 640, 643). Because California requires that a unanimous jury impose a death sentence,

the question here is whether “there is a reasonable probability

that at least one juror would have struck a different balance

[between life and death].” Wiggins, 539 U.S. at 537. 

Relying on the Supreme Court’s recent decisions in Wong

v. Belmontes, 130 S. Ct. 383 (2009) and Bobby v. Van Hook,

130 S. Ct. 13 (2009), the majority opinion concludes that Cox

was not prejudiced by his counsel’s failure to obtain and present evidence of Cox’s severe childhood abuse because the

omitted mitigating evidence would have been cumulative and

contradictory to the defense counsel’s theories, and because

the aggravating evidence was so great. Maj. Op. 10445,

10447-48. This conclusion is legally and factually unsupportable. 

A. The Omitted Mitigation Evidence Was Not 

Cumulative of the Evidence Presented at Trial

The majority opinion erroneously concluded that the omitted mitigation evidence would be cumulative of the evidence

presented at trial. In both Belmontes and Van Hook, the

Supreme Court determined that the defendant was not prejudiced because omitted mitigating evidence would have been

cumulative of what had been presented to the trial court. In

Belmontes, the Supreme Court concluded that additional

humanizing evidence, such as the fact that his family lived in

“constant strife,” that his sister died of a brain tumor, and that

he was respectful to his grandparents, would have been cumulative of the evidence actually presented at trial, which highlighted Belmontes’ “terrible” childhood and strong

relationships with his family. Belmontes, 130 S. Ct. at 386,

387-88. Similarly, in Van Hook, the Supreme Court concluded that “the minor additional details” of Van Hook’s traumatic childhood, which the interviews with additional family

members would have revealed, did not prejudice Van Hook

because counsel had already presented extensive evidence of

COX v. AYERS 10457
Van Hook’s traumatic childhood at trial.6 Van Hook, 130 S.

Ct. at 19-20.

Here, the omitted mitigation evidence would not have been

cumulative of the evidence presented at trial. At trial, Cox’s

attorneys only presented cursory details of Cox’s abusive

childhood and left the incorrect impression that Cox came

from a loving and stable home and was raised primarily by his

great-grandmother.7 The omitted mitigating evidence would

have shown that Cox spent many of his formative years with

his abusive and neglectful mother, and was subject to a litany

of traumatic events while under her care. 

Specifically, the omitted mitigation evidence would have

demonstrated that Cox, eighteen years old at the time of the

murders, experienced his mother’s violent behavior from the

age of four to eleven. That behavior included threatening Cox

with a steak knife, attempting to kill Cox’s sister, and setting

the residence at which Cox was staying on fire. Cox also

observed a great deal of violence, which included witnessing

his mother attack a police officer with a knife, watching his

mother be taken away in an ambulance after her boyfriend

stabbed her, and being on the scene when his mother’s boyfriend was shot and killed. Accordingly, unlike in Belmontes

or Van Hook, the omitted mitigation evidence in this case was

not cumulative of the evidence presented at trial. 

6At trial, Van Hook’s counsel presented evidence that Van Hook started

drinking as a toddler, began “barhopping” with his father at age nine,

drank and used drugs regularly with his father from age eleven forward,

frequently observed his father hold his mother at gun- and knife-point,

watched episodes of sexual violence, and was beaten on at least one occasion. Id. at 18. 

7Cox’s great-grandmother erroneously testified that she raised Cox from

infancy to age fourteen. The juvenile dependency records would have

revealed that Cox’s mother was his primary caretaker from his birth to age

six or seven. 

10458 COX v. AYERS
B. The Omitted Mitigation Evidence Would Not Have

Contradicted Counsel’s Defense Theories

Relying on Belmontes, the majority opinion also erroneously concludes that the omitted mitigation evidence would

have undermined counsel’s primary non-shooter theory. Maj.

Op. 10445. This case is clearly distinguishable from Belmontes. In Belmontes, the omitted mitigation evidence regarding Belmontes’ mental state would have “opened the door”

for the prosecution to introduce the “strongest possible evidence in rebuttal — the evidence that Belmontes was responsible for not one but two murders.” 130 S. Ct. at 389. 

Here, the introduction of evidence about Cox’s abusive

childhood would not have had any negative ramifications. As

discussed above, the majority opinion’s notion that childhood

abuse evidence would contradict counsel’s non-shooter argument is unfounded. The Supreme Court has noted that childhood abuse evidence is not at odds with a theory that the

defendant is not directly responsible for the crime, see Wiggins, 539 U.S. at 535, and in this case, such evidence could

have explained why Cox ended up in a gang and how he

ended up in a position where he was aiding Williams in the

perpetration of the murders. Accordingly, unlike in Belmontes, the omitted mitigation evidence would not have

undermined counsel’s trial strategies.

C. The Aggravating Evidence Presented During the

Penalty Phase Does Not Preclude a Finding of 

Prejudice

Relying on Van Hook, the majority opinion also concludes

that omission of Cox’s severe childhood abuse was not prejudicial because of the weight of the aggravating factors. Maj.

Op. 10445. Specifically, the majority opinion points out the

violent nature of the murders and that Cox participated in the

murders for money. As a preliminary matter, the prosecution

COX v. AYERS 10459
did not present overwhelming evidence that Cox was the

shooter or that the murders were for hire. 

The two surviving witnesses, who were actually inside the

house when the shootings occurred, gave a description of the

shooter that matched co-defendant C.W. Williams

(“Williams”) rather than Cox. The witnesses described the

intruder carrying the rifle as twenty-five to thirty-five years

old, 5’10” to 5’11” and well-built with a dark complexion,

short hair, and dark clothing. On the day of the murders, codefendant Williams was in his mid-twenties, had a dark complexion, short hair and a muscular build, and wore a dark blue

shirt and dark pants. Cox, on the other hand, was only eighteen years old, had a light complexion, a medium build and

braided hair, and wore tan pants on the day of the murders.

Moreover, two of the prosecution’s key witnesses, Ida

Moore (“Moore”) and Lisa Brown (“Brown”), were

impeached during trial. These witnesses testified that Cox

stated after the murders, “I just blew the bitch’s head off.”

Moore was impeached by her inconsistent testimony at codefendant Horace Burns’s (“Burns”) trial, during which she

attributed the “I just blew the bitch’s head off” statement to

Williams, not Cox.8 Brown was impeached by her statement

to the police that she wasn’t sure if Williams or Cox stated “I

just blew the bitch’s head off.”

The prosecution presented evidence that Cox purchased a

$3,000 Cadillac after the murders, but this evidence does not

establish that Cox participated in the murders for money.

Regardless of whether Cox was the shooter or committed the

murders for money, the aggravating evidence does not preclude a finding of prejudice. There is no question that this

case involves a horrible and senseless crime. Nevertheless, we

8At Burns’s trial, Moore testified that the person who closed the van

door stated “I just blew the bitch’s head off.” She further testified that

Williams, not Cox, was the person who closed the van door. 

10460 COX v. AYERS
have repeatedly found prejudice in capital cases that presented

aggravating evidence which were equally, if not more, troubling than the facts here. 

In Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006), this court

found prejudice even though Hovey was sentenced to death

for the brutal kidnaping and murder of an eight year-old girl.

Hovey bound the girl’s wrists and thighs, fractured her skull

in six places, and stabbed her fourteen times. Id. at 898. The

jury also learned during the penalty phase that Hovey had previously been convicted of kidnaping another young girl. People v. Hovey, 749 P.2d 776, 795-96 (Cal. 1988). Nevertheless,

this court found that Hovey’s death sentence was prejudiced

by his counsel’s deficient performance. Hovey, 458 F.3d at

930-31. We explained that, even though Hovey’s counsel called eighteen witnesses during the penalty-phase, Hovey’s

death sentence was prejudiced by his attorney’s failure to provide all of the pertinent records to an expert witness. Id. at

924-25, 930-31. 

In Douglas v. Woodford, 316 F.3d 1079 (9th Cir. 2003),

this court found prejudice even though Douglas was sentenced to death for murdering two teenage girls. Douglas

forced the two girls to have sex with each other at gunpoint

and then forced the girls to orally copulate him. People v.

Douglas, 788 P.2d 640, 647 (Cal. 1990), overruled on other

grounds by People v. Marshall, 790 P.2d 676 (Cal. 1990).

Douglas then choked, cut, and murdered the girls. Id. In addition to the horrific details of this crime, the jury also learned

of Douglas’s violent past. Two women testified that Douglas

forced them to pose for nude pictures and perform sexual acts

on him. Douglas, 316 F.3d at 1084. The jury also heard testimony that Douglas planned to torture and kill young women

to make sex films. Id. 

Despite the horrific nature of the killings and the significant

aggravating evidence presented by the prosecution, we found

that counsel’s deficient performance prejudiced Douglas durCOX v. AYERS 10461
ing the penalty phase because Douglas’s attorney failed to

uncover and present extensive evidence of childhood abuse.

Id. at 1089-91. Although the jury heard several of Douglas’s

family members testify, and learned that Douglas had been

orphaned as a child and grew up poor, we explained that

Douglas was prejudiced because the jury never learned the

full extent of his troubled past. Id. at 1087-88, 1090.

The aggravating evidence in Cox’s case was substantially

weaker than in Douglas or Hovey.

9

 Cox’s prior criminal history included two juvenile robberies, which are less serious

crimes than Douglas’s depraved sexual acts or Hovey’s prior

kidnaping of a young girl. Moreover, the murders in Cox’s

case were less gruesome than the murders in Douglas, which

involved sadistic torture, or in Hovey, which involved the kidnaping and murder of an eight year old girl.

Had Cox’s attorneys conducted a reasonable investigation

9The majority opinion contends that Hovey and Douglas are distinguishable. Maj. Op. 10445-46. The majority opinion notes that Hovey

involved defense counsel’s failure to provide medical records to the psychiatrist, who was a key witness. Maj. Op. 10446. This is a correct interpretation of the case, but does not address my reason for citing the case—

that prejudice was found notwithstanding substantial aggravating evidence. 

The majority opinion provides more relevant and precise reasoning for

its contention that Douglas is inapposite. The majority opinion notes that

in Douglas, counsel had totally failed to present any evidence of Douglas’s “serious and outstanding mental illness,” and that Cox cannot point

to a “total absence of evidence” regarding any particular area of his life.

Maj. Op. 10446. I do not think that Douglas stands for the proposition that

a “total absence of evidence” regarding a particular area is prejudicial

while inadequate presentation of evidence in a particular area is not. In

fact, such a reading of Douglas would be contrary to the well-settled

notion that prejudice is determined by balancing aggravating and mitigating circumstances. See Strickland, 466 U.S. at 695. Accordingly, I believe

that Hovey and Douglas support my view that Cox was prejudiced by the

omission of his extensive childhood abuse, notwithstanding strong aggravating evidence. 

10462 COX v. AYERS
of Cox’s childhood and presented evidence of the severe

abuse and trauma that Cox experienced as a child, there is a

reasonable probability that at least one juror would have felt

sympathy for Cox and voted differently. See Wiggins, 539

U.S. at 537. Accordingly, “consider[ing] all the relevant evidence that the jury would have had before it if [Cox’s attorneys] had pursued a different path,” Belmontes, 130 S. Ct. at

386, Cox’s attorneys’ failure to obtain and present evidence

of Cox’s extensive childhood abuse was prejudicial. 

D. The Length of the Jury’s Deliberations During the

Death Penalty Phase Supports a Finding of 

Prejudice

I also believe that the length of the jury’s deliberations during the penalty phase of Cox’s trial strongly supports a finding of prejudice. See e.g. Daniels v. Woodford, 428 F.3d

1181, 1209 (9th Cir. 2005) (finding prejudice, in part, because

“[t]he jury deliberated for two days before returning a verdict

of death”). Here, the jury deliberated for three days during the

penalty phase of Cox’s trial and asked to see key pieces of

evidence regarding the identity of the shooter. The length of

the jury deliberations and the jury’s request for additional evidence indicates that the jury’s decision to impose a sentence

of death was not an easy one and that any additional mitigating evidence may have changed the outcome.

Accordingly, I believe that a reasonable probability exists

that the additional mitigating evidence of childhood abuse

would have led at least one juror to vote for a sentence of life

in prison rather than a sentence of death. 

III. Conclusion

At the time of the murders, Cox was eighteen years old.

Although the jury was left with the incorrect impression that

Cox had experienced a fairly normal childhood, the record

demonstrates that Cox suffered severe abuse at the hands of

COX v. AYERS 10463
his mother and was routinely exposed to extreme violence. I

believe that Cox’s attorneys provided ineffective assistance

by failing to obtain and present evidence of Cox’s severe

childhood abuse, which was readily available in Cox’s dependency court file and in Cox’s mother’s arrest records and

court files. Had this evidence been presented to the jury, a

reasonable probability exists that this evidence would have

evoked sympathy for Cox and led at least one juror to vote for

a sentence of life in prison rather than death.10

Accordingly, I dissent. 

10In the face of counsel’s clear ineffective assistance at the penalty

phase of Cox’s trial, I see no need to reach the shackling issue. 

10464 COX v. AYERS