F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

T R A C Y D E A R

L C A I N , Petitioner-Appellant

,

v

.

K E V I N C H A P P E L L , W arden, Respondent-Appellee. No. 13-99008

D.C. No. 2:96-cv-02584-AB C

OPI NI ON

A ppeal from the United States District Court for the Central District of California Audrey B . Collins, District J udg e, Presiding

Arg ued and Submitted Aug ust 2, 2016 Pasadena, California

F iled September 13, 2017

B efore: Diarmuid F . O’Scannlain, J ohnnie B . Rawlinson, and Consuelo M. Callahan, Circuit J udg es.

Opinion by

J udg e RawlinsonC A I N V

. C H A P P E L L 2

SUMMARY *

Habeas Corpus / Death P enalty

The panel affirmed the district court’s denial of a h abeas corpus petition in a death penalty case.

The petitioner was convicted after a jury trial a nd sentenced to death for two counts of f i rst-deg ree murder, b u r g lary

, a

nd robbery

. Disting u ishing Gautt v. Lewis
, 4 8 9 F .3d 993 (9th Cir. 2007), the p anel held that the p etitioner

was n ot denied procedural du e process throug h inadequate notice of a

n attempted rape special c irc u m s t ance, and his

co n stitutional rig hts were not violated when the p rosecutor presented this special circumstance to the jury

.

The panel ex panded the certificate of appealabi lity to include additional claims but h eld that these cla i m s lacked merit. The panel h eld that the petitioner did not establish
g uilt-phase ineffective assistance of counsel in his attorney ’s concession of g uilt on the burg lary counts, failure to object to the a ttempted rape special c i rcumstance, or failure to investig ate and present voluntary intox ication and m ental health defenses.

Th e p an el held that the petitioner did not establish penalty

- p h a se ineffective assistance in counsel’s failure to investig ate and pres ent mitig ating evidence based on the petitioner’s substance abuse, neurolog ical and psy cholog ical problems, and family backg round. The panel concluded that

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C A I N V

. C H A P P E L L 3

t h e petitioner did n o t establish an E ig h th Amendment c lai m based on intellectual disability under Atkins v. Virginia

.

COUNSEL

J onathan C. Aminoff (arg ued) and Mark R. D r o z d owski, Deputy F ederal Public Defenders; Hilary Potashner, F ederal Public Defender; Office of the F ederal Public Defender, L os Ang eles, California; for Petitioner-Appellant.

Kim A arons (arg

ued) and A. Scott Hay ward, D eputy Attorne y s General; L ance E. W inters, Senior Assistant Attorney G eneral; Gerald A. Eng ler, Chief Assistant Attorney General; O ffice of the A t torney General, L os Ang eles, California; for Respondent-Appellee.

OP INION

RAW L I NSON, Circuit J udg e:

I n this de a t h penalty case, Petitioner Tracy Cain (Cain) challeng es the district court’s denial of his federal h abeas petition. Cain was convicted an d s e n t e n ced to death for the murder of a couple, W illiam and Modena Galloway

, w ho resided in a home nex t t o C a i n ’s father. The district court denied Cain’s habeas petition, but g ranted a certificate o f appealability (COA) on Cain ’ s cl aim that he d id not receive adequate notice of the a ttempted rape special circumstance. W e affirm the district court’s denial of Cain’s habeas petition.C A I N V

. C H A P P E L L 4

I. BACKGROUND

I n a criminal complaint, Cain was charg ed with the firstdeg ree murders of the Galloway s. The complaint f urther alleg ed special circumstances premised on multiple mu rder,
rape or attempted rape, robbery or attempted robbery

, a nd burg lary in connection wit h M r s

. G alloway ’s murder. W ith respect to the rape special circumstance, Special A lleg ation No. 4 provided:

I t is further a lleg ed that the murder of Modena S h o r e s G a l l o w a y w a s c o m m i t t e d b y defendant

, T racy Dearl Cain, while the defendant was eng ag ed in the commission o r attempted commission of the crime of rape, in violation of Pena l C ode section 261, within
t h e m e a n i n g o f P e n a l C o d e s e c t i o n 190.2(a)(17).

The complaint also alleg ed special c irc u m s tances b ased on multiple murder, burg lary

, and r obbery or attempted robbery associated with Mr. Galloway ’ s m u rder. Cain was also separately charg ed with the of f e n s e s of rape, burg lary

, a nd robbery

.

A second ame n d e d information alleg ed the same basic offenses and special circumstances, albeit with some additional details. Unlike the orig inal criminal complaint, the amended information did not specifically a lleg e a ttempted
rape as a special circumstance. I nstead, Special Alleg ation 6 stated:

I t is further a lleg ed that the murder of Modena S h o r e s G a l l o w a y w a s c o m m i t t e d b yC A I N V

. C H A P P E L L 5

defendant, Tracy D. Cain, while the defendant

was eng a g ed in the commission of r a p e in violation of Penal Code Sec t i o n 261, within the meaning of P e n a l C o d e S e c t i o n 190.2(a)(17).

Cain did not raise any pre-trial objections to the alleg ations in the amen d e d information addressing the attempted rape special circumstance. See Pe o p l e v

. Cain
, 892 P.2d 1224, 1248 (Cal. 1995) ( I n B a n k ) (ex plaining t h a t , after the prosecution’s rebuttal, “th e t r i a l court raised the issue o f whether the information had provid ed defendant with sufficient n otice o f the attempted rape basis of the special circumstance”) (emphasis added).

The e vidence at trial e stablished that the Galloway s lived

n e x t door to Cain’s father. S ee id. at 1233. Mr. Gallow a y , who was six ty

- three y e ars o ld, suffered f rom poor health a

nd

a back injury

, and “had a habit of keeping l a r g e amounts o f cash in his house.” Id.

During the relevant period, Cain’s father w e n t on a trip, leaving Cain and his y oung e r b r other, V al, at the residence. See id. at 1234. On the n ig ht of the G allo w a y s’ murders, Cain and Val had a party at their f a t h e r’s house. See id. Uly sses Anthony Mendoz a ( M endoz a), F loy d Clements (Clemen t s )

, David Cerda ( Cerda), Rick Albis (Albis), a nd Kevin W alker (W alker) attended the party

. See id.

Mendoz a testified that Cain was ag itated and upset during the party

. Cain threatened Mendoz a and others when h e was unable to find ten dollars that w as missing

, and kicked a h ole in a door because he was ang ry with his brother.C A I N V

. C H A P P E L L 6

M e n doz a related that, at approx imately 1 1:00 pm, Ca i n asked Men d o z a to accompany him to the 7-Eleven to purchase beer. A s they were walking to the 7-Eleven, C a in asked Mendoz a if he “wa n t ed t o help h im burg lariz e or rob
t h a t house nex t door to his house.” According to Men d o z a, Cain stated that he wanted to burg lariz e the residence “so he

can g e t thousands.” Mendo z a r e f used because he “[ d] idn’t have the nerve.”

At the 7-Eleven, Mendoz a and Cain met Richard W illis (W illis) a nd W illis’ friend, Shawn. Cain asked them if they had any cocaine. W hile riding in Shawn’s vehicle, Cain made a “strang ling motion” to Mendoz a, after which Mendoz a asked to be dropped off for fear that “something foolish would happe n

. ” Mendoz a returned to the Cain residence.

W h en Cain arrived at the residence, h e “called [ Mendoz a]

a p u s s y

. . . [ b] ecause [Mendoz a] wouldn’t help him.” Mendoz a then saw Cain a n d Cerda leave the residence. Cerda returned to the Cain residence alone. At some point, Val asked Cerda to check on his brother. After a few seconds

or minutes, Cerda return ed without Cain. W hen Cain eventually returned to the residence, he “had b lood on his hat, inner p art of his hat, on his cheek, on his rig ht foot, [and] on his pant leg .” Cain s t a t ed t h at “he had thousands” a nd Mendoz a recalled that Cain had “ a lot of money in his left palm.” Cain also remarked that he “blipped somebody

. ”

The nex t morning

, Mendoz a observed Cain sleeping in a reclin e r i n t he living room. Mendoz a noticed that Cain h ad $500 nex t to him on a t able. Mendoz a also observed that Cain’s “knuckles were tor n up.” L ater in the day

, Mendoz a and Cain went shopping

. Cain paid cash for new basketballC A I N V

. C H A P P E L L 7

s h o es , a hat, and a c ar stereo. According to Mendoz a, V al asked Cain i f he had k illed someone and Cain responded, “That’s on them. . . .”

The following d ay , Mendoz a attende d a barbecue a t the Cain residence. During the barbecue, Cain t h r e atened Mendoz a if he refused to l e t C a i n use his truck. Mendoz a noticed that Cain had placed a box in the truck co n taining
rag s, sticks, a nd wires. Cain subsequently disposed of the box near the beach.

Dr. F r ederick L ovell, Chief Medica l E x aminer for Ventu ra County
, p erformed an autopsy on Mr. G alloway ’s body

. Dr. L ovell observed numerous bruises on Mr. Galloway ’s body and “hemorrhag e over the entire left side o f [ his] head from front to back on bone, and

. . . hemorrhag e in and around the brain underneath.” Dr. L ovell stated that there

was a minimum of thirteen separate blows on Mr. G alloway ’s body and that Mr. Galloway

died from trauma to his brain. 1

Dr. Ronald O’Halloran, A ssistant Medical Ex aminer for Ventura County
, ex amined Mrs. Galloway ’s body

. Dr. O’Halloran o bserved “multiple injuries o n [ Mrs. Galloway ’s] face.” Mrs. G alloway suffered “a baselar skull f racture” a nd “a hemorrhag e in the space around the brain.” Dr. O’Halloran d etermined that Mrs. Galloway d i ed from “traumatic head injuries.”

1 T h e ev id en ce ref

lected t h at “ [a] b ro k en ch ild ’ s ro ck i n g ch air,
sp lattered w ith blo o d an d m issin g a ro ck er an d an arm rest su p p o r t , w as f o u n d n ex t to Mr. G a l l o w ay ’ s b o d y in th e h allw ay .” Ca in
, 8 92 P.2 d at 1 2 3 6

.C A I N V

. C H A P P E L L 8

Dr. O’Halloran observed Mrs. G alloway “ly ing o n her back on the bed

. . . with her feet and leg s ex tending o ver the side of the bed.” According to Dr. O’Hallo r a n , Mrs. Galloway ’s “leg s were spr e a d w ide apart, ex posing her
g enital area; and she was nu de from the waist d own.” There was also “ a pillow ly ing over her head” and “blood splatters

on the w all.” “There was moist fluid c o m i ng o u t of her
vag inal area, and

. . . a streak of br o w n i sh-red material that appeared t o b e b l ood coming from or c oming from close to her vag inal area.”

D u ring Mrs. Galloway ’s autopsy , Dr. O’Hallor a n “surg ically r emoved the vag ina and ex a mined it” for injuries. Dr. O’Halloran discovered “a one centimeter long tear

. . . inside the vag inal o p e n i ng

. . . .” Due to the lack o f hemorrhag e, Dr. O’Halloran opined that he may have c aused the tear during his ex amination. Dr. O ’Halloran a l so noted
t hat the absence of injuries did not p r eclude a find i n g t h at Mrs. Galloway

was raped.

E d wi n J ones (J ones), a criminalist, testified as a h ai r

ex p ert. J ones determined that fifte en hairs found in Mrs. Galloway ’s panties, p ajama bottom, sl i p per socks, a nd pajama top were microscopica l l y s imilar to Cain’s hair samples. J ones eliminated Mendoz a, Cerda, and Clements a s

sources of the pubic hairs found o n Mrs. Gall o w ay ’s body

. J ones also performed a chemical a n a ly sis of enz y mes in the hair samples and determined that he could not eliminate Cain.

Dr. B ruce W oo d ling testified as a n ex pert on sex ual assault. Dr. W oodling rel a t e d that he had ex a mined
approx imately 2,000 sex ual a ssault victims. After ex amining Mrs. Galloway

, D r. W o o dling concluded that Dr. O’Hallaron’s testimony

that he may have caused the vag inalC A I N V

. C H A P P E L L 9

tear was n ot a “likely ex planation.” Dr. W oodling related that he had never observed a similar tear during removal a nd

ex a mination of th e v a gi n a in the rape cases in which he participated. Dr. W oodling o pined that the laceration was “a classic injury

of a forced penile-ty

pe penetration . . .”

D e tective B illy Tatum of the Ox nard Police Departmen t testified that he invest ig ated the Galloway homicides. Detective Tatum spoke with Mendoz a and d id not observe

a ny injuries on Mendoz a’s h ands. Detective Tat u m subsequently obtained an arrest warrant f or Cain a

nd interviewed Cain a t the police station. The t a p e r e c orded interview was play

e d to the jury

. During the taped interview, Cain i n i t i ally stated that he remained at his residence on t h e n i g ht of the G alloway s’ murders, ex cept to g o to the store, and “stay ed a t home” the following day

. Cain r elated that he f o u n d out a

bout the Galloway s’ murders on t h e f ollowing Monday

, when he returned home from work. Cain ex plained that the bruise on his shoulder w as f

rom h is g irlfriend and the c u ts on his fing ers were from play

ing with his dog

.

Cain eventually admitted that he w ent into the G alloway s’ residence, but d e n ied c o m m i t t ing the murders. After inquiring if the police had any e v i d ence that Cain “killed them,” Cain admitted that he and other individuals entered the residence on Saturday to “wipe[ ] away the finge r p r ints.” Cain also eventua l l y a c knowledg ed that he was in the Galloway s’ residence during the murders, and he asserted that Albis placed a pillow cover over Mrs. Galloway ’s face. Cain mentioned th a t Cerda and Mendoz a hit Mr. Galloway a nd Me n doz a struck Mr. Galloway with a c hair. A ccording to Cain, his fing erprints may have been on the chair because heC A I N V

. C H A P P E L L 10

“picked it u

p and

. . . moved it.” Cain convey ed that he did
not know who raped Mrs. Galloway

, but that Albis struck her in the hallway and placed her on the bed.

Detective Tatum testified that there was a malfunction in the audio tape during the interview, and the tape “just stopped play ing

. . . o n Side 1.” During the m alfunction, Cain admitted to stealing $500 from the Galloway s’ residence.

Prior to jury d eliberations, the trial co u r t ex pressed

concern a

bout the a ttempted rape special circumstance. Specifically

, the trial court observed that the information did

n ot specifically charg e attempted rape, althoug h t h e information c h a rg ed a ttempted robbery

. Cain’s counsel responded:

B u t to be quite candid about it, I ’ ve read Section 190.2 numerous times. I ’m aware it
say s commission or a ttempted commission. I can’t in g ood co n s c i e nce say that I am surprised at this late d ate. I think it’s clear the entire thrust of th e testimony f rom a ll the doctors was an actual rape

. . . I ’m aware o f the section. I ’m aware ho w i t is plead, a nd I ’m aware o f these jury instructions. And I ’ m not g o ing to sit here an d p r e t end that I ’ m surprised and I ’m g oing to holler foul at the D.A. at this lat e t i m e

. . . . I was aware and I heard [ the prosecu t o r] and I could have objected but I

didn’t because I think that he’s entitled to arg ue under Section 190.2 commission or attempted commission.

. . . B ut I don’t think Tracy Cain a nd the defe nse is [ sic] prejudiced. . . .C A I N V

. C H A P P E L L 11

B ased on c ounsel’ s statement, the trial court did not pursue the issue further.

The trial court instructed the jury that it could find t h e special circumstance if “the murder was c ommitted while the defendant was eng ag e d in o r w a s an accomplice in the commission or attempted c ommission of a burg lary [ ,] a robbery o r a r ape” a

n d that “the defendant intended to kill a human being o r intended to aid another in the kil l i n g o f a human b eing [ .] ” The t r ial court also instructed the jury that “the specia l c i r cumstance referred to in these instructions is
not e s t a b l i shed if the burg lary

, robbery or rape was merely incidental to the commission of the murder.”

The jury found Cain g uilty o f first-deg ree murder, burg lary

, and robbery

, b ut a cquitted Cain on the r ape charg e

. The jury determined that Cain murdered Mr. Galloway during the commission or attempted commission o f b u r g lary a nd robbery

. The jury a lso concluded that C a i n murdered Mrs. Galloway during the commission or a ttempted commission o f rape, burg lary , and robbery

. During the penalty phase, Anita Parker (Parker) testified that she w as assaulted by Cain. Ac c ording to Parker, Cain struck her i n t he head with a tire iron and k icked her during an altercation.

Nicholas Perez (Perez ), a juv enile detention officer, related that Cain hit him with h is f ist as Perez was escorting Cain. According to Perez
, h is n ose was broken and he required six stitches above his left ey e.

David W heat (W heat), a state prison supervisor, testified

o n C ain’s behalf. W heat informed the jury that, when C a i nC A I N V

. C H A P P E L L 12

was incarcerated, he was permitted to work on a f ence crew, a position reserved for inmates with no discipline p roblems. I n his reports, W heat rated Cain with the “hig hest number” available due to Cain’s g ood “work habits.”

Rey naldo D u r an (Duran), a training specialist w ith the A riz ona State Department of Corrections, supervised a g round crew to which Cain was assig ned. Duran reported that Cain was rated hig hly for his c o o p e r ation, effort, a nd responsibility

.

W ilma Cain (W ilma), Cain’s stepmother, testified that Cain was one o f eleven children and that Cain’s mother d ied during the J onestown massacre. W ilma described Cain as a “ty pical boy ” g rowi n g u p

. W ilma convey e d that she was shocked that Cain was convicted of the Galloway s’ murders because “it didn’t sound like T r acy [ .] ” W ilma related that Cain “g ot along with every body .”

Persey Cain (Persey

), Cain’s father, also t e s t i f ied that Cain’s mother died at J onestown. Per s e y described Cain a s “a g ood kid” and a “ ty

pical

. . . boy ” during his y outh. Persey

was shocked b y the crime because “it didn’t sound like Tracy Cain[

. ] ” Persey related that Cain had “never been in any kind of problem other than . . . car theft.”

I n his penalty

- phase closing a rg u ment, Cain’s counsel

em p h a s i ze d t h a t the prosecution n ever demonstrated that Cain premeditated o r planned to murder the Galloway s and that there was “no de l i berate killing .” Defense counsel also
arg ued that Cain was severe l y i m p a ired due to his drug use before the murders. His c ounsel maintained that “[ w] e know he was intox icated. Witness after wi t n ess came in a nd testified.

. . . He w a s u s i n g c r ack.

. . . [ T ] he truth is he wasC A I N V

. C H A P P E L L 13

impaired.” Cain’ s c o u

n s e l c o n trasted the Galloway s’ murders with specific cases of brutal, premeditated homicides. He

a s serted that, in contrast to those c a ses, Cain was “dr u g

i m p aired” and “ act[ ed] in a rag e reaction” without a n y premeditation. He a

rg u ed that Cain’s mother died when Cain

was y oung ; that Cain fa i l e d to finish school; and that Cain lac k ed many a dvantag es described by the prosecution. I n addition, defense c ounsel focused on positive reports Cain received while incarcerated.

Defense c ounsel emphasiz ed that Mendoz a was never arrested and that Cerda did not face the death p enalty or “life without parole.” Def

e n se counsel r emarked that Cain was “the only one that’s g oing to end up in jail for the rest of his life, whether h e g e ts the g as chamber in jail or wheth e r he dies in jail.” Cain’s counsel arg ued that life in prison was the
proper punishment g iven the circumstances of life in prison. F inally , Cain’s counsel arg ued that:

[ a ] n unplanned, drug -impaired act with n o fore s e en consequences has cost Tracy Cain his life. B ut . .

. there still is value in his life. H e p r o ved it in prison before. He proved i t with his prison records, a n d h e can prove it
ag ain if y ou g ive him the chance.

The jury sentenced Cain to death based on his first-deg r ee murder of Mrs. Galloway and the multiple murder, attempted

r a p e, burg lary

, and robbery special circumstances. The j u r y also sent e n c e d C ain to d eath for the first-deg ree murder o f Mr. Galloway and special circumstances involving robbery and burg lary

.C A I N V

. C H A P P E L L 14

On direct a

ppeal, the California Supreme Court affirmed Cain’s convictions a

n d sentence. See Cain
, 8 9 2 P.2d at 1276. Relevant to this appeal, the Court rejected C a i n ’ s claim that he received inadequate notic e o f the attempted rape special circumstance. See id. at 1248–49. The Court held:

W e f ind no statut ory error in the lang uag e used to alleg e the rape spe cial circumstance. Althoug h consistency in the form of charg ing special circumstances is preferable, the rape

s pecial circumstance as a lleg ed satisfactoril y charg ed defendant and w as not misle a d ing

. U n d e r t h e s t a t u t e , t h e r a p e s p e c i a l circumstance specifically includes that the crime w a s committed d

u ring the attempted commission of a rape. The information specifically referred to the statute defining the

s p e c i a l c i r c u m s t a n c e

. U n d e r t h e s e circumstances, the rape special-circumstance alleg ation p rovided the ex press notice of the charg es ag ainst defendant required under state law in a capital case.

Id. at 1249 (citati o n s and internal quotation marks omitted). T h e Court emphasiz ed Cain’s counsel’s acknow l e d g m e n t t h a t he was n ot surprised by

the p rosecution’s arg uments and the jury instructions p r emised o n attempted rape. See id. The Court observed:

since the information was su fficient to provide the required notice, and defend an t’s counsel stated defenda

n t w a s neither surprised

n o r prejudiced by the arg umen t a n d instructions relating to a ttempted rape as theC A I N V

. C H A P P E L L 15

basis of the rape special circumsta nce, defendant’s c onstitutional r ig ht to notice o f
t h e c h a r g e s a g a i n s t h i m w a s n o t compromised.

Id. (citations omitted )

. T he Court rejected Cain’s r elated
arg uments that the informa tion was constructively amended
to include attempted r ape, and that h is counsel was ineffective in f ailing to object to the a ttempted rape special circumstance. See id. at 1249 n.17.

Cain subsequently soug ht federal h abeas relief. I n Claim 1(6) of his third amended h abeas p etition, Cain asserted that he did not r eceive constitutionally adequate n o tice o f the attempted rape special circumstance and that the prosecution
eng ag ed in prosecutorial m i s conduct when it arg ued the special circumstance to the jury

. I n Claim 3(7), Cain contended that his constitutional r ig hts were v iolated when the state t r i a l c o u rt instructed the jury on the attempted rape special circumstance.

The district c ourt denied Cain’s claims, but g ranted a certificate of appealability “as to Claims 1(6) and 3(7)
reg arding the constitutional adequacy o f Petitioner’s notice o f the attempted rape special circumstance charg e.”

Cain filed a timely amended notice of appeal.

II. STANDARDS OF REV IEW

“W e review de novo the d istrict court’s denial of [ Cain’s] pet i tion f or a writ of habeas corpus a n d review its f

actual finding s for c lear error.

. . .” Smith v. Rya n , 8 2 3 F .3d 1270, 1278 (9th Cir. 2016), c e rt. denied

, 137 S. Ct. 1283 (2017)C A I N V

. C H A P P E L L 16

(citation omitted). B e cause Cain filed his federal h abeas petition after April 2 4, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies. See Mann v

. Ryan
, 828 F .3d 1143, 1151 (9th Cir. 2016) (en banc). Under
t h e AEDPA, habeas relief is warranted if the state co u r t ’s adjudication of Cain’s claims “was c ontrary to or involved an unreasonable application of, clearly established F ederal law,

as determined by the Suprem e Court of the United States.” 28 U .S.C. § 2254. W e may also g r ant relief if the state

c o u r t ’ s d e c i s i o n “ w a s b as e d o n a n u n re a s o n ab l e determination of the facts in lig ht of the eviden c e p r e sented in the State court proceeding .” Id.

“An adjud i cation is contrary to clearly e stablished Supreme Court preceden t i f the state court arrives at a conclusion o pposite to that reached b y the Supreme Court on

a question o f law or if the state c o u r t decides a case differently than the Supreme Court has on a set of materially indisting uishable facts.” Mann
, 828 F .3d at 11 5 1 (citation, alterations, and internal quotation marks omitted). “ I t i s a n unreasonable application of clearly established Supreme Court precedent if the state court identi f i e s the correct g overning leg al principle from the Supreme Court’s decisions but unreasonably applies th a t p rinciple to the facts of the prisoner’s c ase.” Id. (citation and internal quotation marks omitted). “ An unreasonable application of federal law is differe n t f

r o m an incorrect a

p plication of federal law.” Id. (citation and alteration omitted) (emphases in the o rig inal). “The federal h abeas court may not iss u e the writ simply because that court concludes in its independent judg ment that the r elevant state-court decisi o n a pplied clearly e stablished fed e ral law erroneously or incorrectly .” Id. ( citation a nd internal quotation marks omitted). “A state court’s adjudication is unreasonable only if the federal habeas courtC A I N V

. C H A P P E L L 17

concludes that no fairminded jurist c o u l d conclude that the adjudication was consistent w ith established Supreme Court precedent. . . .” Id. at 1151–52 (citation omitted).

III. DISCUSSION

A. Certif

i ed Issue—Adequate Notice of the Attem pted Rape Special Circu m stance

Cain contends that habeas relief is warranted because he did not receive adequate n otice of the attempted rape special circums t a nce and the prosecutor improperly relied on an attempted r ape special circumstance that was not charg ed in the information.

The Supreme Co u r t has clearly established that a defendant must receive adequate notice of the charg e s ag ainst him. “ No principle of procedural due process is more clearly established than that notice of the spe c ific charg e , and a chance to be heard in a trial of the i s s ues r aised by that charg e, if desired, are among the constitutional rig hts of every accused in a criminal p roceeding in all c ourts, s t a t e o r federal.

. . .” Cole v

. Arkan s a s , 3 3 3 U.S. 196, 201 (1948) (citation omitted). 2

2 Citin g Lo

p ez v. S mith

, 13 5 S

. C t. 1 (2 0 1 4 ), th e State co n ten ds th at Su p rem e Co u

rt preced en t h as n o t clearly estab l ish e d t h e req u irem en t of ad eq u ate n o tice o f th e sp ecif ic th eo ry u

n d er w h ich a f elo n y

- m u rd er sp ecial circu m s tan ce w o u ld b e p ro v ed

. In Lo p ez , th e Su

p rem e Co u rt rev ersed ou r g ran t o f h ab eas relief p rem ised o n f ailu re to p ro v id e ad eq u ate n o tice o f an aid in g

- an d -a b e ttin g th eo ry at trial. S ee id

. at 3

. T h e Su

p rem e Co u rt f au lted u s f

o r g ran tin g relief b ecau se t h e p r o s ecu to r f

o cu sed o n an o th er th eo ry at trial, alth o u g h th e d ef en d an t p rev io u sly receiv ed n o t i ce of
p o ten tial liab ility o n an aid in g

- an d

- ab ettin g t h eo ry

. S ee id

. T h e S u p rem e Co u rt o b serv ed th at it w as n o t d isp u t ed th at th e d e fe n d an t “ receiv edC A I N V

. C H A P P E L L 18

Rely ing on Gautt v. Lewis
, 489 F .3d 993 (9th Cir. 2007), Cain maintai n s that he was n ot p roperly informed of the attempted rape special c i r c umstance in the second amended information. H owever, Cain’s reliance on Gautt is entirely

m i splaced. I n Gautt
, we g ranted habeas relief becaus e t h e information failed to inform the p e t i t ioner that he was charg ed with a speci f ic sentencing enhancement that sig nificantly increased his p otential sentence. See id. a t 998. W e emphasiz ed that “the pivotal f act” in that cas e wa s the complete o m i s s ion of a

ny mention of the specific statute in the information. Id. at 999. W e observed that the charg ed and uncharg e d conduct were dramatically different in that the charg ed statute required “only that the defendant personally used a firearm,” while the uncharg ed statute required that “the defendant personally discharg ed a f irearm.” I

d. ( emphases and internal quotation mark s o m itted). Moreover, the charg ed offense was punishable by a ten-y ear sentencing enhancement and the uncharg ed offense w as g o verned by a “twenty -five-y ear-to-life . . . enhancement.” Id.

F urther compounding the error in Gautt
, “the t ri a l court confused the two statutes when time came to inst r u c t the jury ” and erroneously informed the jury about the additional elements unique to the unch a rg ed offense. Id. The parties did not object to the trial c ourt’s instruction and the prosecution relied on the instruction in its closing arg ument. See id. at 999 n.5, 1 000. Additionally

, “ [ t] he pattern o f

ad eq u ate n o tice o f th e p o s sib ility o f co n v ictio n o n an aid in g

- an d- ab ettin g th eo ry .” Id

. T h eref

o re, Lo p ez is d istin g u ish ab le an d d o es n o t sh o w th at th e req u irem en t o f ad eq u ate n o tice is n o t clearly estab lish ed

. Ho w ev er,

w e n eed n o t—an d d o n o t—d ecid e w h eth er th e re q u irem en t o f n o tice of
t h e p ro secu tio n ’ s th eo ry o f a f elo n y

- m u rd er sp ecial circu m stan ce is

o th erw i se clearly estab lish ed

, as w e c o n c l ud e th at su ch n otice w as p ro v id ed h ere.C A I N V

. C H A P P E L L 19

statutory c onfusi o n an d conflation that beg an with the trial judg e’s instructions to the ju r y re peated itself when the jury completed its verdict form.

. . .” Id. at 1000. Specifically

, the verdict form cited the charged statute, but listed elements unique to the uncharg ed statute. See id. at 1001. F inally

, the abstract of judg ment “ listed

. . . the ten-y ear enhancement

. . . as the basis for a sentence enhancement,” but “also stated that [ the petitioner’s] sentence was to be enhanced twenty -five
y ears to life-the applicable e nhancement under” the uncharg e d statute. Id.

I n concluding that the state appellate court unreasonably d e t ermined that the petitioner received adequate notice, we emphasiz ed:

Th i s i s n o t a situation

. . . in which the numerical c itation was incorrect but the verbal description of the crime corresponded to the crime of which the defendant was convicted. Nor is this a situation in which citation to o ne statute necessarily encompassed an other lesser-included o ffense, t hus sufficiently putting the d efendant on notice o f the need to defend ag ainst both statutes. . . .

Id. a t 1007 ( citation o mitted). W e criticiz ed the state appellate court because it “nev e r actually scrutiniz ed the information to see if it contained any factual alleg ations that would have sufficiently informed [the petitioner] ” of the uncharg e d c o n d u ct. Id. at 1 005. The state appellate court also never ex plained “h o w e x a ctly this triumvirate-the evidence, the jury instruc t i o n s , and the closing arg umentprovided [ the petitioner] w ith sufficient notice.” Id. (footnote reference o mitted). Additionall y , the state appellate courtC A I N V

. C H A P P E L L 20

“did not acknowledg e the multiple discrepancies that e x isted between the information, the jury i n s t r uctions, the verdict form, and the ultimate sentence.” Id. at 1006. B ased o n the
state appellate court’s “critical oversig ht,” we opined that the petitioner’s “ constitutional rig h t to be informed of the charg e s ag ainst him was violated by this stark discrepancy b e t w een the crime charg e d a n d t h e c r ime of conviction.

. . .” Id. at 1008.

Althoug h w e eschewed ex press r eliance on other sources, such as trial e vidence, jury instructions, an d closing
arg uments, to assess whether the petitioner received adequate notice of the charg es, see id. a t 1 008–09, we nonetheless “assume[ d ] -without deciding -that such sources can be parsed for evidence of notice t o t he defendant.” Id. at 1010. Nevertheless, we concluded that, even considering these
sources, the petitioner received constitutionally inadequ a te notice. See id. W e observed that the trial evidence did not focus on the petitioner’s intent as required un d e r the uncharg e d statute; the jury instruction s w ere muddled a nd provided minimal indication that the uncharg ed offense was
at issue; and the prosecution’s closing arg ument w a s too flawed reg a

rding the intent required for the uncharg ed offense to provide adequate notice of the uncharg ed offense. See id. at 1011–13.

Unlike in Gautt
, the California Supreme Court in this case di d not unreasonably conclude that Cain received constitutionally adequate notice of the attempted rape special circumstance. The second amended information did not

ex p l icitly charg e Cain with a n a ttempted rape special circumstance, but alleg ed that Cain “en ga g ed in the commission of rape in vio l a tion of Penal Code Section 261, within t h e m eaning of Penal Code Section 190.2(a)(17).”C A I N V

. C H A P P E L L 21

The provisions of Cal. Penal Code § 190.2(a)(17) in effect at the time of Cain’s trial speci f i e d that a special circumstance
may be based on t h e d e fendant’s attempted commission o f
rape:

The penalty for a defendant f o u nd g uilty o f murder in the f

irst d eg ree shall be death o r confinement in state p r i s o n for a term of life without the possibility o f parole in any c ase in which one or more of the followi n g special circumstances has b een charg ed a nd specially found

. . . t o b e t ru e: The murder was committed w hile the defendant was eng ag ed in or was an accomplice in the commission of, attempted c o mmission of, or the immediate fl i ght after committing or attempting to commit

. . . Rape in violation of Section 261.

Cal. Penal Code § 190.2(a)(17)(iii)(W es t 1987). Thus, the

a l l eg ations premised o n Cal. Penal Code § 190.2(a)(17) sufficiently apprised Cain that the special c i r c umstance

ex p licitly applied to rape a nd to a t t e m p ted rape. See Gautt
, 489 F

. 3d at 1003–04 (ex plaining that “the charg ing document need not contain a citation to the specific statute at issue; the

s u bstance of the information, however, must in som e appreciable w ay apprise the defendant of the charg es ag ainst him so that he may prepare a defense according ly ”) (footnote reference omitted). Moreover, as described in Gautt
, Cain’s

case is “a situation in which citation to one statute necessarily encompassed another lesser-included offense,” t h ereby providing additional notice to Cain of the attempt ed rape special circumstance. I

d. at 1007 (citation omitted); see also People v. Atkins

, 25 Cal. 4 t h 7 6
, 88 (2001) (noting that attempted rape is a lesser included offense of rape u nderC A I N V

. C H A P P E L L 22

California law). I mportantly

, Cain’s counse l f ully acknowledg ed that he was not surprised by the prosecution’s reliance on attempted rape as a special circumstance, and did
not arg ue that Cain wa s p rejudiced by the prosecution’s reliance on attempted rape as a special circumstance.

The California Supreme Court reasonably concluded that Cain r eceived adequate notice of the special circu m s t a nce. Thus, Cain is not entitled to habeas r elief on h is c laim that he failed to receive adequate notice of the special circumstance

or his claim that the prosecut o r improperly presented the special c ircumstance to the jur y

. C f

. Gautt
, 489 F .3d at 1007. 3

B. Uncertif

ied Claim s

“To ex pand the certificate of app e a lability

, [Cain] must make a substantial showing of the denial of a consti tutional

3 A n y erro r i n f

ailin g to pro v id e C ain ad eq u ate n o tice o f th e attem pted
rap e sp ecial circu m stan ce w as l ik ely h arm less. S ee Ga u tt , 4 8 9 F.3 d at 1 0 1 6

– 1 7 (ap p ly in g h arm less erro r rev i e w )

. Cain d o es n o t ch allen g e th e j u ry ’ s v e rd ict t

h at h e w as d eath

- elig ib le b ased o n th e m u ltip le m u rd er, b u rg lary

, an d ro b b e r y sp ecial circu m stan ces. Du e to th e w eig h t o f th e ag g rav atin g circu m stan ces an d t h e u n ch allen g ed sp ecial circu m stan ces,

“ w e are n o t lef

t w ith g rav e d o u

bt ab o u t w

h eth er th e j u ry ’ s co n sid eratio n

o f th e [alleg ed ly ] in v alid sp ecial c i r c um stan ce[] h ad a su b stan t ial an d in j u rio u s ef f ect o n th e j u ry ’ s v erd i ct,” p articu larly as “ th e presen tatio n of

ev id en ce an d arg u m en t d u rin g th e p en alty p h ase w o u ld n o t h av e b een

m aterially d if

f eren t.” Bea rd

slee v. Bro wn , 3 9 3 F.3 d 1 0 3 2
, 1 0 4 4 (9 th Cir. 2 0 0 4 ). T h e j u ry in d ep en d en tly co n sid ered th e sp e c ial circu m stan ces ap p licab le to Mr. Gallo w ay ’ s m u rd er, w h ich d id n o t im

p licate th e attem p ted rap e sp ecial circu m s tan ce. S ee Bro w n v. S

a n ders

, 5 4 6 U .S. 2 1 2
, 22 3

– 25 (2 0 06 ) (u

p h o ld in g cap ital sen ten ce ag ain st a co n stitu tio n al ch allen g e w

h ere a Calif

o rn ia j u ry co n sid ered f

o u r sp ecial circu m stan ces f in d in g s, tw o o f

w h ich w ere later in v alid ated ).C A I N V

. C H A P P E L L 23

rig ht, accomplished b y demonstrating that jurists of reason could disag ree with the district court’s resolution of his constitutional c laims

. . .” Turner v. McEwen
, 819 F .3d 1171, 1178 n.2 (9th Cir. 2016) ( citation and internal quotation marks omitted). A lthoug h w e conclude that Cain has met that standard for the c laims discussed b elow, we d eny each of the claims on the merits.

1. G uilt-P hase Inef

f ective Assistance of

Counsel

“I n e f fective assistance of counsel claims are evaluated according to the familiar s t andard set forth in Strickland .” 4 Mann
, 828 F .3d at 1152. “To receive relief u nder this standard, f

irst, t h e defendant must show that counsel’s performance was deficient.” I d. (citation, alteration

, and internal q uotation marks omitted). “Second, the defendant
must show that the deficient p er f o r m a nce prejudiced the defense.” Id. (citation omitted). “Unless a defenda n t m a kes both showing s, it cannot be said that the conviction or death
sentence r esulted from a breakdown in the adversary process that renders the result unreliable.” Id

. ( citation omitted). “J udicial scrutiny of counsel’s p erf o r m ance must be hig hly deferential, and a court must indul ge a strong presumption that counsel’s c onduct f a lls within the wide r a n ge o f reasonable professional assistance.” Id. (citation and internal quotation marks omitted).

a. Counsel’s Concession of Cain’s G uilt

Cain contends that he was deprived of effective assistance of c ounsel because his counsel conceded at trial that Cain h ad the specific intent to commit b urg lary

. C a i n m a i ntains that

4 S trickla n d

v. W a sh in g to n , 4 66 U.S. 6 6 8 (1 9 8 4 ).C A I N V

. C H A P P E L L 24

his counsel pursued a n ill-informed strateg y in a dmitting Cain’s g uilt on the burg lary counts b e c a u se Cain never confessed to burg lary

.

The California Supreme Court denied this claim o n direct review. See Cain , 892 P.2d at 1241. The Court concluded:

Defendant also appears to arg ue his counsel’s concessions w ere an incompetent tacti c al choice. W e disag ree. Defendant admitted to the police o n t ap e he was inside the victims’ residence when they we r e murdered and he

e n tered the residence with the intent to stea l
money

. His taped statement was play e d to the jur y

. Defendant’s admission that he entered the r esidence for the purpose of stealing

m o ney proved his specific intent to com m i t burg lary

. Under the felony

- murder r ule, his commission o f burg la r y , tog e ther with the killing of the victims in the commission of the burg lary

, made him liable for murder. Under these c ircumstances, we cannot c o n clude counsel was ineffective for candidly a dmittin g defendant’s g uilt on these c o u n ts while vig orousl y arg uing ag ainst defendant’s g u ilt of the special circumstances.

Id. (citations omitted).

“I n assessing adequacy of representation, we are r equired not simply

to g ive the attorney s the benefit of the doubt, but
to affirmatively enter t a i n the rang e o f possible reasons defense counsel may have h ad for p roceeding a s he did.

. . . ” Gallegos v

. Ryan
, 820 F .3d 1013, 1030 (9th Cir. 2016) (citingC A I N V

. C H A P P E L L 25

Cullen v

. Pinhols t e r , 131 S. Ct. 1388, 1407 (2011) (alterations, and internal quotation marks omitted). A t trial, Cain’s counsel “was confronted with an ex ceeding ly d ifficult task in f ormulating a defense” g iven Cain’s a dmissions during his taped confession and the evidence ag ainst him. Id. at 1018. W e have recog

n iz ed that:

As a strateg ic matter, disputing [ the petitioner’s] inv o l v ement in the crime would have been unpersuasive g iven the evidence, and [ counsel’s] acknowledg ment of his client’s g uilt in the killing c ould reasonably have been intend e d to establish credibility with the j u ry in the face of horrendous facts. . . .

Id. a t 1027 (citations omitted). I n lig h t of the evidence
ag ainst Cain a

nd his admissions of g uilt, Cai n “sug g ests no alternate theory

, let alone one more likely to succeed than the

one chosen” by his counsel. I d. at 1029. I ndeed, the inability

o f C a in’s c ounsel “to avoid a conviction of a predic a t e offense was unrelated to a ny alleg edly deficient conduct” a nd convincing the jury that Cain was n ot g uilty of felony murder “would have been a

n ex ceedi n gl y difficult task for even the
most skilled a ttorney .” Id. at 1035. Rather, Cain’s counsel focused on Cain’s def

e n s e theory that, a lthoug h involved in the crimes, he never participated in the actual k illing s of the Galloway s and lacked the intent to kill required for the jury
t o find any of the a lleg ed special circumstances to be tr u e. Rely ing on this t h e o ry , Cain’s counsel could h ave made a reasonable strateg ic calcul a t ion not to contest the strong evidence of Cain’s g uilt for f elony murder, but instead, to focus on avoiding a capital sentence for Cain. S ee F lorida v

. Nixon
, 5 43 U .S. 175, 1 90–92 ( 2 004). Thus, “[ a] bsent anyC A I N V

. C H A P P E L L 26

defense that could have promised a g reater chance of success,

w e c a nnot c onclude that [ Cain’s c o u nsel] was deficient f o r choosing the one he did. The choice to pursue a bad strateg y makes no comment on an attorney ’ s judg ment where no b e t ter choice ex ists.” Gallegos

, 8 20 F

. 3d at 1029 ( citat i o n and internal quotation marks omitted).

Cain als o asserts that the California Supreme Court’s determina t i o n that Cain admitted entering the G alloway s’ residence with intent to commit burg lary was unr e a s o nable. According to Ca i n , he never admitted that he entered the Galloway s’ home to steal money

. However, even if the California Supreme Court was wrong that the tape r e cording s of Cain’s police interview include an e x plicit admission that h e went into the Galloway ’ s home with an intent to ste a l o n the n ig ht o f the killing s, there remains sufficient evidence for the c ourt to have concluded that Cain h a r bored such an intent. I ndeed, o n the tape Cain admitted that he did want to steal from the Galloway s the nex t morning

, and testim o n y w a s offered that he did (and did intend to) steal from them the nig ht before as well. “[ Section] 2254(d)(2) requires that we accord the state trial c o u rt substantial deference.” Brumfield

v. Cain
, 135 S. Ct. 2269, 2 277 (2015) “I f reasonable minds reviewing the record mig ht disag ree about the finding in question, on habeas review that does not suffice to supersede the [ state] court’s determination.

. . .” I d. (citation, alteration, and internal quota t i o n m arks omitted). The record reflects that Cain admit t ed to b eing inside the G alloway s’ residence during the murders. The trial testimony also reflected t h at Cain sug g ested to Mendoz a that they burg lariz e the Galloway residence so that he could “g e t thousands,” and t h a t he possessed a larg e sum of money after the murders. The state court’s denial of this claim was not contrary to, nor d id it involve an unreasonable i n t e rpretation of Strickland

. SeeC A I N V

. C H A P P E L L 27

Strickland

, 466 U.S. at 690 (clarify ing that counsel’s tactical decisions are “virtually

unchalleng eable”).

b. F ailure To Object To A t t e m pted Rape Special Circum stance

Cain contends that his counsel was ineffective because he did not object to the attempted rape special circumstance.

R ejecting Cain’s claim on direct r eview, the Califor n i a Supreme Court concluded:

W e doubt, more o v er, whether the principal

erro r a lleg ed, i.e., c o unsel’s failure to claim surprise and prejudice where there was none, could be considered constitutionally deficient
per formance even if prejudicial. Effective assistance does not re q u i re counsel to refrain from frankness and honesty i n his or her dealing s with the court. . . .

Cain
, 892 P.2d at 1 2 49 n.17 (citations and internal quotation marks omitted). The distri c t c o u rt ruled that the state court “was not unreasonable in holding that [Cain ] had adequate notice” o f the attempted rape special circum stance, or in finding counsel’s performance to be adequate. W e ag r ee because counsel’s p erform a nce did not f all below an objective standard of r easonableness in acknowl e d g ing the portent of the state statutory provisions. See United States v

. Cronic
, 4 66 U.S. 648, 656 n.19 (1984) (observing that “the Six th Amendment doe s n o t require that counsel do what is impossible or unethical. I f there is no bona fide defense to the charg e , counsel canno t c r e ate one and may disserve theC A I N V

. C H A P P E L L 28

i n t e re sts of h is client by attempting a useless charade.” ) (citation omitted).

c. F ailure To Investigate and P r ese nt Voluntary Intoxication and Mental Health Def enses

Cain describes his counsel a s ineffective because h e failed
to investig at e a n d p resent a voluntary intox ication defense during the g uilt phase o f the trial, premised on Cain’s cocaine use and neurolog ical deficits.

On direct r eview, the California Supreme Court observed:

Defendant further contends trial counsel did
not present even a minimally effective
arg ument on the undisputed use of a l cohol

a n d drug s on the nig ht in q uestion. Cou n s el did briefly arg u e there was no i n t e n t to k ill because defe n dant was obviously under the influence of a lcohol and drug s. Be l aboring this point would have risked a ppearin g to concede defendant was the k ill e r , which

wo uld have conflicted with and detracted from counsel’s p rimary arg ument, that (consistent w ith his p o l i c e s t a t e ment) defendant had n ot killed any one, pl a n n e d to kill a ny one or assisted in killing any one in the burg lary

. I n addition, almost no evidence was presented reg arding the quantity a nd effects o f the d rug s consumed b y defendant on the nig ht of the murders or the effect consumption h ad

on defendant. D efendant thus cannot demonstrate either defi c ient p erformance o rC A I N V

. C H A P P E L L 29

prejudice in his counsel’s arg ument relating to this subject.

Cain
, 892 P.2d at 1255 (internal quotation marks omitt e d ). The California Supreme C o u r t summarily denied Cain’s more developed ineffective assistance o f counsel claim o n h abeas review, that was not limited to diminished capacity o n t h e nig ht of the murders. 5

The dist r ict court h eld that the California Supreme Court’s summary denia l of Cain’s claim was not unreasonable because “[ t] he c ourt may have r e a s onably concluded on habeas review that counsel reasonably relied on

ex p ert opinion in not presenting a n intox ication or d iminished capacity defense.”

Cain’s counsel was p rovided a psy cholog ical evaluation from Dr. Theodore D onaldson p rior to trial. According to Dr. Donaldson, Cain “denied the use of illeg al drug s or alcohol.” Additionally

, the district court referenced a r e port from Dr. Ronald S i e gel concerning tests of Cain’s hair for “the

5 Cain m ain tain s th at th e d istrict co u rt e r r e d i n basin g its den ial of h ab eas relief o n th e Calif o rn ia S u prem e C o u rt’ s su

m m ary d e n ial. Cain
asserts th at t

h e C alif orn ia Su p rem e Co u rt’ s d ecisio n o n d irect ap p eal is th e

o p erativ e d ecisio n u n d er th e A EDP A

. Ho w e v e r, th e d istrict co u rt o n ly ref eren ced th e su m

m ary d en ial f o r claim s n o t ad d ressed b y th e S u p rem e Co u rt o n direct rev iew

. W e ag ree w ith th e d istrict co u rt th at th e o p erativ e d ecisio n is th e Calif

o rn ia Su p rem e Co u

rt’ s su m m ary d e n i a l b ecau se its d ecisio n o n d irect rev iew d id n o t ad d ress Cain ’ s m o re f u l l y d ev elo ped claim assertin g in ef

f ectiv e assistan ce f

o r f ailu re to p ro p ose in t o x icatio n d ef en se in stru ctio n s f

or t h e sp ecial circu m stan ce alleg atio n s. S ee Ca in
, 8 9 2 P .2 d at 12 5 5 ; see a l

s o A y a l a v. Ch a

p pell

, 82 9 F.3 d 1 0 8 1
, 10 9 4

– 9 5 (9 th Cir. 2 01 6 ).C A I N V

. C H A P P E L L 30

presence of controlled substances.” A s the district court articulated:

Dr. Sieg el’s report, dated May 9, 1988, states tha t he interviewed a

nd e x amined [ Cain] on April 17, 1988. Trial counsel d elivered his
g uilt-phase closing a

r g u ment on Ap r il 20, 1988. Dr. Sieg el’s report states, “Prior to the
events of October 1986, [ Cain] reported to me that h e was high on beer and marijuana, but d e n i e d recent use of o ther substances. The analy se s o f h air samples indicated no detectable amounts of marijuana, coca i n e, o r other substances for the past 2.5 y ears . . .”

(internal quotation marks omitted). Thus, i t a ppears that Cain’s counsel did consult ex perts to investig ate the efficacy of intox ication and mental health defens e s

. A nd it is not i n e f f ective for counsel to refrain from pursuing jury instructio n s that have no basis in the evidence. See Clabourne v. Lewis
, 6 4 F .3d 1373, 1381–82 (9th Cir. 1995). According ly

, this claim fails on the merits. See Strickland

, 466 U.S. at 689 (noting “the wide latitude counsel must have in making tactical decisions”).

2. P enalty-P hase Inef f ective Assistance of Counsel

Cain asserts that his counsel was ineffective in failing to investig a t e and present mitig ating evidence based o n Cain’s substance abuse, neurolog ical a nd psy cholog ical p roblems, and family

backg round.C A I N V

. C H A P P E L L 31

“[ B ] ecause the state court summarily denied [ Cain’s] penalty p hase ineffective assist an c e claims, w e must determine what arg uments or theories could have supported the state court’s decision; and then we must a sk whether it is possible f

airminded jurists could disag ree that those
arg uments or theories are inconsistent with the hold i n g i n a prior d ecision of the Supreme Court.” Gallegos

, 8 20 F

. 3 d at 1037 (citation, alterations, and internal quotation marks omitted). I n the contex t of p e n alty -phase ineffective assistance of counsel, we have acknowledg ed that “the standards c reated by Strickland and § 2 254(d) are b oth hig hly deferential, and w h e n the two apply in tandem, review is doubly so.” Cummings v. Martel , 796 F .3d 1135, 1 148 (9th Cir. 2015) ( c i t a t i on and alteration o mitted). “The multiple lay ers of d eference create a standard that is difficult to meet, and even a strong case for relief d o e s n ot mean the state court’s contrary conclusion was unre a s o n able.

. . . ” Id. (citation and internal quotation marks omitted).

“The f irst step in determining whether counsel’s deficient performance prejudiced the defendant at the penalty phase is evaluating t h e t otality of the available mitig ation evidence.

. . . ” Andrews v

. Davis
, Nos. 09-99012, 09-99013,

— F .3d —, 2017 W L 3255161, at * 16 ( 9th Cir. Aug

. 1, 2 017) (citation and internal q u o t ation marks omitted). A fter the mitig ating evidence is identified, a court weig hs the streng th of the mitig ating evidence “by assessing its likely impact on

a jury

. This weig hing p r ocess includes evaluating w hether its i m p a ct on the jury mig ht be ag g ravating rather than mitig ating .” Id. at *17. Courts may “c o n s i d er the fact that mitig ation may

be in the ey e of the beholder, and juries may find that some evidence offered as mitig at i o n cuts the other

w a y .” Id. (citation and internal quotation marks omitted). W e have also noted the Supreme Court’s observation that “ onC A I N V

. C H A P P E L L 32

o n e hand, a jury could react with sy mpathy over the trag i c childhood of the defendant, while on the other h and, the same testimony could e stablish the defendant’s unpredictable propensity for violence that resulted in murder.” Id. (citation, alteration, a

nd internal quotation marks omitted). “Similarly

, evidence o f mental a

n d emotional problems mig ht sug g e st an increased likelihood that a defendant would be dang erous in the future. . . .” Id. (citation omitted).

“The second step in determining whether counsel ’s deficient p erformance prejudiced the defendant at the penalty phase is evaluating the weig ht of the ag g ravat i n g e v idence and any rebuttal evid e nce that the g o vernment could have adduced had the mitig ating e vidence been int r o d u c ed.” Id. (citations omitted). “Ag g ravating evidence may include evidence relating to the circumstances of the crime. Thus in Strickland

, the Court found the ag g ravati ng evidence to be overwhelming where the defendant had repeatedly stabbed the three murder victims during a robbery

. . . .” Id. (citation and internal quotation marks omitted). “ Rebuttal evidence
may a lso directly undermine the v alue of the mitig at i o n evidence.” Id. at * 18. “F or ex ample, the Supre me Court [ has] noted

. . . . that it wo u l d be of questionable mitig ating value for de fe n s e counsel to introduce ex pert testimony di a g nosing a defendant w ith bipolar mood disorder a nd

s e i zu r e d i s o r d ers, because such evidence would invite rebuttal by a st ate ex p ert, w ho could reject the diag nosis of bipolar di s order a

nd offer a different diag nosis of a ntisocial personality disorder.” Id. (quoting Pinholster

, 131 S. Ct. at 1410) (internal quotation marks omitted).

The third and final step in as s e s s i n g prejudice at the penalty phase “is to rewe i g h t h e evidence in ag g ravation
ag ainst the totality

of available mitig ating evidence, in orderC A I N V

. C H A P P E L L 33

to determine whet h e r t h e re is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of ag g ravating and mitig ating circumstances did not warrant d eath.” Id. (citations, alteration, and in t e r n al quotation marks omitted)

. “ A reasonable probability is a level of p robability that undermines confidence in the
outcome.

. . .” Id. ( citation, a lteration, and internal quotation marks o mitted). “The likelihood of a different outcome must be substantial, n o t just c on ceivable.” Id. (citation a nd

a lteration omitted). “ The Court h as found a reasona b l e probability o f a different o u tcome when scant a n d w eak
ag g r avating evidence could have been presented in rebuttal to strong ly mitig a ti ng evidence.” Id. (citation omitted). “B y contrast, t h e Court has found no p rejudice when the
ag g r avating eviden c e i s o verwhelming

, even thoug h the mitig ating evidence is strong .” Id. (citation omitted).

Prior to trial, defense counsel r etai n e d D r

. Donaldson to conduct a psy cholog ical evaluation. Dr. Donaldson observed that “there were no indications of a though t d i s order.” Dr. Donaldson convey ed that:

F or the most part, results o f psy cholog ical testing were hig hly consistent among tests a nd with the clinical impression. There were no indications of sig nifi c a

n t p s y c h o p atholog y nor indications o f sig nificant eg o deficits o r inadequacies in reality testing

. The tests a re most remarkable in a general lack o f indications of serious p s y c h o l o g i c a l problems. Testing did indicate the ex istence o f sig nificant situational stress

. . . Mr. Cain

a p p e ars as an emotionally unstable personalit yC A I N V

. C H A P P E L L 34

characteriz ed by poorly controlled ang er a nd a tendency

to temper outburst.

Dr. Donaldson concluded:

Mr. Cain display s many of the features o f sociopathy

, althoug h that is too s i m p le a d iag nosis, and there are a lso hy steroid a nd

n a r c issistic features as well. His antisocia l acting out appears to have not started until he

was in his late teens, but indicati o n s a re that this acting o ut h as increased in frequency a nd severity at a r ap i d rate. T his sug g ested the
p o s s i b i l i t y o f c e n t r a l n e r v o u s s y s t e m dy sfunc tion, but none was found in this evaluation, althoug h that p a rt of the

e v a l u a t i o n w a s s o m e w h a t l i m i t e d

. N o n e t h e l e s s , t h e r e w e r e c e r t a i n l y n o indications of g ross brain disorder. Mr. Cain

seems predis posed to episodic and violent acting out, and there are no indications in this evaluation that such episodes are the result o f dissociation or psy chosis.

B a sed on D r. Dona l d s o n ’ s e valuation, Cain’s counsel may have seen limited utility in presenting a defense premised on Cain’s mental state. Dr. Donaldson referred to C ai n’s “sociopathy ” and predisposition to “ episodic and violent acting o ut” t h a t w e re n ot the result of any “g ross brain disorder” or psy c hosis. I t w ould not have been unreasonable for the California Supreme Court to determine that C a i n ’s counsel did perform an investi g a tion and relied o n Dr. Donaldson’s evaluation in deciding to e mphasiz e Cain’s
p o sitive conduct during past incarcerations and his lack o fC A I N V

. C H A P P E L L 35

premeditation rather than Cain’s troubled b a c kg round a nd
psy cholog ical impairments.

Cain arg ues that his counsel a lso unreasonably fai l e d to follow up on c ertain “red flag s” r aised in Dr. D onald s o n’s report that “sug g ested th e p o ssibility of central nervous dy sfunction,” even thoug h “none was found in [ D r. Donaldson’s] evaluation” and Dr. Donaldson concluded that there w ere “certainly no indications of g ross brain disorder.” I n support, Cain submitted a declaration from Dr. Donaldson

more than a decade later stating that he “recall[ e d ] a d v ising [ Cain’s counsel] that he mig ht want to h a v e Mr. Cain

ex a mined by a neurops y ch olog ist.” Given Dr. Donaldson’s
g eneral difficulty remembering the details of his interactions with Cain’s counsel, it w ould be reasonable to d oubt whether that recommendation was ever made. But even if Dr. Donaldson’s assertion is accepted as true, the state court could reasonably conclude that not all c ompetent attorney s would pursue additional ex pert testing based on Dr. Donaldson’s mere sug g estion that certai n d y s f unctions “ may ”

or “migh t ” e x ist, especially where Dr. Donaldson’s o wn report found no evidence of such d y s f u nctions. S

ee, e.g. , Leavitt v

. Arave
, 646 F. 3 d 605, 6 09–10 (9th Cir. 2 011) (concluding that an attorney was not required to pursue “red flag s” in a medical r eport that could only be ruled out throug h further testing

, g iven the other conclusions in the report that

o t her causes were more likely ); see also W est v. R ya n , 608 F

. 3d 477, 4 88–89 (9th Cir. 2010) (same); Pinholster

, 131 S. Ct. at 1406–07 ( acknowledg ing that defense counsel may reasonably determine that a particular inv e s t i g ation is
unnecessary

).

Admittedl y , the social and psy c holog ical evaluations conducted after Cain’s conviction indicate that Cain was notC A I N V

. C H A P P E L L 36

a ty pical child. F or ex a mple, a social h istory and evaluation conducted by D r. Stanley Huey reflects the troubled criminal and psy cholog ical history o f Cain’s mother w h o died at J onestown, the difficul t i e s that Cain’s stepmother had in taking care of the famil y ’s n umerous children; the severe beating s and punishment meted out by h is stepmother; Cain’s untreated head inju r y in his childhood; and Cain’s learning disabilities. Althoug h Cain’s social and p s y cholog ical h i s t o r i e s m a y h a v e p r o v i d e d p o t e n t i a l m i t i g a t i n g circumstances, the additional backg round information is not sufficiently compelling to warrant habeas rel i e f

. See Cummings
, 796 F .3d at 1148–50. Additionally

, Cain’s social and psy cholog ical histories could have “opene d the door to inflammatory and prejudicial ag g ravating evidence.” Id. at 1150. Moreover, in lig ht of the ag g ravatin g circumstances involving the brutal murders o f a couple in their six ties, the thirteen b lows administered to Mr. Galloway

, the attempted
rape of Mrs. G alloway

, and Cain’s prior violent acts, the state court’s denial of this claim was n ot unrea s o n a b l e. See Andrews

, 2 0 1 7 W L 3255161, at *18 ( observing that “the likelihood of a different result must be subs t a n t i al

, not just conceivable” to establish p rejudi c e) ( c itation and alteration omitted); see also Strickland

, 466 U.S. at 687 (clarify ing that
t o e s t ablish prejudice a defendant must show that he w a s deprived of a fai r t r i al). F or the same reason, Cain’s intox ication and substance abuse mitig ation claims lack merit. 6

6 Cain also co n ten d s th at t h e district co u rt erro n e o u sly d en ied h is
req u est fo r an ev id en tiary h earin g becau se Cain d em o n strated a p rima fa cie case th at th e state co u rt u n r e a s o n ab l y rej ected h is in ef f ectiv e assistan ce o f co u n sel claim

. Ho w ev er, “ so lo n g as w e are rev i e w i ng a p etitio n er’ s claim u n d er A EDP A
, o u r rev iew is l im ited to th e f acts b ef ore th e state co u rt an d th e p etitio n er is n o t en titled t o an ev id en t iary h earin gC A I N V

. C H A P P E L L 37

3. Atkins 7

Claim

Cain asserts that the California Superior Court unreasonably denied his Atkins claim becaus e Cain demonstrated that he was intellectually disabled based on an I Q of 71 when considering Cain’s adaptive deficits a n d the F ly nn effect. 8

The California Supreme Court issued an order to show

cause why Cain’s death sentence should n ot be vacated under Atkins

. I n the subsequent Superior Court hearing on the order
to show c ause, two psy cholog ists testified concerning Cain’s alleg ed intellectual disability —Dr. R i c a

r d o We i n s t e i n and Dr. Efrain B eliz

, J r. Dr. W einstein had e v a luated approx imately thirty -five individuals to determine if they were intellectually disabled. After administering seve ral tests to Cain, Dr. W e instein determined that Cain had a full scale I Q score o f 71. Dr. W einstein also relied on a p r ior tes t f r o m another
psy cholog ist reflecting that Cain had a full scale I Q score o f 75. B ased on h is consideration of the F ly nn effect, Dr. W e instein deducte d p oints from Cain’s I Q score a nd

in f ed eral co u rt.” Mu rra

y v. S ch riro
, 7 4 6 F .3 d 4 1 8
, 4 41 (9 th C ir. 20 1 4) (citatio n o m itted ).

7 Atkin s v. Virg i n ia , 5 3 6 U.S. 3 04 (2 0 0 2 ).

8 “ T h e b asic p rem ise o f th e Fly n n ef f ect is th at b ecau se av erag e IQ

s c o r e s i ncrease ov er tim e, a p erso n w h o t ak es an IQ test th at h as n o t

recen tly been n o rm ed ag ain st a rep resen tativ e sam p le o f t h e p o p u latio n

w ill r e c e iv e an artif

icially in fla ted IQ sco re.” Smith v. Rya n , 8 13 F.3 d 1 1 7 5
, 1 18 4 (9 th C ir. 2 0 1 6 ), a s co rrected (citatio n o m itted ) (em p h asis in
t h e o rig in al). “ T h is is b ecau se IQ sco res are b ased on a n o r m a l d i s trib u t io n cu rv e, an d th u s an in d iv id u al’ s s co re is m ean in g f u l o n l y i n relatio n to th e sco res o f th e o th er peo p le w h o to o k th e sam e t est.

. . .” Id

. (citatio n o m itted ).C A I N V

. C H A P P E L L 38

determined that Cain was “mildly mentally r etarded.” Dr. W e instein also relied o n Cain’s sc h o ol records in assessing Cain’s a daptive behavioral defi c i t s

. The records reflected that Cain had several learning disabilities, particularly in the

areas of verbal abilities

, r e a soning

, a nd mathematics. Dr. W e instein opined that:

from childhood throug h the time of his current incarceration, Mr. C a i n qualified for a diag nosis o f mild Mental Retardation. I Q

s c o r es fell at o r below the 70 to 75 rang e , w h i c h m e e t s t h e A A M R [ A m e r i c a n Association on Me n

t a l Retardation] definition of intellect ual f

unctioning two standard deviations or more below normal. Moreover, Mr. C a in’s adaptive f

unctioning met the AAMR standards for mental retardation.

Dr. B eliz had evaluated a pprox imately 6,000 individuals
to determine if they were intellectually disabl e d

. Dr. B e liz observed that Cain “has never been diag nosed in the past with fetal a lcohol sy

ndrome or affect, alcohol or drug dependency

, or sig nificant brain damag e.” According t o Dr. B eliz

, in 1977, Cain was administered the Peabody Picture Vocabulary Test and received “a sta n dard score of 8 5, w hich is the low
averag e rang e”; a Culture F air Scale I I test with a score of 75; and a W e chsler I nt ellig ence Scale for Children with a “full scale score” of 7 8 a n d a “performance I Q score of 93.” Dr. B eliz o p ined that “ t he p erformance I Q score of 93 is sig nificant because one c oul d not be mentally retarded a nd achieve this scor e o n t his part o f this test.” Dr. B eliz also noted that Cain received a n I Q score of 64 on one test administered in April, 1977.C A I N V

. C H A P P E L L 39

Dr. B e liz observed that, in 1980, Cain received a score o f 73 on the Peabody Picture V ocabulary Test and a score of 87 on the Culture F a ir Scale I I Test. The records indicated that there was “no evidence of org ani c brain problems o r impairments in cerebral functioning ,” althoug h Cain suffered from learning disabilit ies. Dr. B eliz r elated that Cain “was

never determined to be mentally retar ded” in his school testing

.

Dr. B eliz determined that Cain “ex pres s e s himself w ell and is able to carry on adult conversation. [ Cain] was able to follow instructions, listen attentively for at least 30 minutes, and carry ou t instructions.” Cain also “speaks in full sentences, asks appropriate questions about his environment,

uses reg ular past tense verbs, modulates h i s t o n e o f voice appropriately and provides complex directions to others.” During Dr. B eliz ’s interviews, Cain “did not bec o m e confused, frustrated, or bewildered b y test demands” a nd Cain “was we l l oriented with his attention and [ his] concentration [ was] not sig nificantly impaired.”

Dr. B eliz administered seven psy cholog ical tests to Cain during his evaluation and he did not adjust Cain’s scores for the F ly nn effect. Dr. B eliz concluded:

Mr. Cain is not mentally retarded. There is

no evid en c e to sug g est that Mr. Cain has sig nificant cog nitiv e and adaptive limitations.

. . . W hile test scores on p a rticular instruments mig ht y ield ex tremely low scores sug g estive of mental retardation, the s c ores

can only be considered valid if the individual evaluated is a g ood fit with test scores. . . . I n Mr. Cain’s case, the f

a c t that he scores low onC A I N V

. C H A P P E L L 40

c e rtain tests or that h e ex hibits s o f t

neur o l og ical finding s does not a utomatically
t r a n s l a t e i n t o a di a gn o s i s o f m e n t al retardation, particularly when he does not

e x hibit behaviors indicative of sig nifican t

c o gn i t i v e a n d a d a p ti v e l i m i t a t i o n s o r neurolog ical impairment.

I n conclusion, there is absolutely no evidence f o r mental retardation. Mr. Cain is a ble to survey , org aniz e, and integr a t e stimuli in a meaning ful m a n ner. Mr. Cain walks, talks, problem solves, socializ es, th i n k s , r e a s ons a nd interacts with othe r s and his environment without sig nificant difficulty

. Cog nitive a n d adaptive skills a

r e a d equately developed a nd free from sig

n ificant impairment. . . .

The C a l i fornia Superior Court determined that Dr. W ei n s tein’s testimony “suffer[ ed] from a number o f infirmities.” According to the court, Dr. W e instein relied on

a prior psy cholog ical evaluation to support his conclusions, without acknowledg ing that t h e p r ior evaluation p rovided that Cain’s “ performance score sug g ests that he has the
po t entiality of operating within the averag e rang e o f intellectual abilities” or that Cain’s “ low test scores reflected

a possible learning disability ,” not an intelle c t u a l disability

. Dr. W e instein also failed to mention that Cain r e c e i v e d a score of 85 on tests administered by the same psy cholog ist.

The California S u p erior Court observed that Dr. W e instein’s application of the F ly nn effect was unpersuasive in Cain’s case be c a u s e “the observation that there is a trend in a p opul a tion toward rising I Q scores, even if credible (anC A I N V

. C H A P P E L L 41

assertion which was n ot proven in this action), does not support the p ractice of apply ing a point correction t o t h e I Q

scores o f individual persons.” The court also opined that Dr. W e instein applied the AAM R “recommended correction o f 5 points twice.”

The Cal i f

ornia Superior Court articulated that Dr. W e instein lacked “sig nificant e x perience in making determinations of whether pers o n s are or are n ot” intellectually disabled. “More i mportantly

, [Dr. W e instein]

co m m i tted himself to the opinion that the petitioner is mentally retarded e a

rly on in his work on this case, on skimpy infor m a tion. Dr. W einstein’s subsequent work has been aimed at bolstering that initial opinion instead of objectively assessing [Cain] .” The court concluded tha t D r

. W einstein acted a s “an advocate in this c a se,” and that “Dr. B e liz provided the only

credible ex pert opinion in this matter.”

The California Superior Court noted that Cain’s interview with a news r eporter after the murders w a s i n cluded in the record. At the time of the interview, the reporter w a s interviewing neig hbors of the slain couple, unaware that Cain

was the murderer. The court observed that Cain “understood the nature of the interview and interacted normally with the interviewer. [ Cain] c learly understood that it was in his best inter e s t s t o f

eig n ig norance of the crimes and that h e should minimiz e his contact with the v ictims.” Accor d i n g t o the court, there wa s “ n o deficit in [Cain’s] mental functioning observable from this evidence, which w a s fortuitously recorded very shortly after the murders.” The court observed that Cain ex hibited the same behavior during hi s p o l i ce interview.C A I N V

. C H A P P E L L 42

“[ T] he Eig hth a

nd F ourteenth Amendments to the Constitution f

orbid the ex ecution of p ersons with intellectual disability

. . . .” Hall v. Florida

, 134 S. Ct. 1986, 1990 (2014) (citation omitted). I n order to demo n s t r a t e that a defendant is intellectually

disabled “an I Q between 70 a nd 75 o r lower is ty pically considered the c utoff I Q score for the intellectual function prong .” Brumfield

, 135 S. Ct. at 2278 (citation a nd alteration omitted). The Supreme Court ha s articulated that “the medical community defines i n tellectual d isability according to three criteria: sig nific a n t ly subaverag e intellectual functioning , deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to chang ing circu m s tances), and onset of these deficits during the developmental period.” Hall

, 134 S. Ct. at 1994 (citatio n s omitted). The Supreme Court h as furthered concluded that “when a defendant’s I Q test score f a l l s within the test’s acknowledg ed and inherent marg in o f error, the defendant
must be able to present additional evidence o f intellectual disability

, including testimony r e g arding adaptive deficits.” Id. at 2001. O ur g eneral assessment of C a i n ’ s Atkins claim leads us to c onclude that Cain is not entitled to habeas relief. See Hall

, 134 S. Ct. a t 2001 (art i c ulating the standard for determining intellectual disability )

. 9

Ca i n ’s claim turns essentially on a battle of ex perts between Drs. B eliz and W einstein. The state court reviewed the e x pert testimony for both i n d etail, and g ave numerous

9 Cain co n ten d s th at th e Su p rem e Co u rt’ s recen t d ecisio n in Mo o re v. Texa s , 1 3 7 S

. Ct. 1 0 3 9 (2 0 1 7 ) s u g g ests th at h e is en titled to relief o n th is claim

. Ho w ev er, Mo o re is n o t an A EDP A case an d th u s d o es n ot ad d ress th e d if f icu lt b u rd en Cain b ears to p ro v e h is en titlem en t to relief u n der A EDP A s tan d ard s. Mo rev er, h av in g b een d ecid ed j u st th is sp rin g , Mo ore itself can n o t serv e as “ clearly

estab lish ed ” law at th e tim e th e state co u rt d ecid ed Cain ’ s claim

. S

ee Green e v. Fish er , 5 6 5 U.S. 3 4 , 4 4 (2 0 11 ).C A I N V

. C H A P P E L L 43

specific reasons to support its d etermination that Dr. B e liz

was more credible. At most, Cain’s arg ument s mig ht show that th e r e c o uld have been reasons to credit Dr. W e instein’s finding s. B ut this does not o vercome h is much more d ifficult burden under AEDPA to show that th e s t a t e court acted unreasonably in concluding that Dr. B eliz ’s report was more credible. See W

ood v. Allen

, 5 58 U.S

. 290, 301 ( 2 010); Jamerson v. Runnels , 713 F

. 3d 1218, 1224 (9th Cir. 2013).

4. Cum ulative Error

Cain a sserts that h e is e ntitled to habeas relief due to cumul at i v e error based o n a litany of trial errors a nd ineffective assistance o f c ounsel. H owever, Cain is not entitled to relief on a t h e ory of cumulative e rror because he

wa s n o t “denied

. . . a trial in accord with traditional a nd fundamental standards of due process.” Chambers v

. Mississippi , 410 U.S. 284, 302 (1973).

IV

. CONCLUSION

The California Supreme Court’s determination that Cain received adequate n ot i c e of the a ttempted rape special circumst an c e was not unreasonable. The amended information speci f

ically a lleg ed a special circumstance premised on Cal. Penal Co d e § 1 90.2(a)(17), which encompassed attempted rape. Ca i n ’ s c ounsel also

ac k n owledg ed that Cain received adequate notice of the special c ircumstance and that Cain was not prejudiced by the prosecution’s arg uments premised on attempted rape. Thus, Cain received constitutionally adequate notice o f the special circumstance. I n a

n y e v e n t, Cain does not challeng e the jury ’s verdict that he w as elig ible for the death penalty based

on the first

- d e gr ee murder of Mr. Galloway and theC A I N V

. C H A P P E L L 44

associated special circumstances that were entirely unrelated to attempted rape.

After e x panding the certificate of appealability to include previously uncertified claims, we c onclude that, upon f urther consideration, these claims lack merit.

AF F IRMED.